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Home , A Night in Casablanca, Chico Marx, Erin Fleming, Freedonia, Groucho Marx, Harpo Marx

Gregory W. Alarcon SUPERIOR COURT July 2019 Issue

Groucho can make you a better lawyer GROUCHO DID SOMETHING WE SHOULD ALL HOPE TO DO: BE BRILLIANT AND STAY RELEVANT

In my room, growing up, was a has had a personal has been practicing law for 20 or 30 poster of the Marx Brothers. They would impact in my life three times. The first years, has only tried one or two jury become silent mentors to me, teaching was through my adolescence – watching trials. Many mistakes made by counsel me through their films and writings, to the films – and seeing his glorious sneer would never have been made had that communicate better, to entertain, and to from the poster of the Marx Brothers in lawyer gone through the necessary make an impact. There was Harpo, with my room, which influenced my thinking, preparation from years of training his clownish wig, his harp, his huge eyes, my attitude, and my approach to life. before persuasively arguing a case in his gift of mime, and his bits of wisdom The second was when I took a class front of a jury. which made surrealist Salvador Dali a on filmmaking immediately before law fan. There was Chico, with his mock school from Nat Perrin (1905 -1998) a Surround yourself with people foreign accent, forever sporting non- screenwriter and producer who began as smarter than you sequiturs which later became a model for a lawyer but switched careers when he Contrary to trying to be the smartest future clueless characters with a secret became one of the writers of the Marx person in the room, Groucho Marx sur- agenda. There was Zeppo, the straight Brothers’ most critically acclaimed film, rounded himself with people smarter man, who left the brothers early on to “Duck Soup” (1933). than him including George S. Kaufman, work on the business end of . Finally, as a deputy district attorney T.S. Elliot, S.J. Perelman, , But the strongest memory and influence assigned to the courtroom of the late Frederico Fellini, and many others. They was Groucho. Whether it was the painted Judge Jacqueline Weisberg, I observed provided him with knowledge, encour- mustache, the slouching walk, or the the post-trial hearings of a lawsuit involv- aged him to become an author, and kept rapid-fire repartee, it was Groucho who ing the estate of Groucho Marx involving his humor sharp. Lawyers have many I remember most. the personal secretary/confidant of organizations such as the Inns of Court, Groucho Marx should be an inspira- Groucho Marx, , who was the County Bar, ABOTA, among many tion for any lawyer because of his films, successfully sued for taking assets from others, where they can learn from those his long running television show “You the Groucho Marx estate. who are more knowledgeable to become Bet Your Life” (1950-1961), and his non- A lawyer can benefit by having more educated about the legal landscape conformist spirit. Groucho Marx did Groucho Marx silently trail you in court, and its challenges. something that we should all hope to analyzing your arguments, giving you a do: be brilliant and stay relevant. If you viewpoint, helping you connect with Find a mentor watched early Marx Brothers films – the jury and having at your disposal his In Hollywood, the Marx Brothers Cocoanuts (1929) Animal Crackers (1930), pithy lines. had one mentor willing to take a chance Monkey Business (1931), Groucho Marx captured a madcap on their chaotic brand of humor, Irving (1932) Duck Soup (1933), A Night at the freshness that can be persuasive, instruc- Thalberg. At 26, he became the head of Opera (1935), or A Day at the Races (1937), tive, and, in a comic manner, be instantly production at Metro-Goldywn Mayer. you would be struck by the lightning accessible to the jurors, to persuade them After Thalberg died at age 37, the Marx speed of the comic dialogue, the to a lawyer’s point of view. Brothers then had Louis B. Mayer take sparkling wit, and a brilliant word First, I talk about how Groucho his place. Mayer never saw the potential that even awed comic film genius Marx’s career can be a model any lawyer greatness in the team, so their films fal- . can learn from. Then, I offer quotes from tered, causing them to leave the studio Groucho Marx’s words still have rele- Groucho Marx and his films that are with their greatest films behind them. vance today. His words were recently instructive and can humorously make While surrounding yourself with people quoted in the Marriage Equality Act law- a point. smarter than you is important, having suit in Perry v. Brown (9th Cir. 2012) 671 Success doesn’t happen overnight one person focused on your career can F. 3d 1052, 1078. The late have a lasting significance. Circuit Judge Stephen Reinhardt quoted The Marx Brothers were hardly an Groucho Marx’s pithy comment overnight success. For over two decades, The Marx Brothers tested their “Marriage is a wonderful institution … they worked in first as singers, material before it was committed to but who would want to live in an institu- and then as , before they ever film – Lawyers should do this too. got near a Hollywood sound stage. tion?” In a sly manner, the Ninth Circuit Generally, we think of films being Lawyers can learn from Groucho Judge added a measure of lightness and pitched, written, shot, marketed, and Marx that professional competence hap- an alternative way of looking at mar- then released all without an audience. riage, from Groucho Marx, the master pens after years of experience. So often, of observational humor. I discover that a lawyer in my court who See Alarcon, Next Page Judge Gregory W. Alarcon, continued

July 2019 Issue

By contrast, the Marx Brothers would take offense” with a well-placed letter that was could show a jury how they shouldn’t be proposed scenes from their upcoming film likely intentionally leaked to the public. swayed by positions that are rigid and fail and perform them live on stage. Before a The letter poked fun at the threat of a law- to consider the entire case. foot of film was shot, they would know suit, the idea that the city of By contrast, to give an example of what jokes worked, where to pause for a belonged to Warner Brothers and suggest- Groucho Marx’s individualism, in Annie laugh, and when to condense the material. ed the public would hardly mistake Ingrid Hall (1977), begins the film Lawyers can do just what the Marx Bergman for . Finally, he con- with a quote from Groucho Marx. When Brothers did with the same positive cluded that Warner Brothers should not be he was offered a membership at a coun- results. While lawyers can use costly mock to blame for considering a lawsuit, but try club, he turned it down, saying, “I juries to critique previews of opening rather the lawyers, which he described as would never want to belong to any club statements, closing arguments, and a con- “some ferret- faced shyster serving an that would have me as a member.” This densed version of the trial, more modest apprenticeship in their legal department. quote gives us a broader view of Groucho versions of this previewing process can I know the type – hot out of law school, Marx as an iconoclast who sticks up for also be done. Performing portions of your hungry for success and too ambitious to his beliefs and is not afraid to battle the case to colleagues and even to family or follow the natural laws of promotion…” status quo, just like an exceptional lawyer. friends, and listening with a thick skin to Whether Warner Brothers was simply Lawyers are often placed in a posi- evaluations, can greatly improve your doing due diligence as to the plot and tion where they have to stand up against work before it is presented to a jury. character similarities of A Night in some wrong caused by the opposing side. Often, I have a lawyer tell me they Casablanca and their classic film, Warner Whether it is an individual, a corpora- wrote their closing argument the night Brothers pursued no legal action. The tion, or a government entity, often a before, that no one has ever heard, but lesson from Groucho Marx’s letter is lawyer must walk up to the podium and they proceeded with the argument. This that humor can sometimes help resolve speak on a position that may be unpopu- practice deprives counsel on several a problem before it occurs, particularly lar. If you watch any film by the Marx fronts. First, a closing argument should be when humor is mixed with logic and Brothers, you will see this moment written before jury selection. Second, not commonsense. and, in standing up to his adversaries, showing an argument – or opening state- Generally, I see more success with Groucho Marx is a striking mentor. ment to others before it is presented – this approach when lawyers deal with robs counsel of honest evaluation, before each other face to face rather than Beware of opening the door and the relative permanence of a jury verdict. through the netherworld of texts, emails, know the probable answer of a Take advantage of your colleagues and and letters. But Groucho Marx’s gift for a question before it is asked ask them to tell you the truth about well-crafted letter is one we can all learn what you have planned for your case, from. In closing argument, against There is a scene in the film before it is too late. humor and sometimes pushing toward (1947), where Groucho Marx In his films, Groucho Marx was gentle exaggeration can often make flirts with an attractive woman who always willing to attack convention – points better than a traditional argu- rejects him because she would rather be much like a lawyer – arguing against a ment. with another man. Exasperated, Groucho decision, a statute, or conventional wis- I have given you reasons from the asks “Let me ask you something. What’s dom. A lawyer has the talent to see life and career of Groucho Marx. Now he got that I haven’t got?” She quickly through the superficial and look more I would like to give quotes and examples replies, “He’s young, he’s handsome, he’s deeply into the case, how the law applies that can inspire you or even to consider strong …,” to which Groucho cuts her off to the facts, and sense what is important borrowing to make you a more effective with “Stop it, I withdraw the question!” to a jury. lawyer. Most lawyers know the problem of “opening the door.” Generally, lawyers Humor can resolve a potential lawsuit Groucho Marx pokes fun at dracon- are careful to instruct their witnesses not ian rules and encourages individuality to bring up something harmful that Sometimes humor can dispel a legal counsel worked so hard, in a successfully problem. In (1946), In Duck Soup (1933), a critical granted motion in limine, to keep out. which began as a spoof of the Warner favorite with antiwar messages, Groucho The problem seems more apparent when Brother’s classic wartime romance Marx plays a ruler who is incompetent in the rush of questions on cross-exami- Casablanca (1942) Warner Brothers investi- and inflexible. He sings a song, which nation, a lawyer will ask a question that gated the similarities of their film to the contains the refrain: “Whatever it is. I’m opens the door to harmful questions. film being made. Groucho Marx learned against it.” That line could easily be Rehearsing questions and sticking closely they were gathering information. Rather quoted to poke holes in an argument in to the script is a helpful way of avoiding than wait for a lawsuit, Groucho Marx used court that refuses to consider all the facts a question with an answer you don’t want. the classic “the best defense is a good and defenses. This line of argument See Alarcon, Next Page Judge Gregory W. Alarcon, continued

July 2019 Issue

Don’t be afraid to state the obvious – temptation to “gild the lily” by adding to conclusions were wrong, and everything if it is true a position that often has the opposite being requested to the jury contradicts effect by showing a lawyer’s insecurity in the facts. While most lawyers follow this A courtroom scene in Duck Soup his or her own position. Groucho said it formula in court in challenging the other echoes a phrase used frequently in clos- best: “Years ago, I tried to top everybody. side, having Groucho Marx put it togeth- ing arguments. You will hear many I don’t anymore. I realized it was killing er in such an easy to understand form lawyers give an unwitting nod to the conversation. When you’re always trying can make counsel’s message even Marx Brothers when they tell the jury for a topper, you aren’t really listening. It stronger. they should not believe the evidence ruins conversation.” In court, lawyers even though it has been properly pre- should listen to the other side and con- How to attack a witness who changes sented and reliable. In most courts, a sider what is important to bring up, to his or her story – Groucho style lawyer will argue to the jury “if it walks not repeat information already brought Groucho Marx was a master at mak- like a duck and talks like a duck, then it out in court, and to not insult the jurors ing himself the butt of jokes and he probably is a duck.” This makes the by mindless repetition. would often paint himself as greedy, point, but it pales next to Groucho Marx stingy, or even a pathological liar. By put- referring to on the witness How to convince a jury the importance ting himself at the center of the joke, his stand stating, “He may look like an idiot of their role – Groucho style messages are stronger than if he were and talk like an idiot but believe me – he A standard voir dire question in civil simply attacking someone else. An exam- is an idiot!” Unmasking an argument of trials is: “Do you have a belief that this ple of this is: “Those are my principles, opposing counsel and presenting the case should be tried by a judge rather and if you don’t like them ... well I have obvious is sometimes just what the jury than a jury?” Many jurors in my court others.” Again, through humor, a jury needs to convince them. have said that a judge would always be can understand how to analyze a wit- There is another example from Duck better to handle a complicated civil case ness’s credibility and their changed Soup where a person is asked to ignore than a jury. I have heard many lawyers testimony. the obvious. Groucho Marx is seen in a give responses to a jury but none better On credibility, Groucho Marx looked woman’s bedroom. Later, Chico Marx, than Groucho Marx. Talking about mar- at people’s claims with scrutiny. For dressed as Groucho Marx, emerges from riage, and he was married three times, example, he said, “The secret of life is under the bed. The woman insists that she said “I got married by a judge. I should honesty and fair dealings. If you can fake just saw him, but Chico denies it by saying have asked for a jury.” While this might that – you’ve got it made.” I cannot think “Who are you going to believe? Me or your get a quick laugh, it is a great point of of a stronger quote to show how many own eyes?” A variation of this quote was departure for an examination of the people can say whatever they believe will employed by Daniel Petrocelli in the civil jurors why it is important to get different work. Also, Groucho believed that peo- trial for wrongful death in the O.J. points of view from people with a variety ple’s actions were stronger than their Simpson case in 1997 when he rejected of life experiences, not saddled with a words. For example, he pungently stated, Simpson’s statements in court with the perceived professional bias, and view a “[T]here’s one way to find out if a man is line, “Who you going to believe, me or case with fresh eyes. If this quote is given honest – ask him. If he says, ‘Yes,’ you your lying eyes?” As humorous as this during voir dire, the message of it will know he is a crook.” Funny line, yes, but quote is, it effectively restores power in resonate with jurors long after the laugh- to a jury the words could have a great each juror to judge the case for herself or ter has stopped. impact. himself, and to trust their own intelligence. How to dismantle a seemingly airtight How Groucho (and lawyers) can learn Even Groucho did not always have to case – Groucho style from their mistakes and others’ mistakes have the last word – neither do By analogy to Groucho Marx’s quote Looking back on his life, Groucho lawyers about politics, a lawyer can effectively Marx reflected, that one should: “Learn Groucho Marx didn’t always have to take an open-and-shut case and show it from the mistakes of others, you can top someone else with one last comment. to be subject to a closer look. His critique never live long enough to make them all The temptation to have the last word of politics was “Politics is the art of look- yourself.” Every mistake is a learning infects comedians and lawyers all too ing for trouble, finding it everywhere, experience. Every reversal is filled with often. I am amazed how often redirect diagnosing it incorrectly and supplying helpful lessons. I am always impressed examination doesn’t clarify or correct the wrong remedies.” This quote can be when lawyers from an upcoming case will anything brought out in cross-examina- taken apart to make the argument that sit in my court and watch the current tion – it simply repeats in a condensed the other side’s motivation was question- trial I am presiding over. Reading form what already came out clearly in able, the methods used to investigate advance sheets, watching lawyers in direct examination. There is always a were indiscriminately done, that the See Alarcon, Next Page Judge Gregory W. Alarcon, continued

July 2019 Issue

court, and reading verdicts and settle- explain it to a barmaid, you don’t States Attorney for the Central District of ments from the Daily Journal can teach understand it yourself.” This quote . Judge Alarcon received a J.D. lessons that others have gone through places the burden on the speaker to from Loyola Law School in 1981 and a B.A. that you can learn to avoid. explain a fact or principle and takes from UCLA. For the past 28 years, he has away any burden from the receiver, been an adjunct professor at Pepperdine How Groucho explains legal documents the jury. University School of Law teaching trial prac- tice and related subjects. He is also active in In Duck Soup, Groucho, as the Conclusion incompetent head of the country training and educating new judges and teach- , looks at a treasury depart- In the end of (1979), ing ethics to all judges throughout the state. ment’s report and one of his subjects Woody Allen’s masterpiece, he dictates He is a frequent lecturer on various topics says, “I hope you find it clear.” To which into a tape recorder what is in his life on trial issues including subjects such as he responds, “Clear? Why a four-year- that makes it worth living. He hesitates at “Lessons from Landmark Trials,” “Judicial old child could understand this report.” first, but then states the first thing that Personalities,” “Creative Solutions for Keeping To another of his aides, he commands: makes life for him worthwhile: Groucho and Motivating Jurors,” “Coping With “Run out and find me a four-year-old Marx. I would urge you all to discover or Judicial and Lawyer Stress,” “Civility in child. I can’t make heads or tails of it.” rediscover the films, words, and writings Court,” “Hamlet for Lawyers,” “Ideal So often in court, a lawyer will say the of Groucho Marx and considering using Mentors for the Courtroom” and many others. case is simple and then spend a great them in court and take his individual He has written numerous articles on legal deal of court time trying to explain it. It spirit as a goal for each of us. After some issues for lawyers and judges. In 2013, Judge isn’t simple, certainly not for the jury. I practice, I trust you will find he is an Alarcon was given the 2013 Constitutional believe that, with the proper explana- ideal mentor. Right’s Foundation “Judge of the Year” award tion and a great deal of thought, every- and a Judicial Excellence award from the thing can be made understandable to Judge Gregory W. Alarcon has been a Mexican American Bar Association. He has the jury. There is an old quote, which judge for over 25 years. Before that, he was a co-written a C.E.B. Action Guide instructing my father always referenced, generally deputy attorney general for the State of lawyers how to present evidence at trial. but not necessarily accurately attributed California, a deputy district attorney for Los to Albert Einstein, that “if you can’t Angeles County, and an assistant United