Five Bagatelles at Law

I. Introduction

In music, a bagatelle is a short piece of music, frequently instrumental only. One of the more well-known musical bagatelles is William Walton’s Five Bagatelles for Guitar 1 Divided into five parts, or bagatelles, all of the pieces can be played together in about 14 minutes.

Walton’s Five Bagatelles are organized as Allegro, Lento, Alla Cubano, Sempre Espressimo, and Con Slancio. The description of each bagatelle and their order correspond well to five bagatelles at law that are sometimes lost in daily law practice but which are important to our roles in the interpersonal symphony of the law as profession: Independence, the Rule of Law, Authenticity & Truth, Originalism, and Courage.

In law, we often think we need to use many words to make a point. The bagatelle model—short but impactful thoughts—is sometimes more effective, particularly in terms of these five qualities and priorities that we can keep in mind as we live within the law. Personally, I think of these as my Baedeker, or guidebook, for practicing law.

II. Bagatelle I—Allegro (Quick & Lively)—Independence

A lawyer’s independence is essential to a system of loyal advocacy on behalf of a client.2 Without independence, loyalty is divided, and divided loyalty does not meaningfully achieve the objective of zealous advocacy. Lack of independence has its genesis in a number of other interests: self-interests, such as like or dislike for the client or the client’s cause; lawyer peer pressures; law firm interests; the influence of outside interest groups; or sadly, simple biases and prejudices. All of that makes a lawyer’s independence a highly important consideration for a client. If a client were to know about a lawyer’s interests that compete with the client’s interest, how would the client react? Some interests may be shared; others may not be. However, the discerning client should realize that the influence of any other interest can create a situation of division of loyalty. And what about the effect of other interests of a lawyer on the court deciding the client’s case? The court should be entitled to assume that the client’s interests are paramount and are not adulterated by other considerations, including the lawyer’s concern for how the lawyer is evaluated or received by the court in relation to the client’s need for a lawyer who remains winsome and credible while occasionally, as necessary, pushing the court beyond the court’s own positions and thinking. To work as intended, the system needs an independent lawyer. This independence must be constant and immediate and not subject to either undue deliberation while weighing competing interests or laden with stress and anxiety that slow down advocacy of the client’s interests. Finesse and deliberate strategies of thought are important tools for the lawyer, but they should not be used for the purpose of balancing other interests with those of the client in an effort to serve all masters of the lawyer.

“An attorney has an ethical obligation to his or her client that does not admit of competing allegiances.”3 The Eleventh Circuit Court of Appeals made the foregoing statement and went on to quote the familiar Bible verse of Matthew 6:24 about not being able to serve two masters before concluding that “an attorney’s duty of loyalty to his client is very nearly sacred.”4

The picture above shows a place in the Gothic Quarter of Barcelona, Spain, where lawyers’ briefs were once submitted. It is marked by a turtle and also by swallows that are free to fly without restriction. The musicality of soaring swallows is unmistakable, and that musicality is marked clearly by their independence. Our independence should be measured by the restrictions placed on our work from within us and by outside pressures. Like a caged swallow, a tethered lawyer looks different to the client, the court, and, ultimately, the public whose confidence in the rule of law is critical.

III. Bagatelle II—Lento (Slowly)—The Rule of Law

The rule of law is the primary mechanism in our legal system that leads to justice. Without it, attorneys have little to argue about, because our main activity (and perhaps purpose) is to develop and argue facts within the structure of the law. The judge’s decision is then accepted and usually obeyed because of our society’s commitment to the rule of law. Thus, we all depend upon the rule of law not just to do our work but to order society when there are disputes or even temptations to break the law.

As the turtle on the face of the Barcelona brief depository reveals, lawyers, the courts and, ultimately, justice are not just called to be independent and free of other influences. We all are also called to the careful and deliberate development of the law that engenders and maintains support for the rule of law. Hence, the turtle is a symbol of how disputes and questions are decided and how those disputes ultimately fit within the overall rule of law. The court system in Barcelona recognized that value long ago as did the architect of the United States Supreme Court building, who placed turtles at the base of the lampposts outside the building. This is a reminder to all not to rush to judgment, not to circumvent deliberate legal process, and not to avoid the hard work that is required of lawyers and judges to do justice.

A few years ago, the Arkansas Supreme Court gave this emphasis to the rule of law: “Regardless of how we feel about Paschal's conduct, which could correctly be referred to as reprehensible, we cannot abandon our duty to uphold the rule of law when a case presents distasteful facts.”5 As lawyers, we have that same duty, in every case, in every way, in every moment, so long as we continue to call ourselves lawyers.

In today’s world, there is a perception that justice begins with having a judge of a particular worldview who acts to uphold the rule of law from the perspective of that worldview. However, starting from the point of a worldview may subvert the whole process. While no person, including judges, can totally be independent, their success in upholding the rule of law depends on their detachment:

Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures.6

Thus, like our independence as lawyers, detachment of judges, without regard to any constituency and unmindful of the pace of society, is a key to upholding the rule of law. And like Walton’s Bagatelle II, slowly listening to the musical score of the law, interpreted by a skillful professional, will lead to the synchrony and discipline demanded by the rule of law.

IV. Bagatelle III—Alla Cubano (Cuban Style)—Originalism in the Context of the Law Based on the Constitution

While the law, and its rule in our society, moves deliberately, it cannot be separated from its origins. Like the Cuban snail, polymita, taken from its original habitat, it dies. Its beauty is in its original created state and in its native habitat. The polymita is now endangered, because its habitat is disappearing, and because it has been commercialized.7

Like the polymita, our original DNA in the law, cannot, and should not, be changed. We must continue to dwell in the native habitat where the law was created in order to keep the rule of law off the endangered list.

There is a tendency to move the law from its original cradle—which in the United States is our Constitution—where those in society are strong enough to take it. These words attributed to Thomas Jefferson in 1798 make the point, albeit in a different context: “[I]n questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.”8 Closer to home and in the not so distant past, the Supreme Court made this same point in Little Rock’s desegration case, Cooper v. Aaron, 9 particularly Justice Felix Frankfurter in his concurrence: “[T]he Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power however disguised.”10

Whether the strong are legislators, lawyers, judges, or parties to a case, losing sight of our foundational DNA leads to error and uncertainty instead of bedrock principled decisions:

But fetishes are elusive things; they throw off the garment of one age to take on the vestments of the new. Herbert Spencer in his day admired the formalism of law, with its indifference to human justice, clothed in the pseudo-philosophic robes of “laissez faire.”11

Lochner v. New York12 has come to symbolize the type of wrongful use of judicial power under the guise of economic due process—a rewriting of the Constitution, in a way, that altered the original meaning of that foundational document.13 In a moment of clarity that presaged a later correction in jurisprudence, Justice Oliver Wendell Holmes famously stated in dissent in Lochner that the due process clause of the Fourteenth

Amendment “does not enact Mr. Herbert Spencer’s Social Statics.”14 A later decision by the United States Supreme Court took the originalist view even further:

Likewise, the Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights.15

Thus, it is original meaning, and neither the prevailing view of the strongest nor the most acceptable mores of the day, that should be the guiding principle of all that we do in the law.16 May we never forget our beginning and its importance to our future, and may our style of law be as clear, unforgettable and stunningly beautiful as the Cuban style of the polymita

V. Bagatelle IV—Sempre Espressimo Expressively—Authenticity and Truth

In each of our lives as lawyers, we have had times when we tried to emulate someone we admired. Sometimes it worked out for a short while, but most of us learned that we were not effective imitating someone else. I was privileged to accompany various lawyers to trial in my first years as a lawyer, and I learned a lot from them and from their opposing lawyers. Some of what I learned I still use today. But just as no one would mistake a plastic toy store guitar for a Gibson, no one would ever mistake me for Buddy Sutton. It’s not just a matter of physical stature and voice; his credibility was the complete package of who he was. I could never even aspire to be him or any number of other master trial lawyers. Most importantly, however, neither could they be me. Authenticity, in its purest sense, is unique to each of us. It stems from genuinely reflecting all of our life and experience up to the point that we open our mouths to speak or lift our hand to write.

Expression by a lawyer in whatever form is most effective when it is genuine and resonates the truth. This is more than just accuracy and our best degree of honesty and candor. It is relational—reflecting who we truly are to clients, opposing parties, other lawyers, the court, and the public at large. And as Mark Nepo writes in Finding Inner Courage, 17 “we return to the breath of authenticity in the practice of relationship.”

Rule 102 of the Arkansas Rules of Evidence states that the rules are to “be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence, to the end that the truth may be ascertained and proceedings justly determined.”18 Other rules of evidence have been amplified by case law that describes how truth can reliably be ascertained. For example, while Rule 901(a) and (b)(1) and (4)19 provide basic rules regarding authentication, those rules are contextual in application. In Brown v. State, 20 the Arkansas Court of Appeals addressed the authentication of Instagram messages:

Although L.B.’s testimony was sufficient to authenticate that the photographs of the Instagram messages accurately reflected the images on her phone, she admitted that she did not have any actual knowledge that appellant was the one sending those messages. … Additionally, even L.B. admitted that anyone could create another account with a similar username, same digital profile picture, and same profile quote. Further, there was nothing in the content of the messages that was known only to appellant.21

The court concluded, “Because credibility was critical to the jury’s resolution of the conflicting stories, we reverse and remand for a new trial.”22

The present-day parallel of the lack of authenticity of Instagram messages and our being as lawyers is poignant. Our experience tells us that many people on Instagram project a false image, so much so that we scoff when we really know them and are skeptical of those we don’t know. Therein lies the heart of this bagatelle. Our expression as lawyers should be authentic and clearly ring truth. Because authenticity is the totality of who we have been and who we are, it must reflect the lows and the highs. It is not authentic or genuine to represent that we have never lost a case or made an error or needed the unconditional grace extended by another lawyer. Neither is faking good for purposes of advocacy or feigning independence or fairness. Sometimes authenticity of expression is best made by simply stepping aside for the sake of avoiding an unforgettable negative appearance.23

VI. Bagatelle V—Con Slancio An Impetuous Manner—Courage (Overcoming

Fear)

Courage is not the absence of fear. It is the determination to move forward in the face of fear. Courage acts impetuously and without the baggage of self-doubt or self-interest.

Homer echoed this thought in The Iliad of Homer: “But come now, and let us be mindful of impetuous valour.”24 Mark Twain did as well in his satirical work The Tragedy of Pudd’nhead Wilson: “Courage is resistance to fear, mastery of fear—not absence of fear. Except a creature be part coward, it is not a compliment to say it is brave; it is merely a loose misapplication of the word.”25

Mark Nepo notes the importance of acting with courage: “Each time courage finds its face in the middle of fear, the world grows.”26 We might add: “Each time we act with courage, the truth is more likely to be established.”

Fear is not vanquished; it is overcome impetuously—impetuously in the sense of acting vehemently and with passion as others of our vocation have done since the beginning. Fear cannot linger or paralyze when the client depends upon us for advocacy. Thus, courage acts without the crippling baggage of self-doubt or self-interest. And this must be one of our defining traits—one that makes others think we are never without it. Just as the guitar virtuoso Julien Bream is usually unrecognizable without his guitar and his character is best known in his music, we should be recognized principally as a courageous advocate for others, particularly those who have no one else to act for them.

VII. Conclusion

In Italo Calvino’s Invisible Cities27 is this passage:

“I speak and speak,” Marco says, “but the listener retains only the words he is expecting. … It is not the voice that commands the story: it is the ear.”

Just as the ear is important to music, it is essential for us to listen carefully to those who have gone before and have upheld the aspects of a quality life in the law. These Five Bagatelles at Law are such.

Endnotes:

1. Oxford University Press, 1974. For details about the Five Bagatelles, see generally https://waltontrust.org/en/composizionitooltip/89-five-bagatelles-for-guitar-1970-1 (accessed Jan. 14, 2022). For performances of the Five Bagatelles, see https://www. thisisclassicalguitar.com/five-bagatelles-forguitar-william-walton/ (accessed March 8, 2022).

2. Ark. R. Prof’l Conduct 1.7, cmt. 1; 1.9, cmt. 10. See also Preamble, § 9 (“Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living.”).

3. Chapman v. Klemick, 3 F.3d 1508, 1511 (11th Cir. 1993), cert. denied, 510 U.S. 1165 (1994) (cited and quoted with approval in Southern Council of Indus. Workers v. Ford, 83 F.3d 966, 968 (8th Cir. 1996)).

4. Id. at 1512.

5. Paschal v. State, 2012 Ark. 127, at 15, 388 S.W.3d 429, 438.

6. Dennis v. United States, 341 U.S. 494, 525 (1951) (Frankfurther, J., concurring).

7. See ‘World’s Most Beautiful Snails’ Threatened by Illegal Trade, National Geographic (July 15, 2020), available at https://www.nationalgeographic.com/ animals/article/cuba-polymita-snails-mostbeautiful-shells-endangered (accessed Jan. 14, 2022).

8. The Papers of Thomas Jefferson, Volume 30: 1 January 1798 to 31 January 1799, 536–43 (Princeton University Press,

2003), available at https://jeffersonpapers. princeton.edu/selected-documents/ jefferson%E2%80%99s-draft.

9. 358 U.S. 1 (1958).

10. Id. at 23.

11. Schwegler Bros., Inc. v. Johnson, 161 Misc. 451, 191 N.Y.S. 321 (1936).

12. 198 U.S. 45 (1905).

13. See Harper v. Va. Bd. Of Elections, 383 U.S. 663, 675 (1966).

14. Lochner, 198 U.S. at 75.

15. Harper, 383 U.S. at 669.

16. A recent extensive discussion of this issue is found in Randy E. Barnett & Ervin D. Bernick, On the Original Meaning of the 14th Amendment: Its Letter and Spirit (Harvard Press 2021).

17. Mark Nepo, Finding Inner Courage, 75 (Red Wheel 2020).

18. Ark. R. Evid. 102 (2021) (emphasis added).

19. Ark. R. Evid. 901(a), (b)(1) & (4) (2021).

20. 2019 Ark. App. 154, 573 S.W.3d 536.

21. Id. at 12, 573 S.W.3d at 542–543.

22. Id. at 13, 573 S.W.3d at 543.

23. See, e.g., Farley v. Jester, 257 Ark. 686, 692, 520 S.W.2d 200, 203–204 (1975) (“[W]e consider this chancellor a capable jurist and a man of integrity, reputation that he bears over the state. … However, court proceedings must not only be fair and impartial – they must also appear to be fair and impartial.”).

24. The Iliad of Homer, Book IV, p. 75 (Trans. Theodore Alois Buckley, Geo. Bell & Sons, London, 1893), available at https:// books.google.com/books?id=9n8XAAAAYA AJ&pg=PA75&lpg=PA75&dq=But+come+ now,+and+let+us+be+mindful+of+impetuo us+valour&source=bl&ots=LpuQe0zMm3 &sig=ACfU3U2JEuNarpzKUuTNKc8rztfq lukEQ&hl=en&sa=X&ved=2ahUKEwjVhf eGm9D2AhXFoFsKHR8NChQQ6AF6BA geEAM#v=onepage&q=But%20come%20 now%2C%20and%20let%20us%20 be%20mindful%20of%20impetuous%20 valour&f=false (accessed March 18, 2022).

25. Mark Twain, The Tragedy of Pudd'nhead Wilson, 155 (Amer. Pub. Co., Hartford, Conn. 1894) [https://www. gutenberg.org/files/102/102-h/102-h.htm] (accessed March 18, 2022).

26. Nepo, supra note 17, at 86.

27. Italo Calvino, Invisible Cities, 135

Music Boxes

Musical Notes from Arkansas Cases

Little Red Wagon

“The musicians were seated in a wagon.”

Humphrey v. State, 74 Ark. 554, 86 S.W. 431 (1905).

Judicial Harmony

IMAGINE ME WORKIN' FOR YOU

“With regard to failure to get a haircut this colloquy occurred:

COURT: And when you were brought before the court earlier in the day it was an order of this court that you have a haircut. It is my understanding that you refused, is that correct?

MORROW: Yes, sir. May I state the grounds, or would there be objections?

COURT: I care not. Go ahead.

MORROW: Your honor, I am employed as a musician, and I find it more or less a requirement to have my hair like I wear it.”

Morrow v. Roberts, 250 Ark. 822, 825, 467 S.W.2d 393, 395 (1971).

IT’S ONLY MAKE BELIEVE

“Mrs. Wilson testified that her home was in Hot Springs, and that she earned her living as a musician and was employed as pianist in an orchestra and as organist at the Jewish Temple, and that appellant met her while she was so employed and courted her with such ardor that she became convinced of the genuineness of his affection.”

Wilson v. Wilson, 163 Ark. 294, 259 S.W. 742 (1924).

WELL, I WONDER

Goldfinger

“It might appear logical to apportion the musician's disability in the loss of a finger to his body as a whole when it would appear ridiculous to follow the same procedure in the case of a common laborer or an attorney.”

Moyers Bros. v. Poe, 249 Ark. 984, 991, 462 S.W.2d 862, 866 (1971).

Mayberry Pop

“The deceased was a member of a traveling show, a musician in the band. Defendant is the stepson of Mr. Barham, who owned a filling station on the Lewisville-Texarkana road, near Spirit Lake, and assisted about the operation of it.”

Cornelius v. State, 172 Ark. 1176, 290 S.W. 54 (1927).

“I am a musician. I play the piano or keyboard. I played the piano at church services. I had to play right after I was beaten. I had difficulties.”

Seago v. Arkansas Dept. of Human Services, 2009 Ark. App. 767, at *8, 360 S.W.3d 733, 737

Courthouse singers have been a tradition in the Eastern District of Arkansas. Since the late nineties, various individuals with the U.S. District Clerk’s office have used their musical talents to sing at programs held in the federal courthouse. It wasn’t until 2018 that the current singers were asked by then-Clerk James W. McCormack to come up with a name. The group agreed on Judicial Harmony, bought a pitch pipe, and “went on the road.” Judicial Harmony has performed the National Anthem at many events including the Eighth Circuit Judicial Conference in Hot Springs, Federal Public Defender Lisa Peters’ Investiture, and multiple Naturalization ceremonies across the Eastern District of Arkansas. In December 2018, Judicial Harmony performed a medley of Christmas carols in the atrium of the Richard Sheppard Arnold U.S. Courthouse. Members include Girtrude Simmons, Judicial Assistant to Chief Judge Smith, U.S. Court of Appeals, Eighth Circuit; Joyce Pigee, Intake Clerk; Melanie Beard, Courtroom Deputy to Judges Wilson and Ervin; Crystal Newton, Operations Supervisor; and Laura Bichlmeier, Courtroom Deputy to Judges Wright and Miller.

“Working from home while these cuties are home isn’t easy. We love to have scheduled music breaks to reset our focus and extend our concentration.”

“Music is one way that I keep my heart from getting clogged up with suffering. A lot of my asylum-seeking clients are, like me, members of the LGBTQIA2S+ community and so sometimes it helps to turn the suffering into song."

"Often our career becomes our life, especially in the practice of law. Dance is great as a stress-reliever and is a surprisingly rigorous physical activity, which every lawyer can benefit from. But, for me, dance goes beyond just that. I am often looking for ways to break the tension with colleagues that my career path inevitably brings.”

Leslie Copeland truly believes she wouldn’t get any work done without her high quality noise cancelling headphones!

Pictured outside of the Village Vanguard, NYC (“The World’s Greatest Jazz Club”)

“I started taking piano lessons when I was in elementary school and continued through high school. I am out of practice but working on relearning because piano was really important to my grandmother.”

Jenifer Tucker and Alison Lee are board members and active volunteers for the Committee of 100 for the Ozark Folk Center. The COOH supports the Music Roots Program that provides free musical instruction to children in the Stone County school district. Pictured are Jenifer and Alison hosting a game show to educate members about the organization.

“Jazz and criminal defense, particularly cross-examination, are the exact same thing to me. Both are disciplined. They require a structure, a logical progression, and a theme. With that foundation, you can then improvise. Listening, thinking on your feet; a bit like creating order out of chaos. To me, jazz and litigation mirror each other. I couldn’t have become a criminal defense lawyer without first having been a jazz musician.”

Charles Roscopf

"I’ve spent some part of the last 20 years studying the blues. I’ve done quite a bit of research on the early bluesmen/ women and listening to their music. I’ve also visited around 30 gravesites of blues greats, in four states: Arkansas, Mississippi, Tennessee, and most recently Texas.” Pictured at Robert Johnson’s gravesite.

Greg Jones

"Its 2010. I duck into a blues joint on Las Ramblas in Barcelona, hoping to jam with the locals. Asked 'De donde es?' No one recognizes 'Arkansas.' So I say, 'Cerca de Mississippi.' The harmonica player grins, pulls me onstage and yells 'Es de MeeCheeCheePee.' The place erupts: for 20 seconds, the crowd chants 'Elveees, Elveees, Elveees.' Instantly, I have street cred."

Joe Purvis

"Little Joe and the BK’s has performed for 40+ years in Arkansas, Texas, Louisiana, Mississippi and Florida. We’ve opened for famous Riverfest acts for 17 years and played for several annual meetings of the Bar Association." Pictured with the LLC Band.

Kara Butler

Pictured with Ben Harris

"I remember in Civil Procedure class Prof. Brill discussed that law is both horizontal and vertical when looking at Federal and State law. This immediately made me think of the horizontal aspects of a melody that combine with the vertical harmonies to coincide together to make music."

Kathryn Pryor

Pictured in the role of Mama Rose in Gypsy at The Studio Theatre in 2022."Music and the performing arts are part of my DNA. My artistic side has made me a happier lawyer amidst the stress of the practice of law. And it has made me a better lawyer in the craft of relating to and communicating with witnesses and juries and in developing themes and strategies to which jurors can relate when preparing a case for trial."

"I am convinced that early education in music helped me to become an attorney. When I graduated from law school the River City Band asked me to join them as a keyboard player/ vocalist as they were going on tour of the Southwest Conference and recording in Memphis at Stax and Ardent studios. On our tour we opened shows for various A-list touring bands such as Styx, The Guess Who, and others. I have to believe that my experience on stage as a musician is the catalyst that helped me with public speaking on the law to get me where I am today."

Pictured at his home studio.

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