Last week a good friend of mine, Gene Lees, passed away. He was one of the nation's great jazz critics and lyricists. His output was prodigious. He was a newspaper columnist, former editor of DownBeat Magazine, an author of numerous biographies that included Dizzy Gillespie, Woody Herman, Oscar Peterson and Johnny Mercer. He had just put the finishing touches on a biography of Artie Shaw shortly before his death. He also wrote novels, essays, articles, and a sui generis jazz newsletter filled with his reflections on music, philosophy, literature, history and whatever else he found interesting.
Gene could elucidate complex ideas with lucidity and clarity. Through example, he taught me that the course title “legal writing” is a misnomer. All writing, particularly expository writing, whether legal or otherwise, share much in common. One has to write for the reader, not for the egotistical writer. The writer's well-crafted piece engages and enlightens the reader. We lawyers and judges have a good deal to learn from Gene Lees.
An example of Gene's writing appeared in a touching obituary by Elaine Woo in the Los Angeles Times, on April 24, 2010: "In his piece 'Waiting for Dizzy,' [Gene] wrote [of Dizzy Gillespie]: 'There is a gesture he has, a motion, that always reminds me of a great batter leaning into a hit. He has a way of throwing one foot forward, putting his head down a bit as he silently runs the valves, and then the cheeks bloom out in the way that has mystified his dentist for years, and he hits into the solo. When that foot goes forward like that, you know that John Birks Gillespie is no longer clowning. Stand back.'"
I never believed all that much in destiny, but through a series of events beginning in my early childhood, I think I was destined to meet the redoubtable Gene Lees.
When I was a kid, I studied the piano on and off. My parents were hoping I would be a lawyer or a doctor not, God forbid, a musician. In a previous column I mentioned that we lived at Venice beach in the 1940’s. Gas was rationed because of the war. We were not important enough to have a C sticker on our 1941 Plymouth. You had to be someone important, like a doctor, or maybe a judge, to get a C sticker. Oddly enough, an A sticker meant our gas allotment was severely rationed because use of our car was "nonessential."
My parents were friends of a married couple, the Buhais, who, as I recall, were political activists, champions of social justice. I do not remember their first names. I was only five years old. Their young daughter Harriet, for whom the Harriet Buhai foundation is named, used to babysit me when my parents went out for the evening. They couldn’t have gone far with an A sticker. I wonder if at that time Harriet had any notion that she would become a heroic lawyer for the underprivileged and the disadvantaged. At that time my goal was to get through the day committing as much mischief as possible.
Two of the great swing bands of that era were Benny Goodman and Artie Shaw. Both bands were reputed to have appeared during the 40’s at the dance hall on Lick Pier, less than a mile from where we lived. As I grew older, I became more and more interested in jazz and listened, almost obsessively, to Goodman. But later, I came to realize the extraordinary musicianship of Shaw.
Harriet Buhai went on to her calling, and I toyed with the idea of going into music. But, as I became more mature (never reaching full maturity), I made a decision. To the relief of my parents, and the music world in general, I decided against a career in music. Instead, I went to law school where, in the practice of law, I wound up doing the same thing I would have been doing as a musician: improvising late at night.
I never dreamed I would become a judge. Do you think, maybe deep in my unconscious, the A gas ration made me strive for a judicial appointment?
At some time in my early judicial career I became friends with Ron Schoenberg, now a retired judge of the Los Angeles Superior Court. Ron’s father was renowned composer Arnold Schoenberg, a colossus who revolutionized music in the 20th century with the 12-tone system. When he left Austria in the 1930’s to escape Hitler, he settled in Pacific Palisades. Because he was a foreign national, U.S. laws prevented him from immediately receiving royalties for his compositions. Artie Shaw pledged his royalties to the government as security until Schoenberg could be cleared to receive the royalties due him. Ron and his brother Larry, now a retired math instructor, became friends with Shaw. Because of my interest in jazz, the Schoenbergs introduced me to Shaw and we became friends.
My "cousin" through marriage, the great jazz pianist and arranger Ray Sherman, sent me a gift subscription to Gene's "Jazz Letter," which contained an incisive three-part series about Artie Shaw. I e mailed Gene about my impressions of Shaw which he published. I then discovered Gene lived in Ojai, not far from the courthouse where I preside. Gene, his wife Janet, their friend, violin virtuoso Yue Deng, and I became friends and shared a warehouse of stories over a series of lunches.
Gene's views on journalistic writing are useful to lawyers and judges. I usually follow a self-imposed rule that if a sentence contains more than 25 words, it is probably too long. Gene told me he worked for a newspaper that had a similar rule with an eleven-word maximum. These rules at best are guidelines, and exceptions often predominate. But they keep us mindful of the virtue of simplicity and of making the piece an organic whole that cannot be cut.
When Gene was a columnist on the arts for the Louisville Times, he wrote his pieces so they could not be cut from the end, a common practice in newspapers. He went the further step in crafting pieces that could not be cut at all. Good advice to lawyers writing motions and briefs, which should be brief. Gene praised writer Jack Woodford who styled himself a "hack." Maybe so, but Gene said he learned from Woodford that whether you are writing fiction or nonfiction, you should think of a "chain" structure to the narrative. "By the end of the first chapter you must pose a question that the reader wants answered. In the next chapter you satisfy that desire but not before setting up another question and so on." Of course we do not write novels…. I take that back. It seems as if every other lawyer and judge here and there is working on a novel. Heaven help us.
But what judges and lawyers must keep in mind is Gene's dictum that we have little space in which to capture the reader's interest. In a short story, or a trial or appellate brief, some say the writer must capture the reader's interest in the first paragraph. Gene said, "The hell with that. You've got one line." He recalled his favorite opening lines. Melville's "Call me Ishmael," and Rafael Sabatini's "He was born with a gift of laughter and a sense that the world was mad." Gene wrote a short story he sold to a major magazine that began with this line: "There were those who thought he was mostly a son of a bitch, but I thought he was all son of a bitch."
These opening lines surely capture the reader's interest. But I advise appellate lawyers in their briefs not to use Gene's opening line to describe the trial judge. We are not writing fiction, though some briefs I have read unfortunately fall in that category. But in relating the facts of a case, we could do well following Gene's example.
I close with a goodbye to my friend. I will miss hearing his wonderful stories over lunch, but he will always be in touch through the enduring works he leaves behind.