Hon. Michael L. Stern LOS ANGELES SUPERIOR COURT July 2017 Issue
Mark Twain tickles the legal funny bone THE LEGENDARY AUTHOR AND HUMORIST SATIRIZED THE LAW TO PROMOTE HIS IDEAL OF JUSTICE Practically everyone is familiar with to produce some of the most witty lawyer One of Twain’s characters in Life on the Tom Sawyer, Huckleberry Finn and Mark humor ever conceived. But this jesting Mississippi remarked, “My father was a Twain’s other fictional characters who critic of the legal system had purposes: justice of the peace, and I supposed he redefined American literature through promoting higher moral standards for possessed the power of life and death their exploits on the Mississippi River a civil society, advancing fairer justice and over all men and could hang anybody 2 century and a half ago. Less well-remem - fostering better lawyering. that offended him.” 2 bered today are the many humorous sto - Judge Clemens aspired to elevate his ries and remarks crafted by Twain that Son of a judge lowly judicial position to County Circuit lampooned lawyers, judges and the legal Mark Twain began life as Samuel Court Clerk, but caught pneumonia on process. The author used satire and sar - Clemens, the son of Judge John Marshall a stormy night while campaigning casm in his tales to advocate that legal Clemens (named after the great Supreme for office and died suddenly in 1847. 33 systems are a means to achieve justice Court Chief Justice). His Honor was a His eleven-year-old son Samuel stood and enforce moral standards in civil minor magistrate in bucolic Hannibal, over his father’s casket and promised his society. Missouri, who had trouble making financial mother that he would be faithful and With a keen insight into human ends meet. Perhaps it was his father’s industrious if she allowed him to drop nature, Mark Twain enjoyed poking fun example of barely scratching out a living out of school. She agreed and he went 1 at courts and lawyers. His writings as a “sometime lawyer and judge” 1 that to work as a printer’s apprentice at his exploited the foibles of the legal system convinced Sam to avoid a legal career. Stern, Next Page
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older brother Orion’s newspaper, where The always adventurous younger broth - property removed and complained. he learned about journalism and writ - er decided to join him out west. Eager to please, the prosecuting attorney 4 ing. 4 As a member of the bar, Orion was took on the case without inspecting the no more immune from criticism by his scene or checking the facts. He filed a Studying law ain’t for me sibling than any other attorney. Not lawsuit to right the grievous wrong and Notwithstanding the awe that he impressed with Orion’s ascension to the presented the case in court. Rising to held for his father the judge, lawyering bar, Twain said that the hapless Orion deliver his closing argument: would not be in the cards for Samuel was always “waiting for clients who never [He] pounded on the table, he 11 Clemens. His later writings about his lack came.” 11 Characteristic of his lifelong low banged the law books, he shouted, of a disposition to be a lawyer underscore esteem for attorneys, he commented: “I and roared, and howled, he quoted his doubts about how the profession ben - laid one of the plainest and simplest of from everything and everybody, efits society in general. In an 1861 letter legal questions before Orion once, and poetry, sarcasm, statistics, history, to his mother and sister, he said, “I never the helpless and hopeless mess he made pathos, bathos, blasphemy, and 12 intend to be a lawyer. I have been a slave of it was absolutely astonishing.” 12 Nor wound up with a grand war whoop several times in my life, but I’ll never be was he impressed with Orion’s powers of for free speech, freedom of the 5 one again.” 5 He claims to have given the persuasion and legal reasoning: “He press, free schools, the Glorious Bird law a try, but “I had studied law an entire would examine both sides of a case so of America, and the principles 18 week, and then given it up because it was diligently and so conscientiously that of eternal justice! [Applause]” 18 6 so prosy and tiresome.” 6 He removed all when he got through with his arguments Only a Mark Twain could capture doubt about his disdain for a legal career neither he nor a jury would know which the farcical hilarity of this summation by 13 in another letter to his mother: “Tell side he was on.” 13 this buffoon of an attorney ranting about aunt Mary that I am sorry she thought Clemens fell back on journalism a phony claim. It was a ridiculous concoc - I intended to study law, because . . . after an attempt at prospecting in tion, but it sold newspapers and widened 7 14 I do not love the law.” 7 Nevada did not pan out. 14 He chose the Twain’s reputation. He advised his read - immortal nom de plume Mark Twain from ers that this pompous fool of an advocate Samuel Clemens becomes “Mark his riverboat days and began writing for was to learn some two months later that Twain” the Virginia City Enterprise . During his the whole thing had been a hoax. Young Sam worked at various jobs brief Nevada sojourn, he began writing a He related to his territorial readers until he turned twenty-one, when he steady stream of biting zingers about that “Ranches in Nevada are very scat - decided to try his hand as a coca hunter the law and the legal profession that tered – a scattering, perhaps, as lawyers 15 19 in the Amazon. On his way to South continued until his death in 1910. 15 in heaven.” 19 Doubling-down on this America, he stopped in New Orleans and But there were not that many news - assessment, he wrote: “Carson City, the got the notion that he could become a worthy events in the territory. So, among capital of Nevada, had a wild harum- riverboat pilot. He borrowed some other things, the inventive writer pointed scarum population of editors, thieves, 20 money to sign aboard as an apprentice his creative pen at the world of lawyers lawyers, in fact all kinds of blacklegs.” 20 cub pilot and began plying the muddy and the law. In Roughing It , he said, “In Little wonder that Twain hightailed it out waters of the Mississippi, where safe Nevada, for a time, the lawyer, the editor, of town in 1863 with particular haste water passage on the river was marked at the banker, the chief desperado, the chief after facing possible felony charges for 21 a depth of two fathoms with the cry gambler, and the saloon-keeper, occupied having issued a challenge to a duel. 21 8 “Mark Twain.” 8 In New Orleans, he visit - the same level in society, and it was the 16 ed an astrologer who foretold to him, highest.” 16 Surveying the crop of lawyers, Crime reporter on the bawdy “You should have been a lawyer – there is it was his opinion, “If we had as many Barbary Coast where your talents lie . . . try the law – preachers as lawyers, you would find it Twain continued his budding career 9 you will certainly succeed.” 9 Fortunately mixed as to which occupation could as a journalist in rough and tumble early 17 for posterity, he did not take this advice. muster the most rascals.” 17 San Francisco. As a novice reporter on Samuel Clemens’s footloose life as One fictional tall tale contrived for the prowl for stories, he built a reputa - a cub pilot took a new turn when the publication by Twain was about a practi - tion for insightful reporting of court pro - Civil War broke out in 1861, and he cal joke played on a pretentious Eastern ceedings, police calls and nefarious deeds joined the Confederate Army. His mili - lawyer who came out to serve as the committed in the sordid back alleys of 22 tary stint lasted only two weeks. He territorial Untied States Attorney. In the “City That Knows How.” 22 resigned due to being “incapacitated order to give the greenhorn dude some - No writer has better captured the by fatigue through persistent retreat - thing to do, the locals fabricated a story flavor of gritty justice in the cesspool of 10 ing.” 10 In that year, his brother Orion, about how one man’s land had slid down - San Francisco’s early criminal courts than now an attorney, was appointed as hill and stacked on top of the tract of his Twain: Secretary of the Nevada Territory. neighbor. He wanted the trespassing Stern, Next Page
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“You cannot imagine what a horrible ultimately vindicated. The real culprit is money to fight with, and the ghost of an hole that Police Court is. The identified through the honest actions of excuse, and they would manage to post - cholera itself couldn’t stand it there . . . the trial judge, a dogged defense attorney pone anything in the world, unless it it has but one window, and and Tom Sawyer serving as a surprise wit - might be the millennium or something 31 now that is blocked up . . . there is ness who reluctantly comes forth to tell like that.” 31 not a solitary air-hole as big as the true facts in court at the trial about Annoyed by such attorney shenani - your nostril about the whole place . . . what he saw at midnight at the graveyard gans, Twain observes, “The lawyers’ opin - down two sides of the room, site of the murder. As a reward for his ions do not disturb me, because I know drunken filthy loafers, thieves, prosti - honesty, the trial judge commends Tom that those same gentlemen could make as tutes, chicken-stealers, witnesses, and hopes “to see Tom a great lawyer or able an argument in favor of Judas 32 and slimy guttersnipes who come great solider someday . . . trained in the Iscariot.” 32 His sardonic take on a New 26 to see, and belch and issue deadly best law school in the country.” 26 In Tom York law firm that opposed him in litiga - smells, are banked and packed, four Sawyer , Twain portrays the legal system at tion was that it “had a great and lucrative ranks deep – a solid mass of its finest hour: moral righteousness is business and not enough conscience to 33 rotting, steaming corruption. In the achieved when courts are properly admin - damage it.” 33 center of the room are [the attorneys istered and the legal process gets it right who] would do for a censor to swing by unmasking the truth. before the high alter of hell . . . In contrast, where Twain’s courts are Twain vs. the jury system and not a single crack or crevice in run by corrupt or incompetent judges or Twain did not care much for our jury the walls to let in one poor breadth incapable attorneys, the ideal of justice system. He believed that lawyers too of God’s pure air! . . . [The] Judge will fails. In Tom Sawyer, Detective , a falsely often manipulate jurors for their own 23 die shortly if this thing goes on.” 23 charged innocent man is represented by personal advantage, not for the public Such colorful reporting gained a bumbling defense attorney assisted by good in the search for the truth. Twain the recognition that catapulted Tom Sawyer. Huck Finn describes the Throughout his life, he railed against him into the national limelight as an ineffectual lawyer as “a mud-turtle of a inequities of a process in which twelve insightful social commentator. In a part - back-settlement lawyer [who] didn’t know randomly selected jurors, then all white ing shot at the quality of justice in the enough to come in when it rains, as the males, are summoned to make life and 27 Golden State after leaving San Francisco saying is.” 27 The hapless defense lawyer death decisions. in 1865, he later reflected, “California cannot cross-examine his way out of a In his typical tongue-in-cheek man - had a population that ‘inflicted’ justice bound appellate brief: “he tackled the ner, Twain stated, “Trial by jury is the after a fashion that was simplicity and witness, but it didn’t amount to nothing; palladium of our liberties. I do not know 24 primitiveness itself.” 24 and he made a mess of it . . . The lawyer what a “palladium” is, having never seen a “palladium,” but it is a good thing no for the prostitution (sic) looked very 34 A love-hate relationship with lawyers comfortable, but the judge looked dis - doubt at any rate.” 34 He pronounced that 28 Mark Twain had a love-hate rela - gusted.” 28 This mockery of justice gets no trial juries were “the most ingenious and infallible agency for defeating justice that tionship with the legal profession that better when the incapable judge resorts 35 he developed over a lifetime from to “pulling his bowie [knife] and laying it human wisdom could contrive.” 35 An watching his father and brother, study - on his pulpit” and is “so astonished and avowed elitist, he commented that the ing attorneys at close hand, researching mixed up he didn’t know what he was law “compels us to swear in juries com - 29 law for his stories and retaining counsel about hardly.” 29 An innocent man is con - posed of fools and rascals because the in numerous lawsuits about his copy - victed. It was a mighty sad day for justice system rigidly excludes honest men and 25 36 rights. 25 He urged that good judges and in this fictional court. men of brains.” 36 lawyers can advance just results and Twain delights in cynically describing Stressing his opinion how poorly that the corrupt or inefficient ones the many ways lawyers can impede the constituted juries can get it wrong, defeat society’s interest in maintaining search for ideal justice. In The Gilded Age , he provided readers with a fictional order. Always aiming to bring truth to a damsel in distress criminal defendant is account how a jury miscarried justice light, he liberally wielded his quill to assured by counsel, “We’ll do everything for by rendering a not guilty verdict in a promote laws and practices that empha - you. You couldn’t have meant [to commit slam-dunk case against a plainly guilty sized moral duties and justice. murder], it must have been insanity, you defendant: A trial vignette in The Adventures of know, or something of that sort. We’ll get It was a jury composed of two des - Tom Sawyer presents a good vs. evil sce - you off – the best counsel, the lawyers in peradoes, two low beer-house politi - 30 nario often repeated in Twain’s writings. New York can do anything!” 30 Of course, cians, three barkeepers, two ranchmen The town drunk Muff Potter is charged the defense attorney’s strategy is delay, who could not read, and three dull, with a graveyard murder that he did delay and delay: “Bless my life, what stupid, human donkeys. . . . What else not commit. He is placed on trial and lawyers they have in New York! Give them Stern, Next Page
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could one expect? The jury system puts “Why could not the jury law be so altered day judicial system. But Twain probably a ban upon intelligence and honesty, as to give men of brains and honesty an could find much to parody. If he were and a premium upon ignorance, equal chance with fools and miscreants?” 39 with us, he would be still satirizing stupidity and perjury.” 37 37 It is little wonder that he wryly concluded lawyers and judges as a means to pro - If it had been up to law reformer that “The humorist who invented trial by mote the moral and ethical principles Twain, he would have swept away the jury jury played a colossal practical joke on on which law is grounded. 39 system: “It is a shame that we must con - the world.” 40 tinue to use a worthless system because Judge Michael L. Stern has presided over it was good a thousand years ago . . . I Towards a more perfect legal system civil trial courts since his appointment to the desire to tamper with the jury law. I wish We have come a long way in improv - Los Angeles Superior Court in 2001. to so alter it as to put a premium on ing the justice system and raising attor - He is a frequent speaker on trial practice mat - intelligence and character, and close the ney standards since Mark Twain’s day. ters. As an attorney, he tried cases throughout jury box against idiots, blacklegs, and Given the many changes to court proce - the United States. He is a graduate of people who do not read newspapers.” 38 38 dures and better oversight of attorneys, Stanford University and Harvard Law Emphasizing this view, he asked, he might hardly recognize the present- School.
12 Letter by Mark Twain in 1874, quoted in THE SELECTED 26 MARK TWAIN, TOM SAWYER 251 (1876). Endnotes: LETTERS OF MARK TWAIN 85 (Charles Neider ed. 1982). 27 MARK TWAIN, TOM SAWYER, DETECTIVE 159 (1896). 13 MARK TWAIN, THE AUTOBIOGRAPHY OF MARK TWAIN 28 1 Id . at 162. MARK TWAIN, A COLLECTION OF CRITICAL ESSAYS 2 (Eric 107 (Charles Neider ed. 1959). [TWAIN AUTOBIOGRAPHY]. J. Sundquist, ed. 1994). 29 Id . at 163, 168, 14 PAINE, supra note 4, at 193-204. 2 MARK TWAIN, LIFE ON THE MISSISSIPPI 65-66 (1883). 30 MARK TWAIN & CHARLES DUDLEY WARNER, THE GILDED 15 PAINE, supra note 4, at 201-07. 3 MARK TWAIN, MARK TWAIN’S AUTOBIOGRAPHY 274-75 AGE: A TALE OF TODAY 329 (1896). [GUILDED AGE]. 16 ROUGHING IT, supra note 6, at II, 53 . (1924). 31 Id. at 359-60. 17 4 Letter by Mark Twain to Territorial Enterprise , February 6, ALBERT BIGELOW PAINE, MARK TWAIN: A BIOGRAPHY 74- 32 Letter by Mark Twain to the New York Tribune in 1874, in 1863, in MARK TWAIN OF THE ENTERPRISE 57 (Henry Nash 75 (1924). [PAINE]. MARK TWAIN: COLLECTED TALES, SKETCHES, SPEECHES, Smith, ed. 1957). 5 & ESSAYS 1852-1890 549 (Louis Budd ed., 1992), in Letter by Mark Twain to his mother, Jane Lampton Clemens, 18 and sister, Pamela A. Moffett, October 25, 1861, in MARK ROUGHING IT, supra note 6, at I, 238. BRESLER, supra note 5, at 91 TWAIN’S LETTERS 129, 132 (Edgar Marquess Branch et al. 19 “Washoe – ‘Information Wanted,’” reported by Mark Twain 33 TWAIN AUTOBIOGRAPHY, supra note 13, at 235. eds. 1987, in MARK TWAIN VS. LAWYERS, LAWMAKERS in May 1864 in the Territorial Enterprise , in BRESLER, supra 34 ROUGHING IT, supra note 6, at II, 58. (note: a “palladium” is AND LAWBREAKERS: HUMOROUS OBSERVATIONS 89 note 5, at 89 anything believed to provide protection or safety). (Kenneth Bresler ed. 2014). [BRESLER]. 20 MARK TWAIN, “Roughing It Lecture, in MARK TWAIN 35 6 Id. at II, 55-56. MARK TWAIN, ROUGHING IT II, 1 (1872). [ROUGHING IT]. SPEAKING 48 (Paul Fatout ed. 1976). 36 7 Id. at II, 56. Letter by Mark Twain to his mother Jane Lampton Clemens, 21 PAINE, supra at note 4, at 249-52. October 26, 1861, quoted in BRESLER, supra note 5, at 89. 37 Id. at II, 57. 22 Id. at 253-56. 8 PAINE, supra note 4, at 221-22. 38 Id. at II, 58. 23 “The Black Hole of San Francisco” reported by Mark Twain 9 D.M. McKEITHAN, COURT TRIALS IN MARK TWAIN AND on December 29, 1865 in the Territorial Enterprise , in MARK 39 Id. OTHER ESSAYS 3 (1958). TWAIN’S SAN FRANCISCO 173 (Bernard Taper, ed. 1963). 40 Letter by Mark Twain to The New York Tribune , March 10, 10 PAINE, supra note 4, at 163-69. 24 ROUGHING IT, supra note 6, at II, 75. 1875, quoted in BRESLER, supra note 5, at 95. 11 JOHN LAUBER, THE INVENTIONS OF MARK TWAIN 130 25 See, e.g. , Clemens v. Belford, Clark & Co. , (C.C.N.D. Ill. (1990). 1883).