George Bernard Harris.

Memories of San Francisco legal practice and State and Federal courts, 1920s - 1960s : oral history transcript / and related material, 1980-1981 online

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Morris: Now I thought we might talk a little bit about your recollections
of some of the cases you worked on with Mr. McNab , Mr. Taafe, and
Mr. Schmulowitz. The earliest one that I found noted of some
general interest was the Chaplin divorce case in 1927.

Harris: Yes. Since receiving your proposed inquiries, I tried to check my
memory, and I find that it would be aided and embellished by the
fact that Mrs. Driscoll has catalogued practically all of the
major cases in which I participated.* That would necessarily have
to comprise my recollection. I recall outstanding cases like the
Chaplin case. I was quite young then, and I remember it was a
proceeding that McNab rejoiced in, because of the characters
involved. McNab in this sense was quite a showman, apart from
being a great lawyer and tactician.

Morris: What kind of a role did you play in the Chaplin case?

Harris: Oh, a minor role. My recollection is I worked with Schmulowitz

on the briefs in the Chaplin matter, and the briefs had to do with
the jurisdiction of the trial court under a petition for writ of
prohibition, a highly technical field of the law. We were upheld
by the trial judge, that the court, as I recall, was without
jurisdiction.

Morris: The court in Los Angeles was without jurisdiction?

Harris : Yes .

Morris: That enabled the case to be moved to northern California?

Harris: No, I think that issue was clarified later on, but it was a very

involved, technical matter, and well handled by Los Angeles lawyers
as well as the lawyers in the north.



*Loose-leaf binder summarizing the judge s decisions,
documents.



In supporting



61



Morris: There were several cases that had to do with Los Angeles film

people. I was curious as to how it was that San Francisco attorneys
were doing that much business in Los Angeles cases.

Harris: I think that s due to the fact that McNab had established himself

as a very outstanding lawyer. We had, by reason of circumstance, I
suppose, advanced into a very secure field in the representation
of some distinguished artists. The results obtained by our office
were quite outstanding.

Morris: So that then led to more cases?
Harris: Yes.

Morris : I guess one that was actually tried up here was the Fatty Arbuckle
case.

Harris: Yes. That was defended by McNab and Schmulowitz.
Morris: Was that an unusual trial for its time?

Harris: Yes, quite unusual. I doubt very much if he would be prosecuted
under current standards. It took three trials to acquit him.

Morris: Loyd Wright ?

Harris: Wright handled the Los Angeles end of the case Loyd Wright.

Morris: Is he the Loyd Wright who later was quite active in Republican party
affairs?

Harris: Yes.

Morris: Did you stay in touch with somebody like that over the years?

Harris: No. I think our association on the Chaplin case with Wright was
one of the few cases we had with his office.

Morris: On these early cases, would you have been in court as a junior
assistant to Mr. McNab and Mr. Schmulowitz?

Harris: Oh, yes. I wrote many briefs for them.

Morris: How did Mr. Schmulowitz differ from Mr. McNab in his manner of
presenting a case in court?

Harris: Schmulowitz was essentially a technician; McNab was a tactician.
Between the two of them they presented a very formidable unit of
operation. Theirs was an intense relationship of strength. Tell
me when you re getting tired.



62



Morris: I think maybe we could finish up in a few minutes. If you ve got

the interest, I thought we might get to the Flood will case today.*

Harris: All right. The Flood case is probably unique in the history of
California. Constance May Gavin, kind of a storybook character,
was one of the principals who claimed relationship to Jim Flood.
Jim Flood was the social leader and denied parenthood. There were
various attorneys acting in the matter: John Taafe [spells it]
represented the petitioners.

Morris: This would be the Flood family?

Harris: Constance May Gavin.

Morris: Mr. Taafe represented Miss Gavin.

Harris: Mr. Taafe and Eugene Aureguy [spells name]. After a very heavy

schedule, the trial court denied the plaintiffs position, and, in
the vernacular, threw it out of court.

Morris: I understand there was some issue with Judge Deasy, the judge who
heard the case.

Harris: Judge Deasy judged me guilty of contempt for my failure to obey an
order he had made. Judge Deasy insisted upon an order that I must
be seated in my examination of George Ford, the celebrated attorney.
I was cross-examining Ford after about ten days of testimony, and
he insisted that I sit down. I told him I was not obliged to sit
down. He judged me guilty of contempt. I was held in custody for
a short time. That order was reversed at a later stage.

The Flood litigation became history as a result of settlement
of all the claims. Constance May Gavin received her just awards. I
suppose the case will be debated so long as they have law schools
and courthouses, because it was vivid in its approach to the
dramatic. And on a civil basis, it was just as difficult a case
as you can find because of the local prejudices that developed.

Morris: Was there any thought ever of asking to move the case to a different
jurisdiction, since the Flood family was so well-known?

Harris: That was denied. There were many jurisdictional aspects. It was a
bitterly-contested case.

Morris: There were some references that Judge Deasy was thought to be, by
some people, very much on the side of the Floods.



*Estate of Flood. 217 Cal. 763 (1933)



63



Harris: Judge Deasy was characterized at one time in that way, but the trial
attorney, whose name escapes me for a moment, was more maligned in
that direction.

Morris: Do you recall your own feeling in that matter, as to whether or not
the judges were dealing reasonably with the issues that were being
presented?

Harris: I think for the historical record, the printed word on the page
should suffice.

Morris: I m interested that the contempt matter related to whether or not
you would stand up in examining a witness. Isn t it usual for the
attorneys to be on their feet?

Harris: I insisted that Constance May Gavin s attorneys should be permitted
to stand upright in their examination, rather than be seated. I
was upheld by two appeals.

Morris: Was that not an unusual behavior?

Harris: I don t think so. There were important questions involved.

Morris: In the contempt citation, or in the whole case?

Harris: Well, there were so many issues in the whole case, it would be

difficult in as brief a discussion as we re having to outline them
fully and fairly; but there was always a feeling between the
counsel and the litigants that bias and prejudice at some stage or
another had crept in.

Morris: Did you appeal your contempt citation while the Flood trial was going
on?

Harris: Yes. John Taafe sued out of a writ of habeas corpus and proceeded
to finalize it by bringing it before the district court of appeal.
He got an early decision from the district court of appeal. That
was on the state side.

Morris: From the state court of appeal.

Harris: That s right. I think now we d better take a short rest. [brief
tape interruption]



64



Office Management



Morris:



Harris



Tell me about working with Nat Schmulowitz,
fine collection of books of humor.



I understand he had a



Marris :
Harris;

Morris :
Harris :



Morris



Harris



Morris ;
Harris :
Morris ;

Harris :
Morris :
Harris :



[He was known] all over the world, in fact, for his library on wit
and humor. He had collected ever since I d known him. He gave all
of the material, intact, emanating, as I said, from all over the
world he gave it to the City and County of San Francisco.

That * s marvelous .

That endowment gave them, the city says at least, a library that s
without peer in the world.

I m told that he himself never told a joke. Is that true?

He wasn t a jokemaster in any sense of the word. He had a delightful
sense of humor, but on the quiet side. He was a very unique
individual himself. I had a profound respect for the man as a
lawyer and as a gentleman. I never heard him raise his voice. He
had a direct presentation that was typically Schmulowitz, and a
vocabulary that surpassed description.

And almost a classical way of expression. I came across some notes
he made for a speech when you were appointed to the bench that
was remarkably elaborate.

He had a classical style. I d know immediately, as soon as I
touched a brief, that it was Schmulowitz s brief. It was the
hallmark of his career. He treated me quite generously as a
younger man; I was quite a lot younger; so did McNab . McNab cared
very little for the niceties of expression, but he managed always
to get his point over by some anecdote or some forceful expletive.

Strong language upon occasion?
Yes.

I see. That s an interesting contrast. How had the two of them
gotten together as law partners?

He never had a partner.

Taafe and Schmulowitz were not partners with McNab?

No.



65



Morris: They were just associates in the same office?

Harris: Yes, they were not partners. I don t think McNab , with his type of
thinking, would ever stand for a partnership in terms of division of
responsibilities as well as division of monies.

Mrs. Dunn, Lucy Dunn, took care of the finances. She was quite
an eccentric little woman, and I always found it difficult to get
along with her.

Morris: She was trained as an attorney herself?

Harris: Single. She was in love with McNab; never married.

Morris: But McNab was married?

Harris: Yes.

Morris : And Lucy Dunn was trained as an attorney?

Harris: No, she was just the bookkeeper.

Morris: It sounds like he was the kind of colorful person that it would be
easy for a woman in that position to become fond of.

Harris: Oh, yes. She was a nice woman.
Morris: Did she keep the books for everybody?

Harris: No, just McNab. Schmulowitz kept his own books; I kept my books such
as they were.

Morris: How about John Taafe?

Harris: John Taafe was separated from us altogether. John Taafe was conceded
to be one of the greatest criminal lawyers in the West. You d fall
in love with him; he s a very fine man, very able, intense worker.

Morris: Were you in his office, or did you just do work for him?

Harris: No, I was in his office. I left McNab s office because John Taafe
and I had been growing closer together, and I was trying more cases
for John than I think he ever anticipated. He would very often try
the criminal cases, and I would try the civil. But I had advantages
that were not anything but miraculous from the standpoint of
association with Mr. Taafe.

Morris: How so? You said "miraculous."
Harris: Strike the word "miraculous."



66



Morris: "Remarkable."

Harris: "Remarkable."

Morris: "Miraculous" has a special connotation.

Harris: Right. Might get even into the occult.

Morris: Did you feel that there was a special fortune guiding your experiences
as a young attorney?

Harris: I always felt that Taafe and I got results that were somewhat
startling at times, somewhat not miraculous, certainly

Morris: You thought sometimes you won a case that you didn t expect to.
Harris: Well shall we stop here?



Antitrust and the District Court##
[Interview 4: May 23, 1980]

Morris: I found Judge Wyzanski s book, Whereas [Atlantic Little, Brown, 1965],
in your library and I wondered if I might borrow it.

Harris: Certainly.

Morris: Have you found his ideas helpful?

Harris: He got a lot of attention on antitrust matters. You sent me notes

for today about antitrust American Can was the biggest civil case I
ever tried.*

Charlie Wyzanski tried the Boston Shoe case which, in the east
coast s viewpoint, is the largest antitrust case ever tried by a
federal judge.** Boston Shoe case was the biggest and is a big
area.

Morris: There were big errors?



*U.S. v. American Can Company [87 F Supp. 18, N.D. Calif. 1949]
**U.S. v. United Shoe Machinery Corp. [110 F Supp. 295, D. Mass. 1953]



67



Harris: Big errors, as well as physical propensity to big errors. Charlie

became some kind of a high priest in the Boston litigation. When he
approached his chambers, it was like the sanctum sanctorum. He grew
very large over the Boston Shoe case, and his opinions became
extraordinarily harsh.

Morris: Harsh?

Harris: Yes. I admire him as a lawyer, a brilliant fellow, and he s entitled
to all the credit he earned in the Boston Shoe case. But the
opinions became sort of ad nauseum for a while, and I think a lot
of the glamour was erased from his attainments, because he is so
able. Brilliant.

And I am fond of him. What I say is not a critical comment
made just out of hand, it was made in processing my viewpoints.

Morris: Were there similar issues in the Boston Shoe case to the American
Can case?

Harris: Yes. American Can was riddled with some good humor, too. The vice-
president was really the focal point of all the operations. There
was one operation that had to do with burning all the invoices in
the basement of the American Can Company. Not only the invoices,
but a number of other pertinent documents.

Morris: During the course of the trial?

Harris: During the course of the trial. The name of the man who was on the
stand, and he was a perfect witness, very desirable type of witness:
nothing ruffled him. He was a little bit taken aback when I asked
him the simple question: "How do you explain the burning of the
invoices and other collateral papers in the fireplace of the American
Can?" It was not the fireplace, but the furnace room. He said,
"That is what is called a commercial massage." He was taken aback.
That was never lost in the litigation; that was a big thing for them
to overcome. Their own vice-president humorously, of course but
at the same time, grimly upsetting months of work on the part of
the defense counsel.

American Can was represented by one of the most able civil
defense lawyers in the United States: Whitney North Seymour,
[spells name] He represents big interests, and he does a remarkable
job. He represented American Can. I forget now for the moment what
Washington firm represented [pauses to recall] one from Washington.
The representation was excellent. American Can was a tough case. I
give you that as a supplement to our discussion.

Morris: Good. I ll put that on tape because I d like to catch these little
bits as they come up.



68



Harris:
Morris:
Harris ;



Morris:
Harris;



Morris:
Harris :

Morris:

Harris :
Harris



Morris



Harris ;



You can have it for what it s worth.

Great. How did they deal with the matter of the burned documents?

It was never adhered to and never mentioned formally. I think
there were some informal representations . I think the gentleman
who referred to the burning of the papers my recollection is that
he was vice-president, and he was so forthright and so unpretentious
about the whole thing that it had the hallmark of rectitude and
integrity. You know, it became something other than what it was.

It sounds like an example of the best defense is a good offense.

Yes, that s right. They made it humorous. Of course, to make a
thing like that humorous because there s a tragic example of
corporate misconduct. There it was. I don t think they ever
swept it out of the case. My decision s on record; I refer to it
the American Can decision. I have no feeling about it one way or
the other.

In other words, it was not central to the ?

Yes, it was. It was a grim piece of evidence. There were other
burnings in the defense of those [antitrust] cases. No, I withdraw
that. That s not accurate.

I think there was a celebrated case sometime later, when, was it ITT
was thought to have shredded a number of documents that might have
been considered ?



Yes, that s right. That has a relevancy,
tape interruption for coffee]



That s correct. [brief



I remember Whitney Seymour well. He d march into the courtroom
with a retinue of brief carriers, all honor men at Harvard or Yale,
most of them were honor men, terrific young lawyers, to really give
you the support you need. He was very gracious, very graceful in
his presentation. He was one of the finest trial lawyers I ever
encountered. It doesn t seem to hurt him, no matter how irrevocable.
He was a prototype of what the young lawyer today should study.

Did you find that an eastern lawyer had perhaps a different approach
to handling a case?

I think eastern lawyers have a better opportunity. I think the
eastern lawyers have a better opportunity than the western lawyers
for the study of the larger case, the opportunity to visualize some
of the intense litigation. Although we ve had some on the West
Coast, great proportions were the [pause] What was the name of that
antitrust case?



69



Harris: This case, and I can t remember the name for the moment, grew so

large and disproportionate, that it came a non-judiciable piece of
property. Larger than would permit the application of the ordinary
process , and so large as to prevent the decision by [pause]

Morris: Would this be the antitrust cases involving a number of electrical

manufacturers that had to be tried in a number of different courts?*

Harris: That may be one of them. What I m trying to say is that when all
of the evidence is fed into the hopper for a judicial decision, it
becomes very imperative, and to the casual onlooker [it appears that]
it s a non-judiciable item to dispose of. Therefore, the lawyers
did, I think, the proper thing. They made a heroic effort to decide
to adjust the matter among themselves, and they came to a pretty
good result. That seemed to supply the want, not apparent want,
on the part of the judiciary, because I think the judiciary did
everything possible to dispose of it in an orderly way. But the
lawyers, in my opinion, did a very, very, very constructive job
in getting the matters behind the courts, particularly as they were
in such proportions as to become staggering.

Morris: Did part of some of those cases come before your court?

Harris: I have no independent recollection of it, but collateral matters,

pretrial matters, many, many facets of the heavier litigation came.
I can t recall specifically the cases at hand.

Morris: Perhaps this would be a place to ask you about the role of pretrial
activities, particularly in a large antitrust case.

Harris: Pardon me for being

Morris: Yes. Take a minute to think about my question.



Pretrial Proceedings



Harris: I think pretrial, well-conducted and well-ordered, is perhaps the
most potent instrumentality that a court has today for working out
the salvation of a difficult case. I think they re most useful
instruments, if used properly and judiciously.

Morris: You say, "If used properly."



*See 195 F. Supp. 37 (1961) District Court E.D. Pennsylvania and
subsequent cases of 1962.



70



Harris: And judiciously. I mean by that (amplified to some extent) it can
be used as an instrumentality of force by a court, if the court
is inclined to press into shape some of its own opinions , his or
her own opinions.

Morris: In that kind of a situation, would it be a judge saying to the
opposing counsel that "you will resolve this , and you should
resolve it in this direction?"

Harris: I think the role of pretrial [pause] "When the hurly-burly s done,
when the battle s lost and won," it seems to me that a greater
number of the cases would be settled by the court participating in
the pretrial to the fullest extent. I think the court should, in
having to do with many cases, become not a protagonist, but more
active in the process of settlement.

Morris: Would that be as a facilitator?
Harris: Yes, that s right.

Morris: In your experience, is it as many as a majority of cases that come
before a district court that are resolved by pretrial negotiations
facilitated by the judge?

Harris: I think the clerical staff in Washington would have the breakdown of
the components that would go to make up settled cases.

Morris: What kind of cases might lend themselves most effectively to pretrial
solution?

Harris: I think any litigated matter can be subject to pretrial.

Morris: Are there times when one attorney or another is not inclined towards
settlement?



Harris: I think the run-of-the-mill attorneys lend themselves quite readily
to the pretrial processes. I don t think there s any attempt to
escape from the rigors of pretrial, and sometimes it s a rigorous
proceeding, painstaking.

Morris: In what ways is it a rigorous proceeding?

Harris: Well, by entering into effective stipulations, it sometimes breaks
up the buttress of litigious aspects of the case. A genuine and
forthright appraisal of the rights of one s client I think if a
person is satisfied that the client has little or no defense and is
merely coasting along on the goodwill of the court that might be
misunderstood, coasting along. I think if a genuine effort is made
in an ordinary, run-of-the-mill case, it can be and should be used
as an effective instrumentality.



71



Morris: In what kinds of cases is a pretrial settlement not likely to be
possible?

Harris: Well, I think it d be difficult for me to place a deposition in
that area. I think that it d have to be the subject matter of a
forthright attitude on the part of both counsel, both plaintiff
and defense counsel. I think if there is a fair and decent attitude
of appraisal, of the evidential value and quantity thereof, that,
with heroic efforts in many instances , some of the lengthier
litigation could be settled.

Morris: In your view, is it the judge s role to point out the areas of
possible settlement, and the relative value of the ?

Harris: I think the court can express the views in a case without showing
any predestined decision.

Morris: So that in cases that are settled in pretrial proceedings, the judge
then does not have to render a written opinion which then goes into
the record?

Harris: Oh, I don t think that s true. I think any court worthy of the name
is never reluctant to have its written or spoken word entered into
the record; and if he has made a decision in his own part, and
desires to present his decision to the counsel for whatever they
may regard it, that decision should be presented in written form if
the court desires, or orally, off the bench.

There s no easy avenue of approach to settlement in a case of
major litigation, because bear in mind the lawyers worthy
of the name have already processed the material evidence, they know
what the evidentiary value of it may be and very often could effect
a settlement efficacious to both parties.

Morris: Does "efficacious to both parties" mean that in many cases, neither
side arrives at everything that they had wanted to achieve in the
proceeding?

Harris: I think it would be reaching into the I don t think I could answer
it.

Morris: So often it appears in a case that both sides have

Harris: exhausted?

Morris: Well, have some fact and some standing to their position.

Harris: As the case progresses, inevitably the wrapping on the case begins
to unravel.

Morris: That s a nice image.



72



Harris: It begins to unravel T. just put it that way because it occurred to
me that that s a rather inviting way to put it.

Morris: The case doesn t stand up, in the vernacular.

Harris: That s right. A manufactured case, a case without integrity being

scooted along by artful men, the fact that sometimes, notwithstanding
the searching eye of pretrial negotiations and other cases, a case
doesn t have the merit that was originally presupposed.

Morris: That sounds as if part of the judge s role is to evaluate the nature
of the persons before, both the attorneys and

Harris: I don t want to be accused of pressing trial viewpoints on already

well-prepared lawyers. The lawyer of today is a pretty well-prepared
individual. He has the working force to invite into the case; a
large corporation is not interested altogether in conserving the
energies of the defense counsel. All in singular, it occurred to
me that from my viewpoint of the whole period of several years, I
have a definite feeling that additional cases could be prepared on
the pretrial agenda. It already exists. That might invite a
statistical war, so just make it as a vagrant opinion on my part.

Morris: It s an interesting one

Harris: When is there a cessation of the awesome power and responsibility of
a federal trial judge? The power of a federal trial judge is beyond
comprehension at times. Like all powerful forces, it should be


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Online LibraryGeorge Bernard HarrisMemories of San Francisco legal practice and State and Federal courts, 1920s - 1960s : oral history transcript / and related material, 1980-1981 → online text (page 6 of 18)