INTERVIEW 10 Anthony Azemika answers our questions
REMOTE VIDEO MEDIATION 15 Resolve disputes with online mediation
SAFETY ON THE JOB 18 Staying safe in the Coronavirus era
RES IPSA LOQUITUR SEPTEMBER/OCTOBER 2020
PUBLISHED BY THE KERN COUNTY BAR ASSOCIATION
SUNRISE OVER BAKERSFIELD photo courtesy Leandra C. Rayford
ABOUT THE RES IPSA LOQUITUR DESIGNER Amber M. Chiang rileditor@gmail.com
ABOUT THE KERN COUNTY BAR ASSOCIATION
1112 Truxtun Avenue Bakersfield, CA 93301 661-334-4700 info@kernbar.org The Res Ipsa Loquitur is published 6 times per year. Articles, announcements and advertisements are due by the 5th of the month prior to the publication date. The articles in the Res Ipsa Loquitur are written for general interest and are not meant to be relied upon as a substitute for independent research and independent verification of accuracy. The articles appearing in the Res Ipsa Loquitur do not necessarily reflect the opinion of the Kern County Bar Association, the committee or the columnists. Acceptance of advertising by the Res Ipsa Loquitur does not constitute endorsement of products or services advertised. The content of ads was not checked by either the Kern County Bar Association employees or members. No representations are made by the Kern County Bar Association. The Kern County Bar Association reserves the right to refuse any advertising. The Res Ipsa Loquitur welcomes contributions from legal professionals and representatives from relevant businesses and organizations. All articles will be reviewed for appropriateness and those selected for publishing will be published at the convenience of the Res Ipsa Loquitur editorial committee. To have an article considered for publication, please email rileditor@gmail.com.
KCBA MEMBERSHIP UPDATE SINCE MARCH 2020 NEW MEMBERS PHILIP RUDNICK Law Office of Philip Rudnick 201 New Stine Road, Ste. 300 Bakersfield, CA 93309 661-303-3810 phil@prudnicklaw.com TYLER D. ANTHONY Arrow Legal, PC 1430 Truxtun Ave., 5th Floor Bakersfield, CA 93301 661-564-9258 tyler.anthony@arrow-pc.com Jennifer Bravo Advantage HR Services LLC 3501 Mall View Road, Ste. 115-251 Bakersfield, CA 93306 661-332-7225 jbravo@advantagehrservices.net Briar R. Keeler LeBeau Thelen, LLP 5001 E. Commercenter Dr. Ste 300 Bakersfield, CA 93309 661-325-8962 bkeeler@lebeauthelen.com
Carissa Anne Heim Kern County Public Defender 2100 College Avenye Bakersfield, CA 93305 661-868-1412 heimc@kerncounty.com CAROLINE R. HAHN H&H Law Group, LLO 2522 Chambers Road, #V213 Tustin, CA 92780 714-501-3452 carolinehahnlaw@gmail.com LAW STUDENTS CHRISTINE M. YOUNG cyoung@kerncountylaw.com SEE YOURSELF HERE. THE RES IPSA LOQUITUR PUBLISHES NEW MEMBERS AND RENEWALS FOR THE TWO MONTHS PRIOR TO ISSUE. MAKE SURE TO INCLUDE YOUR FULL CONTACT INFORMATION WITH YOUR RENEWAL SO WE CAN INCLUDE IT.
NOTICE In light of the COVID19 quaratine cancellations of large gatherings and events, and due to the cancellation of the 2020 KCBA Bench and Bar Award dinner, the Kern County Bar Association Board of Directors determined to award Hon. Kenneth Twisselman the 2021 Bench and Bar Award. Details regarding a Bench and Bar Award Dinner are forthcoming once Kern County’s restricted status for large gatherings is suspended.
LETTER FROM THE designer
3
A
The State Bar of California’s Lawyer Assistance Program
RE WE DONE yet?
I am so sick of zoom! When will this be over?! You’ve heard all the comments. You’ve made them yourself. What’s a person to do in a time of such extreme unrest? Let me encourage you to reach out to the people around you. Not only are there people hurting within arms length, but you yourself could undoubtedly use a bit more interaction with people that care for you. Take time today to make a phone call. Call someone that you either hope to encourage or that you know will encourage you. Don’t be an island. Your call could make all the difference in someone’s life today. Here at the bar we are looking forward to that first event when we can greet you with warm smiles and open arms. Praying that it will be soon!
The State Bar's Lawyer Assistance Program (LAP) is here to help lawyers who are grappling with stress, anxiety, depression, substance abuse or concerns about their career. Our counselors can offer a free assessment of your situation and help you get the help you need, whether it’s for a mental health issue, substance abuse or a medical condition. (There are some fees if you join a group or need additional services.) Douglass Hull, Director Lawyer Assistance Program 877-LAP-4HELP 877-527-4435 Email: LAP@calbar.ca.gov
Be well.
Bonnie M. Thomson Executive Director
CONTENTS FEATURES
4 - Humble Beginnings Raquel Miranda Vega and Hon. Ralph Wm. Wyatt
PEOPLE AND FIRMS
14 - Interview with Anthony Azemika
10 - Meet Expectations of Millennial Attorneys
26 - Addiction, From Trivial to Tragic Brian Cuban
12 - Elimination of Bias Presentation Hon. David Wolf
30 - Circe by Madeline Miller Timothy Swanson
20 - Write.Law Tips Joe Regalia
COLUMNISTS 6 - Jay C. Smith A View from over the Watershed 9 - C.M. Bud Starr advocatus caecus 18 - Bernard C. Barmann, Jr. Remote Video Mediation 22 - H. Dennis Beaver Safety on the Job Under COVID-19
SEPTMBER/OCTOBER 2020
4
HUMBLE BEGINNINGS by Raquel Miranda Vega and Hon. Ralph Wm. Wyatt
J
UDGE LOUIE L. Vega did not get to where he is today easily. Louie has been a transformative force in his various career fields and community through his accomplishments as a television news reporter, a CSUB student working full-time, a credentialed teacher, lawyer, Kern County Superiour Court Commissioner and now retired Judge.
mother only finished fifth grade and then had to work in the fields to support the family. Louie embarked upon a brief teaching career with the Kern High School District teaching at Shafter High School, East High School, and South High School. Along with teaching, he started soccer teams at both Shafter High School and South High school.
Louie Vega was the eldest son of a farmworker family living in rural poverty. In the 1950’s his family would move from rural California to the Greater Los Angeles area where Louie would finish high school. Upon high school graduation, Louie enlisted in the U.S. Army during the Vietnam War in 1968. He was trained to be a helicopter mechanic - door gunner and while in the combat zone (shot down twice), promoted to helicopter crew chief. After coming home, Louie, now a combat Veteran, was awarded a Purple Heart and various combat ribbons for his time serving the military.
In 1980, Louie deviated from his career path as a teacher and earned his law degree from UCLA Law. Following graduation he remained in Los Angeles working for a prominent law firm specializing in re-development law.
In the early 1970s Louie followed a job lead to Bakersfield and became the first Latino television broadcaster in Kern County. He broke the color barrier in the local broadcasting profession as observed by a Bakersfield Californian newspaper article: “Louie Vega heard about a reporter opening at KERO, and gave it a shot... Kern County had its first brown face on local television news.” Louie would ultimately work at KERO from 1971 to 1977. At the height of intense farm labor strife, which pitted the farm workers and the Farm Workers’ Union against the farmers, this was a pivotal moment for the Kern County media community impacting the local journalism field in Bakersfield, forever changing the way local newsrooms would look like and the faces broadcasting. If it were not for Louie, his daughter’s opportunity as a young Latina woman working in journalism in Kern County would have looked a lot different. Today she sees faces that look like her own and the Latino culture does not go unrecognized in this community. While working at KERO, Louie enrolled at CSUB and obtained his Bachelor’s Degree and teaching credential, becoming the first in his family to pursue higher education. He came from a family where his RES IPSA LOQUITUR
Louie returned to Bakersfield and worked as a Kern County Deputy Public Defender and, thereafter, joined the law firm of Young Wooldridge practicing civil litigation. While at Young Wooldridge, Louie took on a pro-bono client “The Friends of Heritage Park.” “The Friends of Heritage Park,” was a citizen-based organization seeking to preserve Heritage Park by opposing the location of Kern County’s Juvenile Justice Center on five acres of the park space. During the litigation, the County agreed to move the location of the Juvenile Justice Center down the street south of the park boundaries. In an ironic twist of fate, the now, down the street courthouse, is where Judge Vega would decades later preside as a Supervising Juvenile Court Judge. Through Louie’s pro-bono efforts as a young attorney, the entirety of Heritage Park was preserved and remains open for families to enjoy. In 1990, Louie Vega was selected to become a Court Commissioner, where he served from 1990 to 2008. As a capstone of his legal career, Court Commissioner Louie Vega was appointed to a Judgeship in 2008 by Governor Arnold Schwarzenegger. During his career, Judge Vega was at the forefront of starting Family Reunification Day in 2013 at the Juvenile Justice Center in conjunction with the Department of Human Services. This celebration was created to recognize the time and dedication parents separated from their children took to reunify with their children. As a Judge for the Juvenile
5
Justice Center for 12 years, Judge Vega worked with dozens of families to make sure the parents’ difficult, but successful journeys, did not go unrecognized, honoring the true testament of parenthood. This day serves as a reward and honor for the judicial officers, case workers, families and the community. Family Reunification day has continued every year since 2013 and will continue to touch the lives of families forever in Kern County. Judge Vega was involved in a variety of community outreach programs. He was one of the few remaining combat Veteran judges in Kern County. As a Judge he participated in the annual Veteran’s Stand Down program and presided over its collaborative Veterans Court. For over a decade, Judge Vega also participated in another community outreach program and collaborative court known as the Homeless Court. For over 10 years Judge Vega dedicated his time to being a part of the local CASA chapter, Court Appointed Special Advocates for Children. He has sworn in dozens of new CASA members viewed as fit to help change the lives of children in foster care.
was the Editor and Chief of the La Raza Law Journal. The honor is focused on “promoting the integrity, recognition, leadership, and advancement of our communities. Judge Vega also received the Kern County Bar Association’s Bench and Bar Award in April 2018 and has also received recognition from the State Assembly and Congress for his time dedicated to the community. Most recently, Judge Vega was inducted into the CSUB Hall of Fame in 2020, which recognizes alumni who’ve distinguished themselves in their career, volunteered their time, talent and/or money to benefit their community and brought honor to their alma mater. Judge Vega’s journey was not laid out for him nor did not come without challenges. He is known for treating every person who walked into his courtroom or chambers with dignity and respect, as witnessed by his colleagues and peers. He continuously serves as a reminder that it does not matter where you came from or how you were raised, you can work hard to become the person you want to be.
Judge Vega was honored in 2013 at UCLA Law’s La Raza Alumni Dinner. As a law student, Judge Vega SEPTMBER/OCTOBER 2020
6
THE VIEW FROM OVER THE WATERSHED The evolution and devolution of words; and my rebellion. by Jay C. Smith
I
HOPE BY THE time you read this the Covid-19 situation is over, or at least better. Or at least not worse. Or not much worse. Or...
I’m hunkered down in “stay at home unless your job is essential mode,” with no job, let alone an essential one, thinking about words and how they evolve in meaning and how they get “infected” by the words they are partnered with in a phrase. “Epicenter,” a term much used these days, has evolved (or devolved, take your choice). If we use its Latin roots it means “on or over the center.” Hence, its geological use describing the spot on the Earth’s surface that is directly over the fault slip that caused an earthquake. Nowadays it seems to mean just “center” (but cooler) or concentrated center or the center of some trouble. For an example of infection, consider the word “prophylactic.” It means, or meant, “to prevent disease.” Condoms were sometimes labeled “to prevent disease” or “Prophylactic” Condom.” The phrase came to be, more and more, shortened just to “prophylactic” so for many folks prophylactic became a noun, a word for condom, not an adjective about preventing disease. If someone said “Vitamin C has some prophylactic properties” they’d get odd looks. Lots of phrases end up being condensed to just one of the words of the phrase. Thus, “Frankenstein’s Monster” became Frankenstein, even though that was the scientist’s name, not the monster’s. One of the phrases that shrank, and I believe, infected its replacement is “invidious discrimination.” Once upon a time “discrimination” was a neutral, or even a positive term. It meant to recognize and understand the difference between one thing and another. Ads would appeal to “the discriminating buyer” who would recognize the quality of the product. I don’t suppose my readers would appreciate being called “discriminating lawyers” today. It’s obviously possible to be recognize the difference between things in a biased or negative manner. A phrase describing that is “invidious discrimination.” RES IPSA LOQUITUR
Invidious is a word with lots of negative synonyms. Viz., resentful, discriminatory or envious, calculated to create ill will or resentment or give offense, hateful and others. Clearly, invidious discrimination is the kind we disapprove of and may even want to make illegal; but it’s a mouthful. Eventually just “discriminate” came to mean invidiously discriminate, and is just as disliked and sometimes illegal. I should note that I’m someone who strongly, though sadly, supports the stay at home, maintain physical distancing tactics that are hoped to slow down the spread of Covid-19. I only leave home to pick up prescriptions, groceries and take-out food, and little of that since we are using delivery services more and more. I wear a mask when I leave the house. I do, however, leave the house to take two-mile walks six days a week. I rarely encounter anyone on the walks, and give them wide berth, probably 20 feet, when I do. So, what about “ORDER OF THE [Kern County] HEALTH OFFICER (Effective April 2, 2020). …Number 1.f. All persons who are 65 years old or older, have a chronic underlying condition, or have a compromised immune system should self-quarantine themselves at home or in their place of residence.” The term “self-quarantine” is not defined. I’m not condemning whoever wrote the order; I know full well that it is HARD to write rules clearly enough to escape confusion or inconsistency, but I’m not sure if f. applies to me. Do I violate it if I go for a walk wearing a mask and maintaining physical distancing? Does the order apply to TWO groups, those over 65 with chronic underlying conditions and those over 65 with compromised immune systems? Or to THREE groups, anyone over 65, anyone with underlying conditions, and anyone with a compromised immune system? I hope it’s the latter so whenever I take a walk, I’m not only getting fresh air and exercise I am also sticking it to the Man. Way cool! (I was a teenager in the Sixties and I haven’t gotten over it. Sorry.) Jay C. Smith is a Bakersfield attorney who retired from the Department of Child Support Services after working there for 15 years. He was in private practice for 25 years before joining DCSS.
7 KERN COUNTY BAR ASSOCIATION:
We’re your credit union
Spectrum is proud to be the official Credit Union for the Kern County Bar Association. Founded more than 80 years ago via our parent company, Chevron Federal Credit Union, Spectrum offers the tools and products necessary to become your financial partner. As member of KCBA, you are eligible to join the Credit Union at any time and take full advantage of:
FREE Checking1
Online & Mobile Banking
High-Yield Savings Accounts
Low-Rate Home, Auto, and Personal Loans
Access to 85,000+ Network ATMs
Security of Federal Insurance2
To get started, visit spectrumcu.org, call 800-782-8782, or stop by the Chevron Federal Credit Union branch at 5060 California Ave. in Bakersfield.
Federally Insured by NCUA 1 On accounts other than New Solutions Checking, when minimum balances are met. 2 Funds on deposit at Spectrum Credit Union are federally insured up to $250,000 by the National Credit Union Administration (NCUA). Chevron Federal Credit Union dba Spectrum Credit Union. Federally insured by the NCUA.
SEPTMBER/OCTOBER 2020
8
INSURANCE SOLUTIONS
2)),&( 63$&( )25 /($6( WK 6W %DNHUVILHOG &$
Mercer is working with the Kern County Bar Association to provide direct access to the State Bar Sponsored Lawyers Professional Liability Insurance Program in a way that supports the KCBA and its mission.
ΪΪͼėĆÿͼÂͨͼÌÂÍĽBđ̙ėėÅÌĂ?aĂ?ÍĽHĂša~™ ”ïÿ¯ΪͤėĆÿͼÂͨÿͼ3ĂŚÂŒĂ…ÂĂ…Â™ÂŒÍĽ"Ä‘ĂŚÄ—Ä—ÍĽ E™~™ÚͨÅÌĂ?ÍĽ đ™a ´ͼ/ađ¸™ͼ8ÂÂĂ…~™ͼH͜Åͨ™ėͼ đ™aĂ?ÍĽÄ‘ĂŚĂŚĂ˜ÍĽÎ Í¤ÍĽĂ?Åͨ~™Ă? ¯ͼ΢™aÄ‘ÍĽÍ¨Â™Ä‘Ă˜Í¤Ă?™¸ÌͨÅatĂ?™ ĂŚÎ Ă?ͨÌΠĂ?ÍĽ aĂ?™đėÂřĂ?ÂŒ
For more information please contact: Jack Witherspoon 415-983-5658 Information regarding the State Bar Sponsored Professional Liability, Life Insurance, Accidental Death & Dismemberment and Workers Compensation programs, including easy to complete on-line applications, is available at: www.mybarbenefits.com
! " #$ % & ' "
RES IPSA LOQUITUR
ADVOCATUS CAECUS by C.M. Bud Starr For months now, our country has been involved in a struggle with a deadly disease we have named CoViD-19. Thousands have died, and millions have lost their livelihoods. We knew almost nothing about the disease in January. Although we know much more now, there is still a lot to learn. As a nation, we took many missteps in the early days of the pandemic. The national government limited flights from China in late January, yet neglected to limit flights from Europe for weeks. Doctor Anthony Fauci, in what may have been an attempt to ensure that there was no shortage of masks for medical professionals, first told Americans that masks were unnecessary for most citizens. Later, when mask production increased, he suggested that everyone should wear a mask in public. During the last week of February, a prominent national politician held an event in San Francisco’s China Town announcing that people should come there without fear as there was no danger. By March 16, San Francisco became the first city in America to impose a lock down. Many politicians stepped into the public light in spite of our limited knowledge about the disease. The President, along with several governors held daily press conferences. Interestingly, the numbers of deaths do not reflect that the most vocal among our politicians were the most knowledgeable on how to handle the emerging tragedy. The governors of New York and New Jersey have received plaudits from the news media for their excellent handling of CoViD-19. Governors of Florida, Texas, and to a lesser extent,
California, have been criticized for their work during the pandemic. New York and New Jersey are the fourth and eleventh most populous states with a total population of over 28,300,000. CoViD deaths in these two states, as of late August, amount to 41,250. California, Texas, and Florida are the first, second, and third most populous states with a total population of just less that 90,000,000. The total CoViD deaths for these three states, as of late August, amount to 34,550. Yet it is the governor of New York who is publishing a book on leadership during the CoViD-19 pandemic. As much as we have learned about this new disease, we still do not know enough to figure out exactly how to handle it. While the national government has spent trillions of dollars to fight the economic effects of the disease, there is still disagreement as to what to do next. Jury trials in our courts have masked jurors and attorneys scattered throughout the courtroom. Some witnesses appear on a computer screen only. Whatever we end up doing, we will probably keep certain aspects of social distancing in our lives for a long time. Social distancing does not work very well in the legal profession. We are in the business of understanding people’s problems and trying to resolve them. It is hard to understand, to negotiate, and to litigate at a distance. Let us hope that our profession can be creative enough to figure out how to do it. About the author: C. M. Starr II is an attorney retired from the District Attorney’s Office. He spends much of his time listening to audiobooks and is currently helping to establish the Kern County College of Law.
ABOUT THE KERN COUNTY BAR ASSOCIATION
9
EXECUTIVE COMMITTEE Joseph D. Hughes President Alekxia Torres-Stallings Vice President Xochitl Garcia Treasurer Bernard C. Barmann, Jr. Secretary Douglas A. Gosling Past President DIRECTORS Anthony P. Azemika Carol Bracy Gina Cervantes Diana Christian Thomas Feher Stephanie Gutcher Paul Harman James Harvey T. Mark Smith Hunter Starr
ABOUT THE KERN COUNTY BAR ASSOCIATION CHARITABLE FOUNDATION EXECUTIVE COMMITTEE Barry L. Goldner President Patrick E. Jennison Vice President Catherine E. Bennett Chief Financial Officer Susan M. Gill Secretary
DIRECTORS Hon. Tom Clark John Stovall Seth O’Dell T. Mark Smith Joe Hughes Alekxia Torres Stallings SEPTMBER/OCTOBER 2020
10
MEET EXPECTATIONS OF MILLENNIAL ATTORNEYS T HE GLOBAL BUSINESS consulting group of Cushman & Wakefield estimates that in just six years, more than half of all law offices around the U.S. will be filled with a generation notorius for killing off entire industries and spending an excess amount on avocados.
All jokes aside, Millennials have received their fair share of criticism over the past decade, being described as “lazy” and “entitled” when it comes to how they work and live. In reality, Millennial attorneys aren’t looking for bean bags and foosball tables in the office. Their requests are far more practical. TECHNOLOGY They understand technology, look to it for answers and expect firms to provide the most up-to-date systems and processes. MENTORSHIP HR solutions company TriNet found that nearly 90 percent of Millennials would feel more confident if they received regular check-ins with their superiors. Although independent, this generation of attorneys is still looking to learn and find guidance from firm leadership. FLEXIBILITY The 2019 Mindset of the Millennial Law Student Report found that when law school students were asked to rank various firm attributes, 85 percent said work/life balance was important to them. Despite this reality, many law firms lack insight into the generation, which creates challenges for appealing to and retaining Millennials. According to the Thomson Reuters Legal Executive Institute’s 2019 State of U.S. Small Law Firms Report, 66 percent of attorneys stated technology was the biggest difference among lawyers of different generations, followed closely by work/life balance with 58 percent. What these numbers show is that what worked in the past for your firm might not hit the mark for your Millennial attorneys. By recognizing the difference between previous generations and this group of talent, your law firms will be better positioned to meet their RES IPSA LOQUITUR
expectations. Focus on taking these small, yet effective, steps to motivate and inspire attorneys in your firm. PROVIDE TOOLS TO WORK SMARTER The life of any attorney typically means working untraditional business hours. But offering ways for employees to work in their own time and own space make long hours easier to handle. Legal software such as cloud-based applications, online chat and call services and AI research tools all aid in increased productivity, even when someone might not be in a physical office. This is especially important to Millennials, with 93 percent reporting that working for a company with updated technology, services and solutions was an important factor when choosing a workplace.
INCREASE OFFICE ENGAGEMENT Engaged employees are 87 percent less likely to quit their jobs. Finding ways to incorporate engagement in the office doesn’t have to be a difficult task. It could be as simple as setting up monthly happy hours, birthday parties or work anniversary celebrations. And remember to seek your associates’ input on cases, projects and business development efforts. Millennials want to know their voice is being heard. Taking an interest in their opinions is a surefire way to increase workplace satisfaction while decreasing the threat of turnover. IMPLEMENT 360-FEEDBACK According to How Millennials Want to Work and Live, only 17 percent of Millennials say feedback they receive from superiors is meaningful. Because guidance is essential for this generation, firms need to have a clear and frequent way of providing genuine feedback. Methods such as 360-feedback allow each attorney the opportunity to share their opinions with others in the office, creating transparency between leadership and associates while helping promote consistent and open communication in the office. Reprinted with permission by Thompson Reuters. Original article located at: https://legal.thomsonreuters. com/en/insights/articles/6-steps-law-firm-efficiency
11
SEPTMBER/OCTOBER 2020
12
ELIMINATION OF BIAS PRESENTATION by Hon. David Wolf
O
N OCTOBER 5, 2020, I was honored to be asked to be part of a panel addressing the important issue of the elimination of bias from the bench. The event was hosted by Kern County Multicultural Bar Alliance (MCBA). Judges and attorneys from the Elimination of Bias Committees of Kern and Tulare Counties participated. Commissioner Cynthia Loo, from Kern County, was the coordinator and the Master of Ceremonies for the event. Commissioner Loo and her team put together an amazing event. The event was only $5.00 and included Elimination of Bias MCLE credit. For an additional $20.00, the MCBA delivered to the attendees a basket of the specific wines being featured. At several points during the presentation there were breaks and Kern’s own MCBA Sommelier described the specific wine being sampled. Panelists and attendees could then comment on the wines and on the presentation. I have to admit that I was skeptical about the wine tasting portion of the event, however, I was wrong. It was an amazing way to “break the ice” and add some fun to a very serious and sometimes challenging topic. One of the highlights of the evening was a presentation by Dr. Jeanine E. Kraybill, the Pre-Law Program Director at California State University Bakersfield. Professor Kraybill shared her research on implicit bias regarding gender and judicial officers. Professor Kraybill shared her statistics and also some of the comments from the survey’s participating judicial officers. According to Dr. Kraybill’s survey, female judicial officers reported that they are more likely to check themselves for personal bias. The individual comments were very helpful promoting a discussion about implicit bias. For example, one female judicial officer reported having to check her bias against women who stay in a domestic violence situation. Another female judicial officer reported having to be aware of a bias when she felt someone RES IPSA LOQUITUR
was not being a good mother. One judicial officer noted that they had not previously thought about this topics but, after reviewing the survey, thought they should try gender role reversal as a check for bias and implicit bias. According to Dr. Kraybill’s survey, male judicial officers were more likely to state that they engage in “self-monitoring” or “consult with other judges, staff, and/or family.” Commissioner Loo put together an amazing and diverse panel. The panel included judges, commissioners, prosecutors, defense attorneys, private counsel, members of the MCBA and
13
“Sommelier Extraordinaire Chris Silva.� The panel and the attendees were also a diverse group. Due to Covid-19, the presentation was held via Zoom, and Commissioner Loo and her team had the additional hardship of delivering all MBCA baskets prior to the presentation. The day before the event, Commissioner Loo personally drove one of the baskets from Lamont to Tulare (93 miles one way) so that one of the panelists would have their basket in time. Tulare County Judge Robin Wolfe and I were asked to speak about progress made in both Kern and Tulare regarding gender glass ceilings. We both agree that more needs to be accomplished in this area. In Kern and Tulare the gap appears to be greater in the private sector. However, in both Kern and Tulare County women have made significant strides in the government sector. In Kern County, the Public Defender, District Attorney, County Counsel, City Attorney and presiding judge are all women. Judge Robin Wolfe noted that in Tulare County approximately fifty percent of the Superior Court Bench is female, and approximately thirty three percent of the bench is minority. The Kern and Tulare County Superior Courts are working together on the
important issue of elimination of bias, and are sharing training programs and working on Elimination of Bias committees together. Kern County Presiding Judge Judy Dulcich concluded the event by thanking Commissioner Loo and her team for a fun and educational event. Judge Dulcich reiterated that the Kern County Superior Court is committed to the goal of the elimination of bias from judicial proceedings and said she is looking forward to working with the MCBA and the KCBA/ KCSC Elimination of Bias Committee on this very important issue. Judge Wolf is the Supervising Judge for North Kern and is currently a co-chair on the Elimination of Bias Committee. He also volunteers with the local Mock Trial, We the People and Academic Decathlon programs. SEPTMBER/OCTOBER 2020
14
INTERVIEW WITH ANTHONY AZEMIKA
WHAT DREW YOU TO LAW AS A PROFESSION? AZEMIKA: My mother telling my brother and I that we need to become lawyers because we argued with her like a couple of lawyers. She brainwashed three of her sons that way to become lawyers. Secretly, her sons believe that she just wanted to make sure that she had lawyers on her side if she ever got sued. HOW DID YOU COME TO SELECT YOUR LEGAL SPECIALTY? AZEMIKA: Just like most of us, it picked me. I was working in San Francisco and my twin, Nick, was down here working for Ed Thomas. One day, he calls me and says that Ed wants to hire me too. Since Nick and I have always been close, I jumped at it just so I could work with my brother. I moved down to Bakersfield and slept on his couch for a month until I rented my own apartment. IF YOU DIDN’T BECOME A LAWYER, WHAT WOULD YOU HAVE DONE PROFESSIONALLY? AZEMIKA: Doesn’t every boy want to be a pilot and fly airplanes? WHAT IS THE MOST REWARDING PART OF YOUR CAREER? AZEMIKA: Working with my twin brother for the last 26 years or more. WHAT IS THE ONE THING YOU DEAL WITH REGULARLY IN LAW WHERE YOU HAVE TO TAKE A DEEP BREATH AND STEEL YOURSELF TO START WORKING? AZEMIKA: All the emails that we have to respond to. When I started practicing, we didn’t even have cell phones or pagers. When pagers came along, I used to carry a sandwich bag full of change to use the payphones at the courthouse to call the office. Now, clients think that we need to be available to them instantly at all times. If we don’t respond to their emails within a few hours, they send us another email wondering why we haven’t responded to their email from this morning. There is no patience and realization that they are not our only clients. IF YOU WERE TO SPEAK AT A HIGH SCHOOL ABOUT ENTERING LAW AS A CAREER, WHAT WOULD YOU SAY? AZEMIKA: Don’t listen to anyone who says there are too many lawyers. There is always room at the top. You have to care about your craft and always try to become better and you will be successful. This applies to any career they pick. WHAT IS YOUR FAVORITE KCBA EVENT OR ACTIVITY AND WHY? AZEMIKA: We used to do wine trips to the coast and that was really fun. We all would get on a bus and go to the coast and visit about three wineries where we would sample and buy wine. It was great hanging out with other lawyers in other fields and get to know them and their significant other. WHY ARE YOU A MEMBER OF THE KERN COUNTY BAR ASSOCIATION? AZEMIKA: To get to know other local attorneys. Coming from San Francisco over 27 years ago, I have always appreciated our local bar and how close our bar members are. The attorneys in large markets don’t know each other as well as we do locally and the relationships you form with local attorneys is priceless compared to large markets. FINISH THE SENTENCE “IN MY FREE TIME, YOU’LL FIND ME...” AZEMIKA: ...hanging out with my wife, on my road bike or walking for miles with my oldest who is now doing her 3L virtually at home in Bakersfield.
RES IPSA LOQUITUR
15
SEPTMBER/OCTOBER 2020
16
RES IPSA LOQUITUR
17
SEPTMBER/OCTOBER 2020
18
REMOTE VIDEO MEDIATION by Bernard C. Barmann, Jr.
T
HE COURTS ARE largely closed. Clients and most attorneys are on COVID-19 lockdown. So there’s no available forum for resolving your clients’ disputes, right? Wrong. Mediations can easily be conducted online! This means that disputes can be mediated during the lockdown, even if the parties and attorneys are in different locations. Also, once we transition to a new “normal,” not everyone is going to immediately feel comfortable being in the same room with several others. During that transition time, online mediation is a great tool for resolving your clients’ disputes. And even when we’re free of all restrictions on personal interaction, online mediation is a convenient way to resolve disputes where the parties and lawyers are located in different places. I know online mediation works because I’ve done it. During the COVID-19 lockdown, I’ve been able to mediate disputes online with the attorneys and parties each connecting from their own separate locations. The lawyers are not even in the same place as their clients, but they can easily confer privately with each other because technology allows for private virtual conference rooms for each party and their counsel. A technologically-adept mediator can easily shuttle between these private rooms, pull the attorneys out for private conferences, share documents, use a white board, and conduct joint sessions with all parties if appropriate. Before I conducted my first online mediation, I was concerned that the lack of personal interaction might impair the effectiveness of the process, but my concerns turned out to be overblown. Online mediation works, quite well. It turns out it is not very difficult to connect effectively with the participants via video conference. And in several ways online mediation can be superior to in-person mediation. Here are some of the advantages of online mediation: CONVENIENCE Online mediation is convenient because parties and attorneys can participate from anywhere they have online access. A party and their counsel can be in RES IPSA LOQUITUR
separate locations. No one has to travel to participate in the mediation. All participants can remain at home or at their own office. They only need an internet connection and a computer, laptop, or just a smartphone. FLEXIBILITY With online mediation, the locations of the lawyers and parties become irrelevant. This opens up a world of possibilities for scheduling, particularly for cases where the client, opposing counsel, or the opposing party is from out of town. The participants just need to find the available time on their calendars without having to take into account travel time. PRODUCTIVITY Instead of being stuck in the mediator’s conference room, participants in online mediation can be in their own workspace. This allows attorneys and clients to use downtime more effectively to focus on other tasks and projects. COST-EFFECTIVENESS Online mediation can be less expensive because no one has to incur travel expenses or be charged for travel time. No one has to drive long distance, book a hotel room, get on a plane, or incur meal expenses to participate in the mediation. This can save clients money. Online mediation is not just possible, it is available to you and your clients now. While online mediation may not be suitable for all disputes, it should be seriously considered as an option. About the author: Bernie Barmann, Jr. is a trained mediator who conducts mediations online as well as in person. He has helped litigants resolve matters they didn’t think could be settled and helped people resolve disputes before they’ve ripened into litigation. He brings to bear nearly 30 years of broad litigation experience as a business trial attorney effectively representing companies and individuals in a wide variety of civil disputes in state and federal courts throughout California and in other jurisdictions. He is currently Secretary of the KCBA and formerly taught Civil Procedure at the Kern County College of Law. For more information visit bbarmann.com or kuhsparkerlaw.com.
19
SEPTMBER/OCTOBER 2020
20
WRITE.LAW TIPS Legal Writing Principles, Part 1 by Joe Regalia
T
he best persuaders don’t “convey information.” they tell stories. Storytellers are the true persuaders. They understand that telling a story is about more than relating facts. It’s the art of making your readers both understand and feel. It’s weaving together big ideas with simple feelings. Even a small dose of storytelling will transform your legal writing into something more. Research shows that the mere act of reading a story changes how we think. In a 2011 study, participants read stories with strangers. The results? Storytelling, the researchers concluded, “fostered empathy, compassion, [and] tolerance.” Reading a cohesive story (of any kind) affects us. It makes information more palatable and more memorable. This is all piled on top of the long-standing cognitive science research showing that almost all our thinking involves constructing storylike schemas and categories in our minds. So as you write—not only your fact sections, but all sections—consider what you know about good stories. Give your reader the whole picture, not just small parts that will leave them confused. Use prose that is more likely to trigger images and other senses so that your readers remember. And practice using techniques like pacing, setting, and character development. Take the below example. This U.S. Supreme Court regular knows that listing out drab details about a government agency isn’t going to cut it. So he tells the agency’s story. He starts at the start, setting the scene and helping the reader understand the real-life situation that spurred the agency to life. He uses story-like prose, and often puts the agency in the subject position of sentences so it feels like a character moving through time: Congress Creates Fannie Mae As A Government Owned Entity That Could Sue And Be Sued In Federal Court The story begins with the National Housing Act of 1934, a body of New Deal legislation enacted to buoy the nation’s recovery from the housing crisis brought on by the Great Depression. The Act authorized a federal agency to create “national mortgage associations” to purchase and resell mortgage loans in the secondary mortgage market, thereby boosting lender liquidity and increasing the availability of low-cost mortgages to homebuyers. Thus was born the Federal National RES IPSA LOQUITUR
Mortgage Association- aka Fannie Mae. Fannie began life as a national association with capital stock owned by the government. Early on, Fannie’s primary purpose was to increase lender liquidity by purchasing and reselling mortgages and issuing bonds to investors, and to promote the construction and financing of new homes by making direct loans secured by federally insured mortgages. Most of its financing came from the U.S. Treasury. Contrary to Congress’s expectation, however, by 1954 this approach was not spurring private investment in the secondary mortgage market. Rather, it deterred private investors who felt ill-equipped to compete with the federal government. At the same time, the public was agitating over the expansion of government-controlled corporations generally. By the end of World War II, there were...
Other Tools to Tell a Story
Be sure to try out these other great storytelling techniques. • Take a paragraph or two at the outset of your factual story to spool up a preview of the best scenes. • Uncover a familiar plot—like the underdog—and highlight it. • Deftly weave emotional facts into the story (even when they are not strictly relevant) by linking them to relevant facts. • Cut details that don’t matter—like dates, amounts, names, and any other details that won’t help you win on the merits. • Try to tell a complete, cohesive story about any important events. Use a familiar arc: Setting → Characters → Complication/Conflict → Good Ending (what should happen now). • Consider whose perspective might be the best to follow: The defendant? The plaintiff? Some third party? • Focus on people or entities when possible, they are easier to connect with. • Provide your reader with helpful context to set up important factual events. Like any story, think about what background your reader needs to make sense of it all. • Share specific details that make a point (rather than telling your reader why they matter). • Share specific details that make a point (rather than telling your reader why they matter). • Use the first sentence of fact paragraphs to push the story forward. • Use your own voice and narration whenever
21
possible, not a bunch of quotes. • Defang unhelpful facts by surrounding them with good facts and putting them into context (but don’t ignore them). • Use headings to separate the story’s different scenes. • Tell the story behind important rules: Some situation or circumstance gave birth to the rule—the rule grew over time, changed, expanded. The story helps persuade.
OFFICE SPACE FOR LEASE
ÿ†¯¿†’¿Â? TÂ?Ùÿ¯“Â?Ăœ Receptionist & Printing Services
Day Offices Space
Conference Room
Fully furnished
$35 per hour
$ 375 monthly
Seats 6 people
5 days monthly
Includes Wifi
Includes Wifi Office Suites Available For Lease
CALL HENRY MENDEZ FOR ALL YOUR COMMERCIAL, SALES, AND LEASING NEEDS. Henry Mendez JR. Broker/Principal #01127054 HMENDEZ@CVCBROKERS.COM CA BROKER LICENSE. #02084350
Contact us: 930 Truxtun Ave Bakersfield,CA (661) 404-4090 www.CVCBrokers.com
Remember that good stories persuade. So craft a story that taps into your reader’s emotions and senses. Joe Regalia is a law professor at the William S. Boyd School of Law and co-founder of Write.law, a legal e-learning company for lawyers and legal professionals. Joe is a nationally recognized legal writing and technology consultant for law firms, courts, agencies, nonprofits, corporations, and other organizations. His research and teaching focus on legal writing, persuasion science, technology, and innovation. Joe graduated first in his class at the University of Michigan Law School. He went on to clerk for the U.S. District Court and the U.S. Court of Appeals for the Ninth Circuit. Joe previously practiced at the international firms of Wilson Sonsini, Sidley Austin, and King & Spalding. SEPTMBER/OCTOBER 2020
22
SAFETY ON THE JOB UNDER COVID-19 by H. Dennis Beaver, Attorney at Law
L
OCAL EMPLOYMENT LAW attorneys Dan Klingenberger and Jay Roselieb answer frequently asked questions in this coronavirus era.
In late March, my column Covid 19 - What Lawyers are Saying featured two Bakersfield Employment Law attorneys, Dan Klingenberger and Jay Rosenlieb, who answered a number of questions about employee rights and obligations in this coronavirus era. That story promoted many readers to send in workplace safety questions, which both lawyers tackle head on: DO WE HAVE A RIGHT TO EMPLOYER PROVIDED GLOVES OR MASKS? “Working at home is not an option in my line of work, as I have to deal with the public. My employer isn’t providing us with gloves or masks: We have to bring our own. Do Employees have a right to be provided with protective equipment on the job?” Rosenlieb: The federal OSHA General Duty Clause requires that an employer provide a workplace free from recognized hazards likely to cause death or serious physical harm, including injury from infectious diseases such as COVID 19. OSHA-approved State Plans have similar, and in some instances, even more protective standards. Employers are obligated to provide their workers with personal protective equipment (PPE) needed to keep them safe. RES IPSA LOQUITUR
It should be noted that the an employee cannot demand PPE that is not deemed appropriate for the exposure. Klingenberger: Guidance from OSHA during the past few weeks recognizes that difference in protection apply to various industries. The OSHA COVID-19 Guidance for Retail Workers provides tips for employers in the retail industry--pharmacies, supermarkets, and big box stores–“to help reduce your employees’ risk of exposure to the coronavirus.” These tips include: “Allow workers to wear masks over their nose and mouth to prevent them from spreading the virus.” OSHA likely chose the word allow rather than require, as this likely reflects several considerations. First, very few masks or face coverings would actually filter out coronavirus. Masks and face coverings primarily serve the purpose of avoiding spread by the person wearing the mask. Assuming that is true, masks, and perhaps gloves, may protect the customers, but would not accomplish the objective of protecting the employee and, therefore, do not have to be PPE. Second, other practices–that we are constantly reminded of–may be far better served to protect employees, such as social distancing, frequent hand washing, not touching your face, and disinfecting work areas. Finally, because of high demand, obtaining masks and gloves for
employees may be very difficult if not impossible. MY EMPLOYER IS NOT TAKING THESE RISKS SERIOUSLY - MAY I SPEAK UP? “The company where I work, doesn’t seem to be taking this crisis seriously enough. There have been no real efforts made to ensure social distancing in the workplace, other than some signs and tape marks on the floor, which are not enforced. It doesn’t feel safe, but I fear retaliation if I speak up. What should I do?” Rosenlieb: An employer is obligated to take such steps as are required by OSHA or an OSHA approved State Plan, not more. If the employer is fully compliant, an employee has little basis to demand further protection. In the event that the employer has policies in place which are not followed, the
employee will have a basis for a complaint. Klingenberger: I agree. Often employees would like to see more done by an employer when the employer is actually fully compliant. Business owners and each of us as individuals are making decisions in a world of uncertainty. On a personal, local and national scale we are asking, “Have we done enough?” There is strength in numbers. If some of your co-workers share your concerns, consider going to your employer with a colleague to express those concerns about safety in a professional manner. Offering ideas on solutions may help the conversation. CAN I REFUSE TO WORK OVERTIME? “I’m in an industry where demand is currently skyrocketing, and workers are being pushed to the brink. Can I refuse to work overtime?” Rosenlieb: No. There are, however, a couple of exceptions. First, if a lack of sleep or fatigue creates demonstrable safety concerns, the employee may refuse to work if he or she has a good faith belief that the conditions create an imminent risk of serious injury or death. Second, if the employee is part of a workplace covered by a collective bargaining agreement, the employee may be excused from working “mandatory” overtime. Klingenberger: Jay’s answer is spot on. Unfortunately, we are in situation where some employees are working far more than they would like and others who would love to be back at work in any capacity.
2020 SECTION LEADERSHIP
23
CRIMINAL DEFENSE SECTION Elliott Magnus, President Mai Shawwa, Vice President Timothy Hennessy, Treasurer Emily de Leon, Secretary Trustees: Jared Thompson, Elizabet Rodriguez, Monica Bermudez, Bo Koenig, Antonio Hutchison ESTATE PLANNING AND PROBATE Kurt Van Sciver, President Stevie Jo McDonald, Secretary/Treasurer WOMEN LAWYERS SECTION Stephanie Gutcher, President Tara Deal, Vice President Mayra Estrada, Treasurer Julia Vlahos, Secretary Directors: Leanne Wilder, Stephanie Bouey, Alisyn Palla, Vanessa Sanchez, Hon. Sharon Mettler, Ret. YOUNG LAWYERS SECTION Lyndsi Andreas, Chair Victoria Harp, Secretary Angelo Villreal, Treasurer Tonya Anderson, Treasurer Elect James Bass, Director 1 Hunter Starr, Past Chair IN-HOUSE COUNSEL Nicholas Ashley, President Melissa Frank, Vice President Michael Abril, Treasurer Alyssa Reed, Secretary FAMILY LAW SECTION Diana Christian, President Jeffrey Travis, Vice President Edward Thomas, Treasurer Anthony Azemika, Secretary Keith Cramer, DCSS Representative Board Members: Nicholas P. Azemika, Stephanie Childers, Jeremy Swanson, Fred McAtee, Gerald Oldfield MULTI-CULTURAL BAR ALLIANCE Kate Iwanami and Cynthia Loo, Co-Chairs Carol Bracy and Michael Cavas, Co-Vice Chairs Monique Galvan, Secretary Esther Schlareth, Treasurer Maria Contreras, Student Representative
This story first appeared in Kiplinger.com on April 29th, 2020. SEPTMBER/OCTOBER 2020
24
Charitable Foundation Seeks Photos for Second Notecard Series The Kern County Bar Association Charitable Foundation announces a new project–a second series of notecards with photographs of interest to the local legal community.
Our first notecard series featured the art of Bill Means portraying historical Kern County Courthouses. These notecards (pictured on the next page) are still available for purchase at the KCBA office, at a cost of $20. The notecard series operates as a fundraiser for the Foundation’s charitable giving, which includes the donation of books to local schools to celebrate Constitution Day, donations to the local Mock Trial and We The People champions, the Arthur E. Wallace Memorial Scholarship, Get on the Bus, and other worthy projects. The notecards are perfect for correspondence, and they help fund these important projects. For this second series, we are soliciting photographs–of local courthouses, local places of note, or a subject you think would be of interest–taken by local members of the legal community, with all rights to use the photographs donated to the Foundation. No persons should be depicted in any of the photographs submitted. Five photographs will be chosen by the Foundation’s Board of Directors to adorn the notecards, and the photographer will be credited on the back of each card. You may submit your photographs to the Foundation via e-mail to bthomson@kernbar. org. Use the subject line “CF Notecard Photo Submission.” The deadline for submissions is November 30, 2020. RES IPSA LOQUITUR
25
SEPTMBER/OCTOBER 2020
26
ADDICTION: FROM TRIVIAL TO TRAGIC W by Brian Cuban
INTER 2004. LAS Vegas. Miami. Los Angeles. All places that hide my secrets. Drugs delivered to my hotel room in Vegas. Coke deals done with quick hand-tohand exchanges under the cover of darkness just feet from the calming waves of the ocean in South Beach. I often require a high-end backdrop for the high-end product I was purchasing. It makes me feel like the false image I tried so hard to project. Of course, the dealers I meet don’t care about the ambience, they just want to make the sale and not be seen today.
However, it’s a bitterly cold day in Chicago hundreds of miles from any sun or ocean. No drug deals along the scenic shores of Lake Michigan this evening. I’m cruising the crack dens and dilapidated housing projects of Chicago. I’m terrified, but I’m not alone. My friend, Mike, a cocaine addict like me, knows where the best blow is. My trips to Chicago to visit him always involve tense visits to seedy parts of town to score from his dealer. We move on to a high-end hotel room where all the booze and drug binges are a regular staple. The cocaine money eventually runs out. The weekend ends.
with addiction often don’t think about the lifestyle of others with the same problems. The impulse isn’t to think about the way their families might be torn apart or the grief, anger, and despair that might be a prison in the same way coke addiction might be. The quest for the white powder to drive the masking of pain, guilt, childhood, and loss. I have my secrets. Mike has his. My drive is for the acceptance of an obese 13-year-old bullied little boy looking for that first kiss. A date to the prom to change a horrifying reflection that I saw in the mirror. To feel like a real lawyer while I swam in a sea of self-doubt and self-loathing. The drive for the elusive feeling of being loved and respected.
Mike’s struggles are touched by loss—profound loss—the loss of a son, his only son at the time. A tragic July 4th weekend years before, I represented Mike and his wife for the accident. I bumbled my way to a settlement on a case I never should have taken in his jurisdiction. I wasn’t licensed to practice there, but I needed the money to fund my addiction and hoped it would settle before I had to farm it out to a competent lawyer in Chicago.
I head back to Dallas in my life of cocaine, booze, and clinical depression.
Money and drugs over ethics and even caring friendship. A scenario that has played out many times among many addicted lawyers.
He stays in Chicago, immersed in addiction, a failing marriage. In the trauma of the past, those dealing
The loss of Mike’s son. The pain. The guilt. The blame. Mike would never recover.
RES IPSA LOQUITUR
His marriage would never recover. Addiction doesn’t distinguish between the trivial and the tragic. Neither do secrets. I wait in fear while Mike goes into the housing project to score for our upcoming binge. My fear is not that he’ll be harmed, but if that something goes wrong, I won’t be getting high. But, he emerges, our prize tucked away, and a smile on his face. Now that’s a true friend. Thoughts of the grief he carries are out of my mind. Thoughts of my own depression, my own wrecked relationships seem miles away. Who needs family when you’ve got friends like this? Another tragedy was around the corner for Mike, and it hadn’t been revealed to either him or me. The progression of colon cancer. The day he called me to tell me he was dying is embedded in my memory as if it happened yesterday. There were signs. There were symptoms. In that phone call, he lamented, brushing them off as normal side effects of the constant alcohol and cocaine hangover. Then one day, his urine changed color. The color of the brutal reality of advanced colon cancer. I’d see him only one more time before his death. We would take in a Dallas Mavericks/Chicago Bulls game on another brutally cold winter night in Chicago.
27
He had to wear special gloves due to the chemotherapy sensitivity. It would be the last time I would see Mike. I would speak to him from his hospital room one more time, in an incohesive muddle of delirium and pain medication as he waited to die. I never had the chance to speak to him outside the prison of addiction and despair. He died before he was able to find recovery. I was luckier. I saw plenty of wreckage in my life as the consequence of addiction. Another failed marriage. A legal career that sputtered to a stop. But eventually I found a way out and was lucky to find that path before I too died. Looking back, like most I can identify the rock bottom that precipitated long-term recovery. It’s hard to say that there was
an exact date when the seeds of positive change were planted, and those positive changes for me were often a razor’s edge away from the kind of tragedy Mike experienced. I think of Mike often and the toll his secrets took on his life and the toll they took on mine. We only found strength to talk about them while drunk and high. We told no one else. This is not courage. Courage. Courage is finding the one moment to tell someone who can help versus who wants to be part of your secret. It’s terrifying. It is. It’s worth it.
book, The Addicted Lawyer: Tales Of The Bar, Booze, Blow & Redemption. A graduate of the University of Pittsburgh School of Law, he somehow made it through as an alcoholic then added cocaine to his resume as a practicing attorney. He went into recovery April 8, 2007.
And one more thing. Get your colon checked if you’re in the designated age group. Do it. Do it now. Brian Cuban (@bcuban) is The Addicted Lawyer. Brian is the author of the Amazon best-selling SEPTMBER/OCTOBER 2020
28
RES IPSA LOQUITUR
29
SEPTMBER/OCTOBER 2020
30
CIRCE BY MADELINE MILLER by Timothy Swanson I recently discovered Madeline Miller’s remixes of Greek mythology, and quite enjoyed them. (The other is The Song of Achilles.) Fans of The Odyssey will be familiar with the Circe of mythology. The daughter of the sun (aka Helios) is banished to the island of Aeaea for her experiments in sorcery. She is visited by Odysseus and his crew, but is outwitted by Odysseus with the assistance of Hermes. She sleeps with him, naturally, and (in later myths) bears him children. In addition to The Odyssey, Miller draws from a few episodes in Ovid’s Metamorphoses, other myths, and fills in the rest of the story with some interesting alternate ideas of her own. The story is written from the point of view of Circe, and, like The Song of Achilles, imagines that the bards have been less than honest. Because history is generally written by the winners, so to speak, the characters who serve as foils to the heroes and gods are assigned base motives and painted as mere villains. Like Patroclus, the lover of Achilles, Circe functions in Homer’s legends as an episode, or at best a muse, in the life of the hero. As a nymph, Circe exists on the lesser level of godhood. She is descended from Helios, a Titan— not one of the Olympians—and is thus aligned with the older gods, including Prometheus. She also lacks the power of either the true Titans or the Olympians. She is immortal, but has to get by on guile, seduction, or whatever she can find for herself. In her case, RES IPSA LOQUITUR
it is “sorcery,” a combination of botanical knowledge, a few spells, and a lot of will. Miller does take a few liberties with the backstory. Circe is allowed to participate in a few mythological episodes in which she isn’t mentioned in the classical myths. For example, she gives comfort to Prometheus, transforms Glaucus into a god, and assists in the birth (and imprisonment) of the Minotaur—the monster born to her sister Pasiphae. These incidents do serve to explain some of the other myths, like how Circe came to possess a loom crafted by Daedalus, and why she had a falling out with Scylla. I find Miller’s ability to weave the relationships into the story so seamlessly to be a delight. This book has, in my view, two major themes. The first is a feminist one. Circe is a nymph, a female demigoddess, which means her function in life (or whatever immortals call it) is to be pretty, marry well, and use her feminine wiles to her advantage. Which is pretty much how it is even for the Olympians other than Athena and Artemis, if you think about it. Even Hera pretty much exists to be the embodiment of the female harridan, endlessly jealous of the younger, nubile women that her randy husband is endlessly bonking and impregnating. Circe refuses to play the game, and naturally incurs the wrath of the patriarchal and petty gods. The other theme is the nature of humanity. Circe, like Prometheus, has a natural sympathy for mortals. She takes it one further in this book by looking with an
honest eye at the advantages of mortality and the disadvantages of immortality. With immortality, there seems to be no real need for—or even possibility of— growth and change. By nature, the gods are everlasting, and their petty disputes and jealousies and obsessions are unchanging. It is mortals who, by very virtue of their limited lives, must seek to become something. In the classical Greek ethos, this was fame—the one way that mortals can gain immortality. In exploring the psyche of Circe, Miller looks at deeper questions. Does the very transient nature of our lives as humans give us an impetus toward change and growth? Is the fact that our relationships—even the most permanent and timeless— are destined to end motivate us to form stronger bonds? And, ultimately, is immortality boring? If all outside relationships are fleeting, because mortals die, is eternity just eternal ennui? The two themes together make for a compelling re-telling of a timeless story. Reading Homer through a 21st Century lens can be horrifying. The objectification of women, and the assumption that they exist to serve as foils to the male heroes is problematic, as my teens have informed me after reading parts of The Odyssey. But there is a reason that the myths endure. Part of that reason is that myths aren’t static, but are endlessly told and retold. All good myths combine timeless evocation of human nature and psychology with a flexibility and adaptability to new times and circumstances. Although there were plenty of great lines, there is one which
particularly stood out as astute. Circe isn’t a true prophet, like some of the gods and mortals. But she has a sort of prophetic ability which shows itself throughout the book. Here is what she says about it: Among the gods there are a few who have the gift of prophecy, the ability to peer into the murk and glimpse what fates will come. Not everything may be foreseen. Most gods and mortals have lives that are tied to nothing; they tangle and wend now here, now there, according to no set plan. But then there are those who wear their destinies like nooses, whose lives run straight as planks, however they try to twist. It is these that our prophets may see. This is so very true. We attorneys can often predict the future for our clients by observing their personalities. Just as Circe predicts that Jason will ultimately cast Medea aside, with catastrophic results, it isn’t
31
that difficult to see cases where disaster is hanging around the necks of people we meet. Forget the Fates: their own choices doom them to disaster. As the old saw goes, your character becomes your destiny.
sheer garment teases at her nude figure, with her breasts visible and tempting. This picture fits far more with Miller’s portrayal of Circe as powerful, sexual, and not at all a stooge of Odysseus than Homer’s version.
It is impossible to discuss mythology without at least mentioning some amazing art it has inspired. Circe has been represented by many over the years, but the best must be John William Waterhouse, who painted not one, but two iconic depictions of the goddess. (In addition to his Greek myths, he painted Arthurian stuff—his Lady of Shallot has to be the best known of that legend.)
Equally moving is Circe Invidiosa, which portrays the moment when Circe, jealous of Scylla for stealing the affections of Glaucus, poisons the pool where she bathes. Again, what is barely visible— the transformation of Scylla under Circe’s feet—is part of the power. But it is Circe’s fierce expression which you can’t take your eyes off of. Waterhouse is fantastic at capturing the emotions of Circe in both pictures.
Circe Offering the Cup to Odysseus is an amazing depiction. She dominates the picture, with Odysseus merely reflected in the mirror, a hesitant character to her supreme confidence. (And why not? She holds a potion in her glass, and one of his crewmen as a pig sits beside her feet.) The
Timothy Swanson is a local attorney. He and wife, Amanda, are the parents of five children. Swanson also performs as a violinist in the Bakersfield Symphony Orchestra.
SEPTMBER/OCTOBER 2020