When a joke takes the form of a riddle that begins with a question ("How many…?"), you know that a particular nationality, group or profession is in for derision. Lawyer jokes are a typical example. Thank heavens you do not hear them as often as you did in the past. In the early 1990's, they were ubiquitous and iniquitous. Harvey Saferstein, the State Bar president at that time, tried to blunt the onslaught with an editorial condemning the jokes. It was a valiant but unsuccessful effort. Of course I was deeply concerned about the unjustified flood of tasteless jokes about the legal profession. Judges likely would be next. I sensed the waters lapping against the courthouse steps. Luckily the storm petered out, and the judiciary decided its cases relatively unscathed. After the U.S. Supreme Court decided Citizens United v. Federal Election Commission (2010) 558 U.S. 310, however, I expected to hear a joke along these lines: "How many Supreme Court justices does it take to weaken, if not destroy, our democracy?" But perhaps the radical nature of the decision left people too stunned to joke.
Today other professions are in for ridicule. It is de rigueur to bully viola players with offensive viola jokes. Take for instance: "How is lightning like a violist's fingers? Neither one strikes the same place twice." Or, "What is the difference between a viola and an onion? No one cries when you cut up a viola." Or, "What is the difference between a violist and a dog? A dog knows when to stop scratching." I am particularly offended by these jokes, because distinguished Los Angeles County Superior Court Judges Helen Bendix and Mary House are accomplished musicians, both of whom play the viola uncommonly well. They are members of the Los Angeles Lawyers Philharmonic. How unfortunate there is no Viola Players Association to which they could turn to defend their instrument of choice. If only Harvey Saferstein played the viola.
I raise this subject to illustrate that numerous lawyers and judges have demonstrated extraordinary talents in areas other than law. Retired Judge Aviva Bobb plays in the first violin section of the Lawyers Philharmonic. Administrative Law Judge Stuart Waxman plays percussion in the symphony and vibraphones with a trio that performs regularly in clubs. My colleague Justice Steven Perren is a fine singer and actor who has appeared in numerous theatrical productions and will be appearing this month in the Cabrillo Music Theatre production of "Kiss Me Kate" in Thousand Oaks. And extracurricula activities are not limited to the performing arts. Judge Anthony Mohr is a talented and successful short story writer. Retired Supreme Court Justice Armand Arabian has parachuted out of airplanes with members of the military in friendly foreign countries. Los Angeles County Superior Court Judge John Wiley sent me a photo montage of his perilous rock climbing expedition‑‑an endeavor almost as terrifying as deciding a summary judgment motion.
But getting back to the viola. A wonderful defense of the viola appears in an article by Helen Campbell in the summer 2013 edition of the classical music magazine Listen. Ms. Campbell describes the technical challenges facing violists. She explains how the viola fills an important "supportive" function in the orchestra, "which means they fill in or double the harmony" when required. What is particularly significant is that Ms. Campbell is not just a former professional violist, but, get this, "a former practicing attorney." I can't say, but perhaps the viola and lawyer jokes drove her out of those professions.
Listen also featured an article about the famous pianist from Texas, Van Cliburn, who won the piano prize at the International Tchaikovsky Competition in Moscow in 1958 when the "cold war" was at its hottest. Van Cliburn, who died in February of this year, hosted several piano competitions, one of which was an amateur competition held every four years in Fort Worth, Texas.
A friend of mine, Lori Miller, produced an excellent film, "They Came to Play," about the fifth amateur competition in 2007. The best performance of a post-Romantic work went to Mark Fuller, a litigation lawyer from Phoenix, Arizona. And one of the second-stage semifinalists in the 2002 competition was U.S. Administrative Law Judge, J. Michael Brounoff.
Lawyers and judges do extraordinary things and demonstrate a wide range of talents. But there are constraints. Most of you have read about New Jersey lawyer Vince Sicari, who sits part time as a municipal court judge. Not any more. The New Jersey Supreme Court in a 7-0 decision held that Sicari's comedy and judicial career were incompatible and that he could not serve as both a municipal court judge and a comedian. The court opined, among other things, that his comedic role as homophobic bar patron, for example, ran afoul of several Canons of the New Jersey Code of Judicial Conduct. Canon 5 requires a judge to conduct extra-judicial activities in a manner "so that they do not: cast reasonable doubt on the judge's capacity to act impartially as a judge; demean the judicial office; or interfere with the proper performance of judicial duties." Sicari made the either/or choice in favor of show business. You don't think writing a column...? Let's not go there. Forget I mentioned it.
Retired California Judge John Rafferty does stand-up comedy with an "I was a judge" theme. He relates amusing incidents in his courtroom over the past 25 years. He wears a robe for the act. Not sure if that is a good or bad thing. But no matter, because he can satirize with impunity. If someone doesn't like it, there is no bench off of which he can be kicked (or is it "which he can be kicked off"?).
So what do lawyers do who are not musically inclined, or are not cut out for repelling down cliffs or jumping out of airplanes? How about pro bono service? Professor Deborah L. Rhode points out in her article "Pro Bono in Principle and Practice," in the September 2003 edition of the Journal of Legal Education, that "[a] wide array of studies find[s] that regular volunteering is correlated with both physical and mental health. Compared with the population generally, people who regularly assist others … have longer lives, less pain, stress, and depression."
Case in point. John Sharer, retired senior partner with Gibson, Dunn & Crutcher, was a prominent civil law litigator who tried a variety of cases in courts throughout the country. He now teaches a litigation course at Pepperdine School of Law. He wrote an engrossing novel set in World War II, "Honor Knows No Borders." And he recently offered his pro bono legal services to win a new trial in a capital case in Alabama for a defendant convicted of first degree murder. It is obvious to me that John believes in his client's innocence. John does not display enthusiasm with abandon, but the inner satisfaction he feels from this significant victory shows.
This all serves to illustrate that although we are often defined by our professions, our lives, both professional and personal, can be significantly enriched when we pursue those other interests that arouse our passions.