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Full text of "Litigator, federal district judge, director of the Federal Judicial Center, and professor, 1952-1997 : oral history transcript / 1998"

University of California Berkeley 



Regional Oral History Office University of California 

The Bancroft Library Berkeley, California 



Northern California U.S. District Court Oral History Series 



William W Schwarzer 

LITIGATOR, FEDERAL DISTRICT JUDGE, DIRECTOR OF THE FEDERAL 
JUDICIAL CENTER, AND PROFESSOR, 1952-1997 



With an Introduction by 
James R. Browning 



Interviews Conducted by 

Carole Hicke 

in 1997 



Copyright 1998 by The Regents of the University of California 



Since 1954 the Regional Oral History Office has been interviewing leading 
participants in or well-placed witnesses to major events in the development of 
Northern California, the West, and the Nation. Oral history is a method of 
collecting historical information through tape-recorded interviews between a 
narrator with firsthand knowledge of historically significant events and a well- 
informed interviewer, with the goal of preserving substantive additions to the 
historical record. The tape recording is transcribed, lightly edited for 
continuity and clarity, and reviewed by the interviewee. The corrected 
manuscript is indexed, bound with photographs and illustrative materials, and 
placed in The Bancroft Library at the University of California, Berkeley, and in 
other research collections for scholarly use. Because it is primary material, 
oral history is not intended to present the final, verified, or complete 
narrative of events. It is a spoken account, offered by the interviewee in 
response to questioning, and as such it is reflective, partisan, deeply involved, 
and irreplaceable. 



************************************ 



All uses of this manuscript are covered by a legal agreement 
between The Regents of the University of California and William W 
Schwarzer dated May 15, 1997. The manuscript is thereby made 
available for research purposes. All literary rights in the 
manuscript, including the right to publish, are reserved to The 
Bancroft Library of the University of California, Berkeley. No part 
of the manuscript may be quoted for publication without the written 
permission of the Director of The Bancroft Library of the University 
of California, Berkeley. 

Requests for permission to quote for publication should be 
addressed to the Regional Oral History Office, 486 Library, 
University of California, Berkeley 94720, and should include 
identification of the specific passages to be quoted, anticipated 
use of the passages, and identification of the user. The legal 
agreement with William W Schwarzer requires that he be notified of 
the request and allowed thirty days in which to respond. 

It is recommended that this oral history be cited as follows: 



William W Schwarzer, "Litigator, Federal 
District Judge, Director of the Federal 
Judicial Center, and Professor, 1952- 
1997," an oral history conducted in 1997 
by Carole Hicke, Regional Oral History 
Office, The Bancroft Library, University 
of California, Berkeley, 1998. 



Copy no. 




District Judge William W Schwarzer, 1990. 

Photograph by DuPont Photographers 



Cataloguing information: 



William W Schwarzer (b. 1925) Lawyer and federal district judge 

Litigator, Federal District Judge. Director of the Federal Judicial Center, 
and Professor. 1952-1997. vii, 378 pp., 1998 

Childhood in Berlin, early 1930s, and family move to Los Angeles, 1938; WWII 
intelligence work; University of Southern California, and Harvard Law School; 
trial lawyer with McCutchen, Doyle, Brown & Enersen, 1952-1976: antitrust 
litigation, colleagues, Morris Doyle, cases involving Stewart Hopps, McCloud 
River Railroad Co., Shell Oil, Harvey Motors, Greyhound Corp., Lucky Lager 
Brewing Co., others; Federal District Judge, 1976 to present: appointment, 
court administration and case management, jury management, complex litigation 
and insurance antitrust, drug cases; Director, Federal Judicial Center, 1990- 
1995: Washington, D.C., facilities and personnel, previous history and Center 
relations with Administrative Office; comments on judicial training, expert 
witnesses, and on splitting the Ninth Circuit Court. 

Introduction by James R. Browning, Chief Judge, Emeritus, U.S. Court of 
Appeals, Ninth District. 

Interviewed in 1997 by Carole Hicke for the Northern California U.S. 
District Court Oral History Series, the Regional Oral History Office, 
The Bancroft Library, University of California, Berkeley. 



ACKNOWLEDGMENTS 



The Regional Oral History Office, on behalf of future researchers, 

wishes to thank the United States District Court for the Northern District 

of California Historical Society, whose contribution made possible this 
oral history of William W Schwarzer. 



TABLE OF CONTENTS- -William W Schwarzer 

PREFACE i 

INTRODUCTION by James R. Browning iv 

INTERVIEW HISTORY vi 



I BACKGROUND AND EARLY CHILDHOOD IN BERLIN, GERMANY 

History Notes 1 

Family Antecedents 1 

Growing up in Berlin 3 

The Coming of Adolf Hitler 4 

Early Childhood in Berlin 7 

Family and Surroundings 7 

School and Outside Activities 10 

More on Immediate Family 14 

Travels 18 

Moving to the United States 22 

II EARLY LIFE IN CALIFORNIA 31 
Parents' Work 31 
Joining Boy Scouts 32 
Part-time Work Experiences 37 
Schools and Education 38 
Social Activities 40 

III WORLD WAR II: MILITARY SERVICE 44 
Early Days of U.S. Involvement 44 
Summertime Activities 45 
Starting at UCLA, Then Being Drafted, 1943 47 
Basic Training 48 
Intelligence Work: Training and Assignments 52 

Camp Ritchie 52 

Assignments in Britain 54 

Paris 56 

Belgium 56 

Luxembourg 58 

Germany 58 

Scotland 60 

Conditions in Europe 61 

Returning to the U.S. 64 

IV COLLEGE AND LAW SCHOOL 66 
University of Southern California 66 
Harvard Law School 68 

Application and Acceptance 68 

Importance of the Law Review 70 

Professors and Courses 73 



Other Students 77 

Law Schools, Yesterday and Today 78 

Other Activities; Admission of Women; Ames Competition 80 

A Few More Professors 82 

Marriage and Family 83 

Teaching Fellowship at Harvard 86 

McCUTCHEN, DOYLE, BROWN & ENERSEN 89 

Joining the Firm 89 

The Firm in 1952 90 

Declining Practice of the Firm 92 

Major Changes in the Firm Begin, 1958 93 

The 1960s and 1970s 95 

Senior Associates 101 

Profits Division 103 

Partners Who Left 105 

Brent Abel 106 

Morris Doyle 107 

Robert Brown; The Gentlemanly Practice of Law 107 

Early Days As an Associate 108 

Working for Robert Lipman 108 

Offices 109 

Bar Examination and Bernard Witkin 110 

Partners and Other Associates 111 

Shell Oil Company Case 112 

Stewart Hopps Case 114 

McCloud River Railroad Company 116 

Greyhound Corporation 118 

Allan Matthew 119 

Morris Doyle: The Way to Practice Law 121 

Learning to Litigate 122 

Passing Work Down to Junior Lawyers 123 

Social Activities and Billable Hours 125 

Secretarial Help 127 

Pro Bono Work 128 

1960: The Firm Moves Its Offices; A Watershed Year 130 

Management and Administration 132 

Expansion and Hiring 134 

The Los Angeles Office 135 

More on Hiring 137 

Specialization 138 

Benefits 139 

More on Pro Bono 141 

Hiring Women and Minorities 142 

Heilbron, Balabanian, and Rosch 144 

Executive Committee 144 

Harvey Motors 146 

Atlas Corporation U9 

Greyhound Lines 152 
Georgia Pacific Corporation and Oroville-Wyandotte Irrigation 

District 154 

Requirements of a Labor Law Case 159 



Mt. Hood Stages 160 

Shaffer v. Heitner 165 

Lucky Lager Brewing Company 168 

D and Insurance: Lockheed 171 

Signal Oil Company 172 

Reflections on Law Practice and Its Impact 173 

Bar Activities 176 

Social Activities 177 

Publications 178 

Flying and Travel 179 

The Rockefeller Commission, 1975 181 

VI FEDERAL DISTRICT JUDGE, 1976-1990 190 
Appointment 190 
Early Experiences and Cases 195 

First Impressions 195 

Bank Robbery Case 196 

Improving Jury Instructions 197 

Role of the Courts and the Justice System 201 

Impact of the Media 202 

More on Jury Management 204 

Colleagues on the Bench 206 

Magistrate Judges 210 
Law Clerks 

Alternate Dispute Resolution 213 

War on Drugs 217 

Case Management 221 

Complex Litigation and the Insurance Antitrust Case 222 

Summary Judgment 227 

Judicial Exchange with Canadian Bench and Bar 228 

Changes in Federal District Court Judges; Robert Aguilar 229 

Joseph Alioto and Look Magazine 232 

Drug Cases 234 

Federal-State Jurisdiction 236 

Apple Computer Corporation Litigation 238 

Another Case Management Method 240 

Improving Discovery 241 

Amendment to Rule 11 on Sanctions 243 

VII SOME ASPECTS OF LEGAL PROCEDURES AND PHILOSOPHY 247 
Expert Witnesses in the Courtroom 247 
Federal Practice Guide on Civil Procedure 249 
Rule of Law Abroad and Travel to Eastern Europe and 

the Far East 250 

VIII FEDERAL JUDICIAL CENTER: DIRECTOR, 1990-1995 260 
Appointment as Director 260 
Moving to Washington, D.C. 262 
Background of Previous History and Turf Wars 264 
Description of the FJC Facility and Personnel 270 
More on Federal-State Jurisdiction 274 
Work of the FJC under Judge Schwarzer's Directorship 275 



IX JUDGE AND LAW PROFESSOR: 1995 TO PRESENT 
Return to San Francisco 

Asbestos Removal from the Courthouse 

Visiting Judge on Circuit Courts 

Part-time Teaching at Hastings College of the Law 

Controversy Over Splitting the Ninth Circuit 

Legal Missions and Foreign Civil Law 

More on Expert Witnesses 

Trial Advocacy, Justice, and the Law 

X COMMUNITY AND RECREATIONAL ACTIVITIES 
Bohemian Club 

Horseback Riding and Skiing 
Family Life 

XI PERSPECTIVES ON THE LEGAL LANDSCAPE 
TAPE GUIDE 



279 
279 
281 
282 
282 
284 
288 
290 
292 

295 
295 
297 
298 

300 
303 



APPENDIX 
A 
B 
C 
D 



INDEX 



William W Schwarzer Curriculum Vitae 

William W Schwarzer Bibliography 

William W Schwarzer Citations List 

"Tribute and Farewell to Judge William W Schwarzer," 

The United States District Court for the Northern 

District of California, En Bane, March 1, 1990 



305 
312 
321 



343 
376 



PREFACE 



The Historical Society of the United States District Court for the 
Northern District of California is a non-profit organization established 
by federal practitioners and judges and is dedicated to preserve and 
develop the history of this court. The Society's goals are threefold: 
1) to marshal the sources for historical study of the District; 2) to 
initiate and encourage comprehensive and scholarly study of the court; 
and 3) to develop interpretive programs and exhibits making the fruits 
of this research accessible and meaningful to the legal community and 
the general public. 

In 1980 this series of oral histories conducted by The Bancroft 
Library was initiated as an important effort in the furtherance of the 
Society's objectives. By preserving the personal reminiscences of 
individuals whose experiences and memory can yield valuable "oral 
evidence" of the court's history, the Society hopes to enhance and 
amplify the written record. 

In addition to historical study of the District, the Society hopes 
to promote greater public understanding and appreciation of the role of 
the federal judiciary. Except for those involved in the legal process, 
the operation, significance, and impact of federal trial courts remains 
largely a mystery to most Americans. By focusing on the history and 
activities of the Northern District, the Society hopes to bridge this 
gap between the legal and lay world and even encourage other District 
courts to initiate similar efforts. As the nation nears the 200th 
anniversary of the ratification of the United States Constitution, it is 
an appropriate time to raise the level of public understanding by 
placing the contemporary role of district courts in historical 
perspective . 

Thanks are due to the foresight and generosity of the individuals 
and organizations whose support make this work possible. 



Robert F. Peckham, 
Historical Society of the 

U.S. District Court, 
Northern District of California 



San Francisco, California 
April 1981 



ii 



Eighteen years since its founding, the U.S. District Court for the 
Northern District of California Historical Society continues to pursue 
the goals outlined above by its founder, Judge Robert F. Peckham. The 
comprehensive oral histories conducted by The Bancroft Library are a 
central part of the society's efforts to record the history of the court 
and of the law in Northern California. As Judge Peckham explained, by 
preserving "oral evidence" of the court's development, the society hopes 
to enhance the historical record contained in more traditional written 
sources . 

The generosity of individuals and organizations continues to be 
important in making these volumes possible. Each oral history contains 
a list of contributors whose foresight has helped preserve a part of the 
Northern District Court's history. 



Thelton E. Henderson 
Historical Society of the 

U.S. District Court, 
Northern District of California 



San Francisco, California 
December 1995 



iii 



NORTHERN CALIFORNIA U.S. DISTRICT COURT SERIES 
Interviews Completed by 1998 



Harris, George B., "Memories of San Francisco Legal Practice and 
State and Federal Courts, 1920s-1960s , " 1981. 

Orrick, William H., Jr., "A Life in Public Service: California 
Politics, the Kennedy Administration, and the Federal Bench," 1989. 

"The Honorable Robert F. Peckham, 1920-1993: His Legal, Political, 
and Judicial Life," 1995. Includes interviews with friends and 
colleagues . 

Phleger, Herman, "Observations on the U.S. District Court for the 
Northern District of California, 1900-1940," 1981. 

Poole, Cecil, "Civil Rights, Law, and the Federal Courts: The Life 
of Cecil Poole, 1914-1997," 1997. 

Schwarzer, William W, "Litigator, Federal District Judge, Director 
of the Federal Judicial Center, and Professor, 1952-1997," 1998. 

Sweigert, William T., Sr., "Administration and Ethics in the 
Governor's Office and the Courts, California, 1939-1975," 1987. 

Wollenberg, Albert C., Sr., "To Do the Job Well: A Life in 
Legislative, Judicial, and Community Service," 1981. 

Zirpoli, Alfonso J. , "Faith in Justice: Alfonso J. Zirpoli and the 
United States District Court for the Northern District of 
California," 1984. 

Weigel, Stanley. In progress. 



iv 



INTRODUCTION by James R. Browning 



The author of an introduction to Bill Schwarzer's oral history is 
certain to be accused of exaggeration. Bill has done everything a 
practicing lawyer does, everything a lawyer at the highest level of 
government does, everything trial and appellate judges do, and has 
filled each of these roles superbly. A simple recitation of what he has 
done inevitably reads like a paean of praise. No one has made a greater 
contribution to the improvement of the litigation process. He has been 
at the cutting edge of new developments in the simplification and 
improvement of the administration of justice for more than twenty years. 
He has taught; he has written; he has led. He is still doing it. 

As a district judge he implemented a wide range of techniques to 
make the trial process more direct, more practical in sum, as he puts 
it, more faithful to the mandate of Rule 1 of the Federal Rules of Civil 
Procedure "to secure the just, speedy, and inexpensive determination of 
every action." His work on pretrial disclosure, discovery, sanctions, 
and the use of expert witnesses, among many other subjects, contributed 
significantly to the efficient functioning of our trial courts. His 
article on summary judgment may well have led to the trilogy of Supreme 
Court decisions that restored confidence in this once again vital 
pretrial mechanism. : 

At the beginning of my service on the appellate bench, an appeal 
from a summary judgment was regarded as a likely candidate for reversal. 
Bill's efforts restored the effectiveness of this crucial trial 
procedure as a means of avoiding costly time-consuming trials when no 
trial was called for. He headed a committee that prepared model juror 
instructions adopted around the country, that replaced dense and opaque 
legalese with understandable English. Bill regarded jury instructions 
as the essential foundation of a fair system of justice, enabling the 
jurors to understand the issues they were to decide and how to go about 
deciding them. Jurors, in Bill's view, bridged the gap between the 
courts and the people, playing a significant role, not only in the just 
decision of particular cases, but in enabling the jurors to understand 
and appreciate our justice system and convey that understanding and 
appreciation to the public generally. 

After his initial period of service on the district court in the 
Northern District of California, he completed a distinguished and 



'"Summary Judgment Under Rule 56 FRCP," [with Alan Hirsch and David 
Barrans] Federal Judicial Center (1991). See also: William W Schwarzer, et 
al., "The Analysis and Decision of Summary Judgment Motions: A Monograph on 
Rule 56 of the Federal Rules of Civil Procedure," 139 F.R.D. 441 (1992). 



constructive term as the director of the Federal Judicial Center, 
enormously improving the overall organization of the Center and the 
strength and value of the programs it offered to judges in this country 
and abroad. He then returned to the Northern District of California and 
has been teaching and sitting with federal courts of appeal around the 
country. 

I have mentioned only a few of the myriad of constructive 
contributions Judge Schwarzer has made to our legal system. I would 
encourage anyone using this manuscript to read it all the way through. 
Having read it, as I have, you will end with a sense of the absolute 
integrity and honesty of this man, and his dispassionate and evenhanded 
evaluation of the life about him. Bill Schwarzer knows our legal system 
from the inside, intimately, objectively, and in an extraordinarily deep 
and detailed way. The most heartening thing about this narrative 
account is that he has no reservations about our system of justice. 
"It's the best in the world," Judge Schwarzer concludes, and the Rule of 
Law is our most valuable export--"probably our greatest contribution to 
the world. " 

After a lifetime of direct participation in every facet of the 
American justice system, this balanced, rational, and acute observer 
finds it good. That is a great comfort to others who have spent their 
lives as part of that system. Bill Schwarzer convinces me that it has 
all been worthwhile. I believe that you, too, will find inspiration in 
this admirable man's account. 

James R. Browning 
Chief Judge, Emeritus 

September 1998 

United States Court of Appeals, Ninth Circuit 

San Francisco, California 



vi 



INTERVIEW HISTORY- -William W Schwarzer 



William W Schwarzer is a distinguished federal district judge in 
San Francisco. Born in Berlin, Germany, he emigrated to the United 
States as a boy and grew up in Los Angeles. During World War II he 
served with U.S. Army Intelligence in European assignments. 

Graduation from the University of Southern California and Harvard 
Law School prepared him for his career as lawyer and jurist. Joining 
the San Francisco law firm of McCutchen, Doyle, Brown & Enersen, he 
became a partner and litigator, and left the firm only upon his 
appointment to the federal bench in 1976. Here he became increasingly 
interested in ways to streamline the judiciary by such methods as 
improving case management and jury instructions. He spent the years 
1990-1995 in Washington, D.C. as director of the Federal Judicial 
Center, then returned to San Francisco bench and to take up teaching at 
Hastings College of the Law. He has published widely and has traveled 
throughout the world on legal missions to help spread the rule of law. 

Judge Schwarzer was interviewed in his San Francisco judicial 
chambers on May 15, 29, and 30, July 21, 23, 25, 29, and 31, and August 
1 and A of 1997. He was already well-versed in the oral history 
procedures and had prepared extensive notes on his life and career, some 
of which are included in this volume. His recollections are thoughtful 
and full of insight about the working of the law, and he has included 
many colleagues in his discussion. 

After the tapes were transcribed, he reviewed the transcript 
carefully and returned it promptly. He again reviewed the corrected 
transcript, and furnished photos and appendix materials without delay. 
His oral history has, in fact, been accomplished in record time, due to 
the time and attention he has given to it. 

Judge Schwarzer 's oral history is part of the ongoing series 
funded by the Northern District Court Histoical Society. My special 
thanks to Michael Griffith, archivist of the Society, for helpful 
research and providing materials about Judge Schwarzer 's work. 

The Regional Oral History Office was established in 1954 to 
augment through tape-recorded memoirs the Library's materials on the 
history of California and the West. Copies of all interviews are 
available for research use in The Bancroft Library and in the UCLA 



vii 

Department of Special Collections. The office is under the direction of 
Willa K. Baum, Division Head, and the administrative direction of 
Charles B. Faulhaber, James D. Hart Director of The Bancroft Library, 
University of California, Berkeley. 



Carole Hicke 
Project Director 



June 1998 

Regional Oral History Office 
The Bancroft Library 
University of California 
Berkeley, California 



I BACKGROUND AND EARLY CHILDHOOD IN BERLIN, GERMANY 

[Interview 1: May 15, 1997] it 1 



Hicke: I'm just going to say for the record here that you've given me 
an excellent set of notes about your life and career, and it's 
full of very good information. It's so good in some areas that 
we're going to use that in the transcript. 

And that applies to the first section on your family 
background, so right here we will put in your own writing about 
your family. Then your second section was growing up in 
Berlin, and I'd like to expand on that just a little bit; we'll 
include those notes also. 



History Notes 2 



Family Antecedents 



Schwarzer: My father Hans Schwarzer (he changed his first name to John on 
arriving in the U.S.) was born in Berlin in 1900, an only 
child. His father Curt, one of six siblings, was born in 1872 
in Ratibor, a city in Silesia in East Germany (now a part of 
Poland). Curt was in the lumber business, moved to Berlin 
before my father's birth, and died in Los Angeles in 1952. His 
mother Ele, one of five siblings (who play an important part in 
the story) was born in Berlin in 1877 and died in Los Angeles 
in 1974 (a vigorous lady until her death). Her parents had 
moved from East Prussia to Berlin in the mid- 1800s. 



'## This symbol indicates that a tape or a segment of a tape has begun 
or ended. A guide to the tapes follows the transcript. 

2 The following is from a written history given to the interviewer by 
Mr. Schwarzer. 



Curt's father, Friedrich Wilhelm, was born in Upper 
Silesia in 1848 and died in 1918. His father, Abraham Lebman, 
later known as Schwarzer, was born in 1782 in what was then the 
Austro-Hungarian Empire. He served as a volunteer in the 
Silesian Volunteer Cavalry in the campaigns of 1813, 1814, and 
1815 during the Napoleonic wars. His discharge certificate 
states that he faithfully performed his duties and 
patriotically furnished his own horse and equipment. The 
certificate goes on to state that the discharge was granted at 
his request on account of his having been born a foreigner, a 
reference that may be to his having been at the time Austrian 
rather than Prussian or, on the other hand, to his having been 
Jewish, as noted on the certificate. Abraham became a glass 
merchant and sometime later, having taken an oath to the "God 
Israel," was naturalized a citizen of the city of Ratibor. In 
1863, on the occasion of the fiftieth anniversary of the 
mobilization for the "glorious campaigns" of 1813-1815, he 
received a combat veterans medal from the King of Prussia. 

Less is known of the antecedents of my mother Edith 
Daniel, born in Berlin in 1902, the older of two children; her 
brother Curt was born in Berlin in 1903 and died in Los Angeles 
around 1980. Her father Ludwig, a private banker and member of 
the Berlin stock exchange, was born in Berlin in 1872 and died 
in Los Angeles in 1961. Her mother Martha was born in Berlin 
in 1881 and died there in 1937. Ludwig 's family moved from 
Pomerania to Berlin sometime in the mid- 1800s. 

The moves of these families reflect the emergence of 
Berlin as the cultural and commercial center of what in 1871 
became the nation of Germany, and the new opportunities that 
opened to Jews during this period of growing tolerance and 
emancipation. 

My father grew up and went to public school in Berlin. 
He enlisted in the German army in 1917, at age seventeen, and 
was sent to a field artillery training regiment in Dresden. He 
volunteered for combat but was refused on the ground that the 
regiment should remain intact for eventual deployment ; the war 
ended before it could be deployed. He did, however, perform a 
volunteer mission to carry two typewriters to the front at 
Charleville, France, in March 1918. In the course of his 
mission, he witnessed an air raid at Valenciennes; he suffered 
no adverse effects but the event took on importance at a later 
time. He was discharged in April 1918 (unexplained, before the 
war ended) . A letter from his commanding officer in May 1918 
compliments him on his service but reports that an effort to 
obtain a medal for him was unsuccessful because he was 
considered "still much too young for it." Following his army 



service, he attended universities in Berlin, Frankfurt, and 
Freiburg and in 1923 passed examinations as referendar and 
assessor, qualifying as lawyer and apprentice judge. He 
started work for his father-in-law as a private banker. Later 
he worked as a part-time assistant judge (assessor) and began 
to practice law. In 1932, he became the liquidator for a 
bankrupt savings and loan bank, which unbeknownst to him then, 
turned out to be very fortunate. 

My parents married in 1922 in Berlin. In the aftermath 
of the war and incipient revolution, Germany suffered 
disastrous inflation at the time. Money became worthless 
almost overnight. To lighten the impact, people bought what 
they regarded as collectibles whenever they could. My parents 
invested in Persian rugs and oriental furniture and 
furnishings. We still have in our house a handsome (imitation) 
oriental cabinet and two Chinese urns (of little value 
according to a recent appraisal). In addition to working with 
banks and practicing law, I believe that my father also 
speculated on the stock exchange (taking risks was second 
nature to him) , and I doubt that he could have bought a villa 
in the suburbs with the earnings from his regular work in those 
days . 



Growing up in Berlin 



Schwarzer: I was born in Zehlendorf, a western suburb of Berlin, on April 
30, 1925. My sister Ruth was born on July 30, 1928, and now 
lives with her husband in Los Angeles. Zehlendorf was an 
idyllic place of woods and lakes and later became a popular 
residential area for American officers and civilians during the 
occupation following World War II. It was about a fifteen- 
minute ride on the S-Bahn (train) from the city center. When I 
visited Berlin in 1966, the villa still looked as I remembered 
it from thirty-five years earlier. 

Some memories of that time are indelible. We had a 
German shepherd dog. I was convinced that the dog would attack 
anyone who was armed. One day I was playing in the backyard 
with a bow and arrows. When the dog came out I rushed to the 
kitchen door to get away from the dog. The door was locked; I 
yelled for the housekeeper who did not come; so I broke the 
kitchen window with my fist, and I still have the scar on my 
right hand to prove it. I have never quite trusted dogs since 
that time. 



My father was always ambitious for himself and for his 
children, especially his son. He wanted me to be aggressive. 
I remember that he was anxious for me to learn to ride a bike 
as early as possible. To that end, he took me out in a harness 
used on toddlers, holding me up on my bike as he rode alongside 
and urging me on to pedal. This was one of many of his 
techniques for bringing up children frowned on, though 
silently, by my mother. I remember walking on top of a five 
foot brick wall that bordered our property. When my 
grandfather told me to get down, I replied that it was all 
right with my father; if I fell he would see I was cared for. 
My father would often take my sister and me out on horseback 
rides when we could barely reach the stirrups, and he had us 
learn how to jump. 1 had mixed feelings about these things; I 
adored my father and many 1 enjoyed, but at times resented his 
domination. 

We stayed in Zehlendorf until 1930 when we moved to a 
flat in the western part of Berlin (Wilmersdorf ) . I don't know 
the reasons for the move but I can surmise it had to do with 
the collapse of the economy. About this time 1 started in the 
Volksschule (public school) . I remember little about it except 
the large, colorful cardboard cone (at least two feet high) 
filled with sweets that each child traditionally carries to 
school on the first day. 



The Coming of Adolf Hitler 



Schwarzer: On January 30, 1933, the Nazi party won the election for the 
Reichstag and with its allies controlled the German 
legislature. Hitler shortly became the German chancellor under 
Hindenburg, a revered war hero, who remained briefly as 
president. We know now that everything had changed totally and 
forever. But no one knew it then, least of all an eight-year- 
old child. The Nazi party had of course been a disruptive and 
threatening political presence for years. Its anti-semitic 
policies were well known as was its proclivity for violence. 
At the same time, the German public was anxious for change from 
the chaos of the Weimar republic and was looking for a 
government that could bring order and stability. 

The first few edicts of the Hitler government were issued 
in April 1933. They barred Jews from the civil service, 
including the practice of law. Exceptions were made, however, 
for veterans of World War I. But it soon became clear that 
this meant only combat veterans. My father then began a 



campaign to be recognized as a combat veteran on the strength 
of his mission to the front and his exposure to the 
Valenciennes air raid. After the State Archives advised him 
that there was no record of such an event, he wrote to various 
officers in his old regiment. The correspondence sheds light 
on the thinking of many Germans at the time. One of his former 
officers responded that he could remember no such event while 
another did recall it. One officer responded warmly, offering 
whatever help he could give, and added: 

I assume you wish me to be candid. So I will add that 
at the time I often spoke with comrades and with 
Captain Leeser about you and that it was often said 
that it was too bad that Schwarzer is a Jew because 
our regiment was particularly unwelcoming to Jews. 
You however were among the Jews I came to know during 
the war to whom the usual complaints about the 
behavior of Jews as soldiers did not apply. 

Two years later, in 1935, the State Archives confirmed 
the air raid and the fact that heavy losses were suffered but 
found no record of his participation. About this time, he 
received by order of the Ftihrer, Adolf Hitler, a service medal 
for veterans of the war (not combat). In 1935, also, Hitler 
reconstituted the German army (Wehrmacht). My father, along 
with probably numerous other German Jews seeking protective 
cover, applied to enlist. The terse response in March 1936 
referred to the Nuremberg laws, adopted in August 1935, and 
stated that "Full Jews" are not eligible to serve. 

So my father's efforts to qualify under an exemption in 
the race laws that would permit him to practice law failed; he 
probably made other efforts of which there is no longer a 
record, including pointing to his great-grandfather's war 
record. Fortunatelyperhaps on account of some legal 
technicality which Germans tend to respecthe was able to keep 
his job as savings and loan liquidator. Hitler in his speeches 
always made the point that everything his government did was 
"legal," although the laws on which it acted became of course 
more and more inhuman. 

What was happening in Germany between 1933 and 1936 was 
in effect the gradual segregation of Jews. The process was 
gradual because Jews were thoroughly integrated into the 
economic and cultural life of Germany. At this time, also, the 
Nazi government was still insecure and sensitive to reactions 
abroad. And although a few Jews were beginning to emigrate 
from 1933 on, they were mainly artists, writers, musicians, 
scientists, and other prominent figures who were welcomed in 



other countries. But for most German Jews, this was their 
country; they regarded themselves as loyal citizens and much 
preferred to stay where their roots were as long as life was 
tolerable. 

I was still attending a public school, but in one of his 
letters seeking to establish combat veteran status, my father 
referred to the need to gain permission for his son to attend a 
private high school. I have no recollection of the public 
school, but I do remember being transferred with my sister to a 
small, Jewish, private school about 1935. The headmistress of 
this school, Fraulein Zwickel, was a large, unpleasant woman 
given to imposing discipline by slapping her students' hands 
with a ruler. I developed a nearly illegible handwriting and 
received failing grades so often that I recall my parents 
pleading with Ms. Zwickel repeatedly to keep me in her school- 
there being nowhere else for me to go. I remained in this 
school, thoroughly hating it, until we left Germany. My only 
pleasant memory from that time was being sent by my parents to 
stay with friends in Florence for a month during the summer of 
1938. I spent the time soaking up culture to which I had never 
before been exposedvisiting the Uffizi Gallery and listening 
to Mozart in the Boboli Gardens and I came away with a deep 
and lasting appreciation of fine arts and music. 

My parents, like most emancipated German Jews, were not 
deeply religious. They attended high holiday services and 
occasional Friday night services in a temple that was midway 
between reform and orthodox. I mention this because, as the 
situation for Jews in Germany deteriorated, they found 
themselves increasingly attached to religious observance, and 
this held true for the rest of my father's life. But my father 
was never orthodox or a religious scholar. Nevertheless when 
it came time for my bar mitzvah, he insisted that I perform it 
in the orthodox style, which meant reading it from a 
traditional torah without the vowels under the letters and 
singing rather than reciting the text. Ordinarily boys did not 
have to go through this ritual, which required many months of 
study, but he would not have me take a shortcut. 1 



'Here ends Judge Schwarzer's written history narrative. 



Early Childhood in Berlin 



Family and Surroundings 



Hicke: You were born in 1925. What were the economic conditions of 
the country at that time? 

Schwarzer: Of course, all I can say is a report on hearsayacquired 

information. Germany had just come through a terribly severe 
period of inflation. That was brought on by a combination of 
the impact of the war, which really brought it to its knees, 
and then the reparations under the Versailles Treaty, which 
caused terrible inflation and depression in the country. My 
impression is that the inflation subsided about that time- 
about 1925, but that there was a period of severe unemployment 
then. 

In a way, I guess you could say that the Depression that 
hit the United States about 1929 or 1930 really started in 
Germany. There may even have been a connection because of the 
--do you remember the American tariff legislation? The Smoot- 
Hawley Tariff Act of 1930 raised tariffs so that there was also 
a great growing restriction on foreign trade. 

But I can't say that I ever felt any poverty while we 
were living over there. 1 think my parents were quite well- 
off. I do remember--as I indicated in my notes that they were 
buying what they thought were collectibles, in the early 1920s 
shortly after they got married, as a hedge against inflation. 
And the one item that I'm sure they bought for that purpose, an 
imitation Oriental cupboard, still stands in our hall. I think 
that's the only thing we still have. But they always spoke 
about how they had bought these things as a hedge against 
inflation. 

Hicke: Did they travel to buy them? 

Schwarzer: No. I'm sure they bought them in Berlin. They also bought a 

huge oriental rug that we had for a while in our first house in 
Mill Valley, but we couldn't keep it because it was bigger than 
any room that we had. 

Hicke: That's too bad. It's probably quite valuable by now. 

Schwarzer: Yes, I think it would be. As it turned out, we had the 
Japanese Oriental cupboard appraised when we were in 
Washington, and Christie's [Fine Art Auctioneers) or whoever it 



was were rather disinterested in it. But it looks like a nice 
piece. 

That's about all 1 think I can say about the economic 
situation. 

Hicke: So your parents were in fairly good shape, then. 

Schwarzer: They were middle-class people, and I wish 1 knew more about the 
circumstances. As I indicated in my notes, my father was 
working during most of the 1920s as a lawyer, but I'm sure he 
speculated on the stock exchange and must have done quite well, 
and 1 assume got out before the crash. 1 think the crash, our 
crash, must have been replicated in Germany. He was just the 
kind of person who liked to take risk, and speculating on the 
exchange would have appealed to him. But I don't know any of 
the details. I think he could not have made the money that he 
did make to live as well as we did by practicing law at that 
time. 

Hicke: What kind of law was he practicing? 

Schwarzer: Oh, I think he was a business lawyer, but I never really 

discussed it with him. And for a while he was also what was 
known as an assessor, that is an apprentice judge. And he, I 
think, was looking toward a career as a judge; that's what he 
was really interested in. In the civil law countries, as you 
probably know, judges are essentially civil servants. So when 
you get out of law school, you go into training as a judge, and 
then you work your way up. It's not the way it is in England 
and the United States, where people are appointed out of the 
profession. So that was his plan for a career, but he was 
also, later in the twenties, practicing law. 

So I don't think he ever made much money in his regular 
job, and he certainly didn't get help from his in-laws or his 
parents, so he must have made some money on the stock exchange. 

Hicke: You had quite a lot of family, relatives in Berlin. 

Schwarzer: On my father's side, his mother had about five sisters. That 
was really the only part of the family where there were a lot 
of siblings. I don't know that my grandfather--my father's 
fatherhad any siblings. Nor do I know of any siblings on the 
side of my maternal grandparents. My mother only had a 
brother, and my father was an only child. So the only expanded 
part of the family, really if you could say that, was over on 
the side of my grandmother's sisters. And, as we'll get to, 
one of them came to the United States relatively early. I 



don't know any of the circumstances of that, 
them went to Israel. 



I think some of 



Hicke: Is that Hedwig? 

Schwarzer: Yes. She went to the United States. Some went to Israel, and 
I don't know anything about the others. 

Hicke: Thinking about this period when you were very young in Berlin, 
was it a close family? Did you visit relatives? 

Schwarzer: It was a traditional, continental f amily--well, I guess it was 
a traditional family, even in the American sense, in that there 
would be contact between my parents and their parents every 
day. And there would be a lot of family dinners. One of the 
things that kept families together was that most Germans, and 
certainly true in my family even, the men were great card 
players. They played a game called skat. I recall that my 
father would play skat every weekend with his father and 
father-in-law, and so that brought people together. Beyond 
that, I don't know anything specific. I know that they were 
just in very close contact, among those two generations. 

Hicke: What about food, some of the things you'd like to eat for a 
routine day. What would you have for breakfast, lunch, and 
dinner? 

Schwarzer: I don't know, the German diet was pretty simple. Always a lot 
of bread and cheese, and sausage, I remember that. But my diet 
hasn't changed all that much since that time. I think I formed 
my preferences for food then. Chicken was a big item then as 
it is now, and chicken soup. 

One thing is true of Germans, and I guess other 
Europeans: you have a lot of soup dishes that are the main 
dishes. There would be chicken or beef and vegetables and 
potatoes in the soup, and that would be the main dish. And 
then I remember cream-of -wheat pudding. You know how you would 
have cream of wheat now as a breakfast cereal, but it would be 
much more dense, and it would be chilled. 

Hicke: And sweetened? 

Schwarzer: And sweet. And then you'd have some sort of sauce over it. 
Sort of a forerunner of jello. 



Hicke: 



Like rice pudding? 



10 



Schwarzer: Yes, rice pudding. Cottage cheese was a big item; people liked 
to eat that. You can eat cottage cheese with other things. 

Hicke: Ketchup? 

Schwarzer: No. Ketchup didn't exist. With stewed fruit, I think. Stewed 
fruit was a big item. Cocoa, of course. People drank a lot of 
cocoa. 



Hicke: 
Schwarzer: 

Hicke: 
Schwarzer : 



Hicke: 



Schwarzer; 



What did you particularly like? 
desserts or dinners? 



Do you recall any favorite 



It's hard to separate what I've liked since then with what I 
had then. I'm sure they were some things that I liked, nothing 
stands out in my mind. 

How about your birthday? Was that a celebration of sorts? 

Birthdays were always a big family occasion. I think we took 
birthdays very seriously. 

Well, I remember getting a bicycle when I was five or 
six. I don't remember much else about it. 

Would there be a big family dinner, with aunts, and others, or 
just your own family? 

There might be, and then I think we had some small birthday 
parties, where you might invite a few friends. The way I grew 
up, I never was part of any large group of people my age. I 
had two or three or four friends, but I didn't belong to 
anything. I don't recall having a bunch of kids over to our 
house. I guess I wasn't particularly sociable, even if the 
occasion had presented itself, and I don't know that it did. 



School and Outside Activities 



Hicke: Do you recall any of your friends? 
bit about them? 



Can you tell me a little 



Schwarzer: I do remember two boys; I remember them quite distinctly, but I 
don't remember their names. I remember playing with them. 

I remember I had a terrible crush on some young girl, 
when I was probably about ten or so. And I once invited her 
over to our house on some pretext given to her family that 



11 



there was a birthday party or something. But I don't remember 
much else about socializing. 

Hicke: What would you do for after-school activities? What kind of 
games? 

Schwarzer: Well, I guess football. Our gamewhat we called soccerwas 
played. I remember I used to ride my bike around Berlin. I 
sometimes went to some museums, I remember that. Read a lot. 

Hicke: What books? 

Schwarzer: Well, there was a German author named Karl May, who wrote 

innumerable books about the American West. He had never been 
there, but he wrote these works of imagination about the open 
spaces and about cowboys and Indians. I remember reading those 
books. I have a very vivid memory of them. I imagine that 
German youngsters still read those books; that was just part of 
German culture. 

Hicke: Sort of the Louis L'Amour of Germany. 

Schwarzer: Yes. And I remember reading books about international 
politics, world affairs. But I don't remember anything 
specific. There was a book in Germany called The Yellow Front 
(Die Gelbe Front), I think. It was something about the peril 
of the yellow races taking over the world. I remember reading 
that, but I don't know why I remember that. 

Hicke: Did you get your books at a library? Did you buy them? 

Schwarzer: Well, my parents had an extensive collection of books, and I 

think that most of what I read, I just got off the shelves. I 
don't think there were public libraries in Germany; I have no 
recollection of that. Some of them undoubtedly, I was given, 
as presents. 

And to some extent, we all read German classics. I mean, 
I do remember some [Johann Wolfgang von] Goethe and some of 
[Johann Christoph Friedrich von] Schiller's works. Now, I 
haven't thought about that at all. 

Hicke: How about school? Do you remember anything in particular? 

Schwarzer: Well, not really anything beyond what I put in my notes [See 
History Notes above]. I remember going to the first day of 
school--! think in part I remember it because we had a picture 
taken of me. And it's a German custom that kids take a big, 
what would you call it, a cone, a large cardboard cone it 



12 



would be about two feet high and it would be full of candies, 
and things like that to school. I remember seeing that picture 
of me going off to school. 

Hicke: That was your first day of school? 

Schwarzer: Yes. And I remember going to a public grammar school the first 
few years of school. 1 just have a vague recollection of 
standing up in class when the teacher came in. I don't think 
we wore uniforms, but we were rather seriously dressed, 
carefully dressed. And I don't remember anything about what 
was going on in school. 

In those days, I doubt that that's true anymore in 
Germany, but we were taught to write in German script. Have 
you ever seen German script? It's very stilted and artificial. 
I still have a few letters around somewhere that I wrote to my 
parents when I was away at a boarding school, written in this 
German script. So that's the one thing I do remember. 

Hicke: Did you have a man for a teacher, or a woman? 

Schwarzer: I don't know. I suspect most of the teachers were men. I 
don't think that, in Germany, women were as prominent as 
teachers as they were in the United States. I mean, women 
basically stayed home. 

And then, somewhere around 1935, I guess, I was moved to 
this private schoolas I indicated in my notes and then that 
was a whole different story. That was a small private school. 

Hicke: Before we do that, what about physical activities, physical 
recreation in school? Did you have anything like that, 
exercising? 

Schwarzer: In school, I don't remember. I don't .remember what it was 

like. Those things, you know- -when we moved, came over here, 
when I was thirteen, it was almost like a curtain came down. 
Not deliberately so much, but because all of our focus then was 
on becoming assimilated and part of American life. All those 
other things were allowed to fade into our memory. 

Now, you've taken history of other people whose life was 
continuous; there's continuity there. They would be more 
likely to remember who their teacher was in grammar school, 
under normal circumstances; but these were not normal 
circumstances. So I have a lot of trouble bringing up memories 
from that time. And I can't trust myself that what I remember 
really happened; it may have been a dream or something in my 



13 



imagination. You just can't draw that line and be sure what 
side of the line it's on. But there are a few things that I 
wrote down that I do remember distinctly [refers again to 
History Notes] . 

Hicke: I also think that when you spend part of your adult life with 
people that you grew up with, you tend to talk about things 
you've done and places you went. So those memories stay with 
you longer. Whereas if you had a complete break, and you've 
never-- 

Schwarzer: Never seen anybody that I knew before I came over. No contact 
with anybody. I doubt that any of them would be alive. 

Hicke: Why did your parents decide to send you to a private school? 
Schwarzer: Well, I don't know what the legal situation was-- 
Hicke: This was about 1935? 

Schwarzer: Yes, '35. I recently read a book called Nazi Germany and the 
Jews [by Saul Friedlander] . I got interested in it because of 
what I was doing here. It gives a very detailed description of 
how the noose gradually tightened around the Jewish people, 
beginning in 1933. It was a very complex and capricious 
process. Some people hung in and did all right, and other 
people found themselves much more restricted and penalized than 
others. But I think there was a definite effort to exclude 
Jewish children from public schools. Now I don't know of any 
law that was actually passed, but it's clear that the 
atmosphere became inhospitable. 

Now what I'm telling, you know, is my general impression, 
based on reading of history, and not on personal memory. I 
don't know exactly what happened. But my parents clearly felt 
that it was time to take my sister and me out of the public 
school. Whether they were forced to do it, directly forced. 
Or rather they felt the circumstances compelled them, I don't 
know. 

But around 1935, we both started going to this small 
Jewish private school, which was a terrible, terrible 
experience for me. I mean, I just hated it. I didn't want to 
go there. I hated the head mistress. It was a very rigid, 
arbitrary environment. All of the worst features of German 
education. She wanted to throw me out a couple of times. I 
think it was only the pleading of my parents that allowed me to 
stay there. It was just an awful experience. It did not get 
me off to a good start, so far as education is concerned. 



Hicke: Yes. I should think you'd have no interest in school 
whatsoever after an experience like that. 

Schwarzer: No, I didn't like it all. And I guess I had a bad handwriting 
to begin with, but handwriting was very important. I remember 
being punished because my handwriting was illegible, and that 
only made it worse. 1 think she had a ruler and she would clip 
us across our fingers if we didn't write properly. She was a 
big, heavy, greatly overweight woman. Her name was Zwickel. 

Hicke: I suppose your parents didn't have a whole lot of choice. 
Schwarzer: I don't know. Probably not. 

Hicke: They were certainly aware that you were unhappy, and she was 
unhappy . 

Schwarzer: Oh, yes. They were. I don't remember being punished at home. 
But it was just a terrible place. I don't think my sister had 
all that much trouble. I should ask her about it sometime. I 
think she got along all right. 



More on Immediate Family 



Hicke: You've talked about your father quite a bit in your notes, but 
you haven't said much about your mother, and not much about 
your sister. So can we talk about them a bit? 

Schwarzer: My mother always was under the total domination of my father. 
She was quite talented; she had a good voice and liked music 
and art, had a great interest in that, and those kinds of 
things . 

But I think when it came to bringing up her children-- 
except when we were very young, of course, it didn't ever seem 
to me that she had a whole lot of influence over our bringing 
up or much of an impact on my life and on my development. My 
father was a very dominating presence at all times. It was 
clear that things were done the way he thought that they should 
be done. He dominated our upbringing. But I had a good 
relationship with my mother, always had an easy, comfortable 
relationship, but not a particularly warm or close one. 

One thing I remember: I was sent away to a boarding 
school around 1933, I think because I was having problems, I 
don't know, psychological problems, something. They thought it 



15 



would be good for me to get away. And actually it was one of 
the best things that ever happened to me. I went to Bavaria 
for six months. 

It was an interesting experience, because I didn't want 
to go. The only way my parents could bribe me into going was 
if my father would fly with me. I'd get to fly. That was very 
early in the days of commercial aviation, but I had always 
loved airplanes. So he took me down there, and I still have a 
picture somewhere, taken at the Munich airport with him and me 
standing in front of this German two-engine airplane, which 
later became a well-known and frequently seen German troop 
transport. At the end of that six months, my mother came to 
pick me up, and I just remember that trip was a nice 
experience . 

Hicke: You came back on the train? 

Schwarzer: Came back on the train. But I don't remember anything else 

that I ever did with her. And nothing in particular stands out 
about our life together. 

Hicke: Did she read to you, when you were very young? 

Schwarzer: Maybe. I don't remember that. She was not intellectual. She 
only went to what would be the equivalent of high school. She 
never went to college. My father rushed her into getting 
married. And of course, in those days, German women didn't go 
to post-secondary schools anyway. 

So intellectually she was never my father's equal, and I 
think he had a tendency to let her know that was so. He could 
be quite critical and cutting and ironic. Everybody was very 
well aware of that. That was just one of his traits. He was 
very supportive of his family, and worked very hard in their 
interests, but he also could cut people down. He particularly 
did that with my mother at times, and certainly with her father 
and her brother, for whom he had very little regard. You know, 
they were together all the time, but he wasn't particularly 
kindly in his dealings. 

Hicke: He was a caring parent, though. I can tell from what you've 
written about him that he cared about you. 

Schwarzer: Yes, to a fault. Probably to a fault. He was an interesting 
person at an interesting time. I wish I could remember more 
about my mother, but nothing comes back. Of course, those 
years were a terrible, terrible strain on her and undoubtedly 
really took their toll. 



16 



*f 

Hicke: Now can you tell me a bit about Ruth? 

Schwarzer: My sister. Well, I guess the truth is that we were never 
close. 

Hicke: She was younger? 

Schwarzer: She's three years younger than I am. And lives in Los Angeles 
now. We used to have a lot of fights. 

Hicke: Not very unusual! 

Schwarzer: Yes, right. I remember I used to scare her. But it is clear 
now that 1 was the favorite child. I was the older child, and 
I was the son, and my father took greater interest in me and 
was more ambitious for me. Although we did things together. I 
do remember when we were quite young we used to go out 
horseback riding together, all three of us--my father, my 
sister, and I. 

I remember one summer, my sister and I went away to a 
camp in what was Silesia, which is in the eastern part of 
Germany. 

Hicke: Up on the North Sea? 

Schwarzer: In the mountains; that's Poland now. That's pretty far in the 
east. But I don't remember anything that we ever did together. 
We really didn't have any common interests. We had no 
affinity, and we still don't have any affinity for each other. 
We don't have any problem getting along; we just don't have any 
particular interest in doing things together. We're not close, 
we never have been close. But then we haven't had, except for 
my teasing her when I was a little boy, we haven't had any 
problems either. 

And our respective children are close to each other. My 
sister is very fond of our children, and we're very fond of 
hers. She has a son and a daughter, her son lives in Mill 
Valley. This is sort of getting into perhaps more family 
detail than is of interest. 

Hicke: No, please continue. 

Schwarzer: My nephew has looked to me as a role model and a mentor, much 

more than my son has. It's kind of interesting, crossing over. 



17 



Hicke: 
Schwarzer : 



Hicke: 



Schwarzer : 



Hicke: 
Schwarzer: 
Hicke: 
Schwarzer; 



And we're really pretty close to him and his family; they live 
close to us. 

What's his name? 

His name is Edward Schuller. So that's kind of an interesting 
way in which our families have developed. Then our son spent a 
summer living with my sister and her husband in Los Angeles, 
while we were away. So they're very close. 

Well, since we're talking about this, tell me about the rest of 
Ruth's life and her marriage and so forth. 

Yes. As 1 said, my father was less focused on her for starting 
a career, then, than on mine. When we came to the United 
States, we went to public school, and she went to high school. 
In her last year of high school she met her now husband and 
decided that she wanted to get married. My parents were very 
upset, because they really wanted her to go to college. They 
did not think she was marrying as well as they would have liked 
to have her marry. 

But she insisted. And I think, in large part, that was a 
reflection of her feeling that she wanted to make her own way 
and assert herself, and that she didn't think that my parents 
judgments about her were all that much to be appreciated. She 
wanted to get out of the house and be on her own. She probably 
didn't think that she would have all that many opportunities to 
find somebody to marry. So she got married. But she has been 
happily married for all these years. It worked out all right, 
even though my parents didn't really approve of it. 

What's her husband's first name? 

Stanley. Schuller. 

And she has how many children? 

She has two children. She has a son and a daughter. The 
daughter lives in southern California and has three children. 
She is happily married, has a fine family, doing very well. 
Her son, Edward, lives in Mill Valley, is married, and has two 
daughters, and they're doing very well. 



Hicke: 



We'll get to your family later, 
career ever? 



Did she have any kind of 



18 



Schwarzer: Yes, she worked for an insurance company when she got out of 

high school, and for some yearsuntil she had her childrenin 
Los Angeles. 



Travels 



Hicke: Back to Berlin. Other than that trip to Bavaria, did you do 
any traveling with your family, or without? Of course, you 
said you went to Silesia. 

Schwarzer: Well, we went to this camp, my sister and I, around 1934. That 
was for a summer, but it didn't amount to much. Except, as 1 
recall, we had either yogurt or sour cream, and I remember 
being terribly sick. It took me many, many years before I 
finally could eat yogurt. Now, I eat it all the time, 
[laughter] It always reminds me of that experience, this awful 
dish that they served us. 

Well, I can't recall any travel until about 1935 or '36. 
And then my father took us on a number of trips, to Switzerland 
primarily, in order to take money out of the country. You'd 
get a certain--my information about this is fragmentary, but 
you were allowed a certain amount of money that you could take 
out and convert into foreign currency. Of course, in Germany, 
foreign currency was tightly controlled and you couldn't own it 
unless you had permission. That was not surprising to me; 
foreign currency controls have been pretty common among poor 
countries around the world. 

You could convert a certain amount of money for each 
person for the number of days that you were out. We would go 
to these offbeat places in Switzerland, off season, where we'd 
get very low rates. So we did not ever have to spend all of 
the allowance, and so they were able to accumulate money 
outside. I remember how careful we were. 

You used to be able to buy postal-exchange coupons. So 
in Germany you would buy a coupon, and then you could exchange 
it in another country for stamps. So it's like foreign 
currency but it could only be used for stamps. So you could 
take out small amounts of moneythese are really small amounts 
of money by way of taking these coupons. I remember taking 
these coupons with us, and then cashing them, and then giving 
my father the money or keeping it. That's how concerned we 
were about accumulating some money abroad. Now whether he was 
also smuggling money at the time, I have no idea. He may have. 



19 



Hi eke: 
Schwarzer : 

Hicke: 
Schwarzer: 



Hicke: 



But I remember we took my grandparents along, and we would stay 
in these deserted hotels. My mother was not very enthusiastic 
about this. But that was just a way to take money out. 

At least once, I know, we bought a big car, an Audi. You 
know, they had those big sedans in those days. We were all 
driving in this sedan through Germany down into Switzerland. I 
remember the car broke down at one point; we didn't get it 
fixed. When you look back now, those were really pretty risky 
activities to take. No telling what you'd run into, or who 
might do what to you. But those are the trips I remember. 

One place we went to in Switzerland was a town called 
Chateau d'Oeux, something like that. It was just a little 
abandoned village, not too far from Lake Geneva. And I 
understand now it's built up with no end of condominiums owned 
by Germans and others. In fact, one of my friends has a 
condominium there. I've been wanting to go back. It was just 
a little village then. I remember walking around and seeing 
them milk the cows. 

Another place we went to was on the Italian lakes, on 
Lago Maggiore, a place called Ascona, [Switzerland], which has 
since developed into a fashionable resort. It was a wonderful 
place. We went to these three beautiful islands out on Lago 
Maggiore, which have become great tourist attractions since. 

So those are two trips that I remember. There may have 
been some others. They were major enterprises, but it was 
wonderful for a young boy to get to explore all of these 
places. So that was fun. 

These were summer trips? 

Well, no. Not necessarily. The whole idea was to go off 
season, when the hotel rates were low. So they were odd times. 
I don't know when we went. 

You don't remember snow, and-- 

Well, I do remember going to a winter resort. But that was one 
that was in Germany, and it was quite early. And I remember 
sledding it was someplace in the German Alps. It has become a 
pretty well-known resort too. In fact, it may even have been a 
scene of some of the Olympic events. But I just can't remember 
what it was . 

Somewhere around Garmisch? South of Munich? 



20 



Schwarzer : 



Hicke: 
Schwarzer; 

Hicke: 

Schwarzer: 



Hicke: 



Schwarzer: 



Hicke: 



No. It wasn't Garmisch. Well, the best trip that I ever took, 
at least until we came over here, was in 1938; that was before 
we came over, before we left Germany. My father had a friend 
who lived in Florence, just on the outside of Florence in a 
country house. Her name was Mrs. Munz . He arranged for me to 
go and spend the summer there in 1938. I was just thirteen, 
and I took the train from Berlin to Florence by myself. And 
went back by myself. I don't know whether they called me back 
early, or what. But I was there for at least four weeks. It 
was just terrific. I'm just thinking about it. I spent, oh, 
lots of time at all the museums. We went to concerts at night. 
I remember that they had outdoor concerts at the--I don't 
remember the name of the palace, but behind the palace are some 
gardens called the Boboli. 

Pitti Palace? 

Maybe so. It's across the Arno [River]. They had these 
concerts outdoors in the gardens. That's where I really 
acquired appreciation for music and art. 

Did somebody take you along to the museums and explain things 
to you? 

Well, I may have gone with the people. But I think I probably 
also went alone a lot. I spent a lot of time in the Uffizi 
Gallery. I remember seeing the statue of David. I was back 
last June, and it was great to see those places again, although 
Florence now is all torn up--dusty, construction going on 
everywhere, crowded with tourists, noisy. It was a beautiful, 
other-worldly place then. 



You saw it in the good old days, 
you stayed also? 



Did you see the place where 



No, I don't know where that was; it was a private home outside, 
I remember it was on some country road. But not far out. It 
was easy to get back and forth. 

I remember so clearly sitting in the Boboli Gardens and 
hearing "Eine Kleine Nachtmusik." So that was the travel, I 
guess. I can't imagine why my parents let me go. But I guess 
they thought it was worth it, and it wasworth taking the 
risk. I mean, that was a hazardous time to cross the border. 



Indeed. Not just your normal journey, 
through Switzerland on the train also. 



And you must have gone 



21 



Schwarzer: Yes, yes. Let me think, I know I traveled down there alone, 

but I don't think my mother picked me up. I think I went both 
ways by myself. 

Hicke: You said, in your notes, that your father had been taking trips 
to Paris also. 

Schwarzer: Well, his aunt lived there, and his cousin ran a bookshop. He 
made trips there. I don't know much about what was going on, 
but I do know that he told us later that he smuggled a fair 
amount of money to Paris. As I wrote, the one specific bit of 
information that I have is that he carried a herbarium. That 
is a glass container, like an aquarium, only it has soil in it, 
and plants. And under the soil, he had a lot of money buried. 
That was one way that he smuggled it into France. As I 
described, if he had been caught, I don't doubt that he would 
have been sent to a concentration camp, and probably executed. 
That was a pretty serious offense. He felt it was necessary, 
but I also believe that he enjoyed taking the risks. I think 
that was his nature. 

Hicke: It goes along with what you said about his activities with the 
stock exchange and other risk-taking ventures. That took a lot 
of courage. 

Schwarzer: Yes, well, now how much of it was courage and how much was 
desperation? 

Hicke: Well, that's true. 

Schwarzer: I don't know. Certainly a lot of people left Germany without 
having any money abroad, but it was much more difficult to do 
that. In any case, as I described, the great irony was that 
when we arrived in Paris, after we left Germany in October 
1938, he came to get the money and it wasn't there. My 
father's cousin had apparently deposited it in her commercial 
account. She owned a bookshop, and the bookshop had fallen on 
hard times, and so she had essentially spent the money keeping 
her bookshop afloat. 

I found a letter in my file here at home, in which she 
tried to--it was a little hard to readbut she tried to 
explain how she had been well intentioned, and it just got out 
of control, and that she was going to pay it back. Supposedly 
she had started to make some payments. But this is a letter 
that came after we arrived here, but before the fall of France. 

I have the distinct impression that she committed 
suicide. But when she did it and whether it was because of the 



22 



Hicke: 
Schwarzer : 



money, I don't know. I thought that she had committed suicide 
because of having lost our money. But this letter gives me 
pause; maybe I'm of the wrong impression. In any case, she 
obviously didn't survive the war; I don't know what happened. 

He did have money outside of Germany that she didn't 
lose. Now whether that was money that had been given to her, I 
think her name was Helene, or whetherhe must have had some 
other deposits, because when we came over here there was some 
money. 

Did he have deposits in Switzerland? 
I don't know. 



Moving to the United States 



Hicke: Well, let me ask you to start with whatever recollections you 

have of your family talking about and then beginning to prepare 
for the move. 

Schwarzer: The first thing I remember is that in 1935, my parents gave 
serious consideration to going to Israel. It was relatively 
easy. The Germans encouraged Jews to emigrate to Israel. The 
Arabs were not anxious to have them come, and the British, as 
usual, were sort of in between. But it was easier, I think, to 
get a permit to get into Israel than it was to get into the 
United States. 

So I remember they went--I remember this very distinctly 
--they went to Israel, and my father had cousins who had 
already gone children of one of his mother's sisters. And-- 
this was my first creative ef fort--while they were gone I 
prepared a show; first I wrote a little book about what it is 
to go to Israel, and then I prepared a sort of a shadow play, 
where you put up a screen and you had figures you make with 
your fingers. It was some sort of dramatic production, which I 
put on when they came back from their trip. I had this little 
book that I wrote, and I bound it and had pictures in it. So I 
must have gotten very interested in this. 

But anyway when they came back, they never pursued it. I 
think that they came to the conclusion that living in a kibbutz 
in Israel was not for them. I mean you have some idea, I'm 
sure, what it was like for Jewish settlers in those days. You 
tilled the soil and turned the desert into a garden. It was a 



23 

highly disciplined life; there was no personal freedom at all. 
And then, of course, there was always the hostility of the 
Arabs, and for that matter of British. But that was no place 
where any middle-class, educated, intellectual German family 
would want to go. 

So I think that at that point, my father began these 
efforts to establish contacts in the United States. I don't 
know that we ever considered going to any other country. But 
they didn't discuss those things with us. And I don't know how 
much discussion there was around the house at all. I don't 
recall any. Occasionally, I remember hearing about the great 
efforts that my father was making to push our application for 
immigration visas. I remember he would take boxes of candy to 
the secretaries at whatever office, maybe the American Embassy, 
and did all sorts of things like that. I don't know how much 
you've read about the way these things went during the 1930s-- 
trying to get into the United States was very, very difficult. 
And if you're interested, this book, Nazi Germany and the Jews, 
gives you some pretty good insight into the enormous 
difficulties that American officials, particularly people in 
the Foreign Service, put in the way of German Jews trying to 
get immigration visas. 

Hicke: Was there some sense of why? 

Schwarzer: Why? Because, the notion of receiving Jewish refugees from 
Germany was not at all popular in the United States. And if 
you go to the Holocaust Museum, for example, you get some 
pretty good insights into this. 

There was a quota; I forget what it was, maybe a hundred 
thousand, something like that. And the quota was never even 
filled, because the State Department people just made it as 
difficult as possible to come over. In the Holocaust Museum 
there are some numbers, and this is the number that really 
struck me: only 40,000 German Jews escaped to the United 
States. At the beginning, in 1933, there were, I don't know, a 
million, something like that. Only 40,000 made it, and the 
quota was much higher than that; I think it was well over 
100,000. There have been books written about that. The United 
States was not at all hospitable. Occasionally there was some 
pretense at trying to help, but it never became a national 
policy. President Roosevelt, although he made some noises, 
never went out and really made an effort, because it was not 
good politics. 



Schwarzer: I wish I knew more details about what happened, but I do know 
that it took quite a while for my father to persuade his aunt 
in Los Angeles to execute this affidavit that is still 
required, by which an American citizen guarantees that a person 
will not become a public charge. He had to get that from her, 
and then he had to get on the list. I don't know where we were 
on the list of applicants for American immigration visas, and I 
don't know whether he succeeded in moving our name up higher. 
We certainly didn't have any connections or any pull. Oh, 1 
know, I recently read in the New York Times, about a month ago, 
a story about a German family trying to get an affidavit from 
their American relatives, and it talked a little bit about how 
difficult it was to get on the waiting list for an American 
visa. It was an instance where an American congressman had 
written to the consul to ask him to move these people up and to 
help them get their visa, and the Foreign Service people just 
ignored it . 

Hicke: This is during which period? During the thirties? 

Schwarzer: Yes. What the New York Times had they ran across a bunch of 
letters between the Germans and their American relatives. I 
wish I had letters like that; I'm sure they weren't saved. But 
I have a pretty good notion that it took a lot of persuasion to 
get the affidavit, and it took a lot of effort to get high 
enough on the list. I think our name must have been on the 
list for immigration visas for two or three years. 

Hicke: Persistence finally paid off. 

Schwarzer: I imagine my father must have applied when they came back from 
Israel, in 1935. So it's just purely capricious, pure accident 
that I 'm here. 

Hicke: Well, do you recall when the visa came? 

Schwarzer: I remember that we packed up in September of 1938. It all went 
pretty fast. 

Hicke: Were you able to sell your house? 

Schwarzer: We were living in a rented apartment. But I think we took all 
of our furniture with us. We moved with at least one if not 
two large containers, wooden containers. We took all that with 
us, although, I think, much of the furniture was probably too 
bulky for us to use in Los Angeles. But we took it all with 
us. Now, I have read in this book recently that the Germans 
imposed very heavy taxes on Jews leaving Germany at that time. 
I don't know what happened in our case, how that was managed. 



25 



But my father apparently had enough resources to be able to pull 
it off. 

In fact, what I do remember and I simply can't understand 
why that was so--we traveled first class on the liner from Le 
Havre to New York. I still have the passenger list, which is 
sort of interesting. A number of people on that became quite 
famous afterwards. And then we traveled, I think first class, 
on the steamship from New York through the Panama Canal to Los 
Angeles. Now why they spent the money to do that I had no idea. 
There must have been some rational basis for doing it. Perhaps 
they were able to pay for the tickets in German money they would 
not have been able to take out of the country. 

Hicke: It's more secure? 

Schwarzer: I have no idea how that could have been helpful to our getting 
out. I mean, once we were across the border, nothing really 
mattered anymore. I remember crossing the border. 

Hicke: Yes, I was going to ask if you remember the trip. 

Schwarzer: Oh, I remember the trip distinctly. We took the train from 

Berlin to Switzerland, and we crossed the border at Basel. It 
was a very exciting moment, but of course I couldn't really 
fully appreciate the relief that my parents must have felt in 
getting out. 

Now, I have a strange confusion in my memory. I had always 
thought that we left Berlin on the 10th of November, 1938, and 
we took a sleeper. When we woke up the next morning crossing 
the border at Basel, we looked out the train windows, and we saw 
the headlines which reported the events of that famous night, 
kristallnacht , which I've written about the first great pogrom, 
attacks on Jews and Jewish property all over Germany. But in 
the research that I've done now, I found that actually we were 
on board the ship going to the United states on the 10th and 
llth of November. So it happened while we were on board ship. 

I guess what we must have seen was the headlines in the 
paper when we landed in New York. So I'm confused. But that 
coincidence stands out in my mind--that we got out of there just 
before that event. And that was really a turning point. After 
that the Jews were really being actively persecuted, and they 
were essentially on the run. You could not expect anything 
anymore . 

My grandparents stayed on, because we didn't have a visa 
for them. 



26 



Hicke: 
Schwarzer : 



Hicke: 

Schwarzer: 
Hicke: 

Schwarzer: 



Hicke: 
Schwarzer: 



These are your paternal grandparents? 

Both. Well, my maternal grandmother had died some years 
before. So my father's parents and my mother's father stayed 
on until the next year; I don't know exactly when. But my 
father was able to get them out and arranged for them to go to 
Shanghai. Shanghai was the only place where you could go 
without having a visa. If you could get out of Germany, you 
could get into Shanghai, and quite a few people got out of 
Germany that way. Then my grandparents waited in Shanghai for 
a visa. Then another absolute miracle--! mean, I don't know 
how it happened that my father was able to get them immigration 
visas to come to the United States just before the war broke 
out with Japan. 

That is really an incredible story, when you put it all 
together. 

Yes, it sure is. 

Do you remember anything about being in Paris, when you were 
there? 

Well, I remember we stayed in this lovely Parisian apartment, 
in Montmartre. It's like out of a movie about Paris. It had a 
little garden on different levels, and beautiful flowered 
curtains. I've always looked for an apartment like that all of 
my life since then; I've never found one. [laughter] 

I don't think you'll find it up there anymore either. 

Probably. We didn't stay very long, but I spent some time 
exploring Paris. We must have left about the first week in 
October, 1938. I don't know whether we went to Switzerland 
first to visit friends--we may have--f riends of my patents. I 
have some recollection that we went to Lake Geneva and stayed 
at a villa with them. I think that may have been this trip, 
I'm not sure. But what I remember is sitting at lunch on the 
terrace overlooking Lake Geneva. It was a very elegant lunch. 
The maid brought in the salad course, and it was artichokes, 
and she had thrown away the hearts of the artichokes and served 
the leaves. [laughter] I remember that so distinctly. Every 
time I eat artichokes I think of that. I don't know where they 
got that maid. 

So then we went on to Paris, and I guess we got on board 
ship just around the beginning of November. Then we stayed in 
New York with old friends of my parents who had preceded them 
by a short period, a few months. I guess my parents considered 



27 



whether to stay in New York, but since their family was in Los 
Angeles, they decided they should go there. 

I spent lots of time walking around New York, and taking 
the subway, and enjoyed it. 1 don't remember anything 
specific. But it was very exciting to be in the United States. 
I felt like a different person. 

Hicke: Did you speak any English at this time? 

Schwarzer: Well, we learned English. We had studied English in school, so 
I could get around, but I certainly spoke broken English. It 
took me no time, once I was in school, to learn it, and so 
that's why I've never been able to understand the raucous 
controversy here over bilingual education. I mean, I was at 
home with English within a few months, weeks. 

Hicke: I think effort had something to do with it. But probably not 
everybody has quite the intellectual power that you have, 
either. 

Schwarzer: Well, kids learn. Kids learn the language. They may not learn 
the fine points, but just being around other kids speaking it, 
they pick it up right away. Now, they have to be around other 
kids who speak English. If you're just around other kids who 
also speak a foreign language, you're not going to learn it. 

What made a difference in our lives was that my parents 
were determined for themselves, before I was, that we would be 
fluent in English, and that we would be totally assimilated. 
So we never spoke German at home anymore. And that's probably 
why I have virtually no accent. You'd have to be a linguist to 
detect my accent, and if you did, you'd probably think I was 
from New England rather than from Germany. My parents, while 
they retained some accent, certainly spoke English very well. 
But you take somebody like Henry Kissinger, for example, who 
never lost his accent--! 'm sure that's because his family spoke 
German at home. 

Now the downside of that, of course, is that I have 
essentially lost my mastery of German. I can understand it 
very well, but I don't speak it fluently. If I spent a couple 
of weeks in Germany, it would come back to me. But we had no 
problem with the language. And in some ways, of course, we had 
an advantage: if you learn English as the second language, you 
are much more sensitive to the nuances of meanings of words. 
That's because you think of it also in terms of how it would be 
said in the other language. So I think you have an advantage, 



28 



really, in mastering the language, if you have the perspective 
of knowing a second language. 

Hicke: Now that is really an interesting thought. Do you think that 
has had an impact on your speaking and writing? 

Schwarzer: Well, I think so. I'm very conscious of the correct use of 
Englishsimple things like whether to say "he" or "him," or 
"who" or "whom," which people more and more neglect. When 
you've grown up in a language that has a very rigorous grammar, 
or for that matter, studied Latin, you just would never make 
that kind of mistake. So the knowledge of another language 
with a rigorous grammar imposes a discipline on you that leads 
you to use English in proper ways and make the best use of it. 

Hicke: I know language--communication--has been one of your special 

interests. So here we have, perhaps, a little clue to how that 
came about. 

Schwarzer: Yes, I think that is a part of it. Because you learn English, 
not as a child growing up, but after you've learned another 
language. You're more sensitive to the proper use of the 
language. 

But there are other reasons why I became interested in 
communication: it's largely the importance of language in the 
legal process, and the importance of the absolutely precise use 
of words and precise expression. Saying exactly what you mean, 
no more, no less, is very important, in transactions and in 
litigation. We have a lot of opportunity in this job to see 
the consequences of people not using the language carefully and 
correctly. That leads to lots of lawsuits and controversies. 

Hicke: Do you think that German has a capacity for being more precise 
than English? 

Schwarzer: I think a German mind leans toward precision and discipline and 
rigor anyway. But the German language is fundamentally 
different in that you don't have homonyms, for example. 1 
mean, you don't have a word like b-o-w, that could be bow 
[sounds like cow] or bow [sounds like doe]. And you don't have 
numerous nuance synonyms, each one of which is just a little 
bit different than the next. 

I'm working on a case right now in which it is necessary 
to decide what the meaning of a word is. The word is 
"misappropriation." Well, misappropriation could have many 
meanings. There are other words that you might substitute, but 
those words might mean something slightly different. That 



29 



Hicke: 



Schwarzer : 



Hicke: 



Schwarzer: 



wouldn't happen in Germany. There is one word for one thought, 
and you know exactly what it means, and there are no other 
words that shade off in their meanings. 

So English is a much more versatile and literate and 
colorful language than German. But it also is much more 
challenging to be precise in the use of the words. I don't 
know if I'm right about it, but that's my impression about the 
difference in the languages. 



That's really interesting, 
in New York. 



So you started to pick up English 



As I mentioned, we had studied it in school in Germany, and I 
think we maybe even had some private lessons, briefly. But 
once I was in New York, I was on my own, and 1 was speaking 
English. I never had any problem. 

Anything about the trip from New York to California that stands 
out in your memory? 

Going back to the trip from Le Havre to New York, I remember 
traveling first class and eating these marvelous breakfasts, 
you could order. I had never been exposed to a breakfast menu, 
and I remember eating three- or four-course breakfasts. That 
was wonderful. I was pretty much on my own eating breakfast. 

When we went through the Panama Canal, it was a very 
interesting experience. I talked to some friends recently who 
just made this trip, and they're still excited about going 
through the Panama Canal. It's quite something to see this 
great big ship that you're on rise up and go down again. 

But the one thing I remember is stopping at Acapulco. I 
don't know why the ship stopped at Acapulco. It was a little, 
sleepy village, and I guess they must have dropped off some 
cargo. I'm sure this doesn't happen anymore, but as soon as 
the ship dropped anchor, there were just dozens and dozens of 
little boats that came out with boys that dive for money. You 
throw money out, and they dive for it. I don't think they do 
that anymore in Acapulco. 

Of course, there were no hotels; it was not a resort. It 
was just a sleepy, semi-tropical village. I remember seeing 
Acapulco. I always think of that when I read about how- -well, 
we once went down there, in fact, to a meeting, and it was 
really something to see the change since 1938. 



30 



Hicke: 



Hicke: 



Schwarzer ; 



The other outstanding experience on that trip was we 
landed--! think it was the 9th of December, 1938--we landed in 
Los Angeles, and if you know southern California, you know that 
it tends to get very hot in December. There usually is a heat 
wave in December, and there was then. We were wearing our 
heavy North German overcoats, and hats, and gloves. I guess 
one reason why we were wearing them was because we wanted to 
take them with us and they're too big to pack, so we were 
wearing them. And we looked very odd. 

And felt worse. 



Schwarzer: Right. I guess those overcoats didn't last very long; we got 
rid of them. 



No, you didn't need those, 
what your feelings were? 



Do you recall coming into port, 



No, I don't remember the port at all. I remember just arriving 
and, I guess, being met by our family there. They took us to 
an apartment in the apartment house in Los Angeles on Kingsley 
Drive. I don't know how they came to take us there. We lived 
there briefly. 




William W Schwarzer, Berlin, 1934, 




William and Anne Schwarzer on their wedding day. At left: best man John 
Karns. Cambridge, February 2, 1951. 




William Schwarzer's parents, John and Edith Schwarzer, on the 
occasion of John's 50th birthday, Los Angeles, 1950. 



31 



II EARLY LIFE IN CALIFORNIA 



Parents' Work 



Schwarzer: And then, I don't know exactly what happened, but I know that 
it wasn't very long until my father bought an apartment house. 
Now this is 1938 and early 1939, and that was still pretty much 
in the Depression, or the coming out of the Depression. But 
real estate prices were really low, and he bought an apartment 
house on Mariposa Avenue. I guess it must be a four- or five- 
story building. 

Hicke: Still there? 

Schwarzer: Oh, I think it is. What's it called? I think it's called 

Mariposa Apartments. Probably had about forty units, something 
like that. But I think he bought it with all of the cash that 
he had. I have some recollection--! 'm not sure at all if this 
is right that he paid $10,000. Of course, it was mortgaged. 
There was nothing else for him to do. I mean, there was no 
obvious place for him to go and get employment. He wasn't 
qualified to do anything except a menial job. So somehow, 
somewhere, he got the idea that he would go into the real 
estate business. We bought this apartment complex, and my 
mother and my sister and I lived in this two-room apartment, 
which was the manager's apartment. And they managed it. 

I remember we had a curtain drawn across this little 
room; my sister lived on one side of the room--I think that was 
the only bedroom she and I shared. We had this curtain drawn 
on a string across, diagonally, across the room. I think my 
parents slept on a foldaway bed or a convertible couch in the 
living room. They managed the apartment; they were there all 
the time. 



32 



Hicke: 
Schwarzer : 



Now here they were foreigners coming into Los Angeles, 
speaking broken English. Under the best of circumstances, 
managing an apartment with tenants is a nightmare, because you 
always have those that complain and cause trouble, make noise, 
let the water run. They had to deal with this as people who 
are not likely to be well received under any circumstances. So 
between being a landlord and being a refugee, it was pretty 
tough. 

Oh, yes. They had to deal with city government too, probably. 

Yes. Of course, in those days regulations were benign, 
compared to what you run into today. But it was certainly the 
right move, because it got them launched into real estate 
investments at the right time, and that turned out to be very 
successful. 



Joining Boy Scouts 



Schwarzer: Now I come to the outstanding experience of that time. I 

should mention that one thing that our Los Angeles relatives 
with whom we were never close; we didn't see them muchthey 
insisted that we should speak English all the time and get 
assimilated. As far as I was concerned, they took me to a Boy 
Scout troop and introduced me. They said, "You have to join 
the Boy Scouts." That was the best thing that happened to me 
around that time. 



In the Boy Scouts, I was very active and very ambitious. 
One of the activities was signaling with flags. You've 
probably seen it before, signaling. A friend and I were going 
to practice, and we thought the best place to practice there 
weren't a lot of open spaces there, because there were a lot of 
apartments where we livedso we ran up on the roof one 
evening, early evening. He stood at one end of the roof, and I 
stood at the other end, and we would signal to each other, to 
learn the code. It wasn't very long before a couple of 
policemen came up to the roof. Well, this was January 1942, 
shortly after Pearl Harbor. We had been designated enemy 
aliens because we were German. At least, unlike the Japanese, 
we weren't deported to relocation camps, but we were enemy 
aliens. So the police came up, because the neighbors had 
reported suspicious activity somebody signaling on the 
rooftop, although this is twenty-five miles from the Pacific 
Ocean, inland, in Los Angeles. But they took us down to the 
police station and met with my parents, and my parents had to 



33 



Hicke: 
Schwarzer : 

Hicke: 
Schwarzer : 



convince them that we were not German spies signaling to enemy 
submarines or other installations. 

It was a pretty scary experience, because, at that time, 
people were very jumpy on the West Coast. There had been some 
Japanese submarines off the coast. And at least one submarine, 
I think, had shelled the Oregon coast. There were some 
Japanese balloons that--l don't know whether they had 
explosives on it landed. But people were very jumpy. And, of 
course, the Japanese were being deported. So that was a pretty 
scary experience. I remember that; it took place on the 
Mariposa Apartments roof. [laughter] 

Were you having blackouts? 

Yes. There were blackouts, although, they were not rigorously 
enforced, and they didn't last very long; but for a while we 
had blackouts. 

You know I think we might find this a good place to stop. 
Okay, fine. 



[Interview 2: May 29, 1997] 



Hicke: I'd like to start this morning by going back to what you were 
talking about at our last sessionthe Boy Scouts--which you 
encountered when you went to Los Angeles. And I want to talk 
about some of the earlier days in Los Angeles. But since we 
are on the Boy Scouts, maybe you could tell me a bit more about 
how you joined and what you got out of that experience. 

Schwarzer: As I said, this was one of the very first things our Los 

Angeles relatives said to us: that I would have to join this 
troop. One of their acquaintances was a scout in this troop, 
he had just started. It was known as Troop 121. So within a 
week or two, I showed up at this meeting, and I joined what 
they called the candidates class. 

Now this was really an extraordinary troop; it was head 
and shoulders above Boy Scout troops elsewhere. And the main 
reason was that it was led by young men. The problem with Boy 
Scouts had always been that when boys reach sixteen or 
seventeen, they drift off, they're interested in girls, and 
other things. And so the young boys don't have the leadership 
and the role models that the older boys can provide. The 
secret of this troop was that people stuck around. 



34 



It was an old troop; it went back to just after World War 
I. It took great pride in its appearance and its emphasis on 
skill and outdoor activities. It was the only troop that had 
wool uniforms, for example. That was pretty unusual. 

Hicke: That's hard to imagine in Los Angeles. 

Schwarzer: I know; when you think about it, it does seem odd. But there 

was a lot of spit and polish, you know. You'd line up whenever 
there was a troop meeting. Every week there would be a 
fingernail inspection, for example. That's a pretty good 
training program for young boys. And your fingernails had 
better be clean, and your neckerchief be straight, and uniform 
be clean. Your mother had better sewn on all of the badges, 
and not just sewn them on, but sewn them in the exact right 
spot. They'd go around with a ruler and measure. 

So it may seem silly, but it had a wonderful impact on 
generating esprit de corps, discipline, the ability to work 
within an organization and be part of it. I can tell you it 
really stood me in good stead when I went into the army. 

Hicke: Yes, I believe that. 

Schwarzer: I was well prepared. But it isn't as though this was just a 

military organization, although it had a military overlay. But 
the emphasis was on learning the skills of scouting--lots of 
things. At one time I think I was able to identify sixty 
birds. Lots of outdoor activities that led me to take up 
skiing, and every Labor Day, a carefully selected group of 
people climbed Mt. Whitney. There were lots of contests, and 
at the end of each year there was an award banquet, at which 
all kinds of awards were given to people. 

Hicke: How old were you? 

Schwarzer: I was thirteen when I joined. You could join when you were 
twelve. I really got excited about this. Of course, I knew 
very little English, and I didn't know anything about knot- 
tying and making a fire by rubbing sticks together and all 
those things. But I learned pretty fast. I became very 
ambitious about advancing in the Boy Scouts, and ultimately 
became an Eagle Scout. I won lots of awards. I remember, I 
think, I even won an award for writing a play at one time; 
strange. 

They just stimulated lots of activity, and there were 
wonderful older leaders to whom we looked up. In Boy Scouts, 
there's a tendency for the fathers to provide the leadership. 



35 



Hicke: 



Here, the fathers participated, the fathers stayed around, but 
the leadership was provided by boys eighteen, and young men up 
to twenty- five, twenty-eight. That lasted until the war came 
along, and then that was all disrupted. 

I still have ties to those people. Last year I met the 
person who had been my patrol leader and then later senior 
patrol leader. He lives in Los Angeles. We had dinner, and it 
was like we had been friends all the intervening years. 

What's his name? 



Schwarzer: Alfred Wilkes. 

Hicke: So you joined just about as soon as you got there. 

Schwarzer: As soon as I came, right. I worked my way up, and I ultimately 

became the senior patrol leader. The troop had about forty to 

forty-five members. I think there were five patrols of about 

eight boys each. 

Hicke: Did the patrols meet individually? 

Schwarzer: Yes, patrols would meet each week. Then once a week, I think 
on Friday nights, there was a troop meeting. It was a very 
different time, when you think about it, because that was the 
main activity for kids. They didn't have money to go out and 
do a lot of things that they do now. Of course, there wasn't 
any television. Very few of the boys had cars. I finally 
bought a car, I guess, when I was sixteen or seventeen with 
earnings from a paper route. But most people didn't have cars. 

And there weren't a lot of other sources for 

entertainment. You didn't go--well, occasionally you might go 
to a movie. But this was reallythis and school the main 
life activity for young people then. 

So you could count on the kids being involved and doing 
their work and progressing in the scout troop. Obviously there 
were some people who never went beyond second class or first 
class scout. And I think I was much more ambitious than 
probably anybody else. But still, there was great 
participation and commitment to the troop. 

I'm trying to think if there was anything particularly 
noteworthy. Well, I was active until October 19A3, when I went 
into the army. Right after Pearl Harbor, the older boys 
disappeared and went into the service. So the fathers then 
really took over. So the best time for the troop really was 



36 



Hicke: 



Schwarzer : 



Hicke: 



Schwarzer: 



Hicke: 



Schwarzer: 



from 1939 until the beginning of 1942, after Pearl Harbor. 
Those three years really were the period in which 1 was deeply 
involved in it and very active. 

After you became an Eagle Scout, did you take on more 
leadership yourself? 

Well, the rank that you earn, the badges that you earn, and 
your leadership position weren't necessary related; the fact 
that you became an Eagle didn't necessarily mean that you 
became a leader. But I worked my way up from assistant patrol 
leader to patrol leader, and then I was senior patrol leader, 
who was the senior boy, under the scout master. The scout 
master would be an older person, usually somebody in his 
twenties, thirties. So I both worked up in the badges and 
worked up in the leadership ranks. 



What part of it did you enjoy the most? 
out? 



Can you pick something 



I think really the best part of scouting was the outdoor 
activitylots of camping and hiking. That was all new to me; 
I had never been exposed to anything like that. I do remember 
that I took a fair amount of hazing and kidding when I first 
came. I remember the first camp I went to, I was kidded a lot, 
or hazed, or whatever. Because I did have an accent, and I was 
a stranger and foreigner. People growing up in Los Angeles-- 
that was a very insular crowd, and they really weren't 
accustomed to foreigners. But that ended pretty quickly. 

Was that a spur to get rid of your accent? 

Probably, didn't think much about that. One of the things that 
I remember was that the troop was given a cabin in one of the 
canyons in the San Gabriel Mountains called Thomas Lodge, which 
was about fifty miles outside of Los Angeles. It was an old, 
run-down cabin, and the troop took it on itself to build a new 
cabin. It was about a three-mile hike in from the parking lot 
--or the place you park; there wasn't any parking lot, it was 
very primitiveup the canyon to the site of the cabin. I 
remember that we all used to hike up and down that canyon, 
carrying boards, building materials. I remember we carried 
these long beams; there would be two or three of us carrying 
them up the trail to build. We built this cabin under some of 
the older boys, who were the leaders. Some had some 
experience, I guess; they must have known what they were doing. 
It was a wonderful cabin. And then we had summer camps up 
there. So that was a great bonding experience for the boys. 



37 



Hicke: How did you get out to these places? Did parents drive? 

Schwarzer: Sometimes fathers would drive, sometimes older boys would 

drive. You could get a license when you were sixteen, and some 
people were able to borrow a car. As I say, that was still the 
tail end of the Depression, so there wasn't a lot of money 
around. The great treat would be stopping at a soda fountain 
on the way back and having a malted milk. That was really a 
big treat. And you know, those were the days when they had 
these wonderful soda fountains, that you now only see in 
movies. The Art Deco style, with stools that twirl and soda 
jerks . 

Hicke: Well, I'd say you deserved it after building that cabin. Your 
parents were quite supportive of you? 

Schwarzer: Yes, yes. They certainly encouraged me to do this. 



Part-time Work Experiences 



Schwarzer: The other thing that filled my time during those years was the 
part-time jobs. Everybody had a part-time job. Boys had to 
earn their own money. I don't think most kids got an allowance 
in those days, at least not at the economic level where we and 
our friends were. 



So I started out; I did everything under the sun. I had 
every kind of paper route. Let's see, for a while I had a 
paper route with paid subscriptions. I think it was Hollywood 
Citizen's News; it has long been out of business. So I 
delivered the paper either in the morning or in the afternoon, 
and then you had to collect from people. And it wasn't easy to 
collect for newspaper subscription in those days. 

Then I sold Saturday Evening Post and Ladies' florae 
Journal from door to door. And I used to sell the Sunday 
paper; the way you did that, you would get a little wagon and 
pull it down the residential streets, and yell at the top of 
your voice, "Examiner! Times I "--those two papers were published 
then. And then people would come out and buy the paper. So I 
guess there were a lot of people who didn't subscribe, who 
would buy from the paper boys as they came down the streets on 
Sunday morning. For a while, I spent a lot of Sunday mornings 
selling the paper. 






38 



I think the job that I had the longet, and probably 
earned the most, was delivering the Shop ng News. That was a 
throwaway paper. So you just walked dow the street and you'd 
throw one on every porch. But you had t get it on the porch 
or else the people wouldn't get it. The managers did not look 
kindly on you if you did not walk up to tie porch, which also 
sometimes meant encountering dogs and oter hostile elements. 
But that was a pretty good job. You coud earn quite a lot of 
money, I mean for that time. You didn 1 have to collect; you 
didn't have to sell. And, I think, for i while then I also 
became a district manager, and had peop^ working for me. I'm 
not sure about that. I made enough mor. v that I was able to 
buy an old Model A. So I had a car. 

Hicke: This was a Ford? 

Schwarzer: Ford Model A, yes. And that was very -jportant to have a car. 
Hicke: You don't happen to recall how much yc made? 

Schwarzer: I have no idea. But it was pretty goc money at the time. It 
might have been ten dollars a week or omething of that sort. 
That was in the morning so you'd get early, and that had an 
impact on my grades. By then I was ii high school. 

Whenever 1 had the Shopping News my grades went down. 
My father was really opposed to it; h wanted me to quit 
working. That was a constant argumer . I would quit for a 
while and my grades would go back up. Then I'd persuade him to 
let me start again, and my grades WOT.. d go down. It was a dumb 
thing to do, for sure. So I was alw s just on the edge of 
having very good grades, but then southing would knock me 
down, probably because 1 got up earl in the morning. 



Schools and Education 



Hicke: Now, let's go back a little bit. Yo must have been in junior 
high when you got to Los Angeles? 

Schwarzer: When I came, I started out in the eghth grade, at John 
Burroughs Junior High School, on Wi shire Boulevard. 

Hicke: What was it like to join a group of foreign-speaking strangers? 

Schwarzer: Well, I think I felt like a strange. I have no recollection 
of having any friends in junior hip school. I did have 






39 



friends later; I got involved in some groups when I went on to 
high school. I must have started high school in the ninth 
grade, I'm pretty sure. So I don't remember much about junior 
high school, except standing in line in the cafeteria. I don't 
know why I remember that. 

Hicke: Hungry. [laughter] 

Schwarzer: I don't know what it was. And I don't know what I was taking, 
but I guess I got along all right. I graduated from junior 
high school in June. And I remember my parents it was a 
terrible rainy day, and my parents took me to the May Company 
and bought me a dictionary. Well, that was a good thing to 
get. And then I started at Los Angeles High School in the fall 
of '39. 

Hicke: Did you have some choice of courses? 

Schwarzer: Yes, there was a choice of courses. There certainly was 
starting the tenth grade. I took an academic course, and 
science and math courses, which I liked. But math--I was very 
good in geometry and not good in trigonometry. I got erratic 
results in advanced math courses. I liked physics; I did well 
in that. My grades were respectable, but I wasn't in the top-- 
I guess I just missed the California scholarship group by 10 
percent, something like that. 

Los Angeles High School was regarded as a good high 
school in those days, with good teachers. Things have 
certainly changed since then. It was peaceful, orderly. 

Hicke: Homework? 

Schwarzer: Quite a lot of homework, yes. 

Hicke: Did you have after-school activities, other than your job? 

Schwarzer: And Boy Scouts. 

Hicke: Yes, that probably accounts for most of your time. 

Schwarzer: I tried to become involved in the life of the school. I 

remember running for membership in something called the Senior 
Board. That was a group of students that had some 
responsibility for student affairs. I lost, of course. I had 
no political following at all. I guess I was just ambitious. 
I think I might have been appointed briefly to a vacancy, 
because I had some people that were friendly and wanted to be 
helpful. 



One of the few people that I remember--! guess there are 
two people I remember; one of them whose name was Jerry Doff, 
became a lawyer. I never had any contact with him again until 
I noticed during the Watergate period that he had done some 
work for Nixon, and I think was the person who was responsible 
for the fraudulent affidavit that Nixon executed in support of 
his taking a deduction for a gift of art. Do you remember 
that? 

Hicke: Yes. 

Schwarzer: And I think he may have been disbarred or in some way 

sanctioned. I knew him; he was a nice fellow, and he was 
friendly to me. 

Hicke: He was in your class? 

Schwarzer: Yes. The class president was a man named Tinky Shows, and he 
also became a lawyer, and also was caught up in the Nixon 
activities and had some involvement in an illegal transaction. 
He was regarded as a very bright and promising young person in 
our class student body president. But something happened in 
connection with the Nixon affair, and he fell by the wayside. 

I had similar contacts with other people, when I later 
went to USC [University of Southern California] , who ultimately 
went into the Nixon orbit and got involved in illegal 
activities. So that was the generation of people who were 
tainted by Nixon's political activities. But I remember those 
two people, because it was so shocking to me to see what had 
happened to them later, because they were the bright young men 
in our class. 



Social Activities 



Hicke: What about social activities? 

Schwarzer: I think I belonged to some social club. And I must say my 

efforts to make progress with girls in the class were not--all 
I remember is they were generally unsuccessful. I was neither 
very adept nor did I expend enough energy, I guess, in getting 
involved socially, with all the other things I had going on. 
Not a lot of social life. I remember going to some dances. I 
remember taking out a number of girls, but it wasn't a very big 
part of my life. Well, I guess I shouldn't say that; I think I 



did have romantic times, but that isn't what stands out in my 
memory a great deal. 

Hicke: Did you go to football games and things like that? 

Schwarzer: Yes. But I think the scouts had a higher priority with me than 
the social activities in high school, although I was involved, 
and I did go out. But there was no particularly outstanding 
memory. 

Dances were a big deal at the time. I suppose they still 
are, although ours were on a more modest scale. 

Hicke: Weren't some of the big bands around at that time? 

Schwarzer: Yes, but I don't know whether they played for the dances that 

were put on by groups in school, whether they brought in bands, 
or whether students went out to places where bands were already 
playing. I remember that one of the big places at the time, 
one of the most popular places, was the Coconut Grove at the 
Ambassador Hotel. Freddy Martin played there for years and 
years. The Coconut Grove finally burned, I think. Sometime 
during the war, there was a fire, and it was destroyed. But 
that was a very popular place. And Freddy Martin's theme was 
the theme from Tchaikovsky's Second Piano Concerto, "Tonight We 
Love." Does that ring a bell with you? 

Hicke: Oh, of course. I know it well. 

Schwarzer: I remember that was the time when Frank Sinatra was first 

hitting big time. He was on a program that was sponsored by 
Chesterfield [cigarettes], and I remember getting into a radio 
studio to hear his broadcast. That's the time when teenagers 
would scream and faint. 

Hicke: The girls. 

Schwarzer: I remember that. [laughter] Well, sometime during that time, 
one of my great experiences was, a request came to our troop-- 
we did a lot of public service; we'd take turkeys to people on 
Thanksgiving. That was an important part of troop activities. 
We got a request from one of the studios that they needed a lot 
of snails. 



Hicke: Snails? 

Schwarzer: Snails. Well, snails or slugs are very common in Los Angeles. 
You see them out there in the morning all the time. They 
needed these snails for a movie that Cecil B. De Mille was 



Hicke: 
Schwarzer : 



Hicke: 



making of the life of Dr. Wessel. You've probably never heard 
of Dr. Wessel, but he went to the Philippines and brought 
public health of some kind to the Filipinos. At one point, he 
was quite a famous character. In order to enhance the 
credibility of this scene of Dr. Wessel in this jungle, they 
needed a lot of snails. 

Somehow, our troop had a connection with the movie 
business, because one of the people active in the troop was the 
professional first-aid person who worked on the sets. So we 
went out and collected snails. And we all went in our uniforms 
to his studio and delivered them to Cecil B. De Mille and had 
our picture taken with him. 

Personally handed over the slugs to him? 

Well, to his assistant. But he was there to receive them. I 
remember standing in this group with De Mille and having our 
picture taken on the set. So that's a highlight from that 
time. [laughter] 

Indeed. 



Hicke: Other than that, were you much affected by the Hollywood 
activities? 

Schwarzer: No. Well, I had another experience. I was riding my bike with 
a friend in the San Fernando Valley, and I had a flat tire. He 
went on, I guess, to get help. I was sitting by the roadside, 
there was nothing I could do. A station wagon came along and 
picked me up. There was a man and a woman in the car, and they 
said, "Can we take you somewhere?" I asked them to drop me off 
at the end of the bus line. The man was driving, and he 
stopped and let the woman off at their house, and took me on. 
He said, "Do you know who that was?" And I said, "I don't have 
the slightest idea." He said, "That was Lucille Ball." 
[laughter] And, "I'm Ricky," his stage name, her husband. 
[Desi Arnaz] 

Hicke: Two famous people. 

Schwarzer: So, yes you did have contact with the movie business, but it 
was pretty capricious and sporadic. [laughter] But it shows 
you how closely I was following it--I had no idea who they 
were. I knew who Lucille Ball was, but I wouldn't have 
recognized her. 



Hicke: 



Schwarzer : 



Hicke: 
Schwarzer: 



Hicke: 

Schwarzer: 

Hicke: 

Schwarzer: 



Hicke: 
Schwarzer: 



Well, that was before television. So she was not so 
recognizable as she became after television. 

I took a girl to a dance one time, whom I met I don't know how. 
She was a nice person, we had a good time, but I never saw her 
again, until later. It turned out that she became a famous 
movie actress. I think it may have been somebody called Rita 
Moreno, some Hispanic name. She was good looking, but she was 
nobody when I was taking her to dance. But she did become a 
famous movie actress. 

And you were writing plays? 

I wrote this one play for the scout troop, but nothing happened 
to that. I got back into that many years later. But I had no 
contacts. I thought I wanted to write music. I thought I 
wanted to write songs, and I know my father introduced me to 
some song writer in Hollywood, but that never got anywhere. I 
think what he said was this has already been done, or something 
like that. 

Did you actually write one? 

I don't know. I may have put some words together, but I don't 
remember that that got anywhere. 



Did you have any musical training? 



My father wanted me to take the violin. When I was still in 
Germany, I took violin lessons, and I hated it. I wanted to 
learn to play the piano. But that didn't come off until many 
years later. About twelve years ago, I decided the time had 
come. I started taking piano lessons. I did that for a while, 
but I reached a plateau, and I didn't get any better; so I 
dropped it. But that was the only music training I've ever 
had. I like music, but I don't know anything about it. 

Anything else about your high school days that stands out? 

The only other thing to add was that our class was accelerated. 
I don't know exactly how. I don't know whether we went during 
the summer, but after the war started the class was 
accelerated, and instead of graduating in June of 1943, I 
graduated in February. The main idea was to make it possible 
for people to go into the service and have their high school 
diplomas. But that gets us into the whole business of the 
military. 



III WORLD WAR II: MILITARY SERVICE 



Early Days of U.S. Involvement 



Hicke: First, let's talk a little bit more about the beginning of the 
war; you were still in high school when the war came. 

Schwarzer: I was in high school. Everybody remembers where they were 
Sunday morning, of December 7. I was in my room building a 
model--! think I was building a ship model listening to the 
radio, when the news came on. 

I had been following the war pretty closely because of my 
interest; because of having come from Europe I was particularly 
interested. I remember having a whole album full of newspaper 
clippings of what had been going on, following the war. Of 
course, that attack on Pearl Harbor came as a great shock. But 
it didn't affect me, except that we were then enemy aliens, 
because we were still aliens. 

As I mentioned, I think, the last time we talked, 
fortunately people who had come from Italy and Germany were 
simply enemy aliens and were subject to a curfew for sometime-- 
maybe a year or so. But the Japanese people, including 
American citizens, of course, were deported. I told you a 
little bit about that last time. For a while I think the 
curfew affected me, but not for very long, either because it 
was lifted or because it wasn't enforced and nobody paid any 
attention to it. 

Hicke: Was your family concerned about people back in Germany? 

Schwarzer: We didn't have any. 

Hicke: No relatives, that's right. 



Schwarzer: By the time the war broke out, by December 1941, my 

grandparents had left. They had come to the United States by 
way of Shanghai. So there was nobody left in Germany. We 
would have been concerned about them anyway before the war, 
just because of what was going on in Germany. My father had 
friends who were German Protestants, with whom he maintained 
contact of some sort. And he saw them after the war. But I 
don't know how concerned he was on account of the war. My 
father had friends in Switzerland too. But the outbreak of the 
war--I'm not aware of any impact that it had on his thinking 
about them. 

Hicke: Were you getting any kind of religious training at this point? 

Schwarzer: I was only when we were in Germany. I had to go through this-- 
as I described in the memoir. I had to go through this ritual 
of the bar mitzvah. But that was pretty much the end of my 
involvement in religion. And I haven't really had any 
involvement in it at all since then. 

Hicke: And your parents didn't? 

Schwarzer: My father was quite devout and quite serious, particularly 

after we came over here. I suppose maybe, in a way, it was his 
way of showing his gratitude for having been able to escape. 
Occasionally, I suppose, I would get dragged to a service. But 
I really divorced myself from religion when we came over here. 



Summertime Activities 



Hicke: I know you had all these jobs, but what about summers? What 

did you do in the summers? The jobs you described before were 

part-time. 



Schwarzer: I think I was mostly working and then going to camps. I was a 
gardener for a while. I spent more time on paper routes, I 
guess, during the summer. I have no recollection, except for 
going to camp. One of the Boy Scout leaders had a camp in 
Yosemite [National Park]. That was for two or three weeks. He 
would take a group of us up. You wouldn't believe this: we 
went up in an open truck. Can you imagine today taking kids 
out on a two-hundred-mile trip in an open truck? We had our 
sleeping bags thrown on the floor of the truck. 

Hicke: I don't even like to see a dog riding in the back of a truck. 



Schwarzer: Nothing ever happened. We camped along the Merced River. It 
was a wonderful time. I don't know if you ever went to 
Yosemite before it got crowded, but it was a different place. 

We'd hike to Half Dome and to the back country. The 
fellow who ran the camp was an ex-Marine. So the pup tents 
were lined up in perfect orderit was a well-organized camp. 
We had bugle call in the morning, and all of that. It was fun, 
and very good training for the kids. Eventually I became a 
leader in the camp. I think the last time I went up was in 
1947, after I came back from the service. And I think that was 
about the time it ended. 



So that was one summer experience. I think the first 
summer we were in Los Angeles we went to a place called Camp 
Seely, which was a camp run by the city of Los Angeles, up near 
the San Jacinto Mountains. My parents and my sister and I 
stayed in a little cabin. I had never been to anyplace like 
that the trees, it was wonderful. I spent a lot of time 
reading books and playing games. We may have done that more 
than once. But I don't remember any other family outings. It 
was hard for my parents to get away, because they were managing 
the apartment building. 

I remember reading, when I was up there, I remember 
reading You and Heredity. Did you ever read that book? It's a 
wonderful explanation of Mendel's laws and how heredity works. 
I forget the name of the author. 

Hicke: What else were you reading? 

Schwarzer: I don't remember what I was reading at that time. That book 

happens to stand out. I think I was so busy that I was reading 
a lot less than I had been reading in Germany, when I had a lot 
of time to read. So nothing stands out in my mind. Magazines 
and newspapers, but no books. I'm sure I must have been 
reading books. But nothing right now that makes an impression 
on me. Maybe it will come back to me. 

I know that there was a reading merit badge a Boy Scout 
merit badge. You had to read a certain number of books, and 
write book reports. And I know we had to write book reports in 
school. But I don't remember any of the books. 

Hicke: Did you have to memorize poetry? 

Schwarzer: I remember reading "Idylls of the King," I think in the tenth 
grade. I guess we had to memorize some of that. 



Hicke: 
Schwarzer : 

Hicke: 
Schwarzer: 



What about a foreign language? 
Obviously, you had one, but-- 



Did they require that? 



Hicke: 



Schwarzer: 



I took a few semesters of Spanish. I remember that. 
Generally, it was a pretty good high school. But it was too 
easy. I never really had to study. 

No challenge. 

You never really had to learn to think. And that was true, to 
some extent, in college too, until I went back to Harvard Law 
School. I never knew what it was to really study, and to 
think, and to apply yourself. The courses that I did poorly 
in, I guess, were mostly the advance math courses. I think 
they should have been taught, perhaps, in ways so that you were 
forced to think. I don't know why I didn't do better. 

I think that was generally true. I don't think I was ever 
taught to think critically or to criticize. I was taught to 
learn what they were teaching me, and hand it back in a test. 

Yes, that was pretty much it. Well, California education has 
never been distinguished public education. It wasn't really 
bad, but it was not anything like what it should have been. 
The style of living and the good weather militated against 
imposing a lot of homework on kids. There just wasn't enough 
homework required, and it's probably still true. 



Starting at UCLA, Then Being Drafted, 1943 



Hicke: Okay, so the war came along and you figured you were going to 
have to do something. 

Schwarzer: I was very anxious to enlist. But because I was not a citizen, 
I could not enlist. I tried all sorts of things. I was 
interested in meteorology, and I wanted to get into the [U.S. 
Army] Air Corps to be a meteorologist. I tried to get into the 
navy. I tried to get into the coast guard. But I kept running 
into a brick wall. There was no way you could enlist if you 
were not a citizen. I had to wait until I got drafted. So my 
father urged me and pushed me to start college. 

I did start in February 1943, at UCLA [University of 
California at Los Angeles]. I took a terribly difficult 
program. I was then thinking of going into some kind of 
sciencemeteorology or astronomy. So I took calculus and 



Hicke: 
Schwarzer : 



Hicke: 



physics and astronomy and one other course. I had a terrible 
time. I barely passed those courses. I had not been prepared 
for those courses. UCLA was a very demanding schoolvery 
smart people there, and they really expected you to work hard 
and to think. High school just didn't prepare me for that. So 
I had a terrible time, but I hung on. I guess I went for one 
semester, and then 1 must have done something during the 
summer, waiting for the draft call, and then I was called, in 
September. In October I went into the army. 

This is 1943? 

Nineteen forty-three. I was inducted at Fort MacArthur in Long 
Beach, and went through all the preliminaries there: shots and 
medical exams and being issued uniforms, and so forth. After 
about a week or so, the whole lot of us, probably several 
hundred people, got on this troop train. 



Wait a minute, I want to hear about your first lunch, 
mentioned that. 



You 



Schwarzer: First lunch, yes. [laughter] Fried bologna. I never had 

fried bologna before. 1 don't know why I remember that. It 
was all right, but it was a surprise. 

Hicke: And were there other things that were rather a surprise? 

Schwarzer: Well, I felt pretty comfortable, because I had been exposed to 
a certain amount of quasi-military training and discipline in 
the scouts. I was pretty enthusiastic about getting into the 
service. I had great hopes of doing things, accomplishing 
things and advancing myself. So nothing bothered me. I 
remember one thing that impressed was about the peoplewe 
would march, and there would be some people who simply never 
could keep in step. They just could not walk with an organized 
group of soldiers, and I remember the sergeants yelling at 
those people to keep in step. They would bounce up and down; 
they'd never be in step. [laughter] 

Hicke: They'd be going up when everyone else was going down. 



Basic Training 



Schwarzer: I don't remember anything else about that. We weren't in San 
Pedro very long. We got on this troop train, and it wound all 
over the Southwest, dropping off people at various army bases. 



Ultimately it ended up in Michigan, at Camp Custer, where the 
rest of us were taken off the train and marched to barracks, 
and that's where I took basic training. 1 think it took maybe 
close to a week on this train to get there. 

By then, it was November, and it was starting to get 
cold. 1 was assigned to the military police, which meant that 
you took basic infantry training. In addition, you were 
trained to perform military police duties. So from November 
until about February, we had this really intensive course in 
basic training, with a lot of drills, a lot of field exercises, 
learning to shoot, and manage, clean, assemble, and disassemble 
weapons, map reading, and the kinds of things that military 
policemen dodirecting traffic, and so forth. A lot of night 
exercises in the winter, in the snow, and it was really cold. 

Hicke: Michigan was quite a change from southern California. 

Schwarzer: Yes, very cold. But I thought 1 was pretty well prepared for 
it, and I never had any problems. There are a few things 1 
remember. 

One of them was that we had a commanding officer who was a 
professional soldier, never got above captain, I guess. But he 
actually was in the U.S. Army detachment that took part in the 
war against the Bolsheviks at the end of World War I, when 
Americans and others came in on the side of the White Russians, 
briefly, to fight the Bolsheviks. He was actually in 
Kamchatka, or someplace like that. I don't know why I remember 
that. He was a very stern, ramrod-straight commanding officer, 
and I didn't ever talk to him at all. He inspired fear and 
respect. Interesting person; I can still see him in front of 
me, and I think I have some pictures of our company. 

The other thing I remember about the training company was 
that it was a great mixture of people. We had people from New 
York City, who had never been in the field and had a terrible 
time dealing with it. I remember we had a guy from South 
Carolina, I think his name was Dear, who had carried a rifle 
probably since he was four years old. I mean, he had always 
been hunting and out in the woods. But he barely knew how to 
read. He was almost totally illiterate. But in some ways he 
was a terrific soldier. 

So it was really interesting to see the contrast of people 
that were thrown together by the military, all of whom 
benefited enormously from this experience. 



50 



That's why I've always regretted that we don't continue to 
have a citizen army and a draft, or some kind of national 
service obligation. Because there's no substitute for the 
educational experience that you gain when you're thrown 
together with people who come from all kinds of backgrounds. 
When you grow up here in the suburbs you have no idea what 
people from the backwoods of Mississippi or South Carolina are 
like. You don't understand the nature of much of the 
population of this country. The army gave us that. That was a 
great experience. 

It was tough training. I remember distinctly a few 
marches. We were out at night--! don't know whether you 
appreciate that you could actually fall asleep while you're 
walking and I would find myself bumping into the person next 
to me, because I had fallen asleep. I can see falling asleep 
driving, but falling asleep walking is a little surprising. 
But it happens, and it really happened to me then. 

Hicke: Total exhaustion. 

Schwarzer: We stood guard duty at night. It was very, very cold. We 
really were worried about staying awake and keeping from 
freezing. But it was good training. At the end of that--I 
think it was about ninety days at the end of that, I became 
eligible to become a citizen, and I was inducted as a citizen 
in the federal courthouse in Kalamazoo, Michigan. I think that 
because I became a citizen, the rest of my family also were 
naturalized because of that. I think they became citizens at 
the same time. 

Hicke: Because of your service in the army? 

Schwarzer: Yes, I think so. So then I sat around, waiting to be assigned. 

Hicke: This was 'AA by now? 

Schwarzer: Yes, this was about March of 'AA, and I was still at Camp 

Custer. People from the training battalion were being sent all 
over the place, but there were no orders for me. In those 
days, everybody had a card, a card about this size. I forget 
what it's called. 

Hicke: Are you demonstrating about two feet by one foot, or would it 
be a little smaller? 

Schwarzer: It was probably eight and a half by eleven inches. And on the 
margins of the card were places where holes could be punched. 
Now on the main part of the card they would have basic 



51 



Hicke: 



information about you. But everybody had one or more MOS, 
that's a Military Occupational Specialty. The holes on the 
edges of the card would be punched to reflect your MOS, or 
MOS's. This was the precursor of computers. So if they wanted 
to have people with an MOS, say, of a military policeman, they 
could punch a button and all the cards with that MOS would be 
either dropped out or picked up, or something like that, 
automatically. So that's how a lot of these assignments were 
made in the army, basically on the basis of the mechanical 
application of the MOS's assigned to the individual soldier. I 
don't know what MOS's were assigned to me, but obviously, one 
part would be language capability in German. And perhaps some 
other things. I don't remember if I ever knew what my MOS's 
were. 

Let me stop you because I need to change the tape. 



Schwarzer: People were being shipped off, I don't know where. But I was 

still waiting around. Apparently they didn't have any place to 
put me at the time, so I stayed at Camp Custer. And for a lack 
of any other place to put me, they assigned me to the basic 
training company. So I repeated the basic training cycle. 
Only instead of doing it in the winter, this time I did it in 
the summer. The summer was about as unbearable in Michigan as 
the winter was. So from about March until about July, I was 
again doing basic training in Michigan. During that time, the 
invasion took place in Europe, in June 1944. That was very 
exciting. And I had made quite a few friends. 

At that time the USD was very active, the United Service 
Organization; it provided entertainment for soldiers. Through 
the USO, 1 met a number of girls who lived in Jackson, 
Michigan, which was nearby. So I had the opportunity to be 
invited to families' houses and went to parties. It was really 
a lot of fun. I really became quite involved there. So while 
the military duty was hard, there were a lot of pleasant 
associations that came along with that. 

Hicke: Did this just start with your second round? 

Schwarzer: No, actually during the winter. Eventually I almost married a 
woman whom I met there. But it came to an end. At the end of 
the training cycle, in July or August, I was again sitting 
around . 



52 



Intelligence Work: Training and Assignments 



Camp Ritchie 






Schwarzer: By that time everybody else was being shipped out to the 
Pacific, and I was waiting any day to be sent out to New 
Guinea, or the Philippines, or wherever the war was going on at 
the time. But when my orders came, I was ordered to report to 
Camp Ritchie, in Maryland, which was the Intelligence training 
center. That was a pleasant surprise. 

Hicke: Now why did they pick you for that? 

Schwarzer: It was obviously my capability in German. A big part of the 
training in Camp Ritchie was interrogating prisoners and 
deciphering and analyzing battlefield information--order of 
battle, identification of aircraft. Order of battle means the 
structure and organization of military forces, interrogation 
techniques, I forget what else. But that training lasted, it 
must have been from about August until the end of October. 

Hicke: You said that Henry Kissinger was there? 

Schwarzer: Yes, Kissinger was there either at the same or just before 
that. It was an interesting place, because it was full of 
people who were very well-educated with lots of experience, 
many of them also refugees. But also there were other people 
who somehow got an MOS that was relevant to Intelligence. So, 
I'm trying to remember, but I think the friendships I made 
there with a couple of people have continued until very 
recently. We maintained contact. For me it was an incredible 
experience, because I was nineteen, and most of these people 
were in their late twenties or thirties and had a college 
education. They were very sophisticated and experienced 
people . 

So that was interesting. In fact, that contrast continued 
throughout my whole army career. I was always around people 
who were very well educated and experienced and were terrific 

role models. 



Hicke: This was the group that was in Intelligence? 
them out? 



How did they pick 



Schwarzer: Yes. Well, you never knew how the army picked people to fill 
particular jobs. [laughter] But it wasn't always the square 
peg going into the round hole. I was really very, very lucky 



53 



Hicke: 
Schwarzer : 

Hicke: 

Schwarzer: 

Hicke: 

Schwarzer; 



to somehow get picked to go into that training, because since I 
had military police training, they could have easily sent me 
somewhere where they needed military policemen. 

One thing I remember about training: I said we were 
trained in techniques to interrogate prisoners, and I can say 
with assurance that torture or anything like that was never 
considered or suggested. But maybe the worst thing that 1 can 
remember was that somebody was talking about the fact that if 
you give a prisoner a shovel and tell him to go out and dig a 
pit that would be suitable for a grave, that that might help 
persuade people to talk. [laughter] We never used it, never 
had time to use it. But I do remember that that came up in the 
discussion. 

And not facetiously? 

No, not facetiously. I don't know what other techniques were 
discussed but certainly nothing was ever suggested that would 
be violent. 

You discussed ways of questioning and what kinds of questions 
to ask? 

Yes, what kind of information you want. 
How long were you there? 

At the end of October, we were all promoted to various 
grades. I became a staff sergeant; some people were made 
master sergeants. It may be that some people got commissions. 
I should say that all during the time I was at Camp Custer, I 
was applying for officer candidate school. I was very anxious 
to become an officer. For some reason, that never 
materialized. If it had, I would have gone to Fort Benning and 
become an infantry second lieutenant, who had by far the 
highest mortality rate of any specialty, any group of people in 
the army. I was just lucky, I guess--for some reason, I was 
never picked. I think they were still training infantry 
officers. I think that some people got a commission at Camp 
Richie; I don't recall. I think a few did, but I didn't. But 
I was reasonably satisfied to become a staff sergeant, at the 
time. 



54 
Assignments in Britain 



Schwarzer: So we all shipped out to Camp Kilmer [New Jersey] and were put 
on a troop transport, and went to Southampton [England]. That 
was a very stormy crossing, and there were a number of 
submarine alerts. German submarines were still out in numbers. 

We were not in a convoy. I think we went on a large, what 
had been a passenger liner; it was the United States or the 
America, or something like that. So it was a pretty fast ship. 
But as you can imagine, people were packed in there like 
sardines. It was not very pleasant smelly , dirty. 

We got to Southampton, and then we were all moved to the 
staging base in Birmingham. Birmingham--! haven't been back 
there sincewas really a dismal place. All I remember is that 
it was always cold and foggy, and if it wasn't foggy it was 
raining. We lived in Nissen huts, which are metal huts 
[quonset huts] basically unheated. It was pretty grim. We 
were waiting to be assigned. 

Now this was in November, 19A4. Let me just try to 
remember. The first assignment that I had--a few of us out of 
that group were assigned to a British Intelligence Center at a 
place called Chalfont Latimer, outside of London. That was an 
old British estate, and it had been turned into an Intelligence 
base, at which they placed German pilots and navigators and 
submarine officers. The place had been wired, and all the 
conversations there would be two or more German officers in 
each, you can call it a cell, or room, I guess, would be more 
accurate each room was wired, and the conversations were 
recorded . 

Our job was to listen to the conversation to pick up any 
technical information about two things the military was 
concerned with at that time. One of them was the snorkel, 
which had just come in. The snorkel now is, of course, a well- 
known idea. But at the time it was a new idea that the Germans 
had developed that enabled their submarines to stay under 
water. It was just a pipe that rose above the surface, by 
which they could pick up air. Pretty simple, the idea. But it 
meant that the submarines didn't have to surface to recharge 
their batteries or recirculate the air, whatever. So it 
greatly extended their range. It was a matter of great 
concern, and the military wanted to know what there was to 
know. So by putting submarine officers together in cells or 
rooms, they hoped that they would start talking and that there 
would be some useful technical information. I guess other 



55 



Hicke: 
Schwarzer : 
Hicke: 

Schwarzer: 



Hicke: 
Schwarzer ; 



information about submarines would have been welcomed too, but 
that was, 1 remember, the main point. 

And then the air force officers, the interest was in what 
radar countermeasures the German air force had developed and 
was using. Radar was still pretty new then, and it was being 
developed by the British. They wanted to know how the German 
air force dealt with it. 

So we spent maybe a month or two, probably more like two 
months at this place, which was a wonderful experience. We 
lived in Nissen huts again, but the British had a much more 
civilized way of serving in the military. I mean, they all had 
bat men servants who would take care of your uniformand that 
sort of thing. And we were served tea and other amenities- 
sherry, I guess. 

The food wasn't very good, but it was all done in a very 
civilized way. We were only about a half hour, by train, out 
of London, so I remember spending a lot of time in London 
during the war. It was a great experience. It was a dynamic, 
electric atmosphere there, with the war going on, and everybody 
who was anybody was either in London or coming through London. 
Also, the theater was great; I remember seeing Lunt and 
Fontaine on the stage, and some other things too. Of course, 
everything was blacked out, but that didn't dampen people's 
spirits at all. So that was an interesting experience. 

The buzz bombs were a problem, I understand. 
Yes, the buzz bombs were dropping, right. 

That didn't last too long, did it? Well, you were only there 
two months . 

Yes, now there were two series. The buzz bombs were the first 
series, I think they were the V-l's. The V-2's came later, and 
those were rockets that went up and then straight down. The 
buzz bombs flew horizontally. You could hear the engines. 
When the engine shut off, you knew it was about to drop. So 
you had some warning. With the V-2's there were no warnings at 
all. But the V-2's came pretty near the end of the war. So I 
think this was the time when there were just buzz bombs and no 
V-2's. 

Were you successful in gathering some of this information? 

Well, that's a good question. I don't know whether we were or 
not. I think we may have written up some reports. I have no 



56 



recollection, personally, that anything useful came out of 
that, but it might have. 

There were some interesting American and British people 
there. One of the people we worked with was a man named 
Bobbing; I remember him. I think he later became an editor of 
Time magazine. 



Paris 



Schwarzer: Shortly before Christmas, some of us were ordered to go to 

Paris to join a new unit that had been established, or created. 
It was called MFIU4, Mobile Field Intelligence Unit Number 
Four. That was the unit with which I stayed until sometime in 
the next summer, when we ended up in Frankfurt, or outside of 
Frankfurt . 

Mobile Field Intelligence units had several vans that had 
various kinds of intelligence equipment. It was set up so you 
could interrogate prisoners or do photo intelligence and 
various other kinds of things. 

There was a wonderful group of people there. The 
commanding officer was Major Theodore Voorhees, who was a 
leading lawyer in Philadelphia and later became president of 
the American Bar Association. Another of f icer--Henry Lennon-- 
later became the editor of Fortune magazine. So that is the 
kind of people that were in this unit. There were probably 
about twenty-five, thirty, something like that. 

We were waiting in Paris to be assigned, and about that 
time the Germans broke through the Allied lines in the Ardennes 
Forest, and that was the Battle of the Bulge starting. So 
there was a lot of excitement. There were rumors that German 
parachutists had landed outside of Paris and were engaged in 
sabotage, but none of that ever turned out to be true. 



Belgium 



Schwarzer: We moved then to Namur, which is in central Belgium, right 
behind the American lines fighting the Germans after the 
breakthrough. So we were pretty close to the front, but we 
never got to the front. I think all we were really doing was 



57 



waiting to be assigned someplace where we would be working with 
prisoners, or doing other intelligence work. 

I don't remember that we did much, except we stayed in a 
very cold and uncomfortable school, and we had terrible chow 
lines, in which you would wash your mess kit in a garbage can 
full of hot watersupposedly hot waterafter you ate, and you 
just knew you were going to get sick. I mean, just looking at 
it, you were going to get sick. You know, the water was dirty 
and it wouldn't be hot. And you knew you weren't cleaning your 
mess kit. That's one part that stands out; it was terrible. 

Hicke: And did you get sick? 

Schwarzer: I don't recall. [laughter] I may have, probably not. So as 
soon as the Germans were stopped, the Third Army under General 
[George S.] Patton [Jr.] moved forward and broke through the 
German lines. And we followed right along; we were right near 
the front of the American column moving into Germany. 

They were taking German prisoners by the thousands. 
There would be enormous barbed wire enclosures as far as your 
eye could see filled with German prisoners. These were really 
the dregs of the German population. I mean they were young 
boys and old men. It was pathetic. We interrogated them in 
great numbers, trying to gauge what kind of resistance could be 
expected, what kind of forces were still in existence, what 
sort of training they had been given, how they were organized. 
But the war then was moving so fast. This would have been in 
March and April. 

Hicke: Can you tell me exactly how you went about this? Did they 
bring the prisoners in to you, or did you go out? 

Schwarzer: You'd set up a table out on the field, and they'd bring them to 
you one after another. You'd look at their little book that 
they each had--a little book, like a passport, but it was their 
military service record that they had to carry with them all 
the time. So you'd look at the age and where they were from, 
and you'd get some information on what the unit was and what 
their training was. It wasn't interrogation in depth; it was 
very speedy. You just tried to get a general sense of what 
kind of forces were still in existence. 

Hicke: Then did you have to record each one of these? 



58 



Schwarzer: Well, we must have written it down, but what finally became of 
the reports, I don't know. Somebody was putting them together; 
I don't recall that. 

Hicke: How many people would you talk to in a day? 

Schwarzer: 1 think we must have talked to twenty-five to fifty people in a 

day. I don't have a distinct memory of all the things that we 

did at that time. I just remember seeing these vast expanses 
of German prisoners. 



Luxembourg 



Schwarzer: So, we followed the Third Army into Luxembourg, and then we set 
up our shop in an estate outside of the city of Luxembourg. It 
was a lovely place, and we were there in the middle of April. 
And I remember that's where we heard that [Franklin D.] 
Roosevelt had died. 



Hicke: 
Schwarzer: 



I don't know what all we did. I just remember that we 
lived very well and drank a lot of good German wine. I 
remember being awakened one morning listening to the radio that 
the Germans had surrendered, and an armistice had been signed. 
We were still there. So we may actually, at that place, have 
been interrogating. I think that's it: we were interrogating 
high-ranking German officers to get information about how the 
Battle of the Bulge, the breakthrough, had been organized, and 
what military resources they still had. I remember seeing 
German generals around there. We must have done something with 
them, but I don't recall the details of that. 

You mentioned General Rundstedt? 

Yes. That's right. He was the commanding general. It's 
pretty hard to have any kind of distinct memory, but I think he 
put the blame for the whole Battle of the Bulge on Hitler that 
he had been forced by him to go forward, when he knew it 
couldn't succeed. I don't remember much about that. 



Germany 



Schwarzer: The war ended early in May. During the next few weeks, we 

moved to a place outside of Frankfurt, called Oberursel. There 



59 



was a camp there, I guess it must have been a German military 
camp, and it was being converted into the intelligence center 
for the allied forces. So we set up offices there. 

From then on our responsibilities with this unit really 
focused on counterintelligence, and that is to investigate 
whether there was going to be any kind of underground movement, 
any expectation of sabotage or resistance to the occupation. 
There was a lot of talk at that time about something called the 
Werewolves. That was supposed to be the German underground 
movement. Nothing ever materialized; there wasn't the 
slightest hint of any effort at resistance, sabotage, or 
otherwise. But the allied forces were concerned. 

Sometime in July, I think, I was assigned to go to London 
and I was temporarily assigned to MI-5, which was the British 
counterintelligence service, in London to learn about sabotage 
techniques, and devices, and methods, so that I would know 
something about it. I remember flying in this DC-3 in a bucket 
seat from Frankfurt to London. 

ti 

Schwarzer: I was assigned to work at the headquarters at MI-5, which was 
in one of those wonderful Georgian buildings on Pall Mall in 
downtown London, right near Leicester Square. I was assigned 
to the person, who I guess was in charge of technical, 
antisabotage activities: Victor Rothschild, of the Rothschild 
family, who in private life was a prominent banker, and, as I 
recall, died just recently. He was an interesting person. I 
don't remember too much about it, except I remember reading the 
manuals and looking at models and equipment. 

I was there maybe two or three weeks and then went back 
to Frankfurt. But I can't say that I ever had any experience 
to which that training was relevant. 

Hicke: That's probably good news. 

Schwarzer: Yes. The most serious problem that we encountered was, shortly 
after we were there, a woman was picked up who was believed to 
be a Soviet spy. That was the first hint of the Cold War, and 
this is back in 1945. I know that she was held in a cell and 
was being questioned. But I don't remember anything more about 
that. 



Hicke: 



Was she actually Russian or was she a German spy? 



60 



Schwarzer: I don't think so, probably German. So we settled down in 

Oberursel. We had a nice German villa where we lived. It was 
a very comfortable life. I remember that I went out with some 
people to go deer hunting in the woods behind the camp. And we 
traveled around the neighborhood a bit. 

The area was pretty well devastated, and Germany was 
really in shock. 1 remember when we first drove into Germany. 
You'd see the people in the streets, and they were just dazed. 
And there was a lot of destruction. The food situation was 
terrible. During the first winter, there was great scarcity of 
coal. The military occupation forces lived very comfortably, 
but Germany was in a disaster. It was a total disaster. 

And so was France. I remember I made a trip to Paris, 
and I remember selling a carton of cigarettes on the Champs- 
Elysees to somebody for some astronomical amount. Cigarettes 
were the currency at that time. 

One of the things we did was to make some survey trips. 
There would be teams of three or four of us in a jeep who would 
travel through the American zone and talk to Germans to get 
some idea of how they were dealing with the crisis: what the 
food situation was. I remember we looked into the schooling 
situation for children, and then we wrote reports on what we 
found. I don't remember anything else about it. 

We also were somewhat involved in the hunt for German 
scientists. I remember at least one session, in some town that 
we had gone to, where we met with a bunch of German scientists 
to find out what they had been working on and whether these 
would be people that the Americans would want. As you know, 
the Russians were out scouring Germany for scientists. So 
there was a real race on to get German technology and know-how. 
That was one of the things that we did. I don't remember any 
of the specifics about whom we had latched on to. 



Scotland 



Schwarzer: After a while, it turned out that there really wasn't a whole 
lot for us to do anymore. So we were given time to do other 
things. And we couldn't go backwell, the war ended, of 
course, shortly after we got to Frankfurt. The war ended in 
the middle of August, 1945. But demobilization was on the 
basis of points. When people were sent back to the United 
States, the priority order was based on points, and points were 



61 



calculated mostly with reference to how long you'd been in the 
service, and your age, and your family. I don't know whether 
combat participation was a factor or not. I had a fairly low 
point count, because I hadn't been in the array -that long, and 1 
was young and didn't have any family. So one of things that I 
did was to go to Aberdeen, to go to the university for a 
semester. 

Hicke: In Scotland? 

Schwarzer: In Scotland. And what I remember about that was that it was 
not only miserably cold but terribly damp, and you could not 
possibly go to bed at night without a hot water bottle, the 
sheets were so cold. You couldn't touch them. It was 
incredible. Britain was having a very hard time during that 
winter . 

There was a great coal shortage. If you read the history 
of the time--I read something recently--! think we were 
shipping coal to England. They were so desperate. So it was 
very cold, very little heat. You couldn't take a bath, because 
there was very little hot water. So I remember once a week we 
went to the Turkish bath, and that was the only way you could 
bathe. So it was pretty grim. I don't remember too much about 
the school, but I remember drinking a lot of gin, and going to 
the Turkish bath. 

Hicke: No Scotch whiskey? 

Schwarzer: Oh, there wasn't much of that. I think whatever there was, was 
rationed. Gin was pretty much available, but Scotch whiskey 
was scarce and expensive. It may be that it was all being 
exported to earn foreign currency. 

Aberdeen was a pretty desolate place at the time. It has 
changed a great deal since North Sea oil has been discovered. 
And I remember going skiing for a couple of weeks in Chamonix 
[France]. I don't know how else I killed the time in Europe. 



Conditions in Europe 



Hicke: Let me ask you a couple of things: Was there any talk about the 
Marshall Plan at this point? Were some of these reports that 
you were writing-- 

Schwarzer: Well, the reports certainly reflected that Europe was an 

absolute disaster and that there was an enormous amount of 
suffering. We did not address questions about what it 



62 



needed or how it should be dealt with, 
before the Marshall Plan. 



This was two years 



Hicke: Do you have more about the Marshall Plan to say, while we're on 
the subject? 

Schwarzer: No. Well, what I do recall was that there was a great debate 
going on in the American government. Now, it's a little 
difficult for me to distinguish for you between what 1 knew 
then and what I've learned since. But certainly there was a 
division in the American government about how to deal with 
Germany. The secretary of Treasury, Henry Morgenthau, 
advocated what was known as the Morgenthau Plan. That would 
turn Germany into an agrarian countryeliminate its industry, 
so it could never again become a threat. 

So there had been no policy decision about what to do 
about Germany when I was over there. Or, for that matter, what 
to do about western Europe. The most immediate concern, I 
guess, was about helping the British. I think there was a 
large American loan that was made at the time. Coal and I 
guess food were shipped to England. They were having a very 
hard time. But I don't recall any discussion of or reading 
anything about what would be done about the continent. 

The decision to rebuild and for the United States to 
finance the rebuilding of Germany wasn't really made until 
early 1947. So they went quite a long time before the United 
States stepped in and took an active part in rebuilding. 
Obviously, they couldn't have rebuilt as they did, or it would 
have taken a long time. They were in desperate straits, for 
sure. 

Hicke: The other question I had was about the zones: the different 
occupying powers had different zones. Did you have to deal 
with intelligence in the French zone, the Russian zone, and the 
British zone? 



Schwarzer: The zones were created at the Potsdam Conference, if I remember 
correctly, held in July of 19A5--that's about the time they 
came into existence. So they reflected, to a large extent-- 
certainly between the United States and Britainthe areas of 
control. The British army had control of the northern part of 
Germany, and the American army, the southern part of Germany. 
Anyway, that confirmed the status quo that existed when the 
fighting stopped. The French really didn't have a significant 
part. The French were given a zone simply to accommodate 
[Charles] De Gaulle, and they moved in there. 



63 



Hicke: 



Schwarzer : 



So the existence of zones didn't have any real impact on 
what we were doing. Nominally our center was the Allied Forces 
Intelligence Center. That is, it was attached to SHAEF, which 
was Supreme Headquarters Allied Expeditionary Forces, and 
therefore had responsibility with respect to the whole area. I 
imagine that we focused our work on what was essentially the 
American zone. I don't recall that we had British officers at 
Frankfurt, or for that matter, French officers. There may have 
been some, but I think it was pretty much an American 
operation, and so I think our activities were pretty much 
focused on what became the American zone. 

I wish I could remember more. Probably would remember 
more if I had been older at the time and would have had more 
experience into which to assimilate the experiences there. But 
this was all a very strange and unexpected experience for 
somebody who was nineteen years old--by then 1 was twenty, I 
guess . 

Just a sideline on how bad it was in Europe. I went over 
to Europe while I was in law school in the summer of 1950, five 
years later. Although the destruction had been cleared up, it 
was still economically a very depressed area, and people were 
having a very hard time. There were still food shortages. It 
took them well over ten years, I think, to really get on the 
road to recovery. I think around the late 1950s and early 
1960s is when German industry began to take off. 

I remember working in downtown San Francisco, and the 
first Volkswagen dealership opened around the corner on Sansome 
Street in a little store there at Sansome and Bush. It was 
this funny little car, in the middle of the 1950s, about as 
different from American cars at that time. People shook their 
heads. "They're never going to make it here." [laughter] 
That was the first return of German products that I remember. 

There's one other thing that you mentioned, and that was 
interrogating Otto Skorzeny. 

Yes. I had forgotten about that. He was a swashbuckling, 
freelance operator. I guess he was a colonel in the S.S. He 
had a history of being engaged in dramatic exploits. He was 
the person who was assigned to rescue [Benito] Mussolini after 
he had been captured by Italian forces that were fighting with 
the allies. 

And he did rescue Mussolini, in some sort of spectacular 
operation, to the best of my recollectionwell, I guess he 
rescued him, and then he must have been turned over into 



64 



custody. Ultimately, Mussolini was recaptured by Italians that 
were liberating the country, and I think he was hanged. 

Hicke: Yes, upside down. 

Schwarzer: Upside down, right. Skorzeny was involved in all sorts of 
exploits. I do remember that we interrogated him. I think 
that must have been in Luxembourg rather than in Oberursel. I 
don't remember what we talked about. Actually there was a stop 
between, now that I think about it; there was a stop between 
Luxembourg and Oberursel. We were in Wiesbaden for a while, 
during the summer of 1945, before we moved to Oberursel. 

Wiesbaden was a lovely city. The American air force 
preempted it then and still has its base there. There were 
some interesting things going on. But I can't remember. I 
should have kept a diary, except diaries are not appreciated in 
the military. 



Hicke: 



Schwarzer: 



Returning to the U.S. 

Well, maybe we better get you back in the U.S., and then quit 
for today. 

My number came up in April of 1946, and we shipped out of Le 
Havre. And there was another impression: I guess it was on the 
way to Le Havre that we saw these large camps of what were 
referred to as the DP's, displaced persons. That's something I 
haven't mentioned before, but Europe was overrun with people 
who had been uprooted. 

Some of them had been in camps or had been slave 
laborers. These were ones that survived, had just been 
liberated, and either were trying to get home or had no place 
to go. They were in terrible shape. They were starving. The 
United Nations Relief and Rehabilitation Agency, UNRRA, had 
taken responsibility for these people. 

But it was an enormous chore to take care of them, and 
they had no place to go. I remember seeing these terrible 
camps, where they were being held or taken care of, or 
whatever, on the way to Le Havre. 

I came back on a troop ship, and I was a senior 
noncommissioned officer by that time on the ship, so I had a 
nice cabin, and it was a wonderful trip. The weather was 
great. [laughter] Sunbathed, played, whatever. I went back 



65 



to Fort Dix, and I was discharged from the army at Fort Dix. 
From there, I visited a woman I had met while I was at Camp 
Custer, and then went back to Los Angeles, and started at USC. 

Hicke: Good stopping point. 
Schwarzer: That's about it. 

[Interview 3: May 30, 1997] ## 

Hicke: I think we left off yesterday when you were just cruising home 
on a somewhat relaxing cruise. What was the name of your ship? 

Schwarzer: Yes. It was the Texarkana Victory. 
Hicke: What kind of ship was that? 

Schwarzer: A victory ship. During the war, the first series of freighters 
that was produced when the United States was rearming were the 
so-called Liberty ships. Some of those were produced out here 
in Marin City. I think that's what really put Henry Kaiser on 
the map: it was the first time that ships were produced 
essentially on an assembly line. They were pretty small, I 
guess, probably 15,000 tons, or something like that. But they 
served a purpose. 

One of the things, too, for which the shipyards were 
noted was that was the first time women came out and worked on 
jobs that were always held by men. You know, that's when Rosie 
the Riveter came out. All those things, big change. So the 
Liberty ships were sort of emblematic of big changes taking 
place in American society. 

After a while larger and faster ships were designed, and 
they were called the Victory ships. They were freighters, 
supplemented the Liberty ships. Most of the troop movements 
and freight movements later on in the war were on Victory 
ships, and this was one. I think that was probably about a 
twenty-five- or thirty-thousand-ton freighter. 

Hicke: Was it outfitted for a troop ship? 

Schwarzer: Yes, I think it was outfitted for a troop ship. Of course, it 
didn't take much to change it; they just stuck in a lot of 
bunks, just put them in the hold, and that made a troop ship 
out of a freighter. So that was a pleasant trip. And 
eventually I got back to Los Angeles about May or June of 1946. 
And then I was confronted with the decision of what I was going 
to do. 



66 



IV COLLEGE AND LAW SCHOOL 



University of Southern California 



Schwarzer: I pretty well concluded that much as I would have liked to have 
gone into science or engineering, I just wasn't going to do 
well enough in math to make it worthwhile or promising. So, I 
didn't really know what to do. I remember lying on top of the 
bed in ray room and discussing with my father what I should do. 
He urged me to go to law school. I didn't have any interest in 
law, never had any. But he persuaded me that it was a good 
education. 

So I enrolled at USC [University of Southern California], 
mainly for the reason that they had a law school. It wasn't 
easy to get into college or graduate school at that time 
because of the enormous number of veterans who were coming 
back, and schools were flooded. We figured that if I were to 
graduate from USC, I would have an advantage in being admitted 
to USC Law School. 

So I enrolled in a pre-law curriculum. 1 had already 
gotten some credits for having been at UCLA [University of 
California at Los Angeles], and for some of the schools I 
attended while I was in the service. So I started out, I 
guess, as a sophomore, and I went straight through, summers and 
all. I finished in 1948. 

Hicke: Are you going to tell me a little bit about your courses? 

Schwarzer: Yes. It was a general curriculum. I think I took mostly 

political science and history and English. I remember taking 
psychology. It was a liberal arts curriculum. I don't think I 
took any more science that I can recall, or any more 
mathematics. At that time, you could get into law school at 



67 



the end of your junior year and take your last year of college 
as the first year of law school. 

I started law school in the fall of 1947 and graduated 
from USC in June of 1948, after completing one year of law 
school. I must say, I had a pretty low opinion of USC. In all 
of my courses, I think almost without exception, or at least of 
what I remember, the exams were all true or false tests or 
multiple choice tests. And it was very superficial. I don't 
know that it ever was any better, but it was certainly true 
that veterans were being rushed through college on an assembly 
line. I never had to study, I never had to think. I didn't 
learn anything. 

Hicke: How to take a test. 

Schwarzer: Yes, I was pretty good at that. I always was good at taking 

tests. I assume USC has gotten to be a much better university 
and the teaching is at a much higher, more demanding level. 
But I have had no contact with it since, and I can't say. 

Hicke: Possibly the flood of students had something to do with it. 

Schwarzer: I think it did. But in comparison to Harvard, where I then 
went later, it was basically a streetcar college, and people 
really weren't involved in an educational enterprise. I think 
that UCLA was a much more demanding school, and I think had a 
much smarter and harder working student body at that time than 
USC. USC, in many respects, was a sports-oriented and a play 
school. It was more expensive than the state schools, and it 
wasn't hard to get into. 

Hicke: But the G.I. Bill 

Schwarzer: I was on the G.I. Bill so that paid my tuition. That was a 
wonderful thing. When I got to law school, I really enjoyed 
it. And I did very well. But, again, as I found out later at 
Harvard, it was a superficial educational experience. I mean, 
it was kind of a black-letter law schoolyou looked at cases 
to see what the case stood for. You were never pushed into 
thinkinggetting beneath the surface and thinking what lay 
behind the case. I think I got all A's, and I must have been 
one of the top people in the class. 

I was very happy there, and I was very happy in southern 
California; it truly was lotus land at the timea greatly 
enjoyable life, and I went through school without having to 
struggle very hard, and had a lot of friends and lots of 
activities . 



68 



Harvard Law School 



Application and Acceptance 



Schwarzer: Then my father got the idea that I really should go to Harvard, 
and through the Boy Scouts we had a connection with one of the 
families who were in the troop, a distinguished family of 
doctors who had gone to Harvard. We had a connection to, or an 
introduction to, a man named Smith, who must have been the 
alumni representative in Los Angeles. In the summer of 1948, 
my father arranged an appointment with him. I remember going 
to this strange office that he had in one of those bungalow 
complexes that you only find in southern California and that 
you associate with Raymond Chandler's novels and some of the 
pre-war history of Los Angeles. It was a bunch of bungalows 
among palms, and one-story houses strange place. 

Hicke: But this is an office? 

Schwarzer: It was an office, yes. It may have been also his home; I'm not 
sure. He was an elderly man. I talked to him for a while, and 
I think my father was along. It was his notion that if you 
wanted to be a lawyer, you had to go to Harvard. Harvard was 
clearly the distinguished law school, and everybody knew about 
it, and it was the source of establishment lawyers. He thought 
that I should go there. 

I wasn't particularly keen about going, but I wasn't 
prepared to oppose it. Besides, I figured I would never get 
in. It was already July, I think, of 1948, and this would be 
for the entering class of September 19A8. So, lo and behold, 
shortly after the interview, I got a letter from Harvard saying 
I had been accepted for the class. I don't know how it 
happened, considering the enormous number of returning 
veterans . 

At Harvard, you didn't just have the new people coming 
in, but you had people that had interrupted their studies and 
were coming back to school, who had been at various stages of 
their law school studies before they went into the service. 
But in those days, being from California still gave you a 
substantial advantage. Geographic distribution in those days 
mattered. And there weren't a lot of people from California 
who would go back to Massachusetts to go to school. 

Now, that certainly isn't true anymore. If geographic 
distribution helps you today, you'd have to be from North 



69 



Dakota, or someplace like that. The largest number of entering 
students then were from New York City. That, 1 think, has 
probably always been true. 

Hicke: How did you feel about this, now that you were accepted? 

Schwarzer: I don't remember having any feelings about it one way or the 
other. I thought it would be an exciting adventure. But 1 
will say that was another turning point in my life when I think 
about it now. Because if I had gone on at USC, I would have 
become a lawyer in Los Angeles, but I don't think I would have 
developed as I did by having gone to Harvard. I would have 
stayed in Los Angeles and practiced there and probably would 
never have become a judge. Although a number of people that 
went to USC have become judges. 

Hicke: Your father must have been a very astute judge of what was 
going on. 

Schwarzer: Well, it didn't take a whole lot to figure out that Harvard was 
the best place to have graduated from. But he certainly was 
ambitious for me. And in a sense, I suppose he was working out 
his own frustrations of not having been able to pursue his 
career in that fashion. I had no idea, of course, what a 
change Harvard would mean, and how it would affect my life and 
my career, and how differently I would develop by reason of 
having gone there. But I went, and 1 went cheerfully. I 
didn't have any problems with it. 

Hicke: And you went in a car? 

Schwarzer: I drove across the country. I don't know whether I had 
somebody with me or not; I probably did. I have a vague 
recollection that I had a friend who rode with me. It was 
wonderful driving across the country. I did it several times 
during the time I was in Harvardonce after we got married. 
Young people today miss a lot by getting into a jet at one 
coast and flying to the other coast, not knowing what's in 
between. We'd camped by the roadside and ate in diners. 

East of the Mississippi, it's a little hard to camp by 
the roadside, partly because of the weather, and it's more 
developed. So you could stay in these overnight places, in 
homes, for two dollars a night. Well, now they've become bed 
and breakfast places. But in those days, they had a sign that 
would just say "Guests." They would take in guests, and it 
would cost you two dollars a night, in small towns. So we 
stayed there. 



70 



I got to Cambridge, I guess, early in September, and 
found a room in a lovely rooming house owned by a professor and 
his wife who took in students, out near Fresh Pond Parkway. 
The professor was the director of the Houghton Library; you 
must know about the Houghton Library. It's a collection of 
rare books and manuscripts. His name was Van Lennep. 

That was a good place to be, because I could leave my car 
there. Cars, even then, were difficult to store if you were 
living on the campus. 

Hicke: You could walk to the campus? 

Schwarzer: I could walk, yes. It was about a mile or so from the law 
school. There were two other roomers. One of them was a 
second-year student named Derk TeRoller, who it turned out 
later also went to McCutchen the year before I did. And then 
later he and I became partners the same year. That was a 
coincidence. I forget the third roomer. 

Hicke: Was he from New York? 

Schwarzer: From San Francisco. He was from an old San Francisco family. 



Importance of the Law Review 



Schwarzer: I enrolled, and as ambitious as I was, I tried to persuade them 
that I already had completed the first year, and I should be 
enrolled in the second year. Mercifully, they said that was 
out of the question. But they allowed me to take one second- 
year course. That was a course in commercial law, taught by 
Karl Llewellyn. He was one of the most original and creative 
legal scholars during the 1930s. I think he was from the 
University of Chicago, and he was a visiting professor. 

He had ideas about a new commercial code, which actually 
ultimately was adopted to replace the old common law of bills 
and notes. He had a unique way of speaking and expressing 
himself. He was very original and very dramatic and colorful. 

Hicke: In his teaching? 

Schwarzer: Yes, in his teaching and in his writing. I was totally lost in 
that course. I never understood what was going on, and there 
was no way to get any help. I ultimately ended up, I think, 
with a D. I had A's, I think, in every other course. And if 



71 



it hadn't been for that D, I would have been on the law review. 

Now, this was another turning point in my life, because 
if I had been on the law review, my life would have followed a 
wholly different course. If you were on the law review then, 
that made the difference in getting jobs in top firms. And 
later when I went looking for jobs, at the end of my second and 
third year in New York and Washington, I only got one offer, 
which was unattractive; basically none of the law firms had any 
interest in me. 

If I had gone in there having been on the law review, it 
would have been different. Once you get on, you stay on, even 
if your grades aren't as good. My second-year grades were 
fine; that would have been no problem. But I would have gotten 
offers at any number of downtown New York firms, and that would 
have appealed to my ego sufficiently so that I would have gone 
there, and if not there, to Washington. 

Now, jumping ahead, in 1951, at the end of my third year, 
and before I became a teaching fellow for a year, we got 
married, and my wife and I went to San Francisco for a summer 
job. She fell in love with San Francisco and became very 
strongly committed to coming here. Now, that might have been 
sufficient to overcome my desire to stay in the East. It's 
problematical. I always felt that since I had the choice of 
profession, she should have the choice of where to live. And 
that's the way we did resolve it. 

If I'd had some dramatic offer that I couldn't refuse in 
New York or Washington, it would have been a different story. 
But even given the decision to come out here, [had I been on 
the law review] I would clearly have had an offer from 
Pillsbury, Madison, and Sutro, which I interviewed, but which 
didn't have any interest in me. I don't know if I ever 
interviewed at Brobeck [Phleger & Harrison]; those were the two 
leading law firms. 

But with a law review credential I clearly would have had 
an offer there, and I would have gone to work there. I would 
not have gone to McCutchen, almost certainly. And I would have 
had probably a significantly different career if I had stayed 
in New York: while I would have clearly had offers from which 
to choose, it would have been much more difficult to become a 
partner. My friends at law school who went to New York firms 
all ended up going somewhere else as counsel for corporations, 
or teaching, or something of that sort. 

Hicke: Because it was so difficult-- 



72 



Schwarzer: Because it was so difficult to become a partner. Now, what it 
might have meant also, and this is perhaps kind of foolish to 
speculate, but another likely possibility would have been that 
with law review credentials, I could have gotten a job in a law 
school. I did look for teaching jobs, because I was more 
interested in teaching then practicing. I never got any 
significant response. It was clear that if you wanted to 
teach, you had to be on the law review. 

But I would have most likely gotten an offer for a 
position teaching, and I probably would have been pursuing a 
teaching career, which certainly would have been a whole 
different path. So, that decision to insist on taking a 
second-year course and getting a D made a major difference in 
the course that my career followed after that. You can 
identify it as a turning point. 

Hicke: Let me just ask, did you think that you could finish school 
sooner? Why did you want to take the second-year course? 

Schwarzer: I felt that it would be a waste of time for me to repeat Torts, 
in which I had received the highest grade in the class at 
Southern California. They agreed, but it was very dumb, 
because Torts at USC was not the same course as Torts at 
Harvard. 

At Harvard, it was taught by a professor named Warren 
Seavey, one of the great teachers in the history of Harvard Law 
School, who really challenged people. I missed a great deal by 
not having taken that course. It was a dumb thing. But in the 
end, as things turned out, it wasn't all that bad. I mean, the 
consequences of a poor decision were nothing to regret. 

Hicke: Not at all. But it's just interesting how much of a difference 
little turns could make. 



Schwarzer: Yes. I had a few clearly identifiable turning points in my 

life, and I don't know to what extent other people are able to 
analyze their lives in the same way. Maybe it's unusual; maybe 
it isn't. 

Hicke: I think it's kind of unusual to pinpoint. For instance, not 
making DCS, again it seems like not a good thing at the time, 
but as you pointed out, it was probably better in the long run. 



73 



Professors and Courses 



Hicke: Now getting back to your first year, what were some of your 
impressions of other students? 

Schwarzer: I'll start out with the professors. We were blessed with great 
professors. Now, I'd like to think that the students that have 
followed afterwards have felt the same way about at least some 
of their professors. But certainly history vindicates the 
judgment of these people. There was Barton Leach, who taught 
property, who I think was probably the best teacher that I had. 
He also taught Future Interests. 

Hicke: Why do you say he was the best? 

Schwarzer: He had a wonderful way of getting you to think, to ask the 

right questions, using the Socratic method. He made what was a 
dull course extremely interesting. He would bring in 
sidelights about cases that piqued your interest. But above 
all, he was one of those people who taught you to think. 

Now, I'm trying to think, I had Professor Robert Braucher 
for contracts, and he was very good. I'm a little hard pressed 
now to distinguish among the professors that I had for 
different years. 

I don't remember who else I had. Well, let's see. I 
guess I could refresh my recollection. I have a strong 
attachment to the Harvard Law School, to have kept my 
notebooks, class notes [indicates]. 

Hicke: Those were notes you took in class? 

Schwarzer: Yes, those are my notes, and I still have them in chambers. 

Hicke: They look very neat. 

Schwarzer: Well, probably neater than what I would do now. 

Hicke: It looks like you wrote on about half the page and the other 
half is left for comments. Is that right? 

Schwarzer: There was a large margin, I don't know why. I guess it's 

always been that way. But probably it's to allow you to put 
either captions there or later notes. These are all second- 
year notes. 

Hicke: Was that the standard sort of notebook that everybody used? 

Schwarzer: Everybody used it, right. Oh, Criminal Law, that was another 

first-year course, and we had Professor Sheldon Glueck, who was 



one of the leading authorities in Juvenile Delinquency. But it 
was a pretty straightforward course. I don't remember much 
about it. Agency was another course. 

Hicke: What is that about? 

Schwarzer: Agency is about the responsibility of principals for the acts 
of agents. The notebooks I have seem to be all second- and 
third-year. And I remember more of my second and third year, 1 
think. I'm not sure. 

I think another course was Trusts, and that was taught by 
Professor Ralph Baker. He was another character, in some ways 
larger than life. 

We had a rather sizable case book, probably several 
hundred pages, and to the best of my recollection, we never got 
beyond page 168. [laughter] I had taken lots of notes, I can 
see. He had the most incredible capacity to go into depth on a 
case, and to use a seemingly simple and straight-forward case 
as a vehicle for developing an endless analysis, pursuing all 
the ramifications. It was a wonderful experience. 

Hicke: Was perhaps studying the cases that you did study in depth more 
valuable than getting through the rest of the book? 

Schwarzer: Yes, I think his approach was that it was more important to get 
depth than to spread out. But in the course of it, we had a 
pretty thorough grounding in Trusts, I think. 

Another one of the great teachers was Professor Paul 
Freund, who, of course, was a national figure, who taught 
Constitutional Law. He had a wonderful way of analyzing cases 
and leading you to understand basic concepts that, although the 
law has changed a lot, are still useful tools for analysis. 

Then one of the courses that I really enjoyed a lot was 
Labor Law, and I took two years of that, taught by Archibald 
Cox, who later became Watergate special prosecutor and 
solicitor general. 

Hicke: Let me turn the tape over. 



Schwarzer: To go back to Professor Freund, his signature habit, I think, 
was the use of his eyebrows to underline important principles 
or ironies that would come up in some context. I can still see 
how his eyebrows, or maybe his right eyebrow, would go up at 



75 



some significant point in a discussion or lecture. He had a 
great, dry sense of humor, and he was able to teach 
Constitutional Law without introducing any ideology, which is 
not easy to do. But he was above all of that. He was 
certainly one of the giants. 

Then I started to talk about Professor Cox, who taught 
Labor Law. I remember he would always sit on the edge of his 
desk, and his leg bounced up and down. He was a very energetic 
person, a classic New Englander, who spoke with a classic New 
England accent. Again, labor law changed a lot, but the basic 
ideas about labor-relations law are still valid today and still 
help me analyze problems as they come up. 

The same is true of tax law. Dean Griswold taught Tax, 
and that's not regarded as a very popular or attractive course. 
But somehow even in his rather dry and stolid manner, he made 
it interesting. What I learned there I still find useful in 
analyzing tax issues. 

Hicke: So what you got out of a lot of these courses was the concepts 
or the way to think about them? 

Schwarzer: Yes, the way to think about them and the way to attack 

problems. It was remarkable that they could train your mind to 
think like a lawyer and to be able to attack these problems and 
take them apart. Even if you got into an area which was 
foreign to you, you would find a handle, and you would begin to 
work the problem and peel back layers and get to the heart of 
it. That's basically what we learned. 

In later years when law school teaching became more 
socially and ideologically oriented, the notion of "thinking 
like a lawyer" became odious in some circles. But I still 
believe it is essential training for lawyers, and has been a 
dominant factor in all my professional work. 

Not everybody was equally good. I remember that 
Professor Livingston Hall taught Evidence. I thought that was 
a terrible course, and I guess it was the only other D that I 
got. Even with those two D's, I managed to end up in the top 
10 percent, and I received the degree cum laude. Although I 
didn't make the law review, I did get selected for Legal Aid, 
which was another, lower-level honor society. 

That was a useful exercise, because we got some 
introduction into what it's like to practice law. In Legal Aid 
you represent indigent people. 



76 



Hicke: You actually practiced? 

Schwarzer: Yes, under supervision ofWell, not much supervision actually. 
Supervision of older students. I don't think we had any 
contact with lawyers. But we would represent indigent tenants 
in disputes with their landlords. And a lot of it was domestic 
relations and custody. I don't remember too much about it. 

I found it pretty scary to suddenly represent people in 
real-life disputes, to have that responsibility for them. But 
it was a pretty good experience. 

Hicke: Are we going to get back to Professor Seavey? 

Schwarzer: Well, I never had Professor Seavey. I sat in on some of his 
classes; I know him by reputation. But I missed having him 
because of the unfortunate decision not to take Torts. 

Another one of the giants at the time was Professor Lon 
Fuller, who taught Contracts. And 1 had him for a course in 
Jurisprudence. I don't remember too much about it, but I 
remember that he had an incredibly incisive mind that really 
cut to the heart of issues. 

Hicke: Must be very stimulating to be exposed to these kinds of 
people . 

Schwarzer: Yes, they were wonderful professors; they really were giants. 
But beyond that, the law school student body is so full of 
accomplished people from all over the country that even if you 
had no professors, you would learn a lot even with mediocre 
professors, just what went on in the classes and what went on 
outside of class. People would argue the cases and really be 
involved in their work. You'd get so much out of those 
discussions . 



77 



Other Students 



Schwarzer: I belonged to a study group throughout the time there with 
three other students. One was Stuart Gaul, from Tacoma, 
Washington. One, Robert Jordan, was from, I think, Harrisburg, 
Pennsylvania. And one, Albert Eustis, was from New York City, 
if I recall correctly. They had gone to college in different 
places and came with a whole range of interests and knowledge 
and experiences that were totally different from mine. Just 
being around them regularly and frequently was a tremendous 
educational experience for me. 

But then, of course, there were close to four hundred 
other people with equally diverse backgrounds, whom you got to 
know and with whom you were involved in various kinds of 
projects. It was a terrific educational experience. I think 
that's still true today. Students who are able to attend these 
national universities with students picked from all over the 
place get an enormous benefit from that experience. 

Well, my study group members now are all long retired. 
None of them is working anymore. [laughter] They went to work 
for law firms in downtown New York, and then one became general 
counsel with Grace, and retired, and another one became a 
professor at UCLA, and retired; another one was in the legal 
department of US Steel, and has retired. So there aren't a lot 
of my contemporaries anymore who are still working--hardly 
anybody, except for federal judges. [laughter] 

I'm trying to think if there's anything else aboutWell, 
of course, there was a lot more to law school than just the 
classes. I took advantage of the opportunity to attend a lot 
of things that Harvard, the college, the university, offered-- 
lectures and programs and concerts and so forth. 

Hicke: Can we go back to your study group for a minute? Was this a 
group of students that met once a week? 

Schwarzer: At least, and then particularly before exams. That was 

recommended procedure, that everybody join in study groups. 
And that was pretty much standard in law schools around the 
country. I don't know that's it's so true anymore today. 

Hicke: So you literally met to study together? 

Schwarzer: It was a true study group, and you were strongly encouraged to 
join a study group. It was very helpful, because you would go 
over the notes and over the subject matter and discuss it, and 



78 



then develop your own outline of the course. So, you would be 
sure you understood it. It was working together that tested 
your knowledge. So that was very good. 

Hicke: Were you all taking the same courses? 

Schwarzer: Yes, there wasn't a whole lot of difference in the courses. 
There weren't a lot of electives then. For the most part, 
people took the same courses. I think each semester you maybe 
had one elective. It's not like it is now, where law schools 
offer this wide range in curriculum, and you can take all sorts 
of courses. Maybe that's one reason why study groups aren't 
practical anymore. 



Law Schools, Yesterday and Today 



Schwarzer: Law school was a very different enterprise in those days. We 
had our noses to the grindstone. We were there to study and 
not to change the world. That changed; law school changed 
fundamentally around 1969 and 1970, when the war in Vietnam 
suddenly brought a revolution to law schools and universities 
around the country, but particularly law schools. 

Law schools then began to feel that they had a mission. 
Of course, that was also stimulated by the civil rights 
revolution. Law schools feltperhaps in response to the 
feelings of students--that they had to be on the cutting edge 
of social change. Since then, law students have been heavily 
involved in all sorts of social movements and activities: civil 
rights, poverty, peace movements for a while. 

Today law schools have a whole range of activities, 
organized by the school to various degrees, that deal with 
social problems. Law schools have clinics that provide legal 
services for the indigent, clinics that provide service to 
criminal defendants, and I don't know what else. But there's 
just no end to social-type causes in which law students are 
involved today. 

That, of course, takes away from their commitment to 
studying. We were very concerned about getting jobs. It was a 
very competitive school, and we were very concerned about 
getting the best grades we could, because that was your entry 
into the profession. That is still true today, that law 
schools are competitive and students are concerned about grades 
and about getting jobs. But their commitment to those 



79 



objectives is certainly qualified by their commitment to social 
causes that they're also pursuing. 

So, they're not as single-minded about studying, going to 
class, studying, learning, and doing well on exams as we were 
then. It was quite a different time. 

Hicke: Since we're on that, can you see a change between the 
seventies, eighties, and the nineties? 

Schwarzer: Oh, I think so. I think that law students today are less 

idealistic than they used to be. That's not to say that many 
of them aren't still involved in a variety of social causes. 
But my impression is that ever since the 1980s, they've become 
much more preoccupied with earning a lot of money than they 
were for a time there in between. 



Now, we never thought, when were at law school, in terms 
of getting rich. My idea was that if I would earn just $20,000 
or $25,000 a year, that would pretty much satisfy my ambitions. 
Of course, those were different dollars from what they are 
today. But 1 never thought that I would earn as much money as 
I ultimately did as a partner, which is still modest by present 
standards. 

Today, I think, since the 1980s, law students have become 
very conscious of the kinds of money that partners earn in 
large firms. Partly that's due to the fact that that was a 
subject that was never talked about in the 1950s and sixties 
until Steve Brill and The American Lawyer came along and, 
through his own irresistible techniques, made information about 
firm income, partner income, and generally financial data of 
law firms of any size public property. Now everybody knows 
what everybody else earns, and so law students have become very 
conscious of that, and they're looking at what they can earn in 
law firms. We didn't really think beyond just getting a job. 

The down side of all of that, of course, is that as law 
practice has evolved and has become much more profitable, for 
some not for everybody, it has also become much more 
pressurized. We can talk about that later, when we talk about 
the McCutchen firm. But today's law students and young 
lawyers, while they're very conscious of the money to be made, 
they're also very conscious of the price that a career like 
that requires them to pay. So more and more of them become 
disenchanted. 

We never thought about getting disenchanted by law 
practice, but today that's a real factor. So there are big 



80 



differences. But, of course, we're also talking about a space 
of forty-five years nearly half a century. 

Hicke: But you did do some legal aid work; was that for the Legal Aid 
Society? 

Schwarzer: It was the Legal Aid Bureau of the Harvard Law School. That 
was an autonomous operation, analogous to the law review and 
something called the Board of Student Advisors, which ran the 
moot court competition. It was really run by the students. 
There were some organizations outside, I guess, with which we 
coordinated, but I don't recall. I think the court sent 
clients to the bureau, and the bureau helped take care of their 
problems . 

Hicke: Were you appointed or asked to do this? 

Schwarzer: I think so. Yes, I think it came from the courts. But there 
may have also been a Legal Aid Society in Boston or Cambridge 
with which the bureau worked. 



Other Activities; Admission of Women; Ames Competition 



Hicke: Were there other kinds of political activity that you were 
interested in? 



Schwarzer: I don't think there was any political activity going on at the 
time, other than just discussions. I doubt that there was a 
Democratic club, a Republican club, or anything of that sort. 
I have no recollection. Of course, a lot of that developed in 
later years. There was an eating club that had a little house 
off campus called the Lincoln's Inn Society. That was an 
innocuous thing where you went and ate occasionally. 

Hicke: Strictly social? 

Schwarzer: Yes, that was just social. Of course, there weren't any women 
there. The first women were admitted in, I believe, my second 
year, in 1949 or 1950. 

Hicke: The first ever? 

Schwarzer: The first ever, yes, absolutely. That was a big change, and 

there weren't many. In the first class, there might have been 

six or eight; it was probably 1949; there were probably about 

six or eight women. I remember we had an Ames Competition, 



81 



named after a former dean. It was a moot court competition. 
And in the first year everybody had to join a club. Ames Clubs 
had six members. 

I belonged to the Cardozo Club. In the first year we 
would have four rounds. We would partner. There would be 
teams of two. Each one would participate in a round. And then 
it went on in the second year. I remember that in the second 
year we took in one of the women as a member. I think her name 
was Louise Florencourt. Of course, each Ames Club had three 
levels: there would be third-year students, second-year 
students, and first-year students. 

And then in the second year, in the fall semester, we had 
again competition of teams of two. At that point it became 
voluntary, and each team got a score. Based on the score, you 
would qualify for the quarter finals, which were in the spring, 
and then if you came outit's like the basketball 
eliminations if you came out in the winning group, you could 
go on to the semi-finals and ultimately the finals. The finals 
in the Ames competition were very that was a real 
accomplishment, and it really put you on the map. 

If I remember correctly, Morris Doyle was a finalist in 
the Ames Competition in his year. But I'm not sure about that; 
it was many years earlier. 

In the fall of my second year, when we were going through 
the first round of the competition, I came down with polio. I 
went to the hospital for about a week or ten days. That was 
the time before the polio vaccine had come along, and it was 
pretty scary. It was very painful. I worried about whether it 
was going to be paralytic, but it wasn't. 

They thought that there was a slight touch of paralysis 
in my ankles, and I've been doing exercises ever since that 
they prescribed for me. It hasn't had any effect on me, but it 
did take a lot out of me. I remember that when my turn to 
argue came up, after I was back in class, I gave my argument, 
and the judge asked me a question. I just drew a blank; I 
thought I was going to faint. I didn't have the strength to 
deal with it. So I caused my team to lose out and not get into 
the quarter finals, because I lost that argument. 

The odds were, we were not going to get beyond the 
quarter finals, but in any case that was a chance at 
accomplishing something very significant, having a run at 
accomplishing that: that is, winning the Ames Competition. The 
finals are usually held before a justice of the Supreme 



82 



Court and other distinguished judges. It's a very big deal. 
We didn't get beyond the first round of elimination, and that 
was basically because of my polio attack. 

Hicke: Was it a major setback for you? 

Schwarzer: Well, no. I didn't have any problems as far as my grades and 

class work were concerned. I think 1 may have missed two weeks 
of class, something like that. 

Hicke: I'm sure you weren't fully recovered for a long while. 

Schwarzer: Well, it ' s a scary thing. I don't know if you've read any 

biographies of FDR [Franklin Delano Roosevelt], but he'd come 
down with this terrible back pain, and you don't know what's 
happening to you. They took me in the ambulance to the 
hospital. I was pretty lucky; that was the only serious health 
problem I ever had. 



A Few More Professors 



Hicke: There are a few people that you have here in your notes that 
you haven't mentioned. Professor Eddie Morgan. 

Schwarzer: Professor Morgan was a first-year professor who taught us 

Procedure. He was a wonderful, lively, energetic person. He 
was an inspirational teacher. But I can't say that I got all 
that much out of that course, although, procedure ultimately 
became my great interest after I became a judge. The course 
didn't have much of an impact, except for his wonderful 
personality. He had a way of being confusing. 

Austin Scott was one of the great men around there in the 
area of Trusts, but I never had him for a full course. So, I 
don't know whether anything else stands out about law school, 
except there was some social activity, particularly getting to 
know women at Radcliffe [College], which was across the street. 
Radcliffe women were attending Harvard classes, although, of 
course, not at the law school. So, they were a presence, and 
that was the most obvious place where you would get dates. And 
it was ultimately where I met my wife. 



83 



Marriage and Family 



Hicke: Her name is Anne? 

Schwarzer: Anne. Her last name was Halbersleben. 

Hicke: Did the Korean War affect you at all? 

Schwarzer: The Korean War came along in June of 1950, which was at the end 
of my second year. I had gotten a reserve commission at the 
end of the war, at the end World War II. 

Hicke: In the army? 

Schwarzer: In Army Intelligence. So I was very conscious of the risk of 
being called back. Well, just to turn back, I started going 
out with Anne during my second year. And then in the summer of 
1950, I visited her in her hometown, Harrisburg, Illinois, 
which is pretty near the Kentucky border. We went on a tour of 
Europe. I mentioned before that I was in Europe in 1950, some 
kind of a student tour. It was a lot of fun. And later that 
fall, I think, we became engaged. 

As the Korean War became more serious and reserves were 
recalled, I decided to resign my commission. I really didn't 
want to go back in. I figured I had been there once, and they 
didn't need to get me again. That was one of the decisions. 
The other decision we made was to get married. So, we got 
married in February 1951, between semesters. 

Hicke: In Harrisburg? 

Schwarzer: In Cambridge. That was one of the good things that we 

arranged it ourselves. It was just a simple wedding. Our 
parents came out. We had a few friends. And so we got married 
then, and got an apartment in Boston, and lived there to the 
end of the semester. My job search to that point had been 
unsuccessful, but I did apply for and was appointed as a 
teaching fellow at the law school. 

That was a new program at the law school, in which new 
graduates were selected to help first-year students with legal 
writing and problem solving and so forth, meeting with them in 
small sections. I thought that one of the things that I was 
interested in was getting into teaching, and that might help, 
it would enable me to put off the job search. I had another 
year to find a job. 



But I did get a job for the summer in a small San 
Francisco firm, called Athearn, Chandler, & Hoffman. Anne and 
I drove out--we had gotten a new car--and we drove out to 
California, camping along the way. We got an apartment, 
through my father, on Nob Hill, and spent the summer. I was 
working there, and she was sight-seeing. She fell in love with 
San Francisco. We went back in the fall and lived in 
Cambridge, and I started working as a teaching fellow. 

Hicke: I want to go on with that, but since we're talking about Anne, 
could you tell me a little bit more about your family, your 
children, when they were born? 

I* 

Schwarzer: Anne grew up in Harrisburg, Illinois, which is a town of about 
10,000 people. Her father was the general manager of a pretty 
sizable coal company based in Chicago, Sahara Coal Company, 
with mines around Harrisburg. He took it over as a bankrupt 
company and turned it into a very successful and profitable 
company until he retired, some twenty years ago. 

She grew up there and went to high school there. Then, I 
guess, having been persuaded by a high school teacher she 
should go east to college, she went to Radcliffe. Again, it 
wasn't too hard to get into Radcliffe because of geographical 
distributionsmall town and all that although, I think she 
did very well in high school. So, she went to Radcliffe in 
1947; she was in the class of '51 and was a fine arts major. 
We got married in February of 1951 in Cambridge, and eventually 
moved to San Francisco. 

Our first child, Jane, was born in December 1955. Our 
second child, Andrew, was born in May of 1958. Do you want a 
brief sketch of their lives? 



Hicke: Yes, I would appreciate that. 

Schwarzer: Jane went to school in Marin County. She went to Marin Country 
Day School, and for high school to a boarding school in 
Monterey: Santa Catalina School for Girls. She then went to 
Middlebury College in Vermont and graduated from there, it must 
have been around 1976 or 1977. She struggled through 
Middlebury, made various changes in her major, but she got out. 

Then she came back to San Francisco and I think decided 
to go into teaching. She got a masters degree in teaching 
learning-impaired children and then worked for a while in a 
small private school as a teacher of learning-impaired children 



85 



in San Francisco. That was a very tough job; these children 
are very difficult and often quite aggressive. 

She met a fellow Middlebury graduate, Stanley Fields; he 
was ahead of her. He had gotten a Ph.D. in Cambridge, England 
in microbiology. They got married in 1985 in Marin County and 
lived in San Francisco while he was a post-doctoral fellow at 
UCSF [University of California at San Francisco] . When that 
ended he became an assistant professor at the State University 
of New York in Stonybrook, which had a good microbiology 
department. 

They have three sons, who are now ten, seven, and four. 
In 1995, he was invited to develop a microbiology lab at the 
University of Washington in Seattle, so that's where they live 
now. His area is genetics, and I think he does a lot of work 
related to the action and behavior of genes, particularly in 
connection with cancer research. He has been very successful, 
and I think he's one of the promising young scientists in this 
country in that area of genetic research. 

Our son, Andrew, also went to Marin Country Day School, 
and then went to high school at Tamalpais High School in Mill 
Valley. He then went to Carlton College in Minnesota, where he 
did pretty well--I think he graduated cum laude--but couldn't 
decide what he was going to do after that. So he drifted 
around the country for a few years pursuing ideas, thinking 
about what he might do, but not very well directed. 

One of his problems was, I think, that at the time he 
suffered from various allergies, and he tried to get away from 
them. So he lived in various places. He got involved in 
various things, none of which were illegal or dangerous or 
anything like that. Then he decided that he would get a Ph.D., 
and he went to the University of Missouri, Columbia, where he 
received a Ph.D. in American Literature two years ago. 

In the meantime, he also married. He married a 
physician, whom he met at Columbia, who got a job both 
practicing and teaching at the Health University of Oregon in 
Portland. They moved to Portland and bought a house and 
settled down there. When he got his Ph.D., he started looking 
around. It wasn't too easy to find teaching jobs. But he has 
been teaching on a contract basis at junior colleges in the 
area, of which there are a number, and primarily at Heald 
College, which is a college for people who already have jobs or 
have been out of school for a whilerelatively mature adults 
who want to advance their education. Now he could be teaching 
full-time there but is teaching somewhat less than full-time 



86 



because they recently adopted a baby in Korea. So they now 
have their hands full getting their life organized to take care 
of this kid; he's nine months old. But Andrew seems to be 
fairly well employed; that is, I think his work is pretty 
satisfactory. 

Our daughter, since she got married has not worked 
outside; taking care of the children is a full-time job. She 
has some outside interests, mostly in music and drama. But she 
pretty well devotes her life to her children. 

Hicke: What's your daughter-in-law's name? 
Schwarzer: Nancy Elder. 

Hicke: Well, you have your family on the West Coast; you're pretty 
lucky. 

Schwarzer: That's right. Neither of them ever had much interest in the 
law, but there was a point at which Jane went to Hastings for 
one semester in a momentary lapse, I guess. She quickly 
decided that law wasn't for her. [laughter] Andrew never 
considered it. So, there aren't any more lawyers. 



Teaching Fellowship at Harvard 



Hicke: All right. Let's get back to Cambridge and your year there. 

Schwarzer: I became a teaching fellow, and that was a very rewarding 
experience not only getting your feet wet in the teaching 
area, although we weren't teaching courses; we were basically 
teaching first-year students how to deal with the technique and 
the method of being a law student and a lawyer. But it made us 
members of the faculty. The program was conducted by Professor 
David Cavers, one of the brilliant minds at the school. 

There were six or eight of us teaching fellows. So we 
had a lot of close contact with the faculty. We got to know 
them very well, and that was a rewarding experience. 

You had a chance to look back on what you had done for 
three years and digest all of this learning that had been 
thrown at you for all that time and reflect on it and 
assimilate it. 



87 



It wasn't too demanding, so I had time to write an 
article.' I wrote it working with Professor [Benjamin] Kaplan. 
That was the article which you read on wages during temporary 
disability. I did a lot of research in the stacks. 

Hicke: How did you pick this subject? 

Schwarzer: I don't know how I picked it; maybe he and I talked about an 
old case or some case that seemed to be of interest, and one 
thing led to another. I have no idea how I got into it. 

Hicke: The problem was what to do about an unexpected event that 
wasn't covered in the contract. Is that right? 

Schwarzer: I'd have to look at the article, but there were some recent 

cases that determined whether a person who was employed with no 
contract, that just had a job, should be paid when he or she 
was out for temporary disability. For one reason or another, I 
got interested in the historical background of the rule that 
addressed that particular problem. And there was a rich 
historical background on this question of whether persons who 
had jobs were entitled to be paid while they were temporarily 
disabled. 



Hicke: 
Schwarzer: 



It went back to some of the social welfare laws that were 
adopted in England in the 1500s and 1600s. I'm frank to say, I 
haven't looked at that article for a long time. But it was an 
interesting exercise to take a fairly innocuous legal principle 
that courts were applying currently and to go back into the 
history and dig up its origins and how it had developed over 
time. 

Actually the article mostly dealt with English law; it 
was of some interest to people in England, because it was 
republished in an English journal later. 

It was published in the Stanford Law Review. 

Initially in the Stanford Law Review, right, which would not 
publish an article like that anymore. Legal scholarship, as I 
think I indicated to you, has changed into a very different 
kind of animal. It's much less doctrinal today and far more 
interested in abstruse social or intellectual issues that are 



'"Wages During Temporary Disability, 5 Stanford Law Review 30 (Dec. 
1952), reprinted in 8 Industrial Law Review Quarterly (England) 12 (July 
1953). 



88 



not of much interest to people who are involved in the practice 
or administration of the law. 

Hicke: So it's not clear, it's not-- 

Schwarzer: It's not doctrine, it's not doctrinal, it's much more 

theoretical, abstruse, philosophical if you will, other 
worldly often. A lot of it is something that people refer to 
as story telling. Story telling is a very big deal among legal 
academics today. Somehow they derive an understanding of 
society and the way that society works and is regulated by 
relating the stories of people. I don't think I could go much 
further into it than that. But that is a large part of legal 
scholarship today, and a recognized part. 

One of our fellow teaching fellows was a person named 
Clyde Ferguson. He was black, and there weren't more than two 
or three blacks in our class. I think I can remember one other 
one, if I'm not mistaken, who later became a judge in the state 
court in Illinois. But that was very unusual. Clyde Ferguson 
had a distinguished career ultimately became U.S. ambassador 
to Uganda at the time of Idi Amin, when Uganda was a basket 
case, and later became, I think, the first black law professor 
on the Harvard Law School faculty. He died an untimely death. 



89 



V McCUTCHEN, DOYLE, BROWN & ENERSEN 



Joining the Firm 



Schwarzer: During my year there, of course, I continued to be concerned 

about getting a job. Another ironic twist in the course of my 
career was that nothing of particular interest had even turned 
up. I had contacted the firm for which I worked during the 
summer. I said, "As I understand it, you want me to come back 
to work for you, and I'm happy to accept." I got a letter back 
saying, "Well, there was a misunderstanding. We didn't make 
you an offer, and at the moment, we really don't have a need 
for anybody." I was a little taken aback. But shortly 
thereafter, one of the partners of the McCutchen firm came and 
interviewed me. 

Hicke: Which partner interviewed you? 

Schwarzer: It was George Harnagel, who was a partner in the Los Angeles 
office. He evidently knew something of me, since I had made 
some calls on offices while I was out here during the summer, 
not really interviewing but just meeting people. I remember 
meeting some people at McCutchen and going out to lunch with 
them. 

He made me an offer. The irony is he made me an offer to 
work in San Francisco, although he was from Los Angeles. But 
at that point, because I didn't seem to have anything better, 
and my efforts to try to find something in the teaching area 
were also unsuccessful, I accepted. So that's how I came to be 
hired by the McCutchen firm. It was then McCutchen, Thomas, 
Matthew, Griffiths & Greene, and its major clients were mostly 
San Francisco-based corporations: Shell Oil Company, Kern 
County Land Company, the Western Pacific Railroad Company, and 
a number of shipping companies. The firm also represented some 
of the leading families and their property interests. 



90 



The Firm in 1952 



Schwarzer: I came to work in July of 1952. 

Hicke: Can I ask you how much they offered you in the way of pay? 

Schwarzer: Oh, yes, well, I don't think we had any negotiations. The 

starting salary for new graduates was $300 at that time; that 
was pretty standard in all the law firms. They paid me $350, 
because that's what I had been getting as a teaching fellow, 
and they gave me credit for having been out one year. 

Of course, they thought that was pretty good pay, because 
the principal partners at McCutchen at that time had gone to 
work around the time of the Depression. I think that Mr. 
Doyle, when he got started, got $50 a month, or something like 
that. 

Hicke: Sometimes people even worked just for the experience. 

Schwarzer: Yes right. So, I came to work one day after John Hauser, 

who is still there, and he and I were friends throughout the 
whole time. For a while, because he was my senior by one day, 
he would always get the better office. Until once, for some 
reason he agreed that we would flip, and 1 won, and I got the 
better office. That was many years later. 

Hicke: I talked to him; he told me it was a corner office. 

Schwarzer: That's right. It was in the International Building; it was a 
wonderful office. Do you know that building? It's 601 
California Street; it's now overshadowed by the Bank of America 
across the street and other high-rise buildings around there. 
It was designed by Anshen and Allen. It was the only building 
ever built in San Francisco by architects who really came up 
with an elegant design. It was an elegant building. It was 
beautifully built. It was only twenty stories, I think. 

I was responsible for the move. This is a little out of 
sequence. We moved there in 1960. I had just become a 
partner, and because I had always had an interest in space and 
interior decoration, they put me in charge of it. I still have 
this clock over there [indicates] that was a gift they gave me 



91 



to memorialize what I had done. It was a very low-key design, 
with walnut and dark brown carpets, nothing like what you see 
now. It wasn't glitzy at all, but it was comfortable. It was 
a pleasure to work there. 

I worked there until I went on the bench, and at about 
the same time the firm moved to the Embarcadero Center. And I 
did have this lovely corner office. 

Hicke: Where were they located when you first came? 

Schwarzer: They were in the Balfour Building, which is still there. It's 
an old building, but it's been refurbished, and it's still a 
good location. They had two floors--! believe the 14th and 
15th floors. Partners were on the 15th floor, and the library 
and the associates were on the 14th floor. When we came, the 
firm was just beginning to go into a generational change. The 
generation of leaders who were then still the leaders of the 
firm were first, Crawford Greene. Greene was really the senior 
of the name partners; he had been there longer than anybody 
else. He had actually worked for Mr. [Edward J.] McCutchen, 
who had died in 1933. He came into the firm working for Mr. 
McCutchen, and because of his connections and his stature, 
really developed the firm. 

Then the four other senior partners joined the firm 
later, around the early 1920s. Mr. Thomas, Fred Thomas, came 
in; his principal client at the time was Shell Oil Company. 
Mr. [Allan P.] Matthew, who came in 1918, had been with the 
Interstate Commerce Commission, and was a railroad lawyer. He 
represented a number of railroads, including at the time the 
Western Pacific Railroad Company, in a big case. Mr. [Farnham 
P.] Griffiths had come in at about the same time; 1 he was 
primarily an admiralty lawyer, represented a lot of shipping 
lines . 

So those were the four leaders in the firm. Then the 
person immediately under those four people was James Adams, who 
had come to work in 1920 after graduating from Harvard, and was 
probably the most brilliant lawyer in the firm. He had worked 
for Mr. McCutchen. At the time, his principal work was 
defending Shell Oil Company in a large antitrust case against 
the West Coast Oil Companies. 

Then there was a group of partners who had come in around 
War World II and became partners after the war: Robert Brown, 



'He had actually been employed in 1913 and became a partner in 1919. 



92 



Gerald Trautman, Philip Ray, Brent Abel, and Gordon Weber-- 
actually Weber became a partner a little later. I think those 
were the partners in San Francisco, and Los Angeles was pretty 
autonomous, so I won't go into that. The principal partners 
there were Harold Black, George Harnagel, Bill Shea, and Phil 
Verleger. 

Hicke: Was that a separate profit center? 

Schwarzer: No. Financially, the results were pooled and profit 

allocations were made in a unitary way. So everybody was 
evaluated at the same time against each other. But they had 
their own practice, and that's another story that we can talk 
about when we get to the 1960s. 

Then there were some senior associates, who had been 
passed over in the partnership process. There were three of 
them. One of them was Hazel Flagler, who was a very good 
corporate lawyer who had come from New York. This was a clear 
case where a lawyer did not become a partner because she was a 
woman. Nobody could conceive of a woman being a partner in the 
law firm. 

Hicke: When did she join the firm? 
Schwarzer: During the war. 
Hicke: And they kept her? 

Schwarzer: Oh, there was no question about it. She was very valuable, and 
doing excellent work. There was one other partner of the 
postwar class, that was Owen Jameson. 



Declining Practice of the Firm 



Schwarzer: Now, when you look at it with the benefit of hindsight, you 

could see that the foundations for the firm's practice at that 
point were destined to crumble. And they did crumble. The 
Shell Oil Company moved out of San Francisco, and the antitrust 
case was ultimately disposed of. The admiralty business, 
although always a part of the firm's business even today, 
shrunk with the coming of radar and larger vessels and 
containers. There weren't a lot of collisions anymore, and the 
business declined greatly. 



93 



Mr. Greene was a great business-getter; he had great 
connections; he was very social. A lot of his business came 
from old families in the San Francisco area. In those 
families, with succeeding generations, their wealth became 
dispersed, and so they were no longer significant sources of 
business. 

To back up a bit: I told you about Adams, but I didn't 
mention the people that came during the Depression--Doyle and 
[Burnham] Enersen. 

** 

Schwarzer: I mentioned that because one of the major clients that Mr. 

Greene had was the Kern County Land Company. In talking about 
the different levels of the partners, I neglected to mention 
Doyle and Enersen, both of whom had come during the Depression. 
Brown and Trautman and Ray came in the late thirties and became 
partners after the war. Jameson about the same time. Also 
John Parker, who headed the probate practice, who had started 
as an office boy for the firm in 1906. Russell Mackey was an 
admiralty partner. Robert Lipman was another partner admitted 
during the war. 

And then I mentioned the postwar additions--Abel and 
Weber, and Walker Lowry was another one. That, I think was 
pretty much the group of partners. I was starting to say that 
the foundations of the business, looking back now at the 
business of the senior partners, were starting to crumble 
slowly. That process accelerated later. I mentioned Shell 
moving out. Kern County Land Company was still significant. 
The railroads were bringing their business in-house, and there 
wasn't much railroad business as we moved into the 1950s. The 
admiralty business declined. 



Major Changes in the Firm Begin, 1958 



Schwarzer: So, looking back now, it's clear that the position of the four 
senior partners, who were also well along in years, was not 
going to secure the long-term business of the firm. Mr. 
Greene, to his credit, had the wisdom to know that there was a 
time for a generational change. In 1958 all the seniors 
retired, the firm changed its name to McCutchen, Doyle, Brown, 
and Enersen, and those three partners then became the senior 
partners in the firm, shortly to be augmented by Gerald 



Trautman, when the firm's name was changed around 1960 to 
McCutchen, Doyle, Brown, Trautman, and Enersen. 

flicker So there were three and then four? 

Schwarzer: Yes, because of course, McCutchen died in 1933. 

So when the firm's name changed in 1958, the business was 
beginning to change significantly. Doyle's major client was 
U.S. Steel, which still had a big operation on the West Coast 
and a lot of litigation, including at least one large antitrust 
case. Brown's business was primarily Stanford University and 
privately owned water companies on the peninsula. Enersen 's 
business was primarily the Kern County Land Company. And 
Trautman' s business was, to a large extent, transportation 
business that he had inherited from Mr. Matthewprincipally , 
Greyhound and then some other litigation business. No single 
significant client at that time. 

So the firm was undergoing change. And looking back now, 
the impression you have is of a very conservative, conventional 
firm that placed its priorities strictly on quality work as 
opposed to business getting. That lasted until recent years. 
Since the departure of Crawford Greene, who was a very 
accomplished, and aggressive, and energetic, and successful 
business-getter--today we would say rainmakerthere were no 
partners in the firm who felt that it was necessary to 
aggressively go out and get business. 

This is kind of a crude way of putting it, but that's 
what it came down to. They were happy to receive it, to have 
people come. But they weren't going to go out after it. One 
of the great weaknesses of the firm, for example, was it did 
not represent a bank. When you represent a bank, you not only 
have the business of the bank, but you have invariably contacts 
with businesses and great opportunities to attract business. 

I think we represented the Bank of Montreal, which has 
nothing but a little branch in San Francisco of the Canadian 
Bank, which produced virtually nothing. So the foundations of 
the firm's business were not very strong. 



95 



The 1960s and 1970s 



Schwarzer: In the 1960s, they grew even weaker. The Kern County Land 

Company, which was a major client, was absorbed or purchased by 
Occidental Petroleum Company and left the city. Shell was 
gone. The railroad business was gone. Stanford was still a 
large client, although not for too much longer. 

There were opportunities for the firm to develop 
corporate business. For example, Brown represented Hewlett- 
Packard in its early days. But from my observation, the firm 
was essentially laid-back. They had made little effort to 
encourage the businesses with which they had contacts to bring 
all of their business to them. 

Hicke: It sounds like the old, gentlemanly type of firm. 

Schwarzer: It was a gentlemanlyvery gentlemanly operation. Excellent 

work. But it had a weak foundation in local business, when you 
compared it, say, to Pillsbury, which represented Safeway and 
the telephone company and Standard Oil, just to mention a few, 
and to Brobeck, which represented a large bank and other large 
companies . 

By not representing banks, by not representing on a 
regular basis underwriters the securities business was very 
weak, always has been, still is the firm's corporate 
department was never effectively developed. 

So, what saved the firm? Well, what saved the firm was 
essentially that Morris Doyle had acquired a reputation as a 
premier litigator, and he was well known around the country. 

The firm became a lawyer ' s-lawyer firm. We didn't work 
for companies; we worked for other law firms, who referred 
litigation business to us. That became the backbone of the 
firm's work. There were exceptions, but generally speaking 
that is true. One of the largest cases that we had was the 
Mono County litigation that Morris Doyle handled, which came to 
him because of his family connection to Mono County and went on 
for years. It was litigation over taxation of the water 
resources that had been acquired by the Los Angeles 
Metropolitan Water District and went on for many years and 
generated large fees. 

The firm did perfectly well, and of course, during that 
period of time, as the change was taking place in the 1960s and 
seventies, nobody knew how much money other firms were making. 



96 



Firms weren't making the kind of profit, and they weren't 
charging hourly rates of the kind that we've seen since then. 
What held the firm together during that entire period was, 1 
think, that all of us as partners felt that we were getting 
paid more than we ever thought we would, more than we ever 
expected, and there wasn't any reason not to be satisfied with 
the way it was operating. 

But it clearly had its weaknesses, and when I left in 
1976, the profession, the practice of law was at a turning 
point and was about to move into another generational change. 
That was the time when law practice became very aggressive and 
business-getting became very aggressive. There was a real 
question, I think, about how well the firm would do in that 
environment. But fortuitously, a new generation of young 
lawyers came along to take over the leadership, although the 
name wasn't changed, and has done very well. The firm is 
holding its own. 

That is kind of a superficial, brief historical 
perspective of the way the firm functioned during the period 
from '52 to '76. We can go into some more details, but this is 
the way I see it. 

Hicke: I don't know if this is too much to take on, but can you tell 
me a little bit about who made the decisions, and how that 
changed? 

Schwarzer: Until 1958, the decisions were made by the name partners. 
Hicke: In a meeting? 

Schwarzer: Of course, the firm had regular firm meetings. How often? I 
think for a while every week, then maybe every two weeks, all 
the partners met. But the decision, for example, to change the 
firm's name and to turn over the leadership was made by Greene, 
and Thomas, Matthew, and Griffiths. But it was Greene's 
initiative, and he persuaded the others to go along, which 
wasn't all that easy, because the tradition in those days was 
that lawyers didn't retire. Firms didn't have a retirement 
age. 

This has been the undoing of a good many law firms: that 
the old men stuck around and tried to hang on to the business, 
and suddenly they would find that their clients felt they were 
too old and had gone somewhere else. Even McCutchen did not do 
as well as it should have in passing control of the business 
down to the next generation of partners. That's the key to 
survival of a law firm or to growth, for that matter. 



97 



But it's also very difficult, because you have to train 
clients to accept the new lawyers before it's too late. 
Crawford Greene had the foresight to see the necessity for 
doing that. I'm not convinced that the next generation of 
leaders of the firm learned that lesson or did as well as they 
should have in passing the business down. 

Hicke: Without a retirement system or a pension system of some kind, 
the only way the older partner could have an income was to 
continue to work. Is that correct? 

Schwarzer: Well, yes and no. Keep in mind that they had practiced for 
many years with very little income tax to pay. Income tax 
didn't come in until 1916, I believe, and it was pretty modest 
until World War II. Then it began to rise. So these people 
had done very well for themselves, particularly Mr. Greene. 
They had saved enough money so that they could live well. The 
firm didn't adopt a retirement age until, I think, sometime in 
the late sixties, after I became a partner. We then adopted a 
retirement plan. And there was a plan by which the firm 
required people to retire at seventy, required them to retire 
partially at sixty-eight, and guaranteed them an income on 
retirement equal to 1 percent of the firm's net income. Later 
on that was modified or eliminated when the government changed 
the tax laws and there was something called a A01(k) plan. It 
was 401 (k) which allowed a lot of people like partners in the 
firm to take up to $30,000 or $40,000 in pre-tax money each 
year and invest it and defer the tax on it. So you could put a 
lot of money aside. And then also there was the Keough Plan. 
So there were ways in which you could provide for your 
retirement. And people were paid well enough. 

The retirement age has stuck, except in the case of a few 
exceptional people like Doyle and one or two other people, the 
firm made contracts with them so they would continue to work on 
a counsel basis after their retirement age and get paid for it, 
in order for the firm not to lose the benefit of their services 
and their contacts with clients. 

Things have changed a great deal in the law firm business 
over the last forty-five years. It's a very different place, 
and a very different operation. It has basically become a 
business. I remember thinking, when I became a partner, about 
how unbusinesslike we were about many of our practices; that we 
weren't doing well enough in collecting the monies we had 
advanced for clients; that some people were putting in only 
nominal amounts of hours, while other people were working very 
hard. 



98 



I used to think that really ought to be fixed, and I 
think I was kind of a curmudgeon about these things. But now 
when I look at law firms, in which all these things have been 
fixed, I'm not so sure I want to practice there, because we had 
a wonderful, collegial atmosphere, and it's less collegial now. 
In those days, it would be extraordinary for any partner to 
leave a law firm. We had two people leave. 

Phil [Philip] Ray became general counsel of the Commerce 
Department in the Eisenhower Administration. I don't think he 
ever came back, but if he came back, it was only for a matter 
of months; then he went to practice somewhere else. People 
just didn't take kindly to the idea that the partners would 
leave; it was a lifetime marriage. 

Hicke: You're not allowed to move to another firm? 

Schwarzer: Well, he never did go to another firm. 

Hicke: Oh, I know, I didn't mean him, but I mean the--. 

Schwarzer: That didn't happen at McCutchen until the middle seventies, I 

think. One new partner went to work for another law firm. The 
other partner that left in the early sixties was Walker Lowry, 
who was kind of a free spirit anyway; he left to write novels. 
He never practiced law again. 

Hicke: Way ahead of John Grisham? 

Schwarzer: Except his never sold. [laughter] I'm not sure if they were 
ever even published. He just wanted to write. So it was very 
stable. Now, associates, of course, left. People generally 
were not fired--only in extreme cases. People were told that 
their prospects weren't very good, prospects of becoming a 
partner, and they might want to look somewhere else. In the 
1950s until 1960, the firm was very slow about taking in new 
partners . 

Gordon Weber was taken in in the middle of the fifties; 
he was a tax partner. I forgot another older partner who was 
there, who was Henry Costigan, who was a tax partner; he didn't 
play a significant role. So the firm took in an additional tax 
partner. Another partner, who was taken in in 1957, I think, 
was Crawford Greene's son, A. Crawford Greene, Jr., who is dead 
now. 

Other San Francisco firms were doing a little better. 
But it's understandable that the firm would be stodgy about 
this, because I think that they didn't think all that much 



99 



about the prospects of expansion in business. I think they saw 
the firm's business as being stable but not expanding. Of 
course, the 1950s was not a time of expansion anyway. The 
economy was pretty much on dead center, and they were stodgy. 

But something happened, because in 1960, the decision was 
made to take in six new partners. I think the reason probably 
was that some good people had left--Peter Teige, for example, a 
very smart lawyer. He left because he saw no prospects of 
becoming a partner, and went to American President Lines. Two 
or three other bright and able people left. I think that the 
partners must have decided that they didn't want to lose this 
group that was coming up. So in 1960, six of us became 
partners: myself, and John Hauser, Norman Richards, Al Moormon, 
Derk TeRoller, and Mortimer Smith. 

How much that group added to the strength of the firm is 
a debatable subject. I think that of the four, probably only 
two of us really made significant contributions: John Hauser 
and I. And even he and I, in my view, were not particularly 
outstanding business-getters, although some people seem to 
think that I did attract or hold business. John certainly has 
done well. The other four were good lawyers but not strong 
partners . 

Ironically, three of them are dead, and died earlier than 
you would expect, before they retired. One of them never 
really did contribute much to the work of the firm, although he 
had the capability of being a good trial lawyer. But 1960, as 
it turned out, was the time when the economy began to expand, 
and the 1960s were good years for law firms. The business, 
mostly litigation business, grew. 

Quite a number of partners were taken in during the 
1960s, as somebody said at the time, not so much because they 
were good but because they were needed to do the work. That's 
not to say that there weren't some very good people who were 
very effective lawyers, and very good business-getters. But 
there were also some weak people. 

Of course, the dilemma that you have in any organization 
like that is that you have to make a decision when somebody has 
been with you for only seven or eight years. You don't know 
how they're going to develop, they haven't developed yet. 
They're still unformed as professionals. And there are some 
people that we admitted as partners who were marginal who just 
took off and became terrific lawyers, and great contributors to 
the firm. 



100 



Hicke: 



Schwarzer : 



Hicke: 



Hicke: 



Schwarzer: 



And there are others who fell by the wayside--lack of 
motivation, lack of ability, bad health, alcohol, women. So 
it's a big gamble when you take in people when they're around 
thirty-three, thirty-four, thirty-five. An awful lot of things 
can happen to them, and you have to accept the fact that it is 
a big risk. 

With some people the firm has done enormously well, and 
some have been disappointments. Now other firms obviously had 
the same experience. But I'm certainly aware of how uneven the 
results were of the partnership process at McCutchen. 
Nevertheless, the firm has done consistently well and continues 
to do so, because there were some very good people who emerged 
in positions of leadership and have done a good job. 

It was a complicated business, but it's a people 
business. Obviously, the quality of the product you turn out, 
legal services, is a very significant part of whether you fail 
or succeed. But you have got to have the opportunity to turn 
it out, and so you have to attract business. The quality of 
work will do a lot, but it isn't going to do it all. 

Well, I don't know whether that's too dim of an 
appraisal, but I think the firm has emerged through some 
difficult times quite well. 

That's a fascinating overview of the firm. Quite interesting. 
Is this a good stopping place? 

Yes, I think I've said about all I have in mind at this point 
about the firm generally. There probably are some other 
things. They'll occur to me later. 

That's fine. I think we can start next time with what kind of 
an office you had and who your fellow associates were. 

[Interview 4: July 21, 1997] 

We're continuing this morning with the McCutchen firm. You 
have some more to add to that? 

I think at the time, the youngest partner was Brent Abel--you 
mentioned him in your outline- -who with John Parker was running 
the Probate Department. Some of the older partners, of course, 
had as clients families that had been represented by the firm 
for a long time. But I think Brent really developed the 
probate practice. 



101 



Senior Associates 



Schwarzer: I don't know if I mentioned that there were three senior 

associates. One of them was Hazel Flager; she was the only 
woman in the firm. It's interesting to look back on this. She 
came out from New York during the war, and the firm took her on 
because they were desperately short of lawyers. She would have 
obviously never been hired if she had not come out. She was an 
experienced securities lawyer, who had worked in one of the 
major firms in New York. 

For the rest of her career--! think she retired probably 
in the early sixties she was doing securities work and she was 
doing partners' work. But the question never came up that she 
might be made a partner. 

Then there were two other senior associates who had been 
around for a long time: Charles Heimerdinger , who did probate 
work, and Ray Vandervoort, who did litigation work. They were 
people who had just simply been passed over, but they stayed 
on. They were never, as far as I know, considered as 
partnership material. But they did responsible work. 

That was a situation that was the subject of a lot of 
discussion over the years over whether the firm should keep on 
lawyers who had been passed over for partnership. Around 1960, 
I think it was pretty well accepted policy that the firm would 
not do that, that if you did not become a partner in, well, say 
eight, maybe nine years on the outside, you would be encouraged 
to leave, and the firm would not have senior associates. 

There were a number of reasons for that. One of them was 
the general thought that if people weren't good enough to 
become partners, they really shouldn't stay around and the 
people in that position would tend to be somewhat demoralized 
and lack the drive and energy and ambition that we wanted in 
lawyers. 

The same was true in other major firms in San Francisco. 
They all had senior associates who had been passed over and had 
stayed on, and they all gradually moved away from that policy. 
Although, it wasn't true in every case that the people who had 
been passed over were passed over because they didn't measure 
up to the quality expected. In order to become a partner in a 
large San Francisco firm, you had to have strong sponsorship, 
and some of the associates just simply worked in peripheral 
areas of the firm and never had powerful sponsorship. That was 
a factor all the way through my time, and still is. 



102 



Hicke: 
Schwarzer : 



Hicke: 
Schwarzer: 

Hicke: 
Schwarzer: 



Hicke: 
Schwarzer: 



Did you have to invest assets or money? 

No. The way that worked--! think it was generally true in 
firms- -was that when you became a partner, some of your share 
of profits for the first three years was withheld until you 
came up to your share of the firm capital. Your share of the 
firm capital was equivalent to the share in the profits. So if 
you had a 3 percent profit share, then you would be responsible 
for 3 percent of the firm's capital. 

But nobody ever paid in; that wasn't required. It just 
came out of profits, and people were making enough money so 
that was feasible. I think that's probably the way most firms 
worked, although in some it may be that some of the senior 
partners contributed all the capital, and therefore basically 
had all the power too. This was a more democratic way of doing 
things, and it worked well. 



How was your share determined? 

Well, that's a whole other story, 
about senior associates. 

Yes, please do. 



Let me just finish one thing 



The irony of all this is that in the last few years three , 
four, five years the firms have grown so large and the 
partnerships had grown so large that firms began to give 
serious consideration again to having senior associates or 
something like that, so that people could be given an 
opportunity to work at the firm, and do gainful work, and make 
a good living without having to enlarge the partnership that 
much. 

Back in the fifties, the partnerships were very small in 
relation to the number of associates. But in the eighties the 
firms expanded greatly, and in many firms, large firms, there 
would be a one-to-one ratio of partners to associates. So most 
of the firms have now developed something similar, but they 
don't call them senior associates; they call them counsel. 
They're basically people that are never going to be made 
partners but may be doing partners' work, and are well paid but 
don't share in the profits. So the wheel is sort of coming 
around. 

They also don't have the pressure, I guess. 

Not really. I guess it depends on the individual case. 



103 
Profits Division 



Schwarzer: Now you asked about how profits are determined. There are 

different ways of doing this in different firms. In some of 
the firms, a small group of senior partners pretty well 
controlled that division of profits, and they ran the firm. 
That was true at Pillsbury [Madison and Sutro] and at the 
Brobeck firm; they were really quite autocratic firms. 

But at McCutchen, it had always been the practice to have 
input, at least in my time from 1960 on, it was the practice to 
have input from all of the partners. So every two years or so, 
a partnership review committee would be appointed of three or 
four or five partners, spanning the range of practices and 
ages, and so forth. They would interview every partner. Based 
on the respective evaluations that they got from the different 
partners, they would come up with a proposed schedule of 
percentage shares. 

Now, there would be a fair amount of soul searching and 
negotiation, and before the proposal would be published, it 
would certainly be run by the senior partners to get their 
general agreement. But we never had a formula, and it's 
probably still true; I'm not sure. Some of the firms do; they 
had formulas based on the amount of billing that a partner did, 
the amount of business that he generated, maybe hours that he 
put in. Some use a lockstep system where seniority alone 
determined individual shares. 

But we never did that; it was a very subjective 
evaluation, and although business-getting was an element, it 
was only one element that people considered. I think the 
dominant element was the perception of the quality of the work 
of a partner by all of his other partners. It really worked 
quite well. We didn't have partners leave because they were 
disgruntled. 

I think the truth was, as long as I was there, every one 
of us felt that we were making much more money than we ever 
thought that we would, and people were satisfied with their 
compensation. Now, that may have changed, because in the last 
few years, lawyers' income has risen enormously, and the 
expectations have risen probably more than the income. But 
during the time that I was there, I can only think of four 
partners who left the firm, and each one had distinct reasons. 
We can talk about those, if you want to talk about that now. 



104 



Hicke: Yes, but first I want to ask a couple of more questions. 
Everybody knew how much everybody else was making? 

Schwarzer: Oh, yes, absolutely. 

Hicke: And the other thing was, when you made partner, your first 

determination of the share, did they tell you what it would be 
when they offered you the partnership? 

Schwarzer: They told us what we would get. I can't remember for sure, but 
I think when I started, my compensation was something like 
$110,000 or $120,000, and some part of that was withheld, and 
that seemed quite astronomical to me. Of course, that was 
thirty-seven years ago, and I don't get paid much more than 
that as a district judge today. [laughter] 

Hicke: Expectations have lowered, not risen. 

Schwarzer: Yes. And I guess there's one other thing about percentages. 
One of the determining factors, I think, about a law firm's 
success was the spread between what the youngest partner got 
and what the most senior partners received. I think the 
McCutchen firm was always very good about that that the senior 
partners were not greedy. They obviously got quite a bit more, 
but nobody ever felt that they were greedy at the expense of 
the partners at the lower levels. 

In some firms that wasn't true. I think in the Brobeck 
firm, for example, until they had a palace revolution sometime 
in the seventies, the senior partners really took the lion's 
share of the profits. And that was very damaging. I think 
that was true of Chickering & Gregory, which ultimately self- 
destructed because it didn't bring younger partners along. I 
think we were very good about that. 

There was, of course, always some unhappiness about some 
people who other partners thought had disappointed their 
expectations, who didn't perform as we had hoped. You don't 
know how a person is going to develop as a law partner when you 
take them in at age thirty-five or thirty-six, something like 
that. Some of them grew and became wonderful lawyers, and 
great partners, and some of them declined and contributed very 
little. 

It was always touchy to reduce people's percentages or to 
have them falling behind their contemporaries. But it 
happened, and it had to be done. There were people who fell by 
the wayside, and ultimately there were three or four people 
where the firm simply worked out an arrangement to retire them, 



105 



and continued to pay them something. It was cheaper to retire 
them and pay them an annuity than to keep them on as partners. 
And some died. 



Partners Who Left 



Hicke: Were you going to talk individually about the ones that left? 

Schwarzer: Yes, I can do that, to the best of my recollection. One of the 
earliest departures was Phil Ray, about whom I spoke before. 

Walker Lowry was the closet thing to a hippie--an early 
hippie--that we had in the partnership. He was a brilliant 
person, very literate and literary, marvelous brief writer, a 
very good trial lawyer, but intellectually, he was way beyond 
law practice, and he ultimately left in the 1960s to write 
novels. He did write one or two, but to my knowledge they were 
never published. I think he went to live in Spain for a while, 
and he died after a while, as did Phil Ray. 

Hicke: He was ahead of his time writing novels. 

Schwarzer: Yes, that's right. But these weren't the kinds of novels that, 
say Richard North Patterson has written, who was a partner in 
the law firm for a while after I had left. 

The third person was Gerald Trautman, and that's quite a 
story, and we'll touch on it in different contexts as we go 
along. He had been doing a lot of work for the Greyhound 
Corporation, and he was persuaded by Frederick Ackerman, the 
chairman of the board, with whom he had a very close working 
relationship, and who wanted to retire, to leave to become 
chairman of Greyhound. So he moved first to Chicago and then 
later to Phoenix to become the chairman of the Greyhound 
Corporation. He had been my principal mentor and sponsor. I 
took over much of his work when he left. 

The fourth person that I can remember was a young partner 
named Bruce Vanyo, who left sometime in the seventies to go to 
work for Wilson, Sonsini. I'm sure he thought that his 
opportunities there were better, and they undoubtedly turned 
out that way, because that became far and away the most 
profitable law firm in this area. So he had a lot of 
foresight. And he's done very well down there. 



106 



Offhand, I can't think of others; there may have been 
others, but during the time I was there, we had a very good 
record of no losses of partners. It was quite a cohesive law 
firm. Those are the only examples that I can remember. In 
addition, there were several partners who retired early by 
mutual agreement. 



Brent Abel 



Hicke: We didn't get too far with Brent Abel. You just started to 

talk about him; I don't know if you have more to say about him. 
I think I mentioned that we'd like to interview him at some 
point, so a little background on him might be good. 

Schwarzer: We became quite close friends. One of the circumstances that 
led to that was it was the firm's practice to have parties on 
the fortieth anniversary of a partner's having been admitted to 
partnership. They were wonderful parties. They were then held 
at the Bohemian Club. You can imagine trying to have a law 
firm party at the Bohemian Club today. It would cause a great 
furor. 

We had parties for Mr. Greene and Mr. Matthews and Mr. 
Griffiths and Mr. Brown and Mr. Enersen. We put together a 
little group of people, of which Brent really was the leader, 
to put on skits and songs at these parties. So that's how we 
became quite friendly. In addition to that, he and I were the 
hiring committee for a few years and did a lot of the travel to 
interview at law schools and, I think, for a while had the 
major part in hiring new associates. 

He had an interesting history. He served in the navy, 
and was the captain of a destroyer which rammed a German 
submarine and captured it. That was the only time in naval 
history that an American ship captured a enemy submarine. He 
became famous for that. He developed the Probate Department, 
but there was always an argument in the firm over whether the 
Probate Department carried its own weight. I don't have an 
answer to that, but it did not keep up. It couldn't keep up. 

Hicke: You mean profit-wise? 

Schwarzer: Profit-wise, with the Litigation Department. 



107 



Morris Doyle 



Schwarzer: Morris Doyle, as I told you, had acquired a national reputation 
as a trial lawyer. Probably, the first case that gave him 
national exposure that I'm aware of was an antitrust against 
U.S. Steel, brought by Independent Iron Works. It was going on 
in the 1950s. 

It gave him very prominent exposure, even though the case 
was ultimately dismissed on motion and never went to trial. 
But that and his other activities and his personal charisma as 
a trial lawyer really put him on the map, and that brought 
quite a bit of business to us from eastern law firms. With the 
growth of litigation in the late fifties and early 1960s, it 
would be inevitable that firms would come to us, and as we 
became better known as litigating lawyers, more business came 
our way. 

I guess another major case, which he discussed in his 
oral history, was the Owens Valley water rights litigation 
against the Los Angeles Metropolitan Water District. That was 
a huge case and gave him a lot of publicity. He was very 
successful in that case. 

So there were some of those cases that helped put the 
firm on the map. Because Mr. Matthew was a very well-known 
transportation lawyer, railroads and other transportation 
companies came to the firm with their litigation. They all had 
in-house lawyers, but they came to the firm with litigation. 



Robert Brown; The Gentlemanly Practice of Law 



Hicke: Can you tell me anything about Robert Brown? 

Schwarzer: He was primarily a corporate lawyer. His clients were 

primarily water companies down on the Peninsula, and Stanford 
University, which the firm had represented for a long time. He 
was well connected on the peninsula and early on had a 
connection with Hewlett-Packard. He was a brilliant lawyer but 
was probably typical of the firm's traditional attitude of not 
going after law business. 

I think there were people in the firm who felt that the 
firm could have become general counsel for Hewlett-Packard. 
That could have been a major client, but it never developed 
because of the passive attitude of the senior partners who were 



108 



not interested in aggressively pursuing business as, say, 
Pillsbury and Brobeck did, for example. 

Hicke: Does this policy of staying aloof from pursuing business, is 
that a personal characteristic of some of the leaders, or is 
that some sort of corporate culture of the firm? 

Schwarzer: Well, traditionally lawyers sat in their office and waited for 
clients to come. You didn't call anybody; you didn't go push 
yourself forward. And that tradition was very much the 
McCutchen culture. But there were always, obviously, lawyers 
that were considerably more aggressive, and the lawyers that 
built the large firms in the city were more aggressive. 

I think the success of McCutchen was attributable to its 
reputation as very good and careful and dependable and ethical 
lawyers. But they were not as successful at getting business 
as they might have been. I think, from my perspective, 
probably the partner who did the most to develop his own line 
of business was Gerald Trautman, who worked hard to develop the 
Greyhound connection. That led to quite a lot of work, not 
only Greyhound but also the representation of Lucky Lager 
Brewing Company, which was then the largest brewing company in 
the West, which is another colorful story. 

And it is only fair to say that being less aggressive 
than it might have been, the firm was probably also a happier, 
more collegial place to work. 



Schwarzer: Of course, that attitude is gone now, since the time I left. 

The firm, like all other firms, aggressively pursues business. 



Early Days As An Associate 



Working for Robert Lipman 



Hicke: This has been a good overview. Now let's get back to your 

first days as an associate. Do you remember your first day at 
the firm? 

Schwarzer: I remember it quite well. I remember having trouble finding 
the building. 



109 



Hicke: You hadn't been there? 

Schwarzer: Yes, I did interview there one time, but I wasn't sure where it 
was. I do remember confusing the Balfour Building with the 
Russ Building, but 1 did find it. I think I reported to Gerald 
Trautman and was assigned one of the cubicles off the library. 
Just a cubicle. I remember my first assignment was working for 
one of the older partners, Mr. [Robert L.] Lipman, who was a 
probate partner but also did a variety of other things. He had 
been an associate for a long time but became a partner during 
the war. 

He was working for California Water Service Company, 
interpreting the company's rights under a water service 
contract in light of provisions of the California Constitution. 
I do remember writing the same memo over and over and over 
again until he was finally satisfied, which was a very good 
exercise. It was the kind of exercise that I put my law clerks 
through and I used to put my associates through. [laughter] 
So I worked on that for a long time. 



Offices 



Schwarzer: The firm was a very staid, genteel firm whose offices pretty 
much looked down at the heels. All the offices needed paint 
jobs. It was a pretty run-down place, but as you might expect 
had an old-fashioned lawyer's office look. 

Hicke: Which floor? 

Schwarzer: The partners, for the most part, were on the fifteenth floor 
and the associates were on the fourteenth floor. There was 
quite a division. Early on, I remember going up the elevator 
and running into Mr. Greene, who was really the senior partner, 
had a very large office, and was quite an intimidating 
presence. 

He started talking to me and had me introduce myself and 
asked me to come up. I remember talking to him for a while. 
It was quite an occasion to meet the senior partner. It was a 
very hierarchical firm. You didn't call partners by their 
first name, at least not for a long time. I didn't call Mr. 
Doyle by his first until he told me to after I became a 
partner. It was quite formal. You didn't walk around with 
your coat off, and you didn't go out on the street without a 



110 



hat. Somebody told us that gentlemen don't go out without 
hats. 



Bar Examination and Bernard Witkin 



Schwarzer: I can tell you about some other early work that I did. I don't 
have any other particular impression about showing up there for 
work in July, 1952. I guess the first thing I did was take off 
a month to study for the bar exam. 

Hicke: Which you took in August? 

Schwarzer: In October. 

Hicke: Did you study at home or at the library? 

Schwarzer: I think I studied in the library, and I probably also studied 
at home. Everybody was scared to death, and they still are, 
about failing the bar exam. 

Hicke: A lot do. 

Schwarzer: Yes, but you shouldn't fail it if you went to a good law school 
and did reasonably well there. I went to the lectures at 
night. The lectures then were given by Bernard Witkin, which 
seems hard to believe in light of the status as a law guru he 
later achieved. He was teaching the course. 

Hicke: He pretty much wrote the book, literally. 

Schwarzer: Well, that's right, at that time. The other night I was 

talking to his widow and told her how I remembered getting his 
books. There were two volumes, blue-bound volumes; that was 
the whole of Witkin, and that's what we used to study for the 
Bar. And now there are I don't know how many volumes of 
Witkins; it must be in the twenties, an enormous operation, 
huge set of books. But he was just getting started. 

Hicke: What was he like? 

Schwarzer: Oh, he was excellent. He was a great lecturer and very witty. 
It wasn't bad going to the lectures at all; it was enjoyable. 

Hicke: That's quite an art, I would think, if he was able to make that 
review so interesting. 



Ill 



Schwarzer: Yes. Bar reviews can be pretty dreary. 



Partners and Other Associates 



Hicke: I also want to hear about the other associates you worked with. 

Schwarzer: Well, let's see. John Hauser came at the same time I did. And 
then there were some associates who had been there for a few 
years; these were people whose law school educations had been 
interrupted by the war, and they graduated in '48 or '49. 

Peter Teige was one, a very bright and able person. Jim 
Oakes, was an associate, but he shortly left to go back to New 
York, and ultimately became the chief judge of the Second 
Circuit Court of Appeals. George Blackstone and Lewis Hamlin 
were there, and there were some others. I mentioned these 
people, because they all left the firm some time in the 1950s 
to pursue successful careers. They were all people who 
probably should have become partners, but the prospects just 
did not look very good for associates in the light of the 
policy the firm was following, which seemed like kind of a no- 
growth, no-expansion policy. 

Peter Teige, for example, went out to become general 
counsel of American President Lines. George Blackstone became 
a partner at Heller, Ehrman, White, and McAuliffe. 

Sometime during that time, I remember having a 
conversation with Walker Lowry, who encouraged me to leave the 
firm, because he said that in order to become a partner in the 
firm, you had to be in what he called the chain of command. 
And he pointed out that I was in the chain of command that was 
headed by Mr. Matthew, who did regulatory type of litigation. 
Under him was Gerald Trautman, and then under him was an 
associate named Frederic Sawyer, who was about one year, I 
think, my senior. And he said, "So you're never going to make 
it, because Sawyer will be the next person to become a 
partner. " 

I then talked to Mr. Adams, who was one of the senior 
partners and a very able, highly intelligent person. He 
encouraged me to stay. The irony of that was I became a 
partner in 1960, and Sawyer didn't become a partner for a good 
many years later and ultimately retired early from the firm. 



112 



But there were people, obviously, in the partnership 
during the 1950s who realized that the firm was going to have 
to change, that it would have to make opportunities for younger 
associates if it was going to hold them, and it would have to 
grow. That all came to a head about 1958, I think, when the 
firm leadership changed, and it was probably all due to Mr. 
Greene's foresight and his determination to put the interests 
of the firm ahead of his own. 



Shell Oil Company Case 



Hicke: 
Schwarzer ; 



Hicke: 



Schwarzer; 



Now we have to back up a little bit: your first assignment. 

I think the first major job was working with Mr. Adams on the 
West Coast antitrust case, in which the firm represented Shell 
Oil Company. All the major oil companies were sued by the 
government for price-fixing in violation of the antitrust laws. 
This was the classic antitrust case, which involved 
interminable churning of papers, huge amounts of discovery and 
motion practice. 

But as far as I can remember, I didn't get into the 
discovery side of it. I was always writing memoranda and 
thinking about the theoretical aspects of applying the 
antitrust laws to the West Coast oil industry. I remember 
writing a lot of memos and reading a lot of books about the oil 
industry. 



Was this just West Coast oil companies? 
worldwide sort of--. 



Because there was a 



Well, of course, they were always getting into problems over 
alleged conspiracies, the oil companies. And there was a lot 
going on. They obviously worked together in various ways. But 
this concerned price-fixing that affected the prices at the 
pump on the West Coast. 

In those days, of course, there were more oil companies 
and they were more regional. For example, Standard Oil of 
California was a West Coast oil company, not an international 
oil company. Some on the West Coast also had operations 
elsewhere, but Union Oil, for example, was just a California 
company. Texaco, I think, had operations elsewhere, and I 
think there was then a company called Tidewater Associated, 
which was a West Coast company. 



113 



Hicke: 



Schwarzer : 



Hicke: 



Schwarzer : 



It was just a regional market, and the charges concerned 
regional activities. It was a civil case, not a criminal case, 
It went on and on for a long time, long after I got out of it. 
In fact, I think the firm continued to work on it into the 
1960s. I think that Mr. Doyle took that case over later. 

Eventually, Shell did more and more of its own work, and 
I think our work for Shell pretty much came to an end by the 
late 1960s. I did some work for them in connection with labor 
relations, but it was very little. 

I always thought it was interesting that at the same time all 
this antitrust was going on, the government was trying to 
persuade the international oil companies to form a cartel to 
extract the oil in Iran. 

Oh, sure. Well, I think the attitude toward international 
operations was quite different, because that involved also 
American foreign policy. 



Yes, that's true. So what work were you doing? 
were writing memos . 



You said you 



I was just thinking and writing abstract memos about the 
antitrust laws and their application to the operations of the 
oil companies. I wrote them for Mr. Adams, and I doubt that 
anything ever came of them. He just wanted me to think about 
it and educate myself. The idea, I guess, was to develop 
theories for defending the action. But I think ultimately it 
was settled. It never went to trial. 



Hicke: 



I remember doing some work for Mr. Thomas for a client 
whom he represented, the California Almond Growers Association. 
I don't know what I did. I know I had to go to Sacramento one 
time, and I decided it would save time if I drove my car up, 
which I did. Then when I put in for reimbursement, he called 
me in, and he said that I could have taken the bus for a 
fraction of what it cost to drive my car. Well, it's an 
illustration of the thinking of the law firm: they were 
preoccupied with things of that sort. 

But also not realizing that your time was involved. 



Schwarzer: Yes, of course. 



Stewart Hopps Case 



Schwarzer: The first big case that I remember being involved in was also 
with Mr. Adams. We were asked by a law firm in Providence, 
Rhode Island called Edwards & Angell to pursue a man named 
Stewart Hopps, who had been the president of the Rhode Island 
Insurance company- -the company was a client of Edwards & 
Angell--and he had basically bankrupted the company. It was 
believed that he had made off with large amounts of money that 
belonged to the company. I think he had a history of 
defrauding companies. 

Hicke : He was an officer of the company? 

Schwarzer: He was the president of the Rhode Island Insurance Company. 

Hicke: Yes, I thought that's what you said, but I find hard to believe 
that somebody would hire him if they knew his background. 

Schwarzer: It's not hard to believe. Insurance companies attract 

fraudulent operators like honey attracts bees. Just read the 
paper today look at Prudential, for example, or Bankers Trust 
Company. Where there's a large amount of money around or to be 
had, dishonest people will appear, and they always seem to find 
ways of perpetrating schemes without being caught, at least for 
a while. 



Hicke: 



I don't know that there was any more fraud then than 
there is now. I rather doubt that there was more then. But in 
any case, Stewart Hopps was fired, and he moved out to 
Belvedere [California] , and he built this extraordinarily 
expensive, elegant mansion. Because he was out here, Rhode 
Island Insurance Company decided to sue him out here for breach 
of fiduciary duties, theft, and misappropriation. 

I remember that my wife and I were just about to take off 
for the Fourth of July holiday when the company decided that 
they wanted the case started, right then and there. I remember 
canceling our trip--I think it was in '55--and getting all the 
papers ready to be served. And what struck me then was that 
you learn a lot of law in law school, but you don't learn 
simple things like how do you get a summons, and how do you 
serve a complaint and what are the little technical details 
that are involved in bringing a lawsuit. It was a nightmare. 
I think I lost a lot of sleep and worried a great deal before 
we finally got those papers served. It was a very elaborate 
complaint . 

Which forms to fill out, I suppose, is a problem. 



115 



Schwarzer: Yes, and how do you get a summons? And what's the proper form 
of service? Those were the kinds of things that I didn't know 
anything about, should have but didn't. 

Hicke: How could you know unless somebody showed you? 

Schwarzer: Well, you know, that's not what law schools are for. But on 
the other hand, when you get out of law school, it would be 
nice if you could be prepared to do some of these simple 
things. But anyway, I learned. That case got us involved in a 
lengthy campaign of pleading technicalities, motions, 
discovery, which as far I can recall got nowhere. 

Hopps was represented by Jake Ehrlich, who was probably 
the premier criminal defense lawyer at that time in San 
Francisco, and maybe the most flamboyant. He was assisted by 
Heller, Ehrman, White, and McAuliffe. Of course, the fact that 
Hopps would retain Ehrlich sent a kind of message that he 
recognized he was in serious trouble. We were in the Superior 
Court in Marin County in San Rafael. 

I remember spending a whole day arguing a demurrer, the 
defendant's demurrer to the complaint. You don't do those 
things anymore. There's no way you can afford to spend a whole 
day arguing over pleading technicalities. The partner at 
Edwards & Angell who was responsible for the litigation pursued 
a strategy which got the case bogged down. And as I sit here 
now, I don't know that any money was ever recovered. He took 
lengthy depositions of Hopps and others. 

One of the conclusions that I drew from that experience 
was that lawyers who customarily defend cases are not very good 
plaintiff's lawyers. You have a whole different mind set. 
When you are a defendant, you want to cover all the bases. You 
want to pursue all of the avenues that are open to you. You 
want to take lengthy depositions and dig out all of the facts. 

But when you're a plaintiff, you should have a much more 
limited objective, and try not to get distracted but get to the 
point where you have the defendant in a position where he will 
feel that he's better off getting this case settled than going 
on. We never had this clear-eyed vision of where we wanted to 
go, how we could get there most directly in prosecuting this 
case. 

It cost Hopps a lot of money to defend it, but I don't 
know that he ever paid anything to the company. He died 
somewhere along the line, and I don't know whether he died 
before the case was over or afterwards. But it never went to 



116 



trial. It may have been settled for a modest amount, but I was 
out of it by then. 

Hicke: McCutchen normally took the role of defendant? 
Schwarzer: Yes. Corporate law firms generally defend cases. 



Schwarzer: We did have plaintiffs' cases in the Mono County litigation, of 
course. I can remember some litigation we had over the 
Stephenson Estate we had on a contingent fee. But those were 
the exceptions. 



McCloud River Railroad Company 



Schwarzer: I remember the first case that I ever tried. We represented a 
small lumber-railroad company, the McCloud River Railroad 
Company, which served a mill near Mt . Shasta. It operated 
through the timber country, but also between the Western 
Pacific and the Southern Pacific railroads. It was quite a 
profitable railroad, because the Western Pacific and the 
Southern Pacific would pay them part of the long-haul freight 
for the lumber that was being transported out of the area 
operated by the McCloud River Lumber Company. They were 
extending their line and building a bridge across the Burney 
River. 

Hicke: The railroad company? 

Schwarzer: The railroad company was. They had a contract with Judson 

Pacific Steel Company to put the bridge up, and it was a girder 
bridge. The contract was a cost-plus contract. In the course 
of construction, the contractor was hoisting one of the 
girders, and the winch used to hoist it slipped, the ratchet on 
the winch didn't stop it, and so the girder fell into the 
river. The railroad maintained that doing it over again was 
the construction company's expense. And the company said, well 
it's a cost-plus contract and this is just a cost. The case 
was turned over to me. 

Hicke: This was when you were working for Allan Matthew? 

Schwarzer: Actually Trautman was the partner who represented that railroad 
company. There was no law on this point. It had never been 
decided whether, on a cost-plus contract, an error which is 



117 



clearly due to the negligence of contractor although it could 
have been an act of God, but that's a little hard to argue 
since the contractor had control of the winchwhether an act 
due to the contractor's negligence is reimbursable under cost- 
plus contracts. It seemed to us it couldn't be. 

We tried this case before a court it was not a jury 
trial in Oakland. Judson Pacific [Steel Company) was 
represented by a lawyer who was a very well-known and very 
experienced lawyer, who had represented the steel and 
construction industry for a long time. That's a rough-and- 
tumble industry, and they like rough-and-tumble lawyers. He 
was very experienced and aggressive, and he gave me a terrible 
time . 



Hicke : What was his name? 

Schwarzer: Gerry Heafy. 

Hicke: These are courtroom tactics that you were talking about? 

Schwarzer: Oh, yes, cross examination of witnesses. I don't think we had 
much discovery; in those days cases pretty much went to trial 
without a lot of discovery. He would succeed in disrupting my 
cross examination, and he would go after my witnesses, and he 
would come up with questions for which they weren't adequately 
prepared, and all that. It was a great experience. 

Well, ultimately, the judge decided to rule in my favor, 

and he told me to prepare findings of facts and conclusions of 

law, which I did. I took them out there to sign, and the judge 

looked at them and said, "You know, I still don't know whether 

I'm making the right decision here or not." I was worried that 
victory was going to slip away, but he did sign. That was a 
wonderful trial experience. 

Hicke: Did that make case law then of some sort? 

Schwarzer: No, it wasn't reported, it was just a trial court decision. I 
don't think they appealed. So that was the end of it. I think 
we got our $50,000, or something of that sort. 



118 
Greyhound Corporation 



Schwarzer: During that time we did quite a bit of work for Western 

Greyhound Lines, transportation work, and most of that was 
before the public utilities commission. We would have hearings 
about routes that Greyhound wanted to serve or that they would 
want to abandon, or about routes that prospective competitors 
wanted to serve that we would protest. 

The bus business was highly regulated; you couldn't get 
in without having a certificate, and Greyhound was the dominant 
carrier. There wasn't much competition, and they were very 
assiduous in keeping out competitors. But at the same time, 
they were also very active in trying to get out of running 
unprofitable routes. So from time to time, they would try to 
abandon routes, for which they had to get authority. And then 
there would be, of course, a lot of protests from the riders. 
These cases involving applications and protests, involved lots 
of witnesses. 

They were great, because there was never any pre-trial 
discovery. You went around and tried to find out who the 
witnesses would be, and you would interview them. But usually, 
all you could do was get your own witnesses and take your 
chances on what the opponents would say and be prepared to 
cross examine them at the hearing. The hearings would be 
before hearing examiners, and they were held all over the West. 

I did a lot of those, and that gave me a lot of courtroom 
experience, although these were not jury cases and they were 
before administrative law judges. But you learn to prepare 
witnesses, to put them on the stand, to protect your own 
witnesses, and to cross examine the other side. 

Also, I did more of this kind of work later before other 
agencies like the Interstate Commerce Commission and the 
Federal Trade Commission, but it persuaded me that you can have 
perfectly good adversary proceedings without a whole lot of 
discovery. That was one thing that came out of it. The other 
thing that we gradually developed was the practice of 
presenting the direct examination of all the witnesses in 
writing, in advance, so that people would have the written 
testimony, and the hearing would be basically cross examination 
of the witness on the basis of his direct examination, which 
you had in advance. 

That was something that I ultimately instituted in my 
court when I became a judge, where it was practical to do that. 



119 



So those were educational experiences, and they were fun. It 
was lively, because you weren't dealing with past history; you 
were dealing with the future. 

I remember that we had a big case in Half Moon Bay over 
an unprofitable bus route, which Greyhound wanted to abandon. 
Lots of opposition there. 

We had a hearing in Monterey and Carmel. We represented 
a small bus company which was fighting to keep a competing 
sight-seeing company out of there. We had all sorts of 
witnesses from motels, chamber of commerce, and other people. 
I think what happened was that we represented this little 
company that was running a bus service and sight- seeing, and 
the Gray Line wanted to come in. We were trying to keep the 
Gray Line out, and, I think, at the time succeeded in doing 
that. 

Hicke: I thought you were working for the Gray Line. 

Schwarzer: No, Gray Line was a separate company, which was later acquired 
by Greyhound, and then we did work for Gray Line much later. 

Hicke: Okay, thanks. 

Schwarzer: So, that was some of my litigation experience, before I became 
a partner. 

Hicke: You said you did succeed in keeping them out? 

Schwarzer: Yes, I think we did keep them out for a while. That has all 
changed now, because today the transportation business is 
almost totally unregulated except for safety and hours of 
service by drivers, safety requirements for equipment. But 
these expensive procedures to obtain certificates of public 
convenience and necessity, I think, are pretty well a thing of 
the past. The transportation business is highly competitive, 
and entry is quite easy now. That's all I can remember of the 
work that I did in my early years before I became a partner. 



Allan Matthew 



Hicke: There's one thing you said in your notes about working for 
Allan Matthew. 



120 



Schwarzer: Oh, that's true. That was an experience. I didn't do much 

work for him, but when I first came, we represented the Western 
Pacific Railroad Company, the operating company. There was 
also a holding company, the Western Pacific Railroad 
Corporation, that was represented by the Brobeck firm. This 
litigation was between the Western Pacific Railroad Corporation 
and the Western Pacific Railroad Company over who would be 
entitled to the benefit of the tax loss that resulted from the 
bankruptcy of the operating company. 

There was a lot of money at stake. I remember that when 
I first came, we were working on the appeal in the Ninth 
Circuit. One associate spent the entire summer working on one 
footnote in the brief. It was a very esoteric case. And quite 
a number of partners worked on it. But I remember this one 
footnote taking a whole summer's time. Eventually our client 
won. 

Hicke: It must have been complicated. 

Schwarzer: It was very complicated. And Mr. Matthew used to like to take 
us to lunch at the Lochinvar Room in the Mark Hopkins [Hotel] ; 
that's long-gone, but it was a wonderful place with a Scottish 
motif. I think he would take Sawyer and me to lunch, and 
sometimes Trautman, and try out on us his various theories 
about this case. 

Mr. Matthew was like no lawyer that I ever knew. Here we 
had what was just basically a tax and corporate law 
controversy, but to him it was a fundamental moral issue. 
Every case he ever worked on was a moral issue. There was 
right and wrong, and he was always on the right side. I always 
felt that was a dangerous way to approach legal issues, because 
when you confuse the law with your moral notions, you get on 
slippery ground. That was a lesson that I learned from that 
exposure: that you treat a legal dispute as what it is, most of 
the time, and that's as a dispute over money. 

Now that's not to say that there aren't civil rights 
cases, in which there are moral implications and they're 
important. But in the kind of litigation that McCutchen was 
involved in, morality had very little to do with the proper 
resolution of the issues, and it gets in the way when you're 
trying to achieve a reasonable settlement. 

Hicke: Did he try to fit his theories into the facts, or vice versa? 

Schwarzer: Well, I suppose it becomes a matter of not changing the facts 
but viewing the facts in a framework that supports the 



moralistic reasoning, 
give to that. 



121 



I think that's the best answer I could 



Hicke: I guess I'm really thinking about history, where you can 

emphasize and de-emphasize facts to bring out whatever sort of 
structure you want, and that's probably not the case in these 
legal disputes. 

Schwarzer: Oh, I think that a legal dispute is as much as anything a 

statement of the history of how you got there, and history is 
viewed very differently depending on the perception of the 
viewer. So it's not dissimilar from the discrepancies that you 
run into when you read history. The description of past events 
by one side of a controversy can be diametrically different 
from the description given by the other side. 



Morris Doyle: The Way to Practice Law 



Hicke: Right. Then there was also the U.S. Steel case that you were 
working on with Morris Doyle. You didn't tell the part about 
the extension that the plaintiff had asked for. 

Schwarzer: Oh, that. Yes, I think this is a case that came up before I 
became a partner. We did a fair amount for U.S. Steel, which 
then still had a plant in the Bay Area as well one in Geneva, 
Utah. This was a personal injury case, involving a seaman on 
one of the ore ships that U.S. Steel operated. 

1 was defending that case, and the plaintiff's lawyer had 
not done much on it; it had just been sitting there. In 
California, there is a five-year limitation that requires a 
plaintiff to bring the case to trial within five years of the 
filing of the complaint or the case must be dismissed. 

I think it was day or two before the time ran, the five- 
year time, that the plaintiff's lawyer called me and said, 
"Will you give me an extension?" I said, "Well, I don't really 
think I should. There's no reason why I should do that." And 
I think we left it there. I went to see Mr. Doyle, and I was 
very proud that I had just about won this case by default, and 
told him what had happened. He said, "That's not the way we 
practice law. We don't take advantage of our opponents." So I 
had to go and give him this extension. 

That was a memorable experience, and I have at times in 
recent years related that experience when I've talked at 



122 



continuing legal education programs about professionalism and 
lawyer ethics, and about the adversary process. People are 
absolutely astounded. The usual comment I get is, "I suppose 
you then checked with your malpractice carrier after having 
done that." [laughter] 

Hicke: Would that in fact be a problem today? 

Schwarzer: It's unlikely that somebody would give a continuance under 
those circumstances today, and it's not out of the question 
that a client would hold you responsible for doing that. But 
that's really an illustration of how the law practice has 
changed. I can't say that other lawyers would necessarily have 
acted the way that we did in that case. But that was not out 
of the ordinary. You just didn't take advantage of your 
opponent . 



Learning to Litigate 



Hicke: How did you actually learn how to be a litigator? 

Schwarzer: Just practice and exposure. 

Hicke: Did you go and observe other people? 

Schwarzer: I had some limited experience sitting as a second chair in some 
minor matters with Trautman. But I think that we as associates 
had very good training at McCutchen on the paper side, that is, 
analysis and writing. Briefs didn't go out, for example, 
pleadings didn't go out, without very thorough examination by 
the partners for whom you worked. But people did not have a 
lot of courtroom experience, and the reason why is that we 
didn't represent corporations that had a lot of small cases 
that you could give to young people to try. 

Now at Pillsbury, lawyers had small cases from the phone 
company and Safeway and Standard Oil. We didn't get that sort 
of work. The closest thing to the small cases were these 
Greyhound route cases on which I worked, and so I got courtroom 
experience by doing those cases. I argued a lot of motions, 
but I didn't try a jury case until about three years after I 
became a partner. I really didn't have a full blown trial 
until that time. 

The irony of that was that we represented Chrysler in 
their dealer disputes. That client was handled by Walker 



123 



Lowry; he was the one who was trying their cases. I had never 
worked for him. But when one of these cases, Harvey Motors 
versus Chrysler in Oakland was scheduled for trial in the 
federal court, Walker had already decided to resign from the 
firm, as I mentioned earlier, and I was the most promising 
partner around to take over that case and try it. 

So, I went in to try this jury case on relatively short 
notice, and I was held out to the client as an experienced 
trial lawyer. We didn't tell them that I never tried a jury 
case before. That's pretty much the way things operated in our 
firm and in most corporate law firms you didn't really get 
trial experience until you were pretty well along, when people 
assumed that you're already experienced. 

Fortunately that case went reasonably well, and 1 won it 
by the skin of my teeth. Chrysler became a good client, and we 
did other work. But you just learn by doing, and there were 
limited opportunities for doing, because too many of the cases 
we had were big cases. 



Passing Work Down to Junior Lawyers 



Hicke: 



Schwarzer : 



I wanted to touch on that subject, as to how work was handed 
down from say the major lawyers in charge of the cases, how the 
lawyer passed the work along and how the client reacted. 



That's the most difficult problem probably that 
faces. To a degree, business comes to the firm 
it was because the client, and in our case very 
law firm or a lawyer in the legal department or 
was looking to a particular partner in the firm 
work, because he thought well of that partner's 
confidence in him. 



a law firm 

But generally 
often another 
corporation, 
to handle the 
work and had 



But, of course, on that theory, following that approach, 
you can never bring anybody along, and there would also be far 
too much work for the lawyer who is attracting business to 
handle. So it's the job and the responsibility of the lawyers 
who generate business to try to bring others in and work them 
into the chain of command and get the client to accept the 
younger lawyer. That's just common sense, although it's not 
easy. It's not easy to persuade the client and then back up 
your juniors when the client might not be totally satisfied. 



124 



It's also demanding on the ego of the partner who has 
attracted the business, who wants to keep a hand on that, keep 
a string on it, and not give it up. On the whole, that worked 
quite well in our firm. Trautman was very good in handing 
cases to me, when we were working with Greyhound and the Lucky 
Lager Brewing Company. Some of the cases I had were handed to 
me by Doyle, and minor matters came from other partners. 

Some of the business came to me directly, although that 
was later on, and I couldn't always be sure how something came 
to me, there may not have been any kind of formal handing over 
by a partner. The client may have talked to a partner and then 
called me, possibly. 

But to tell the truth, I felt that toward the end of my 
time at McCutchen, I wasn't really satisfied. I thought there 
was work in the firm that I could have done better than others 
who were doing it, and it wasn't handed to me, and that, in 
part, made it attractive to go on the bench. That's always a 
delicate and difficult problem, but on the whole, it worked 
well. Most of the time I had plenty of work to do. 

But it poses problems for senior partners, deciding which 
way to direct the business. If they don't direct to younger 
partners and take the risk, then when they retire the client is 
gone. 



Hicke: Does it then depend a lot on the individual, how smoothly it 
works? 

Schwarzer: Well, it depends on the nature of the case or client that's at 
issue, and on the relationships of partners. When a senior 
partner has a client with particular business, that senior 
partner has the difficult choice whom to bring in. It could be 
a real plum, and you can give it to somebody who is your 
protege, or you can bring in somebody who may be the most 
likely to do a very good job. You may also deliberately avoid 
giving it to somebody who you're afraid might displace you and 
in effect steal the client. 

Now those are the kinds of things that I think 
consciously or unconsciously go into the calculations. But as 
I say, I never thought that was a big problemat least not 
toward the end of my time at the firm. I inherited a lot of 
work when Trautman left, because I was the logical person to 
take it over. 



125 



And then I did work involving the Oroville-Wyandotte 
District. I guess that came through Feather River Railway 
Company, which I had been representing, and that came through 
the Matthew-Trautraan connection and mushroomed into a lot of 
work over the years. Those were major pieces of work that just 
kind of grew out of a situation. 



Social Activities and Billable Hours 



Hicke: Let me ask you a bit about your social activities as an 

associate. Did you have lunches or dinners or such things? 

Schwarzer: We went out to lunch together. The associates would generally 
go to Mannings Cafeteria on Market Street, long-gone. And then 
we had quite a lot of social activities, not organized, but it 
was a congenial group of people. I think really most of our 
friends were other associates, in particular the Hausers; they 
were probably our closest friends. 

Then an associate named Bob Edmondson and his wife were 
very close friends, and that led to the kind of problem that 
arises in a corporate firm when a close friend of yours is 
passed over for partnership. It creates a very difficult, 
uncomfortable situation. That was true in that case. 

We had a close relationship with the Abels; they were 
close friends. You know, as young couples, we did all sorts of 
things, but the only things that were organized were these 
anniversary dinners. I remember that. Then beginning around 
1960 or so, we began this practice of entertaining summer 
associates who were with us, and that of course grew into quite 
a big activity. We would have picnics and all sorts of things 
for summer associates, to make them feel at home and encourage 
them to come back to the firm. 



Hicke: 
Schwarzer: 



1 don't remember anything else particularly outstanding. 
Well, I guess it's fair to say that I really was quite 
dedicated to my work. [laughter] Those things I remember. 
And then, you know, we did other things. We went skiing and 
went on a few trips. But until I became partner, I was really 
pretty single-minded about keeping my nose to the grindstone. 

How many hours did you work a day, or a week? 

Oh, I don't know. We certainly worked Saturdays. Saturday 
morning was a regular part of the work week until some time 



126 



Hicke: 
Schwarzer : 
Hicke: 
Schwarzer: 



around 1960, I guess. I suppose I'd work from eight-thirty to 
six. And we did work nights; that was not unusual. We used to 
eat at Jack's Restaurant. The firm would pay for your dinner. 
It was a very nice place to eat. I guess it has gone out of 
business, and it's being revived now by new owners. I haven't 
been there. That was the place where lawyers would eat 
occasionally at lunch, and it was a good place to eat dinner. 

We also went to Schroeder's, which is still there, the 
German restaurant. We put in a lot of hours, but that wasn't 
the way we were judged. We didn't have to meet a minimum as 
they do now. When we evaluated people's performance, we would 
try to avoid comparing people's hours, because the fear was 
that by looking at quantity, you would diminish the importance 
of quality. 

There was always the problem that some people put in an 
awful lot of hours, but you couldn't charge for it. When you 
looked at the bill, you didn't just automatically multiply 
hours by the hourly rate, although that was the basis for 
computing bills. We always considered whether the time was 
well spent, and if you had an associate who spent a hundred 
hours on some little research project that in the end didn't 
make a whole lot of difference, you just couldn't charge for 
that. 

So, at least as important as the number of hours the 
people put in were the number of hours that would have to be 
written off, or the perception of the amount of time that had 
to be written off for associates because of the fact that they 
were inefficient. Hours were not the key element of success. 
That's not to say that we didn't put in a lot of hours, but you 
tried to put in hours that could then be charged. 

How were the hours charged? 

What were the rates in those years? I don't know. 

Well, and how were they calculated, if not on actual quantity? 

Every day you would fill out a time slip. Every day you would 
write it in your diary- -everything you worked on and the amount 
of time you spent on that particular matter. Then the 
secretary would type up the time slips. There would be a 
separate time slip for each client and matter that you worked 
on that day, and then the time slips would be assembled. 

When you came around to billing a client for a particular 
matter, all the time slips for that matter would have been 



127 



Hicke: 
Schwarzer : 



bound together. You take those and you go over them; you add 
up the hours. But you also look at what the hours were spent 
on, and the bill would itemize to some extent the work that was 
done, not the number of hours on each. 

Also you would look at the time that was spent on the 
particular parts of this assignment. You would multiply that 
lawyer's hourly rate by the time that he put in; then you would 
see whether that comes out at a reasonable number. You might 
write it down, or if it was very successful, you might add 
something to the bill to reflect the favorable result. 

I think hourly rates were pretty modest. I think that 
when I started, the rate for an associate was probably about 
$25 an hour; maybe for a partner around $50 an hour. That's my 
best recollection. And they didn't go up much for quite a long 
time . 

Do you think now we've covered the associates' part of it? 
That's about all I can think of right now. 



Secretarial Help 



Hicke: I guess I have to ask you something more: did you have 
secretarial help? 

Schwarzer: We shared secretaries. You didn't have your own secretary 
until you became a partner. I think that when I started, 
probably two associates had a secretary. It's hard to imagine 
what it was like. Everything was done using carbon paper. It 
took a lot of time to get something out, typed, because if 
there was a mistake, you would have to erase all the carbons, 
and if you wanted to change and revise a memo, it had to be 
done over again. 

About the time when I came, the thermofax machine first 
came in. That was the first copying machine. You could copy 
one sheet at a time. It was very slow and inefficient, and the 
copies would come out on thermofax paper. I don't know if you 
ever saw that paper, but if you left it out in the light, it 
would fade away. 

Hicke: I remember, yes. 



128 



Schwarzer: So producing letters and memoranda and pleadings was a major 

undertaking and very labor-intensive. So you needed all those 
secretaries. I think one secretary who was there then and 
worked for Mr. Doyle still works for him. I think she's still 
at the firm. 

Hicke: I think she is. 

Schwarzer: Ms. Railsback. 

Hicke: Yes, Helen Railsback. Any others that you can remember? 

Schwarzer: Eva Borak was there. I don't know whether she's still with the 
firm or not. She worked for Mr. Brown, who died a few years 
ago. 1 don't think anybody else is around. 

Hicke: Did you have any problems getting your work done in a hurry 
when necessary? 

Schwarzer: I don't recall. I remember the secretaries 1 had after I 
became a partner, but I don't remember anything about the 
secretarial work. Actually, now that I think about it, it may 
be that we actually had a secretarial pool for associates 

Hicke: Did you have to proofread everything, or did somebody else do 
that? 

Schwarzer: No, I think we did our own proofreading. I don't think we ever 
had a proofreading editorial staff. I think that at Pillsbury 
they did that. But the firm didn't have that. 



Pro Bono Work 



Hicke: I don't know if we covered everything under associates or not. 
Anything else that you know about, such as other work not done 
by you? I mean work that you weren't involved in but that was 
particularly significant. 

Schwarzer: Well, I was trying to think whether there was any such thing as 
pro bono work at that time. 1 think that we probably did work 
for institutions such as a hospital or some such organization 
with which a senior partner had some connection, but nothing 
comes to mind. And I don't know of any instances where 
associates did pro bono work, although it's likely that 
somebody did some pro bono criminal defense work. 



129 



Hicke: 



Schwarzer : 



The way it worked in those years: if you went out to the 
federal court and sat in the courtroom waiting for your case or 
your motion to be called, a criminal case came up, the 
defendant plead not guilty, the judge would look around, and if 
the defendant didn't have his own lawyer, he'd pick somebody he 
knew in the courtroom and assign him to defend that person. 

I know Judge [Alfonso] Zirpoli did that, and others too. 
So in that way, some criminal defense work was assigned to 
lawyers in corporate law firms. But 1 have no recollection of 
any specific instance where that happened. And I don't recall 
any pro bono work being done by us, but it may well have been 
that there was some. It was not a big factor in those times. 

Now I think you've pretty well wrung me out on that. 

Now maybe we just have time for you to tell me how you found 
out you were going to become a partner, and then we'll start 
next time with your work after that. 

In June, 1959, we were building a house. It's the house that 
we still live in. We were getting close to the end of 
constructionthis is really silly--and my wife called me and 
said there was a question about whether to put in a disposall 
in the kitchen, and I was a little skeptical about it. I said, 
"Well let us think about it." 



Then I got a call from Trautman, and I went in his 
office, and he said, "You're going to be a partner at the end 
of the year." They had just had a firm meeting, I guess, 
although it wasn't official. I remember that I called her back 
and told her to put in the disposall. [laughter] 

Hicke: Oh, that is a great story. 

Schwarzer: So that's how I found out. That was in June, and then in 

December, it was formally announced. Of course, I didn't know 
it was coming. I had been encouraged to stay on; I thought I 
was doing well. But there was no assurance at all. 

Hicke: You didn't see it coming? 

Schwarzer: No. There were six of us. John Hauser, mainly an antitrust 
lawyer, Norman Richards, who is retired now, Al Moorman. 
Richards was an admiralty lawyer who is retired now. Al 
Moorman was a corporate partner, working on Stanford matters, 
who died a few years ago. Mortimer Smith, who became a probate 
partner and was ultimately retired, and he died some years ago. 
And Derk Teroller, who essentially did oil lease work for Kern 



130 



Hicke: 



County Land Company, and he died some years ago. John Hauser 
is retired from the firm now, although he still does some work, 
So, I'm the only person left of that class who's still working 
full-time. 

Okay, good place to stop. 



1960: The Firm Moves Its Offices; A Watershed Year 

[Interview 5: July 23, 1997] 



Hicke: We left off in 1960, and you told me you had a new house 

complete with disposall, and you had been made partner. You 
also mentioned that the firm moved in that year, and perhaps 
you could tell me a bit about how and why that happened. 

Schwarzer: There was a new building under construction at the corner of 
California and Kearny Street, designed by Anshen 
and Allen. The owners were Natomas Corporation, which also was 
the holding company for American President Lines, which was a 
client of the firm. I guess in part because of that 
relationship, but also because, as I said, about 1958, the firm 
began to move toward a new era and to change its image and 
approach to the world, it was decided to move out of these old, 
really inadequate quarters in the Balfour Building to a new 
building. And that was the logical place to go. This was 
almost the first of the new office buildings going up in San 
Francisco. The first one was the Equitable Building on 
Montgomery Street, at the corner of Sutter, and I think 
Bethlehem [Steel] built a building on lower California Street. 
This then was in this small group of new buildings going up in 
San Francisco. 

I was put in charge of the move. I think the partner in 
charge, as I recall, was Walker Lowry, but I did all the work. 
I was interested in doing it. It was a wonderful building, and 
it gave us the opportunity to create a modern office that was 
efficient and aesthetically pleasing and a comfortable place to 
be . And that ' s how it turned out . 

We retained architects, and they incorporated novel 
ideas, such as secretarial stations outside of the lawyers' 
offices. All in all, it was an excellent layout. I remember 
that one of the issues on which I succeeded was a novel idea 
that there would be only one carpet throughout the whole 
office. People would not have individual carpets or rugs. 



131 



Hicke: 
Schwarzer : 

Hicke: 

Schwarzer: 

Hicke: 

Schwarzer: 



Hicke: 
Schwarzer : 
Hicke: 
Schwarzer: 



Well, I guess they could put rugs over the carpet, but there 
was just one carpet. We spent a lot of time selecting it. It 
was a handsome brown tweed carpet that unified the appearance 
of the office; that was something new. 

I think we used some exotic woods on the doors and the 
secretarial stations. One of the nice parts of the office was 
that it had doors that went to the ceiling. So it didn't look 
like somebody just punched a whole in the wall, but the door 
really was an integral part of the design. It was a great 
place. 

I don't remember when we moved in, but it must have been 
early 1961. The firm stayed there until 1976; then it moved 
about the time I left the firm. 

What exactly did your work involve? For example, did you have 
to deal with the architects in the planning? 

Yes, yes. I was the contact person for the architects. We 
designed the size of offices, the whole layout of the floors, 
the conference rooms. 

Did other people have input? 
Yes. 

Somebody could say, "I really have been unhappy with what I had 
before, could I have this and this?" 

There were discussions, but fortunately, nobody interfered with 
our achieving the objective of having a well-designed, 
attractive office. So it went smoothly. There were no 
problems that I recall. It was a rewarding, but also time- 
consuming experience. I still have a clock on my desk that the 
firm gave me. 

As a thank you? 
As a thank you. 
And you were building your own home at the same time? 

Oh, no, we had moved in by then. But I guess I've always had 
an interest in design and construction. We had an architect 
build our house, and we've done various renovations over the 
years. I always seem to think of ways of improving on 
buildings. So that's been sort of a hobby for me designing 
and building homes and offices. 



132 



Hicke: Also, you started to tell me about the fact that this was a 
watershed year for the firm. 

Schwarzer: This gave us a whole new image and a whole new outlook. I 
don't know that I can give you anything specific. But it 
really had an impact, I think, on the firm- -moving from these 
really dilapidated old quarters to a shiny new office. It made 
a real difference. And, of course, the firm had a new name, 
and there were new partners, and we were then hiring some very 
good new associates. 

Now, I can't say there was a significant change in the 
work, but there was certainly a significant change in the whole 
attitude and outlook of people who were working there. 



Management and Administration 



Hicke: Who was heading the firm now? 

Schwarzer: Mr. Doyle was the senior partner in the firm. But he worked 
closely with the other name partners, Enersen and Brown. 
Around 1962 or 1963 the firm name was changed again, and Mr. 
Trautman's name was added to it. So it became McCutchen, 
Doyle, Brown, Trautman, and Enersen. That name was retained 
until Trautman left about 1966, and the name has remained the 
same since then. I think there is a general sense that it's 
desirable in the interests of continuity not to change the 
name. 

Hicke: Now maybe we can talk a bit more about the administration and 
how that's changed over the years. 

Schwarzer: Well, 1960 was still long before computers came into being. I 
think it was about the time the xerox machine came out; if I 
recall correctly, I think about that time we had xerox machines 
in the office. And we had improved reproduction machines, the 
Multilith machine, which were more efficient. I'm sure that we 
had a modern telephone system installed when we moved. 

But computers did not become a factor until later in the 
sixties. I recall that then we went over to a system of punch 
cards. 

Hicke: IBM [International Business Machine] cards? 



133 



Schwarzer : 



Hicke: 



Schwarzer: 



IBM. We used to take our time records down to the IBM Service 

Bureau, I think in the Ferry Building, and they would punch the 

cards. They turned out automated time records, I think maybe 

every day, every night, something like that. But I never had 
anything to do with computerization. 

I don't think it came to the firm until after I left, but 
the format of our time summaries that we would get in order to 
prepare bills, those changed when we used the Service Bureau. 
I don't recall that we investigated computers or that I was 
involved in any changeover to computers. 



How about partnership meetings? 
can you tell me about them? 



You were now attending those; 



Yes. When I entered the firm, the firm had, I believe, weekly 
partner meetings at the then Palace Hotel, now the Sheraton 
Palace. Those were quite formal, pleasant occasions. But that 
didn't last very long. We moved from the Palace, I believe, to 
hold our meetings at the Commercial Club on California Street. 
I believe the frequency was reduced to once every two weeks. I 
think it continued at that rate. 



I remember partners' meetings, but I don't have any 
particular impression of anything significant in connection 
with the meetings. They were fairly routine. Then the firm 
had an annual meeting of partners at the Del Monte Lodge in 
Pebble Beach, the last weekend in April. I remember the first 
one because that was an exciting event to go the partners' 
meeting down there. 

I remember going down in Mr. Adams' car and with John 
Hauser. Mr. Adams was so absorbed in telling us whatever he 
was telling us that he actually got lost, and we ended up in 
Salinas instead of Pebble Beach. [laughter] 

The main item of business at those meetings would be 
decisions about taking in new partners. There would be fairly 
lengthy discussions. But in the first part of 1960, not much 
was happening. We didn't take in partners every year, but 
nearly every year. The firm was definitely expanding during 
the 1960s. 



All the meetings were presided over by Mr. Doyle. That 
continued certainly during my time in the firm, and I think 
only recently did he cease to be the presiding officer. Even 
after he retired, I think he presided for a while, because he 
was a very good presiding officer and had the right personality 
and was widely respected. 



134 



Aside from that, I think the most notable activity was 
playing golf, which 1 never mastered, and playing poker, at 
which I wasn't much better than golf. But it was a festive and 
collegial occasion. 

At that time the partnership was only about twenty to 
twenty-five partners. As it increased, as it grew, of course, 
the atmosphere changed, and inevitably it wasn't as collegial 
as it seemed when I first came in, but it was still a pleasant 
occasion. 



Expansion and Hiring 



Hicke: When the firm started expanding, it's always interesting to me 
to know which came first: new associates and partners, or work 
demanding more associates and partners. 

Schwarzer: It demanded both. Some people became partners because they had 
demonstrated a record of excellence. But in the latter part of 
the 1960s, there were some people who were proposed and then 
admitted frankly because of the fact and the sponsoring 
partners made no bones about it--that they simply needed to 
have a partner to assist in handling certain large cases. 
Those people did not necessarily turn out to be assets to the 
firm. So there definitely were some compromises that were made 
because of the need for additional help. 

People, of course, did not necessarily agree on who were 
the excellent people and who were the compromise candidates. 
In some cases, they did. Becoming a partner was always a 
matter of having strong sponsorship. So associates who had 
worked for a number of partners around the office and 
established their credentials had a much stronger case going 
for them than people who had only worked for one or maybe two 
partners . 

For example, this was a perennial problem in the Probate 
Department, because associates working in the Probate 
Department generally did not work for anybody else. So it was 
much harder for Probate to have partners admitted to the firm, 
because they would be narrow specialists and wouldn't come with 
the same credentials. Nevertheless, the Probate Department did 
expand, although that was always controversial. 

We never brought any partners in from the outside during 
the time that I was there, although we did bring in several 
lawyers who had worked for clients and whose position had been 



135 



eliminated. They came in as of counsel and worked with the 
firm for a while. Of course, that was also the time when the 
Los Angeles office grew substantially, because Los Angeles 
itself was growing much more than San Francisco was growing. 
That office did bring in a lateral partner from an oil company. 
That's a whole story right there about the Los Angeles office. 



The Los Angeles Office 



Schwarzer: The Los Angeles office had been created about 1928 to assist in 
the handling of the firm's admiralty work, which was a big part 
of the practice then. It, of course, declined over the years, 
because there were fewer ships, and with radar on the ship, 
they rarely collided; so there was much less admiralty work. 
Mr. Black and Mr. Harnagel were the original partners down 
there . 

After the war, when Los Angeles took off, that office 
took off. 1 don't remember the numbers, but around 1960, it 
had probably around twenty-five or thirty people. So when we 
met at Pebble Beach, we would be confronted with proposals to 
admit as partners associates who were recommended by the Los 
Angeles partners but about whom we knew very little. 

That was a constant problem that was aggravated by the 
fact that the San Francisco partners had a somewhat snobbish 
attitude. They regarded the lawyers in San Francisco and the 
operation in San Francisco as superior to that in Los Angeles. 
And so they looked askance at associates who were proposed for 
partnership in Los Angeles, and that was a source of some 
tension. Nevertheless, partners were admitted, and the Los 
Angeles firm, whatever people in San Francisco thought, turned 
out to be, for quite a number of years, a very successful 
litigating firm. 

About 1963 or '64, a conflict developed between the two 
offices. In San Francisco, a major client had become General 
Motors. But we also represented Chrysler, and General Motors 
insisted that we not represent their chief competitor. 
Chrysler was a respectable client in San Francisco, and I did 
their work about that time. But for Los Angeles, it was a 
major client; they did little work for General Motors, but they 
did a lot of work for Chrysler, and they were unwilling to give 
up Chrysler. 



136 



It seemed that there would be no possibility of 
compromise. So in the early sixties, the firms decided to 
separate. The Los Angeles firm became a separate firm. People 
in San Francisco, for the most part, did not regret the 
separation, although, I had mixed feelings about it. 

People in the maritime area worked well together and were 
sorry to see the office go. But there was no alternative. 
Ironically, in recent years the San Francisco McCutchen firm 
established a new office in Los Angeles and now has a sizable 
branch down there. Meanwhile, the old McCutchen firm in Los 
Angeles gradually went into a decline, particularly when its 
senior partner retired, and ultimately merged with a firm out 
of Cleveland, Baker Hostetter. I'm not sure that office still 
operates under the McCutchen name in Los Angeles. 

Hicke: Did it continue to use the McCutchen name? 

Schwarzer: Both firms used the name, yes, after the split. That was 
unavoidable, I think. The Los Angeles firm was McCutchen, 
Black, Harnagel, & Shea, and later McCutchen, Black, Verleger, 
& Shea. 

Hicke: That's good. That's a nice summation of that story. Although, 
they must have been making profits, which--? 

Schwarzer: Well, that was always the question. How could you accurately 
determine the profits? In a way, each firm was a profit 
center. But you could always argue over that, in part because 
if a client came from San Francisco and then the work was done 
in Los Angeles, should the entire credit go to Los Angeles? So 
there were arguments over whether the partners' shares in Los 
Angeles, the amount of income they were taking out, was greater 
than the amount of profit they were bringing in. 

There was never any answer to it. But it was a pain in 
the neck arguing about this, when it came around to allocating 
shares to partners. Nobody was ever satisfied. So the 
separation of the firms eliminated that source of tension. 

I don't know how firms do it now. Nearly all firms have 
operations in different locations. I'm glad I don't have to 
deal with it. 



137 



More on Hiring 



Hicke: You told me about making new partners, but what about hiring 

associates? Did you wait until the work came in and then hired 
them? 

Schwarzer: No, we hired every year. 1 did it, together with Brent Abel, 
and then gradually some other people. We started traveling to 
the law schools to interview. That was still a fairly new 
idea; a few firms were doing it. We would interview at 
Harvard. 

Hicke: When was this? 

Schwarzer: I started doing it when I was still an associate, about '58 or 
'59, maybe even earlier, I'm not sure. But 1 remember making 
several trips back there. So we would interview, and we would 
hire people both as summer associates and as permanent 
associates. The work clearly was growing. 

I think that individual partners would indicate their 
need or that they foresaw a need for one or more associates in 
the area in which they were working, and the hiring committee 
would take that into account and would, in effect, look for 
people to fill slots. You're right. That 1 think is done much 
less now, where people are hired in great batches, and I don't 
think they're hired for particular spots. But we did look for 
people to fit in particular spots. 

I don't know how many we would hire. I guess it would 
vary. Some years it might be three, four, maybe somewhat more, 
maybe some years it would be less. It would depend on how many 
people had accepted the offers. 

Hicke: Were law schools starting to offer more specialty graduates? 

Schwarzer: Not as much as they do now. Law school curricula were pretty 
standard. Everybody took pretty much the same thing. There 
was less preoccupation with litigation. Litigation grew 
substantially, of course, in the 1960s and seventies, but it 
wasn't such a dominant presence in the minds of law students as 
it is today. Most law students today think that they're going 
to go into litigation, either because they want to or because 
they think that's where the opportunities are. 

People weren't focusing on litigation to the same extent; 
they were just figuring they would go into a general corporate 
practice. But that changed with the growth of litigation in 



138 



Hicke: 



the 1960s. If you look at the numbers, the statistics of cases 
filed between 1960 and the nineties, litigation has grown 
astronomically. And that, of course, is reflected in the work 
of law firms and the law schools. 

And the courts, which we will get into eventually. 



Specialization 



Hicke: Since we're on this general theme, did you begin to develop 
specialty departments within the firm, or were there always 
departments? 

Schwarzer: Oh, there were certainly three major areas that were 

specialized. There was a Probate Department, and that was a 
distinct department. Well, there were more than three. There 
were two partners that were doing tax work exclusively, and 
that was distinct. There was a group of people that were doing 
corporate worksecurities work and securities-related work, 
and that was definitely distinct. Those people didn't 
litigate. 

Occasionally, young associates rotated around to give 
them more exposure to other department. The major area of 
practice was litigation, and it became more and more dominant. 
The firm never succeeded in developing a strong corporate 
department, and that was one of its continuing weaknesses, as 
was its dependence on litigation, which tends to bring you one- 
shot clients. 

One of the weaknesses in that connection was that the 
firm never had a banking practice, as I mentioned before. The 
large firms in the city, to a considerable extent, built their 
practice around the banks they represented, Wells Fargo, 
Crocker Bank, which is no longer, Anglo California-- 

II 

Schwarzer: We had Security Pacific for a while. When the Security First 

National Bank of Los Angeles acquired the Pacific National Bank 
in San Francisco in the early seventies, I think, they came to 
us and we began to do some work for them. That was good, but 
that didn't last very long, because that bank in turn was 
acquired by somebody else. 



139 



Bank of America always did their work in-house and only 
used lawyers outside sporadically, and used different lawyers. 
We didn't have a distinct relationship with a bank, but we 
would from time to time get particular cases from banks, or 
through law firms maybe because of a conflict, or for some 
reason. 

I remember having done some work for the Bank of America, 
but there wasn't the day-to-day steady comprehensive 
relationship, which brings a lot of business to a law firm. 
McCutchen never had that, and that, I think, in part, is 
reflected in the weakness of the corporate practice, which 
would be related to banking. 

Historically, we did quite a bit of water law, and that 
was something that Mr. Enersen did; that was his area of 
expertise. The maritime area--admiralty--was a specialized 
department. That was mostly litigation, but it was maritime 
litigation. That continues to be a profitable practice for the 
firm. I think that answers the question. 



Benefits 



Hicke: When did you start having retirement benefits, pensions, health 
benefits, and that sort of thing? 

Schwarzer: I remember that in the 1960s the firm began to discuss a 

retirement plan, and there was a plan that was adopted that 
provided for retirement at seventy, with partial retirement and 
reduction in percentages beginning at the age of sixty-five. 
It was mandatory at sixty-seven, optional at sixty-five. A 
person retiring would be entitled for the rest of his life to 1 
percent of the firm's income. 

Everybody was on the same basis. But then the tax laws 
were changed. First there was what's known as the Keough Plan 
that the firm adopted. That permitted you to set aside a 
modest amount of money before taxes, and it would be invested 
in some fund. Then you would have to start withdrawing it at 
age seventy, and at that time you would start paying taxes on 
it. That was sort of the early version of the IRA. 

Although it never seemed very significant, I remember 
putting a modest amount in there before I left to go on the 
court. Three years ago, I began to start withdrawing, and I 
couldn't believe how that modest amount had grown in twenty- 



140 



five years. If you start early enough, those pre-tax savings 
plans are very good retirement programs. 

Hicke: That served as the firm's retirement? 

Schwarzer: Yes. The combination of that and the 1 percent plan, until the 
tax laws were changed again, and then under the 401 (k), people 
could set aside as much as $30,000, and maybe even more, per 
year before taxes. That was after I left the firm. And when 
that came in, I think they phased out the 1 percent plan, and 
people made their own provisions. 

We had a health plan, which was very modest and really 
was what a health plan should be, and that is to deal with 
catastrophic medical expense. As I recall, it had a pregnancy 
benefit of, I think it was $50, or something like that. We had 
a relationship with the Palo Alto Clinic. But those plans 
gradually changed, and again, I don't think that these 
comprehensive medical programs came in until after I left the 
firm. I don't think there were any other fringe benefits. 

One of the policies the firm had was it wouldn't make 
charitable donations for causes that partners supported. The 
theory was that the firm should pay only for expenses which are 
necessary for its business, and then the profits would go to 
the partners and they could make their own decisions. That 
policy, I think, remained in effect all the time that I was 
there. 

Now obviously, you can't pursue that policy anymore, 
because today firms make contributions, which are really a form 
of genteel advertising, to all sorts of things, whether it's 
sponsoring a concert at the symphony or sponsoring other 
events. So I begin to see the McCutchen firm now associated 
with various charitable or cultural causes that are good 
advertising. 

Now the firm obviously puts substantial amounts of money 
into those kinds of things, but that was not done during the 
time I was there. Well, I suppose that also touches on the 
whole subject of pro-bono work. 

Hicke: Yes, that was going to be my next question. 



More on Pro Bono 



141 



Schwarzer: Lots of people in the firm did pro-bono work, largely for 

establishment causes. They were doing legal work say for a 
hospital or some cultural organization. There were lots of 
those. 1 can't think of what they were; I know I did some 
things. I helped out various organizations doing routine legal 
work. 

Hicke: I know Crawford Greene headed the board of the Legal Aid 
Society. 

Schwarzer: Crawford Greene, Jr., yes, for a lot of years, that's right. 

So, some people were very active. Mr. Enersen was very active 
in those kinds of activities: bar, community, and charitable 
activities. He was head of the United Crusade, head of the San 
Francisco bar, head of the state bar. And so was Brent Abel. 
I think Mr. Doyle was on the board of the Alta Bates Hospital 
for a long time and on the Stanford Board of Trustees. 

I must say I did very little of that. I was the chairman 
of the board of Marin Country Day School where our children 
went, and 1 was a member of the Marin County Aviation 
Commission. I was on the board at times and on the executive 
committee of the World Affairs Council. I was on the board of 
the Babcock Endowment. But that was about all. 

Hicke: Did those kinds of things involve legal advice? 

Schwarzer: Not really, no. 'So that's sort of sliding over into community 
activity. But to come back to legal work, as I mentioned the 
other day, there really wasn't any kind of organized program 
for providing representation for indigents. The Legal Aid 
Society did grow up gradually, and it provided civil assistance 
to people who couldn't afford lawyers. It was not a very big 
activity. It was pretty small still when I left. 

I don't recall that lawyers in our firm were taking 
cases, representing indigent criminal defendants. There might 
have been a very few appeals that were handled, but that was a 
rare thing. There was no structure to bring lawyers in the 
downtown firms into that kind of work. That all came later. 
And, of course, nobody had heard of environmental litigation 
nor other kinds of public interest litigation that became such 
a large factor later. 

I do remember being asked to help write a brief for the 
Democratic Party of Northern California on some issue that 



142 



involved the law requiring disclosure of the identity of the 
person sponsoring a political event. I remember working on 
that with Bill Coblentz; that was my only involvement with the 
Democratic Party, and it was one of the few pro-bono cases that 
I worked on. 

Hicke: How did you get that? 

Schwarzer: I guess he asked me to do this, I don't know. I certainly 

wasn't active in the party. So pro-bono really did not take 
off, like so many other things, until the late seventies, after 
I left. Nothing else comes to mind in that general area. I'm 
probably overlooking some things that we did, but I don't 
recall anything else now that touches on this subject. 



Hiring Women and Minorities 



Hicke: About when did you start hiring women? 

Schwarzer: I was trying to remember who the first woman was, who came to 
work for us. 



Hicke: After Hazel? 

Schwarzer: Oh, yes. I don't think we hired any woman until the 1960s. 
But I think in the early 1960s, we definitely started hiring 
women. I think the first woman to become partner was Susan 
Ogdie, who was a litigator. And right about the same time, 
Susan Briggs, who was a probate lawyer. 

Hicke: Did you hire them? 

Schwarzer: I don't recall. I'm sure that I hired some female associates, 
and I certainly was in favor of doing it. 

Hicke: Was there a lot of discussion about this? 

Schwarzer: Well, I remember that during the early 1960s, some partners 
would say, "Well, I'm all in favor of hiring women and 
minorities, but what would the client say? How can we protect 
ourselves? We don't want to take any risk in losing a client." 
That was the attitude. 

It's ironic in that I was told recently of a large client 
of a firm who insisted that the firm put an African American 
partner on the case. Not just an African American associate. 



143 



That's how much things have changed. Of course, now there are 
lots of women who are corporate general counsel at law firms 
who insist that women be put on cases by their law firms. 



But progress was pretty slow at the time, 
uphill struggle for a while. 



It was an 



Two particular women associates stand out in my mind. 
One was a young woman who came to us from Columbia 
[University], who had a good record at Columbia. I didn't hire 
her, I don't think. But she happened to be an African 
American, and she took the bar four times and failed it. It 
was my unpleasant duty to have to tell her that she would have 
to leave. That was sometime in the 1960s. That was an 
unfortunate experience. 

Then another summer associate came to work for us during 
the summer of 1975, Nicole Dillingham. She worked for me, and 
I hired her then to be my law clerk after I went on the bench. 
She clerked for me for a year, went back to McCutchen for a 
while, then went out to become a successful lawyer in the city. 
I'll have to put my mind to it, to see if I can remember some 
others. I don't think I had any women associates working on 
cases that I handled. 

Obviously, there were not many women; numbers were small, 
and that didn't change until the eighties. In the 1960s, women 
were just starting into law school. In the 1970s, they began 
to go in numbers, and by the end of the 1970s, women were 
something like 40, 45 percent of law school enrollment. So 
that began to have an impact in the 1980s, and that's when a 
lot of women came to the firm and some became partners. 

Hicke: What about African Americans and other people of color? They 
were hard to find? 

Schwarzer: We certainly interviewed them. But African Americans, 

certainly during that time--the ones that had a good record- 
had little interest in going into a corporate law firm, because 
they would do a lot better on their own or with a small African 
American firm. There was a lot of money out there to be made 
by African American lawyers. I don't remember any who worked 
for our firm during the time that I was there. Or other 
minorities . 



I think we were certainly open, but then again, I 
wouldn't say the McCutchen firm was at the cutting edge of the 
social revolution. It was the kind of firm that moved slowly 
toward change. But that changed when the leadership of the 



144 



firm changed in the eighties, and it became much more 
aggressive in those social areas. 



Heilbron, Balabanian, and Rosch 



Hicke: Was David Heilbron heading the firm by this time? 

Schwarzer: He came, I think, in 1961. I remember hiring him at Harvard 
Law School. He was obviously an outstanding person from the 
very beginning. He did some work for me. I don't have a 
specific recollection of whom else he worked for. He became a 
partner, I guess, in the late 1960s. He was one of several 
outstanding people that came to work during the 1960s. 

Another one is David Balabanian, who came in 1965, and is 
now the managing partner of the firm and really the leader of 
the firm. He's a brilliant person. He developed a very 
successful practice, and has done an outstanding job leading 
the firm, and is greatly respected and admired. So he was a 
very lucky catch. 

Hicke: You hired him also? 

Schwarzer: I don't think I did. I think by then I probably was off the 
hiring committee. Another person who came who was in David 
Balabanian' s class was Thomas Rosch, who came to work for me, 
and worked for me throughout the time that I was there. We did 
a lot of cases together. He was my protege, and I was his 
mentor. He became a partner, and when I left, took over much 
of my work. He later left the firm to become a partner at 
Latham & Watkins. 



Executive Committee 



Hicke: I have one more thing I'd like to talk about before we get to 
your cases and that is: you were on the Executive Committee. 
When was that, and what does that involve? 

Schwarzer: I was on the Executive Committee, I think, during much of the 
1960s. One of the issues that we confronted was the tension 
between efficiency and productivity, on one hand, and 
collegiality on the other. As I mentioned before, in those 
days, we didn't evaluate people on the number of hours that 



145 



they put in. But it was also clear that some people were much 
more productive for the firm than others. There were some 
people that would lag behind, and some would move forward. I'm 
talking about both the associates and the partners. 

Your productivity, of course, depended on how much 
business you had to work on, how many cases, and what kind of 
cases. And to some extent that depended not just on what you 
could attract, but also on what people gave you and whom you 
were working for. 

In those days, the firm did not expect associates to 
generate new business. The general view was that anything that 
a young associate could bring into the office wouldn't be worth 
having; it wouldn't be big enough to be economical. It's 
interesting how that has changed. Now all the law firms expect 
their associates to be out developing business. It's a whole 
different attitude. I don't know how you can do that. But 
anyway, that was the view at the time. 

We would have to worry about how we could recognize, in 
compensation for associates, their contributions to the firm in 
ways that were fair. We would move people along and recognize 
excellence and hard work without generating an excessively 
competitive attitude within the firm. Today, all those issues 
have been resolved at most firms in favor of competition and 
productivity. 

But we were very conscious of the values of collegiality 
and how different people would lean toward one side or the 
other. I tended to feel that while collegiality was desirable, 
we didn't want to coddle or carry along people who weren't 
pulling their own weight. 

So we were constantly tinkering with the compensation 
system for associateswhether to have lock-step systems, 
whether to give bonuses, whether there should be a structure to 
the bonuses. We had to recognize that there would be a lot of 
log rolling in the f innpartners would be pushing the 
compensation of the associates that worked for themand you 
had to try to maintain an overall perspective, fairness across 
the office. So that was a difficult issue that we had to deal 
with all the time. 

Another pet issue of mine was to hold down the amount of 
disbursements, advances for clients. 

Hicke: Could you explain that? 



146 



Schwarzer: You incur expenses in litigation when you take depositions, 

when you travel, pay expert witnesses, those kinds of things. 
Traditionally, the firm had been fairly lackadaisical about 
collecting those advances from clients, and they mount up to a 
lot of money. It's basically your money that's out there, and 
you're losing the use of it, the interest on it. 

I think I became notorious around the firm for pushing 
people to get bills out regularly and frequently and to collect 
disbursements. That continued to be a problem. I'm sure it's 
a problem now. Some people would be very slow about billing. 
Others would be prompt. But even if there was a reason not to 
send out the bill, the disbursements should be collected. 

Those were two issues that I remember dealing with on the 
Executive Committee. But in those days, there was no managing 
partner, and the Executive Committee was more of an 
administrative committee than a real management committee. 
Partners pretty well did their own thing and pursued their 
profession in ways that they thought were appropriate. 

The firm's ethos was to give them a lot of freedom and 
independence . 

That, of course, has undergone change. In the late 
sixties and early seventies, we became much more conscious 
about the emerging need for firm management. After I left, 
there was a managing partner, and the Executive Committee 
became more of a management committee. 

The Executive Committee at that time was selected by the 
senior partners, as I recall. In recent years, the members 
have been elected by the partners, and people are actually 
running and campaigning for positions on the Executive 
Committee. 



Harvey Motors 



Hicke: I there anymore to be said on the Executive Committee? 
Schwarzer: No. 

Hicke: Then I think we can get down to some of your more important 
cases and other work you did. Please fill in anything that 



147 



comes along about the general management or administration. 
Should we go according to the way you wrote your notes here? 

Schwarzer: Yes, probably. 

Hicke: You started with Harvey Motors. You said you inherited that 
from Walker Lowry. 

Schwarzer: Yes, that was a case against Chrysler brought by a dealer who 
claimed Chrysler violated the antitrust laws by forcing the 
dealer to take unpopular models and not giving him the good 
models. I think they were then selling De Sotos. That kind of 
issue came up regularly. We had quite a few of these dealer 
cases. And it was always hard for me to understand the 
argument, that a manufacturer would be doing things that would 
undermine the ability of its dealers to succeed. 

In another case, we argued to Judge [William] Sweigert on 
the District Court that that was a preposterous claim. Why 
would a manufacturer do something like that? I remember Judge 
Sweigert wrote an opinion and he said, "Manufacturers do not 
cut their own throats." Well, that's of course a common-sense 
position. 

But unfortunately it also turns out that there have been 
instances in which large companies have indeed cut their own 
throats, or at least tried to cut their own throats. So I 
never knew just what the truth of these dealer claims really 
was, whether there was something to it or not. 

Hicke: Would there be a reason for the dealer to bring the case if it 
weren't true? 

Schwarzer: The dealer might feel that he just didn't get his way. That 
is, every dealer wants to have only the hot cars that's true 
today the ones that sell right away, on which they get the 
maximum profit. But the manufacturer has an interest also in 
having a full-line dealer that will carry a whole line of its 
products so that they'll be available and displayed. The 
manufacturers have a certain mix of cars that come off the 
assembly line, and they can't have dealers saying, "We don't 
want to take those cars; we only want to take other cars." So 
there is a tension there. The question was whether this 
somehow could be made into a violation of the antitrust laws or 
the Automobile Dealers' Act that was in effect at that time. 

As I said before, I had never tried a jury case, but I 
had to take this one, and I had to act like I was an 
experienced lawyer as far as the client was concerned. I 



148 



wasn't going to tell him that was ray first case. We tried this 
case in the federal court here before a visiting district judge 
from Arizona named James Walsh. He was a wonderful, old- 
fashioned, gentle, level-headed judge. 

It was pretty scary. The jury was out for a while. At 
one point, they sent a question in. They asked the judge 
whether they could find for the defendant but also morally 
censure the defendant. The judge told them they couldn't do 
that. So we really were worried. But ultimately they did 
come with a defense verdict, and that was a great relief. 
Working with me on that case was Richard Murray, who was then a 
young associate and later became a partner in the firm and a 
successful litigator. 

Hicke: He had not had a jury trial before either? 

Schwarzer: No. He had worked on that case with Walker Lowry, but he had 
never tried a case before. 

Hicke: Did you find it greatly different or challenging to work before 
a jury? 

Schwarzer: Oh, it was a different experience to present the case. Every 
time you ask a question on direct or cross examination you'd 
have to think about the impact on the jury. Some people are 
born jury lawyers. There are people who are great storytellers 
and great actors, and all of those skills go into making a good 
jury lawyer. 

That was never my strong suit. If I was going to win a 
case, it would have to be on the strength of the evidence, 
being able to convey the strength of the evidence in support of 
our case more than on emotional appeal. I had a number of jury 
cases; every one of them basically seemed like a crap shoot. 
You never knew what a jury was going to do. 

But there certainly is a place for the jury. It plays a 
very important role, although there's always an emotional 
element in cases tried to a jury. It's true that the jury 
brings to the courtroom the common sense of the community, and 
more often than not, they come out with the right answer, based 
on their hunches, their understanding of how people act, of 
community expectations, rather than prejudice or emotion. So 
on the whole, certainly looking at it from the perspective of a 
judge, I think the jury system is generally satisfactory, 
particularly for criminal cases. 



149 



There are obviously some civil cases that are so complex 
that jurors have trouble grasping them. But a case like Harvey 
Motors was pretty straight forward. It could easily be managed 
by the jury. 

Hicke: You said there was a more emotional element; are you referring 
to this dramatic, more flamboyant courtroom atmosphere? 

Schwarzer: Yes. Well, some lawyers are flamboyant and are able to appeal 
to emotions of jurors, to distract them from the evidence. But 
usually the jurors look through that, and the jurors get down 
to the issues and are not swept away by emotional appeals. It 
makes a lawyer feel good if he's able to do that and think that 
he's appealing to the jury. Sometimes it works, and sometimes 
it hurts. But more often than not, it's a useful asset to have 
that skill as a jury lawyer. 



Atlas Corporation 



Hicke: Let's see, we were on Harvey Motors, and I guess you've covered 
that. 



Schwarzer: Yes. There were some other dealer cases, but that one stands 
out. Do you want to talk about this next case? 

Hicke: Simpson Thacher and Barlett. 

Schwarzer: Yes. Also, early in the 1960s, the large New York firm, 

Simpson Thacher and Barlett referred a case to Mr. Doyle, who 
asked me to take charge of it. Simpson Thacher represented 
Atlas Corporation. Atlas had been in negotiations with a 
company out here in Oakland called Transocean Airlines, looking 
toward the possible acquisition of the company. Transocean was 
negotiating a lease for a Lockheed Constellation with the 
Robert Dollar Company, an old, established company. 

Robert Dollar was one of the great entrepreneurs in this 
area and owned several companies. He owned this airplane, and 
Transocean was a charter airline, and it needed this airplane 
to generate income. While the negotiations were pending, Atlas 
agreed to help Transocean to lease this plane by guaranteeing 
the lease. But it was understood, and the guarantee provided, 
that Atlas would be off the guarantee once Atlas had provided, 
I think, $2 million against securities of Transocean. 



150 



Hicke: 



Schwarzer : 



In other words, what they were really thinking about was 
that Atlas would buy Transocean, they would buy its stock, and 
they would pay $2 million for it. Then they wouldn't have to 
be on the guarantee anymore, but of course, they would own 
Transocean. Well, the acquisition fell through, but Atlas was 
still on the lease as a guarantor. Transocean went into 
bankruptcy and defaulted on the lease. 

But the Dollar companies actually the company that owned 
the plane was called the 1880 Corporation, because that was the 
number of the plane, and it had that number because 1880 was 
the year in which Mr. Dollar was born. So, the 1880 
Corporation came to Atlas to collect the payments due on the 
lease, on which Transocean had defaulted. Atlas said, "No, we 
gave Transocean $2 million in loans against demand notes. 
Demand notes are securities, and therefore we're off the 
guarantee. " 

So the controversy was over whether the demand notes that 
Transocean had given to Atlas were securities within the 
meaning of the guarantee, thereby releasing Atlas from the 
guarantee. When you look at it now from the perspective of an 
impartial observer many years removed, the position Atlas took 
was preposterous. Demand notes are not an infusion of capital; 
they just give working capital to the company, but it's money 
that can be pulled back at any time. It's not an investment. 

It's pretty clear that what the parties had in mind when 
they drafted that guarantee was that there would be an 
investment. But Atlas insisted on litigating it and would not 
consider a settlement. The 1880 Corporation was represented by 
the Brobeck firm. That firm has always been an aggressive 
litigator, and they were very aggressive here. 

Who were their counsel? 

In that case? Gregory Harrison was the chief partner on the 
case, but the case was handled by a partner named David 
Lenihan, now deceased, a young lawyer then. We had all sorts 
of discovery disputes. I actually argued a discovery motion 
before the Supreme Court of the State of California. The case 
was bitterly fought. 

We were working with the lawyers at Simpson Thacher and 
they too were an aggressive bunch and insisted that we play 
hardball as much as were able to. We finally went to trial. 
It was a court trial--! don't know why nobody asked for a jury 
--before Judge Raymond Arata. The trial went on for several 
days . 



151 



Hicke: David Heilbron was on it? 

Schwarzer: David Heilbron was with me and two lawyers from the Simpson 

Thacher firm: Eastman Birkett and John Guzetta. The four of us 
were sitting at the counsel table, and on the other side 
representing 1880 was just one lawyer, David Lenihan. We 
thought that David Lenihan was stumbling through this case, not 
knowing what he was doing. 

It's embarrassing to think about this now, but we showed 
that we thought his presentation was a joke. I can't imagine 
how we could have been so immature, but I think we laughed and 
made comments. 



Hicke: 



Schwarzer: 



Hicke: 



Schwarzer: 



Hicke: 



Schwarzer: 



In any event, the case was submitted. In only a few days 
we got a brief opinion ruling in favor of 1880, which shouldn't 
have come as a great surprise. But it certainly taught me a 
valuable lesson: never to underestimate an opponent. 

The way he presented the case did not affect the outcome, I 
guess is what you're saying. 

Well, he won the case. We thought that he stumbled in the way 
he presented it. We thought the evidence was ridiculous and 
the presentation disorganized, unpersuasive. But it persuaded 
the judge. 

Oh, I see. I thought that if the evidence was persuasive, in 
spite of his presentation that might have won the case. 

Well, his presentation was ineffective, and obviously, we 
thought the evidence was unpersuasive, but that's because we 
had a view of the case not shared by the judge. 

There was one more thing. You talked about going to New York 
to do some of it. 

We did a lot of work with the New York lawyers, and that gave 
me some insight into the way people practiced in New York, at 
least in those days. They'd come to work at ten in the morning 
and work till late at night, take a long dinner hour with too 
many martinis. A very inefficient way to work, but that was 
the way they liked to do things. It was an introduction to the 
New York legal culture. 



152 



Greyhound Lines 



Hicke: That's interesting. Now, are we up to the Greyhound Line? 

Schwarzer: Yes. We started doing a lot of work for Western Greyhound 

Lines, which was a subsidiary of the Greyhound Corporation. As 
I described before, that mostly involved hearings involving 
routes and services. It gave me a lot of experience in dealing 
with witnesses and being in the courtroom. 

Hicke: It was ongoing, long-lasting work? 

Schwarzer: Yes. They were small cases, mostly before the Public Utilities 
Commission, also before the Interstate Commerce Commission. It 
was good experience. Gradually, because of the relationship 
between Mr. Ackerman and Jerry Trautman, we began to do work 
for the Greyhound Corporation. Greyhound had bought the San 
Francisco Gray Line, which was a separate corporation. Its 
president was Jack Cohen. 

Shortly after we became their attorneys, they were sued 
by a man named John Jenkins, who ran a small sightseeing 
operation in San Francisco, charging the Gray Line with driving 
Jenkins out of business. 

Jack Cohen, who was a very aggressive competitor, and, I 
think in retrospect, probably stopped at very little to 
succeed. Jenkins charged him with all sorts of misconduct, 
including going around and pulling Jenkins' brochures out of 
the hotel racks and destroying them, and in other ways 
interfering with them. There was probably pretty good evidence 
to support that. We went to trial in that case after lots of 
pre-trial motions and maneuvers. 

Hicke: Who was the judge? 

Schwarzer: Before Judge Robert Schnacke. For Jenkins to win, he had to 
show not only that Gray Line had violated the antitrust laws, 
monopolizing and doing improper things that drove him out of 
business, but also that he lost money, that he had a profitable 
operation and that the conduct caused him to lose profits. 

We discovered, I think through the deposition of Mr. 
Jenkins, that shortly before the trial, or early in the 
lawsuit, he had cleaned out his office. He had taken many of 
his business records out to a dump and destroyed them. That 
was one of the items of evidence that we were able to put 
before the jury. His having destroyed his records, part of 



153 



Hicke: 
Schwarzer : 



them, obviously undermined the credibility of his claim for 
lost profits. 

I remember but I don't remember the details that I had 
him on the stand, and I cross-examined him on his damage proof. 
I remember having a large white board on which, as he 
testified, we put his revenue figures and his expense figures, 
which we had. As I got his answers, I would write these 
numbers on the board. In the end, when it was all completed, 
it showed that he had never made any profit. That went to the 
jury and was devastating. They ruled in our favor. 

What I got out of that case was the importance of using 
visual aids and using them effectively. Ever since then, 
whenever I could, I tried to have a visual aid that I could 
actually develop so that the jury could see it grow in front of 
its eyes as the case went on. 

Who was representing the plaintiff, Jenkins? 

Julian Caplan, who also represented Harvey Motors in the 
Chrysler case. He and I had quite a few cases against each 
other. He was a very nice, gracious person, good person to 
work with. 



Hicke: Individual practitioner? 

Schwarzer: Yes. We did other work for Gray Line. I think we had one 

plaintiff's antitrust case. It was very rare for us to take a 
plaintiff's antitrust case. I remember handling that. All we 
were after was an injunction; it wasn't a damage case. The 
case was against the Gray Line Association, which had 

threatened to revoke the Gray Line's franchise. But I remember 
getting an injunction under the antitrust laws. 

Hicke: The whole Gray Line franchise was bought by Greyhound? 

Schwarzer: Just the local one; they're all separate corporations. They're 
out of the business now. Greyhound is out of the 
transportation business. That business was sold to a company 
in Dallas, Texas, and it has greatly shrunk. You still see 
Greyhound buses around but far fewer; it's a much more limited 
operation. I don't know who owns it now or what has happened 
to it. 

The airlines basically killed Greyhound. When the jets 
came in, and when the airlines were deregulated, and they 
offered supersaver fares, few people traveled by bus anymore, 
except on short trips. The cost of traveling by bus, the 



154 



ticket plus the en route expenses on a long trip, would exceed 
supersaver fares. And they couldn't compete with jets on time. 

Hicke: Somebody once told me that the first thing they did when they 
went to a city they hadn't been to was to take a Gray Line 
tour. 

Schwarzer: Oh, it ' s a good way to see the city. The Gray Line tours here 
were successful, and I guess they're still being operated, 
although the ownership is different. 

That's about all on Jenkins. I should say that Tom Rosch 
worked with me on that case. I think that may have been the 
first case on which he worked with me. 



Georgia Pacific Corporation and Oroville-Wyandotte Irrigation 
District 



Hicke: And then we come up to--. 
Schwarzer: Oroville Dam. 

Hicke: Yes, for the Georgia-Pacific Corporation. You had several 
things to do with the Department of Water Resources. 

Schwarzer: Yes. That was a long campaign. It all began when Georgia- 
Pacific came to us. They owned the Feather River Lumber 
Company in a place called Feather Falls, which is upstream on 
the Feather River in Northern California. They also owned the 
Feather River Railway Company, which provides a connection from 
the mill to the Southern Pacific [Railroad] on the west and the 
Western Pacific [Railroad] on the east. As best I can recall, 
they were referred to us by a Sacramento lawyer who knew us-- 
later appointed to the District Court--Phil Wilkins . 

The line of the Feather River Railway Company going 
westbound toward the connection with the Southern Pacific 
crossed over an old bridge over the Feather River. And that 
bridge was going to be flooded when the Oroville Dam was 
completed and the reservoir behind it would be created. 

II 

Schwarzer: The Oroville Dam was then under construction. It was part of 
the State of California Central Valley Project, which was 
authorized in the late 1950s. That's separate and distinct 



155 



from the Federal Central Valley Project, which comprises Shasta 
Dam and some other reservoirs in the central part of 
California. The legislation that authorized the Oroville 
Project included a section that obligated the state to provide 
substitute facilities for any utility facilities that would be 
taken by the reservoir. 

It gave the Public Utilities Commission jurisdiction over 
any controversies arising under that statute. Well, Georgia- 
Pacific, of course, could see that its railway would no longer 
be able to operate, once the bridge was under water. So that 
would result in a taking of the railway company, and they 
determined that they would make a claim for substitute 
facilities . 

They came to us to litigate that claim. The responsible 
state agency was the [California] Department of Water 
Resources, which was the agency that was building the Oroville 
Dam. We filed a complaint with the Public Utilities 
Commission, claiming substitute facilities under that statute. 
Well, all hell broke loose. 

Nobody had ever made a claim under that statute, and if 
the Department of Water Resources ever provided substitute 
facilities for anybody, it was some minor matter that was not 
controversial. But they'd never been asked to provide a 
substitute railroad facility, which was a multi-million dollar 
undertaking, and they determined to fight it tooth and nail. 

Now from the outset, I had always made it clear to the 
people in the department that we were willing to negotiate 
about this. We weren't insisting on a new railroad, but we'd 
be satisfied if they'd provide an improved highway there was 
some sort of highway and an improved highway bridge that would 
be suitable for lumber trucks bringing lumber down to the 
railroad connection. 

Hicke: Who were you talking to? 

Schwarzer: The lawyer who was principally responsible for this situation 
at the department was Abbott Goldman. The lawyer who handled 
the litigation was Ivor Skjeie, and he was assisted by Richard 
Martland. They dug in their heels; their position was that 
this railroad was a bucket of bolts, that Georgia-Pacific had, 
until this thing came along, planned to abandon it altogether, 
and to provide substitute facilities would be just a glorified 
form of highway robbery. 



156 



So we began the litigation before the Public Utilities 
Commission and got a favorable decision. The department then 
went to the Interstate Commerce Commission, because the 
Commission regulated the railroad and had authority to 
determine whether it could be abandoned. In the usual case, 
it's the railroad that asks permission to abandon, and the ICC 
decides whether to permit it. But in this case, the state 
asked for an order requiring the railroad to abandon its 
service. 

We had hearings on that; I argued before the full 
Commission in Washington. And we won. The ICC rejected that. 

Hicke: What were your arguments, more specifically? 

Schwarzer: Number one, that it was in the public interest for the service 
to continue, because they were carrying lots of freight, and it 
was valuable freight. Number two, that the Commission had no 
authority to force a railroad to abandon service. So, that was 
relatively easy. 

Hicke: Who exactly were you representing? 

Schwarzer: Well, we represented the Feather River Railway Company. I 
guess it was a nominal plaintiff, but in effect we were 
representing the owner, which was Georgia Pacific Corporation. 
The litigation proceeded for several years while we were 
continuing to try to persuade the department to settle. I 
recall that we even had a meeting with then Governor [Edmund G. 
Sr.] Pat Brown, who was noncommittal. The department finally 
gave in and agreed to improve the highway and bridge and 
provide compensation for the excess costs of trucking the 
lumber from the mill. 

That case was not yet concluded when, because of the 
publicity associated with it, Oroville-Wyandotte Irrigation 
District approached me. They had a similar problem. They 
provided water service to the city of Oroville and 
surroundings, which is below the dam. They got their water 
upstream in the upper waters of the Feather River, and they 
transported the water through a canal, a side-hill canal. It's 
a concrete canal that's built alongside of the hill. And 
that's the hill that contains the Oroville Reservoir. So the 
building of the Oroville Dam would result in the reservoir 
waters rising to a level a few feet below the canal. 

The canal would actually not be flooded, but its 
underpinnings would be threatened by the action of the water, 



157 



the reservoir rising, and the draw-down of the reservoir. So 
the soil would be saturated; when the water would go down, 
there was a significant risk that the canal would collapse. 

Hicke: The canal was on the side of this hill by the dam? 

Schwarzer: The canal was built on the side of a hill, and just below the 
canal would be the level of the reservoir. So it was also 
under the same substitute facilities statute. But the position 
of the state was that it was pure speculation that anything 
would happen to the canal. They said, "So we're not taking it; 
it will continue to be up there on the hill, and we don't have 
to replace it." 

We filed an action with the Public Utilities Commission 
to compel them to provide substitute facilities. The 
department went to the District Court to stop the PUC 
proceeding, but the court refused and the Court of Appeals 
affirmed. [409 F. 2d 532 9th Circuit, 1969] At the same time, 
again, I was trying to negotiate with them. We were desperate 
to try to negotiate something. 

We were willing to take the risk on the canal, as long as 
we had something in writing that would guarantee the district's 
water supply if anything happened to the canal, and the state 
would repair it and do whatever was necessary. We wanted some 
kind of a firm guarantee. But they were adamant in resisting 
any kind of compromise. 

As a result of that, we had to come up with a proposal 
for a substitute facility. The only substitute facility was 
drilling a very expensive tunnel through the mountain. We kept 
telling the Department of Water Resources, "This is a very 
expensive solution, and we're willing to settle for a lot 
less." But they insisted on litigating the case. So we had 
trial before the Public Utilities Commission. 



The Department put an expert, a geologist, on the stand, 
and I had to take a crash course in geology to cross-examine 
him. But I developed through cross examination what seemed 
like a pretty obvious fact that the wave actionthere' s a lot 
of wind there which generates waves- -and the draw-down of the 
reservoir would erode the underpinnings of the canal. We put 
on our own experts who supported that. The commission agreed, 
and ordered the state to build a tunnel. 

Then the department went to the Sacramento District Court 
again, arguing that federal regulation preempted the California 
Commission's order. 



158 



II 

Schwarzer: We barely won in the District Court; the judge was not friendly 
to our position. That was Judge Thomas McBride. The 
Department appealed it to the Ninth Circuit [Court of Appeals], 
and the court affirmed, holding that state and federal 
regulation was entirely compatible. [536 F. 2d 30A (9th 
Circuit, 1976)] 

Meanwhile, the litigation was also going forward before 
the Federal Power Commission. The Federal Power Commission had 
licensed the Oroville Dam, and there was law that said that a 
Federal Power Commission license preempts all state 
regulations. So the state argued that a state law requirement 
putting the condition on the carrying out of this licensed 
project would be in conflict with federal law. 

We went before a hearing examiner of the Federal Power 
Commission, who made no bones about his view that he thought 
our position was totally untenable and had absolutely no merit. 
When we got wind of that, we decided to put in no evidence at 
all before the hearing examiner, or administrative law judge, 
which was a high-risk strategy. But I thought it was probably 
the only sensible thing to do, because of the prejudice that 
this ALJ had already displayed. 

We figured that his ruling would probably be more likely 
to have errors if we didn't put anything in it, than if we 
helped him. He did rule against us. We appealed it to the 
Federal Power Commission in Washington, and I remember going 
back to argue this case. 

I recall I was staying at the Carlton Hotel at Sixteenth 
and K the night before the argument, and on the patio of that 
hotel there was a bachelor party for one of the ranking people 
on Lyndon Johnson's staff. They were drinking and carousing 
all night long. I don't think I got an hour's sleep that 
night. So I was a wreck when I appeared before the Federal 
Power Commission. But I remember one of the commissioners 
saying to the lawyer for the department, "Well, you can't get 
blood out of a turnip, can you?" That was his theory about 
this case: that we couldn't afford to replace it. 

This blood-out-of-a-turnip theory, which I hadn't even 
suggested, except to say that obviously we couldn't provide our 
own facilities, was eventually the pivotal consideration. The 
Federal Power Commission ruled in our favor, and that was the 
end of the line for the department. Those were the three 
forums. The position we were in was we had to win in each one 



Hicke: 



159 



of them. If we had lost any one of them, we would have been 
dead. But we won every single round. And it was without 
precedent--no one had defeated the department before. 

So eventually the State of California had to build this 
very expensive, gold-plated tunnel for the Oroville-Wyandotte 
Irrigation District. By that time, I think I was on the bench. 
So I've never seen it. I've never heard anything about it. 
Some people thought it should have been named after me, but it 
wasn't. [laughter) But another good object lesson. 

These cases were a lawyer's dream. The legal questions 
that were involved and the very delicate tricky issues of 
conflicting and overlapping state and federal jurisdictions 
were incredibly interesting. The tactical issues were unique 
and challenging. Of course, it was also nice to win. 

Well, when we finish this one, I think this would be a good 
place to stop. 



Schwarzer: Yes. I think that's about it. 

Requirements of a Labor Law Case 

[Interview 6: July 25, 1997) 



Hicke: You just indicated that there are a few things left over from 
last time that we should include. 

Schwarzer: It occurred to me that I should mention that from the beginning 
of my time at McCutchen, I always did a fair amount of labor 
law. I had taken Professor Archibald Cox's course and seminar 
at Harvard Law School. It was very good, and I was interested 
in labor law. So I did labor law cases that came to the firm. 

I remember one in which I obtained an injunction on 
behalf of U.S. Steel against mass picketing in front of their 
Pittsburg, California plant. I got the injunction, but the 
sheriff wasn't particularly interested or energetic in 
enforcing the injunction. So I got out on the picket line with 
a hard hat and a bull horn [laughter], and I read the 
injunction to the picketing workers. Eventually they 
dispersed. But it was another interesting lesson in the great 
gap between law as a theory and law as a working instrument of 
social order. 



160 

Hicke: I guess also it shows that your job description doesn't cover 
all the different requirements. 

Schwarzer: That's true. 

Hicke: How did that turn out? 

Schwarzer: Well, I think eventually they dispersed, and we worked it out 

Mt. Hood Stages 



Hicke: There were one or two more major cases there that we didn't 
cover. One was Mt . Hood Stages. 

Schwarzer: Yes. That was another bit of classic litigation. Greyhound 
operated, among other things, a route between California and 
Spokane, Washington. Greyhound's authorized lines ran up 
through Portland and Seattle, and then across the Cascades to 
Spokane. There was a more direct route through the interior of 
Oregon that took off at Klamath Falls and then went directly on 
the east side of the Cascades through Bend, across the Columbia 
River into Spokane. It saved several hours. 

Greyhound did not have authority over that line. But for 
a long time, it ran an interline service with Mt . Hood Stages, 
which was an independent company affiliated with the Trailways 
bus system, which was competitive to Greyhound. It was 
smaller, but they were competing with each other. The 
relationship between Greyhound management and the management of 
Mt . Hood, which was basically its owner, Bill Niskanen, 
had always been, I would say, uncomfortable and tense. 

Mr. Niskanen was a difficult person, but the Greyhound 
people were not too easy to get along with themselves and were 
accustomed to having their own way. Somewhere along the line 
in the early sixties there may have been a catalyst that 
brought this to a head, but the Greyhound people decided that 
they weren't going to turn this traffic over to Mt . Hood 
anymore. After all, they lost the revenue on the passengers 
that they turned over on the interline service. They 
terminated the interline service and routed all their 
passengers through Portland and Seattle. 

As a result of that, the fat was in the fire. That run 
was the major source of revenue for Mt. Hood. They had other, 
shorter lines, but none of them was as profitable as this 



161 



interline service, and it probably would have in time meant the 
demise of Mt . Hood. So they brought an antitrust case against 
Greyhound. 

They were represented by two leading antitrust lawyers, 
Michael Khourie, and Eugene Crew, both in San Francisco. We 
litigated that case very vigorously. It was really more than a 
piece of litigation, it was a grudge battle between the clients 
on the two sides. I think we took Mr. Niskanen's deposition 
for close to two weeks. There was an enormous amount of 
discovery. Ultimately, we went to trial in the District Court 
in Portland. 



Hicke: You said that was Judge Goodwin? 

Schwarzer: Before then District Judge Alfred T. Goodwin, who had earlier 
been on the Oregon Supreme Court. He actually had a career as 
a journalist before serving on the Oregon Supreme Court. But 
he was a close friend of Mark Hatfield, senator from Oregon, 
who had him appointed to the District Court. He was relatively 
new on the District Court. Not too many years later he was 
appointed to the Ninth Circuit Court of Appeals. 

This was another interesting case in terms of 
jurisdictional complexity, because the operation of Greyhound 
was of course subject to the Interstate Commerce Act. The 
Interstate Commerce Act created a certain degree of immunity 
from the antitrust law, because the transportation industry was 
regulated; some of their conduct was immunized under the 
Interstate Commerce Act, but that was a very murky area. 

I remember that we made some motions, but we never 
succeeded in escaping from the antitrust litigation. So we 
went to trial. I think the trial went about four weeks. It 
was really the first major jury trial that I had. We had 
Portland co-counsel, who were principally supposed to help us 
in jury selection. But I remember that when it came time to 
select the jury, they were present, but they basically washed 
their hands of the whole thing. I don't know what was in their 
minds, but they in effect declined to give us any help. 

Hicke: The were supposed to know the locals? 

Schwarzer: Yes, and give us some idea of who would be good jurors, and who 
wouldn't. Probably in the long run, that didn't make any 
difference. 



162 



Hicke: 
Schwarzer : 



Hicke: 



There was a lot of evidence put on by Mt. Hood from 
passengers about the inconvenience to the public that resulted 
from the longer routing. 

And they, of course, had a lot of documents and a number 
of Greyhound witnesses, including the then president of 
Greyhound, my former partner, Trautman, who had been involved 
in the decision to do this. It was pretty clear that Greyhound 
couldn't come up with a good reason why they should have done 
it. The loss of revenue was a fact, but from Greyhound's point 
of view, it was a relatively minor amount of revenue, when you 
set it off against the inconvenience to the Greyhound 
passengers having to go the longer route. 

So it was difficult to make a good case for the defense. 
One of the outstanding memories of that case was sitting in 
Judge Goodwin's chambers and settling the jury instructions. 
Each side came in with lengthy and complex instructions. Ours 
focused particularly on the immunity provisions of the 
Interstate Commerce Act, which we thought the jury at least 
should consider. 

Judge Goodwin took very little interest in the legal 
niceties of this case. He basically let in all the evidence, 
and he just took everybody's jury instructions and put them 
together in one virtually indigestible tome that he eventually 
read to the jury. That really impressed me, and that memory 
stayed with me when I became a district judge. 

I was firmly convinced that a district judge had a duty 
to make some sense out of the instructions and not simply to 
combine the instructions given by the two sides and hand the 
problem to the jury. Yet that has been commonly done by 
district judges. 

It's easier that way? 

Well, they don't have to think; they don't have to make 
decisions. And the judge is more likely to be reversed for 
refusing an instruction than for giving one. So if you give 
everybody's instructions that they've asked for, it's much more 
difficult for the court of appeals to reverse than if you 
refuse to give an instruction, even though the instructions may 
be inconsistent and in conflict. 

That sounds a bit like fear of malpractice. You do everything 
so you won't be--I mean, if you are a doctor you do everything 
so you won't be sued. 



163 



Schwarzer : 

Hicke: 
Schwarzer: 



Hicke: 



Schwarzer: 



Hicke: 



Well, it could be a form of judicial malpractice, I don't know, 
[laughter] 

What eventually happened? 

We had long closing arguments to the jury. I think I argued a 
day. I think it went over into a second day. Mike Khourie 
argued for maybe two, three days. And there was a lot of 
evidence. One of the interesting parts of the trial was the 
use of expert witnesses. The other side was very effective in 
their cross-examination of our experts on these technical 
traffic issues, and the thrust of their cross-examination was 
to bring out points, facts that our expert had not considered. 
It didn't really make any difference whether you considered 
those, because that's not the basis of which he rested his 
opinion. But it was effective before the jury, because it kept 
telling the jury, well, he didn't really think about all 
aspects of this case. So I learned something about cross- 
examination of experts from that case. 

They had an expert who I thought was totally confused. I 
remember cross-examining him at length. But eventually the 
jury returned a verdict for the plaintiff of something like $3 
million, and under the antitrust laws, it was trebled. Then 
there was interest and attorneys' fees. I think ultimately the 
judgement against Greyhound was about $13 million. 

I remember talking to one of the jurors afterwards, and 
she said, "Well, I had a lot of sympathy for your case, but the 
evidence against Greyhound just kept piling up like grains of 
sand until it became a great mountain, and there was no way I 
could rule any other way." It was interesting. That was an 
accurate description. There were so many things that the 
plaintiff was able to put out there that that was an impossible 
hurdle to overcome. 

But it also sounds like not all these grains of sand were 
relevant, perhaps. 

Yes, but the bounds of relevance in that case were a little 
elusive. Judge Goodwin let everything in. It was 
understandable. That was a case that had a lot of emotional 
content, evidence of hostility, all of that went to the anti 
competitive intent of Greyhound, which was what the plaintiffs 
were out to prove. 

Can you explain what the expert witnesses were testifying 
about? 



16A 



Schwarzer: They were mostly traffic analyses to showwell, you put me on 
the spot here. I remember that we had a lot of traffic studies 
and statistics, but to be perfectly honest, I don't remember. 
I think that a major part of the expert testimony was to prove 
the plaintiff's damages. They had to prove that there was a 
loss of net profits. 

We intended to refute it by showing their expenses and 

the fact that this was really not a very profitable run for 

them. But that was an uphill battle, because it was a major 
source of their revenue. 



Hicke: I guess I asked because I always think of expert testimony as 
being some esoteric, scientific theory or practice that nobody 
else knows anything about. 

Schwarzer: No, these were economic and traffic experts. I remember we had 
this expert from Washington, D.C., but it's just too long ago. 
I think this case was tried around 1968, '69, and I don't 
remember the details. Then we appealed it to the Ninth Circuit 
[Court of Appeals], and I argued the appeal in the newly 
restored Pioneer Courthouse in Portland, where I have since sat 
on panels in the court of appeals on a number of occasions. 

I know that the senior member of that panel was Judge 
[James] Jim Browning; I forget the others with him. Judge 
Browning had sympathy for antitrust plaintiffs. So that didn't 
go well for us either. It was promptly affirmed. 

Now as I recall the Justice Department appeared as 
araicus. They were interested in this, because they were 
concerned about Greyhound's monopoly position and were quite 
supportive of the plaintiff. It's true, of course, that 
Greyhound was the dominant carrier in the bus business. But as 
I indicated yesterday, by the late 1960s, having a monopoly in 
the bus business was not economically meaningful any longer 
because of the growing competition of the airlines. That 
doesn't cut much ice though when you're being charged with 
driving a small, competing bus carrier out of business. 

The appellate process went on for quite a long time. In 
the end, the judgment against Greyhound was affirmed. But 
meanwhile, of course, Greyhound had the use of the $13 million. 
That was economically advantageous, because Greyhound could 



165 



earn more with that money than the statutory interest that it 
had to pay on the judgment. And it didn't come out too badly 
as a result of that. 



Shaffer v. Heitner 



Schwarzer: But the Greyhound case had more fallout. I can't remember all 
of the implications of the litigation, but one stands out, and 
that is a shareholders' derivative action brought against the 
officers and directors of Greyhound in the Delaware State 
Court. It charged them with malfeasance and waste of the 
shareholders assets by reason of this conduct, which led to 
this thirteen-million-dollar judgment against Greyhound. 

That case was a derivative action--on behalf of the 
corporation brought by a shareholder named Heitner. 

Hicke: Can you explain what a derivative action is? 

Schwarzer: It's an action which a shareholder brings for the benefit of 
the corporation. The shareholder has the right to assert the 
corporation's interests in being protected against misconduct 
by its officers and directors. In this case, the shareholder 
claimed that the corporation lost the money represented by the 
judgment because of misconduct of the officers and directors. 
If the shareholder prevails, then the defendant pays the money 
to the corporation; the shareholders benefit only indirectly. 

Of course, it was basically what you would call a strike 
suit, brought by some lawyer who thought he could make a quick 
killing. I quite promptly received a settlement offer from the 
plaintiff's lawyer, which would have enabled the corporation to 
settle for a nominal amount, so long as a substantial amount in 
attorney's fees was paid to him. Basically it meant buying him 
off. I took that up with Mr. Trautman, and he was irate and 
would not authorize me even to negotiate further to settle that 
case . 

It's interesting that this is how a great many of these 
cases are settled today. It's rare that a corporation will 
stand up and reject that sort of proposal, because of the cost 
and the risks entailed in going on with the litigation. 

Because Greyhound was a Delaware corporation, it was 
subject to Delaware law. Delaware had a statute that permitted 
a plaintiff in a derivative action to serve and gain personal 



166 



jurisdiction over all of the officers and directors of a 
Delaware corporation, regardless of where they lived, just by 
making service on the corporate agent in Delaware. 

A lot of defendants were named. Most of them had never 
set foot in Delaware, but they were subject to jurisdiction 
under the Delaware statute, if the statute was constitutional. 
I made a motion to dismiss on the ground that this service was 
a violation of the constitution; that was denied. I took it to 
the Delaware Supreme Court. 

I remember arguing before the Supreme Court of Delaware 
in the wonderful, old colonial building that was like a time 
warp going back many years. But they promptly rejected our 
motion and affirmed the court below. Essentially, you could 
say that this was a make-work statute for Delaware lawyers. 
The Delaware bar was strongly in support of it, because it 
brought lots of cases into the Delaware courts that otherwise 
wouldn't have been brought there. 

I then petitioned the Supreme Court for certiorari, and 
lo and behold, they granted the petition. It didn't surprise 
me altogether, because it seemed to be an outrageous statute. 
There was no way it could be squared with the existing law of 
personal jurisdiction, the constitutional restrictions on 
jurisdiction. It had to be reasonable, and there had to be 
some contact between the state where service was made and the 
defendant. He had to be there, or had done business there, or 
done something himself that affected a defendant in this state. 

The Court set the case for argument. Just about that 
time, I went on the district court, so I turned the case over 
to my partner, John Reese. That would have been my chance to 
argue a case in the Supreme Court, but I lost out on it. The 
name of the case in the Supreme Court was Shaffer versus 
Heitner. [433 US 186 (1977)] Shaffer was the executive vice 
president of the Greyhound Corporation and the lead defendant. 

The court reversed the Delaware Supreme Court. Thurgood 
Marshall wrote the opinion. So we were vindicated. 

But the court went way beyond just striking down the 
Delaware statute and laid down some general principles on the 
limitations on personal jurisdiction asserted by states over 
non-residents. The decision became the leading case on 
personal jurisdiction, now taught in all law schools. 



167 



Hicke: I have a couple of questions about that, unless you're not 
finished? 

Schwarzer: No, that's it. 

Hicke: This must have been an early case of a shareholder suing a 

corporation, because I think they got much more prevalent after 
this point. 

Schwarzer: Oh, yes. They've been around for a long time, but derivative 

actions became much more common later. Although today, most of 
the actions are not derivative actions. What you're thinking 
about is shareholder litigation under the securities act, in 
which the shareholders sue for damages for themselves on the 
ground of fraud by the corporation or corporate officers under 
section lOb of the 1934 Securities Act. 

That's where most of the activity has been. That's what 
you read about in the paper. And that was a subject of the 
reform legislation that was adopted a couple of years ago by 
congress Securities Litigation Reform Act. Derivative actions 
don't arise under federal, they arise under state law. And 
they enforce the fiduciary duties of corporate officers and 
directors, their duties as trustees. That's separate from the 
federal securities litigation. This was a derivative action 
under Delaware law. 

Hicke: And then I notice you said the responsibility was vested in the 
officers and directors. And I think that people began to 
refuse to be directors of corporations, because they didn't 
want to be liable. Did this case have some bearing on that? 

Schwarzer: Officers generally carry what's known as D and liability, 
directors and officers liability, policies. They generally 
carry insurance. But of course, there's always a problem over 
whether in a particular case the insurance covers. And the 
insurance became increasingly costly. I'm sure that there was 
insurance there. I don't recall, though, whether we had any 
contact with the insurance carrier. 



We had other cases involving D and insurance, but it 
may well be true that some people preferred not to get involved 
in litigation even if the expense was covered by insurance, 
because of the inconvenience and unpleasantness that it 
entailed, like having your deposition taken and so forth. But 
that wasn't a factor at this time. 



168 



Lucky Lager Brewing Company 



Schwarzer: We had another derivative action that was somewhat interesting. 
I don't think I've said anything about Lucky Lager Brewing 
Company. 

Hicke: No, I added that to the list here. 

Schwarzer: Mr. Frederick Ackerman, who was the chairman of Greyhound, for 
which we were doing an increasing amount of work, was also on 
the board of the Lucky Lager Brewing Company. Lucky Lager 
Brewing Company was really an institution in California and in 
the West. It was the leading brewer. I don't know whether you 
recall, but you couldn't drive down the highway without seeing 
big billboards that saidWhat did the billboards say? 



Schwarzer: 



Hicke: 
Schwarzer: 



Hicke: 
Schwarzer: 

Hicke: 



These billboards were very colorful, and they would say, "It's 
Lucky when you live in California." Later they expanded their 
market, and then they said, "It's Lucky when you live in the 
West." [laughter] Of course they had a bottle of Lucky Lager 
on the billboard and a picture of some scenery. 

Where were they headquartered? 

They were headquartered in San Francisco. The president of the 
company was a man named Eugene Selvage, who came into that 
company probably in the thirties and took it from nowhere until 
it became the leading brewery and the biggest seller in the 
West. 

Mr. Selvage, however, was also bent on becoming rich. It 
gradually developedwe kept running into evidence suggesting 
that the Lucky Lager distribution structure was marked by 
corruption, that Selvage had an interest in the distributors 
and in the trucking companies that dealt with the company. He 
may have had interests in suppliers. And that these were 
coerced, in the sense that if you wanted to be a distributor, 
you had to cut Mr. Selvage and his family in. He had a number 
of family corporations. 



It was all tied? 

Yes, that is what the evidence suggested, 
source of embarrassment for us. 

For the firm? 



It was a growing 



169 



Schwarzer: Yes. You kept running into this in perfectly legitimate cases, 
where you'd be confronted with these charges of double dealing 
and conflicts of interest and corruption. 

Hicke: How long had they been clients? 

Schwarzer: I think they became clients in the late fifties. We first 
represented them in an antitrust case that the government 
brought against them in Salt Lake City for monopolizing the 
beer business in the West. It's ironic, when you think about 
that now, when there are so many companies in the business, and 
Lucky has long ago disappeared. But I remember going around 
and interviewing a lot of distributors and other beer companies 
in the West to collect evidence to defend this case. 
Ultimately, we entered into a consent decree and got rid of the 
case. 



But the situation within the corporation became more and 
more tense. And while I wasn't privy to all of the details, at 
some point Selvage became the chairman of the board and a new 
president was brought in by the name of Roy Woodman. Roy 
Woodman, I think, set out to clean up some of the situation and 
ran head-on into Selvage and the people that were on his side. 
He was fired, and then brought a derivative lawsuit on behalf 
of the shareholders against Selvage and all of the directors 
and officers, including Trautman. 

Hicke: In Lucky? 

Schwarzer: In Lucky Lager, yes. I was on vacation with my family at Hana 
in Hawaii, and I got a phone call saying that I was supposed to 
come back immediately, because this case had been filed. Well, 
it was hard to see what possible good I could do by coming back 
at that point, just because a complaint had been filed. But I 
remember leaving my family and this beautiful resort and coming 
back in a big hurry right in the middle of the summer to deal 
with this situation. 

When a derivative action is brought on behalf of the 
corporation, under California law, the board of directors has 
to determine, even though they're defendant, whether bringing 
this case is in the best interest of the corporation. 

So, what happened next then? There were extensive 
proceedings involving the board. Pillsbury, Madison, & Sutro 
was brought in to represent the board. I believe they 
ultimately determined that it would not be in the best interest 
to go forward with this lawsuit, notwithstanding the rather 
serious allegations against officers and directors. 



Hicke: 
Schwarzer : 



Hicke: 



170 



Then there was litigation over their report. If I 
remember correctly, one of the lawyers on the other side, who 
was pursuing the case on behalf of the plaintiff, was the 
former partner of McCutchen, Phil Ray. So there was a lot of 
bitterness. The litigation ultimately ended, I think on the 
strength of the board's report. And I think that Woodman was 
last heard of somewhere in the Philippines. 

That was a very disturbing event. It gave us all a lot 
of concern, being so closely tied to apparent misconduct and 
corruption. Lucky Lager by then was pretty much on the ropes. 
It was bought by a man named Kalmanowitz. He was the king of 
what was called price beer, beer sold at discount prices at 
supermarkets and other large stores, not advertised. 

He got rid of everything except the brewing facilities, 
and the Lucky Lager name pretty soon disappeared. It certainly 
lost all of its value, because there was no longer any 
advertising or quality control. I think eventually he shut 
down the Lucky Lager Brewery. He bought other breweries around 
the country and did the same thing. 

I was involved with Kalmanowitz in a number of cases. I 
remember taking his deposition. I can't remember what the 
litigation was about. He was a thoroughly unpleasant person. 
That was not too much fun, but it was more experience. He had 
a house, a large house out in Marin Keys, off Tiburon, and a 
very large boat, in which he spent a lot of time. He was 
always in trouble of one sort or anothernot paying his bills, 
litigating with people. But that was the end of Lucky Lager 
Brewing Company. 

Where was the brewery? 

In San Francisco. You can still see it. As you go down 
highway 101, just past Silver Avenue, the cutoff to Candlestick 
Park, you can see it on the east side of the highway. I don't 
know what it is now. For a while, I think it was a storage 
warehouse. 

Are you finished with them now? 



Schwarzer: I'm finished with Lucky Lager, but I guess you asked about D 
and insurance. 



Hicke: 



Yes. 



171 



D and Insurance; Lockheed 



Schwarzer: There's another interesting episode that occurred near the end 
of my career as a lawyer. You may remember that there was a 
great scandal involving Lockheed's efforts to sell its L1011 to 
Japanese airlines and airlines in the Middle East and the fact 
that they were paying commissions, among other things, to Prime 
Minister Tanaka of Japan, or the Liberal Party, and various 
Arabian princes. 

There was a shareholder derivative action brought against 
the president and chairman of the Lockheed corporation, and the 
president, Kochian. I was asked to represent them in the 
litigation brought by shareholders against them for wasting 
corporate assets by paying these commissions. 

Hicke: You were retained by the corporation? 

Schwarzer: O'Melveny & Myers represented the corporation. They asked us 
represent the two officers, because they had a separate 
interest. Again the board was convened, and they ultimately 
determined that the shareholder suit should not go forward. 
But in the meantime, the chairman and the president had 
incurred substantial legal fees in their defense, including our 
fees. They turned to the D & insurance company. 

The insurance company said this was not covered. I don't 
know why they said it wasn't covered, but they refused to pay 
it. So we brought a lawsuit against the insurance company to 
collect the fees, and also to recover punitive damages because 
of the willful refusal to cover. The insurance company was 
represented by a lawyer from the city, Scott Conley. A very 
gentlemanly lawyer. 

This litigation was of great interest in Japan, because 
it was the first inkling of corruption in Japanese politics. 
Since then, of course, you've read a great deal about payments 
to members of the Diet and other government officers. But the 
payments to Tanaka really caught the imagination of the 
Japanese people. I got telephone calls from reporters for 
Japanese newspapers at all hours. They'd never think about the 
time difference; they'd call in the middle of the night to find 
out what was going on. [laughter] 

And we took depositions. This was an international 
process in which we had to get commissions issued in order to 
take the depositions. I think the depositions some of them 



172 



must have been taken abroad. I know some were taken here. But 
in order to be able to get depositions of Japanese officials, 
we had to get a court to issue a commission. I remember that 
was vigorously litigated, and I remember arguing in the Ninth 
Circuit about the right to get these commissions, in the old 
courthouse on 7th and Mission. 



Hicke: 



Schwarzer ; 



Hicke: 

Schwarzer: 



I remember the argument because the windows were open. 
We were on the ground floor, and they were digging up the 
street outside. You could hardly hear anything. This was in 
the summer of 1976, while I was awaiting Senate confirmation. 
So here I was arguing to the Ninth Circuit. It was kind of an 
odd situation, because they knew that I would shortly be a 
federal judge. 

Well, I don't remember the details of that. But I do 
remember that the case against the insurance company went 
forward. I left and turned it over to a partner, Richard 
Murray. The firm won the case, and won about $2 million in 
punitive damages, which was undoubtedly a first for McCutchen-- 
not just to be a plaintiff, but to successfully obtain punitive 
damages from a jury. 

Would the deposition commissions have been covered by a treaty, 
or some kind of diplomatic arrangement? 

Yes, there is an international convention. There's the Hague 
Convention. But I don't remember the details. I remember 
taking depositions, and I remember that we had to get these 
commissions issued to take depositions abroad. 

Did you have to go to Japan? 

No, I didn't go. I don't know how that worked. I think we 
just sent questions over to be answered in a consular office. 



Signal Oil Company 



Hicke: 



Schwarzer; 



Did you ever have to fire a client? 
terminology. 



If that's the correct 



Not that I recall. But I do remember coming close to it. I 
was representing a company called Signal Oil Company, which was 
a small oil company, which, of course, long ago ceased to 
exist. 



173 



Hicke: It was named for Signal Hill in Los Angeles? 

Schwarzer: Signal Oil Company, I don't know how it got it's name, but I 
know that its logo was one of these old-fashioned traffic 
signals. Do you remember those signals? They had three lights 
but they also had an arm that went up and down. One arm said 
stop, and then it would go down. Then the other arm would come 
up and say go, in addition to the lights. I think we were 
litigating a rather minor antitrust case, and the deposition of 
one of the Signal Marketing people was being taken. When he 
testified, I knew that he was lying, contrary to my 
instructions. When it was over, I gave serious thought to 
telling the client that I could no longer represent them. 

But I think we were able to settle the case quite 
quickly, so it didn't become an issue. I remember that I was 
facing a difficult moral decision. Off-hand I can't think of 
any cases in which I was involved in which we terminated a 
relationship. Undoubtedly, it happened during the firm's 
existence, but 1 can't think of any case. 



Reflections on Law Practice and Its Impact 



Hicke: You've been very good about alluding to cases that have some 
particular influence on you. Is there anything else you can 
think of? Have we covered most of the significant ones? I'm 
thinking of other matters that might have influenced your 
judicial philosophy. 

Schwarzer: I would say generally that I always tried to explore 

possibilities and opportunities for settlement. I thought that 
very often the risks with which litigation confronted clients 
and lawyers were not worth taking. An effort should be made to 
try to avoid them or minimize them. 

Hicke: Was that true of other members of the firm, or was that your 
own method? 

Schwarzer: I think that was generally true. I think we were a firm that 

was probably less aggressive than some. I've always felt, as a 
judge, that in most cases, the parties could do better to work 
out something that's a reasonable approximation of what they 
might be entitled to, rather than to go to trial and risk a 
result that would be really bad for one side or the other. 
I've never believed that the courts are the appropriate place 
to gamble. And a lot of litigation is gambling. 



174 



Well, there were lots of other cases. These are the ones 
that stand out in my memory, and these are cases that are 
perhaps somewhat significant beyond just the immediate dispute. 

Hicke: You've mentioned several times counsel you opposed. Is there 
anything more you could say about any others? How their 
methods differed from yours, or how you interacted? 

Schwarzer: I would say generally that during the time that I practiced 
lawand most of what I did was litigation--! found that the 
lawyers with whom I dealt were civil. They could be vigorous 
advocates, but I don't remember any timethere may have been 
some, but I don't remember as I sit here- -where I ran into 
lawyers who had overreached, who were dishonest, took unfair 
advantage, didn't live up to their agreements. 

My overall recollection of the bar during those years 
was that it was collegial and that dealing with other lawyers 
was never, or at least rarely, an unpleasant experience. It's 
very different from the stories that I hear now about what it's 
like to litigate. People represented their clients vigorously 
but within the bounds of professional ethics, a general 
attitude of collegiality prevailed within the bar. There are 
no particular people that stand out as opposing lawyers other 
than the ones I've mentioned. 

I should say as a sidelight that when you're under 
consideration for appointment to the federal court, you have to 
fill out a lengthy questionnaire in which you have to describe 
some ten or fifteen of the most important cases that you 
handled, and you have to give the name of opposing lawyers. 
The investigation that's conducted by the American Bar 
Association and the FBI [Federal Bureau of Investigation] and 
others always includes contacts with lawyers who had opposed 
you. They want to see what they had to say about you, because 
that's a pretty good test of your character. It was also true 
when I was admitted to the American College of Trial Lawyers in 
1974, which is an organization of good trial lawyers. 

Hicke: I wanted to ask you about that. 

Schwarzer: It always conducts a thorough examination of an applicant's 

standing in the Bar. Among other things, they always talked to 
lawyers who opposed you in litigation. So, I think generally I 
must have had good relationships with the lawyers that opposed 
me. I can't think of any problems that ever came up. That's 
not to say there may not have been some, but they certainly 
don't stand out in my memory. 



175 



I've been talking about these cases as if I handled them 
alone, and of course, that isn't true. I should have said, for 
example, in the Mt . Hood litigation, my assistant was John 
Reese, who did a very effective job, did a lot of the work, 
including arguing Shaffer v. Heitner in the Supreme Court. 

Hicke: He was an associate at this time? 

Schwarzer: He had become a partner by the time he argued the case. And 
most of my cases after 1965 I did with Tom Rosch, whom I 
mentioned before, who was immensely valuable and became a very 
effective lawyer. 

Hicke: Did you have some way of bringing these associates along? 



Schwarzer: Bringing them along? 

Hicke: Some particular things that you thought they ought to be sure 
to be doing so that they would be learning to be litigators. 

Schwarzer: The process of a partner working with an associate is a 

learning process. There's no one particular thing, but you are 
a mentor. That was a very important part of the way that the 
McCutchen firmed worked, and, I think, all of the large and 
medium-sized corporate law firms. You would learn to be a 
lawyer and you would develop your skills by working with an 
experienced partner. 

That's one of the ways in which law practice has changed 
in recent years with the great growth of law firms. The young 
associates don't have the same opportunity anymore to work 
closely with an experienced partner. They're more likely to be 
working for a senior associate. The firms are so large and 
there's so much pressure that it is much more difficult for 
partners to fill a mentoring role for young lawyers. 

But that was an important part of the way that we 
practiced. I know that I learned a great deal working with 
Trautman and Doyle in particular, who were very good trial 
lawyers and had a good way of practicing law and who put a high 
premium on quality work. I tried, then, to provide the same 
opportunity to young lawyers who worked with me. 

I think they all felt that they'd gone through a good 
training process working with me on cases, both in terms of 
preparation, and the quality of the writing, integrity, and 
legal research, thoroughness of preparation, appropriate 



176 



courtroom technique, and conduct, and behavior, and things of 
that sort. In those days, we did not have any trial advocacy 
training programs. Lawyers learned by working with partners or 
just by going out and handling small cases. 

It's all a relatively recent development that the firms 
have in-house training programs, or send lawyers out to 
programs such as the National Institute of Trial Advocacy; they 
didn't exist then. 

Hicke: Did the Vietnam War affect your practice, your life, in any 
way? 

Schwarzer: I hate to say it, but I certainly remember all the political 
arguments, and I was always interested in world affairs, 
national affairs, and I followed it. But I was never involved 
in any activities personally, and I'm not aware that it had any 
impact on our practice. The only person I can remember in the 
firm who served in Vietnam was John Reese, who was an 
intelligence officer. I think it was probably after he got out 
of law school, before he came to work for us. 

I know that the war had a very big impact on this court, 
because this is where most of the draft-evader cases were 
prosecuted. But I can't recall that it had any impact on the 
firm's practice. 



Bar Activities 



Hicke: Were you involved in any bar activities? 

Schwarzer: Very little. To be honest, I looked on bar activities at the 
time as largely make-work activities pursued by lawyers who 
didn't have anything better to do. It's a terrible attitude, 
[laughter] But I was so preoccupied with law practice and felt 
that whatever little spare time that I had outside I would 
rather spend on nonlegal activities. But the bar, the 
organized bar, played a much more subordinate role in those 
days . 

The Bar Association of San Francisco had committees. I 
remember serving on one or two committees, but I don't remember 
that I did much. I certainly didn't have any ambition to be 
active or in a leadership role. The American Bar Association 
was pretty much still in the dark ages. It was only just 
beginning to develop activities for its sections, and in later 



177 



years, it's the sections that did the valuable and the 
interesting work for the ABA. 

I did join the antitrust section of the American Bar 
Association. I remained a member; I think I'm still a member. 
And because of my interest in the interplay of regulatory laws 
and the antitrust laws, I joined the regulated industries 
subcommittee of that section. I was not active, and I 
certainly wasn't promoting myself, but through some fluke, the 
chairman of that subcommittee was promoted, and for some reason 
they made me the chairman of the subcommittee. 

So then I was invited to go to the meetings that they had 
for committee chairs, which were very nice. They were held in 
nice places. I remember going to the Mauna Kea Hotel--! think 
that was my first visit for a meeting of the chairs of the 
antitrust section in 1974, before I became a judge. So I was 
somewhat active in that section. 

Later, I became, for a few years, the judicial 
representative on the council of the antitrust section. I 
attended their meetings and became somewhat active. I think 
that was the extent of my activity with the organized bar while 
I was still a lawyer. Other people in the firm were quite 
active, but it just never appealed to me. 



Social Activities 



Hicke: What about firm social activities? 
about retreats and such. 



You told me a little bit 



Schwarzer: As a firm, there wasn't much except these occasional 

anniversary parties the annual firm weekend at Pebble Beach. 
I think maybe most of our friends were people in the firm, and 
we had mostly lawyer friends who also were at other firms. 
What did we do? Well, I remember we went away on some weekends 
with some friends down at Santa Cruz. We had barbecues, went 
skiing, and camping. Just the sorts of things that young 
people would do. 

Hicke: Informal. 
Schwarzer: Informal. 






178 



Hicke: You told me about the Aviation Commission in Marin County and 
the Marin Country Day School. But I read that you also 
belonged to the World Affairs Council; you were on the board. 

Schwarzer: I joined the World Affairs Council shortly after I came out 

here. I was active in their study groups, because that was my 
principle avocational interest international affairs. In the 
late 1950s, I was elected to the board. It's a large board. I 
think it had about sixty people. And for a while I was on the 
executive committee. 

I used to be involved in the planning of the annual World 
Affairs Council Conference at Asilomar. But gradually in the 
late sixties and the early seventies the nature of that 
organization changed. It used to be that the vast majority of 
its work was done by volunteers. But as it grew, it became 
more professional. So there was less volunteer involvement. 

There was still involvement by others in fundraising and 
various other kinds of activities, but it became less of a 
volunteer organization. I gradually became less active. I 
still went to meetings and to some study groups, but it's not a 
significant activity for me any longer. I did a little 
writing. 



Publications 



Schwarzer: I think I may have mentioned earlier in our conversation that I 
wrote an article; yes, we talked about this, the one I wrote 
when I was a teaching fellow at Harvard. And then over the 
years I wrote just a few things. I was interested in writing 
but I didn't spend much time on it. 

I wrote an article for the American Bar Association 
Journal on whether there should be world law. That was a hot 
issue for a while: law that everybody subscribed to. It seemed 
like an impractical idea. I wrote an article on presidential 
power to send troops abroad in the absence of a declaration of 
war. And I wrote a piece on organizing small corporations that 
went into a book that was published by the Continuing Education 
Division of the state bar, because I had done some work in 
organizing small corporations. 

I remember writing an article on the power of the federal 
courts to enjoin regulations that interfered with interstate 
commerce. That was closely related to cases that I had. But I 



179 



didn't do much writing, because I was really fully occupied 
with law practice. I didn't really start writing extensively 
until 1 went on the bench. 

Hicke: Yes, I'm just looking through your list. [See list of 

publications in appendix.] There's one in 1958: "A break for 
Fanners . " 

Schwarzer: We were doing quite a bit of work on farmer cooperatives, and I 
had written something for the state bar journal on that. 

Hicke: "Wages during temporary disability": that's the first one. And 
then "Presidential Power and Aggression Abroad." And 
"Enforcing Federal Supremacy: Relief Against Federal-State 
Regulatory Conflicts." There are two of them on world law. 
And here's a good one, "Flying the Canadian Rockies." 



Flying and Travel 



Schwarzer: In 1963, I started to take flying lessons and later bought an 

airplane and owned several airplanes over the years until 1978, 
when I quit. We took a lot of trips in the West, and also a 
number of trips around the country in our plane. 

On this particular trip we flew up to Jasper National 
Park, over Idaho and Montana, and landed on a grass strip right 
in the middle of the national park near the Jasper Lodge. It 
was not something that was commonly done. There were no other 
airplanes there, but the strip was on the map, and it was 
possible to land there. Then we took off from there, and we 
flew down to Banff, and then we flew across to Victoria, flew 
across the Canadian Rockies and the Columbia Glacier. 

It was a glorious day, not a cloud in the sky, it was 
beautiful weather. Then we went to Victoria and stayed there 
for a while and took the ferry and went to Buchard Gardens. We 
flew down to Portland, and the only untoward thing that 
happened on the trip was that Portland was the international 
port of entry, so we parked our plane there. The custom 
inspector came out, and we must have looked very suspicious, 
because he pulled all of our dirty laundry out of the plane and 
went through it very carefully. 

Finally, he was satisfied we weren't carrying any 
contraband. We went inside to have lunch, and when we came 
out, we found that our plane had almost been destroyed. The 



180 



Hicke: 
Schwarzer : 

Hicke: 
Schwarzer; 



Hicke: 



plane next to ours had been sitting on chocks, you know, you 
chock the wheels. The person started the engines and tried to 
taxi without removing the chocks. Finally, he put so much 
power on that the plane jumped the chocks, and he lost control 
and flipped around, and it just barely missed hitting our 
plane. 

We were very lucky on that trip, because ordinarily, you 
don't get very good weather over the Canadian Rockies; it's a 
very iffy proposition. It never occurred to me that somehow 
we'd have a weather problem, and we were right in the middle of 
an unusual drought, so we had perfect weather. But if we had 
gone down over the Rockies, where were flying, I doubt that 
anybody would have ever found us, because that was a very 
remote area. You just have to trust your plane, and as long as 
the weather was good, there wasn't any reason not to go ahead. 

It was a great trip. I wrote it up, and it was published 
in the AOPA [Aircraft Owners and Pilots Association] Pilot, the 
magazine of the aircraft owners and pilots association. Then 
they compiled a volume of the most outstanding trips that they 
had written up in their magazine, and this went into that 
collection. 

What kind of a plane did you have? 

That was a Beechcraft Bonanza. I've owned several over the 
years, sometimes alone, sometimes with partners. 

How did you get interested in flying? 

I had always been interested flying, and I really wanted to get 
into the air corps, but I couldn't because I was not a citizen. 
I had always been interested in airplanes. So one day in 1963, 
I decided the time had come. I went out to a little airport in 
Novato and started taking flying lessons. Then I went over to 
Oakland to continue to take lessons and got a commercial 
license and an instrument rating so I could fly on instruments 
in weather. 

We had a lot of exciting trips and went to places that we 
would have never had gone to. Especially in the West, it's a 
long and hard drive in a car to get to places like the Canyon 
de Chelly, for example. It is out in the middle of nowhere 
between Arizona and New Mexico, prehistoric cliff dwellings. 

Dirt road all the way, as I recall. 



181 



Schwarzer: Yes. It's pretty hard to find the air strip there, but we 

finally did find it. We flew across the country a few times. 
You have to be willing to take the time and, when the weather 
turns sour, to wait it out or leave the airplane and come back 
and get it; I've done that a few times. 

But it was a wonderful experience, and to me, that was my 
recreation, aside from skiing. When you're flying, you don't 
have time to think about anything else. You don't have an 
opportunity to think about anything else. It absorbs you 
completely. It was the one activity that really took my mind 
off law and litigation. So, it was very therapeutic. 

Hicke: Where did you go skiing? 

Schwarzer: We went skiing in Utah whenever we could, and sometimes at 
Squaw Valley. 

Hicke: Well, as far as I know, we've more or less covered your time 
with McCutchen. Is there anything else you can think of to 
add? 



Schwarzer: No, I can't think of anything else. 
it . 



I've pretty well exhausted 



The Rockefeller Commission, 1975 



Hicke: What about the Rockefeller Commission, then? 
about that? 



Can you tell me 



Schwarzer: I had been working, as it happened, on another derivative 

lawsuit--! guess there were quite a few of thosebrought by 
shareholders of Exxon Corporation against the officers and 
directors, charging them with a waste of the corporation's 
assets when they paid ransom to liberate a few Exxon employees 
who had been kidnapped by Argentine guerrillas. You may 
remember, that was the time in the 1970s when there was quite a 
guerilla movement down there in Argentina. 

Again, some enterprising lawyer had sued Exxon, I think 
in Sacramento, charging the directors and officers with a 
breach of trust for paying the ransom. The action was brought 
in Sacramento, and I was asked to help with it. Exxon was 
represented by Sullivan & Cromwell. 

Hicke: You were helping Sullivan & Cromwell? 



182 



Schwarzer: Yes. We prepared a motion to dismiss for lack of jurisdiction, 
because the officers and directors were not subject to 
jurisdiction in California. I went back to New York to work 
with the lawyer at Sullivan & Cromwell, a man named Roy Steyer, 
who actually became quite a close friend later, on this brief. 

When you work with New York law firms and that was true 
in the Atlas casethey just don't leave any stones unturned. 
This was a fairly simple proposition, but we spent no end of 
time turning out an absolutely perfect brief, researching 
everything. Time was not an object. 

In the course of working in the office, I was introduced 
to another partner in the firm whose name was Robert McCrate, 
who had long been counsel for Nelson Rockefeller, who later 
became vice president. 

About this time, the New York Times carried a series of 
stories by Seymour Hersh, charging that the CIA [Central 
Intelligence Agency] had accumulated some ten thousand files on 
American citizens, in violation of law. The law clearly 
limited the CIA to foreign intelligence, and they weren't 
supposed to spy on Americans. That was in December, 1974 when 
these stories came out, and there was a great uproar. 

Ultimately the president decided that he had better 
appoint a commission to investigate the domestic activities of 
the CIA, and he appointed Rockefeller to be the chair of that 
commission. 

Hicke: This was President [Gerald] Ford. 

Schwarzer: This was a high-speed operation. There was a lot of pressure 
to get this matter resolved and get a report out. I think the 
executive order provided that the report had to be out within 
six months. Rockefeller had to assemble a staff, and he 
consulted McCrate, and McCrate recommended that he ask me to 
come, among other people. What he wanted was geographical 
distribution on the staff, and also both Republicans and 
Democrats . 

It also happened that on his vice presidential staff, 
Rockefeller had a lawyer who was a classmate of mine, a man 
named Sol Corbin, who also knew me quite well. I guess it was 
Corbin who called me and asked whether I would come back and 
serve as counsel for the commission. 

That was an opportunity that I wasn't about to turn down. 
So I said yes; that was in January, 1975. In the first week in 



183 



February, I went back there. I didn't leave the firm; I just 
took a leave of absence. I went back there with the idea that 
I was going to be the counsel for the commission. But as it 
turned out, they had asked two other people, so that all three 
of us turned out to be the senior counsel. 

We divided up the work that we did into three general 
areas. Then there were three other junior lawyers that came, 
and one was assigned to each of us. Then there was the 
executive director, who was really the person who ran the show. 
His name was David Bellin, from Des Moines [Iowa], who had also 
served on the Warren Commission. 



Hicke: Who were the other two counsel? 

Schwarzer: One was Harold Baker, who later also became a district judge. 
He's from Illinois. And then Robert Olsen, who was I think 
from Kansas City. I'm not absolutely positive who the junior 
counsel was who worked for me. But I think it was James 
Roethe, from San Francisco, who is now the general counsel of 
the Bank of America. It was a very good group of people. 

it 

Schwarzer: I don't know if I have the report here. The members of the 
commission were John Connor, a businessman--! think he was a 
former secretary of commerce. Douglas Dillon, who was of 
course with the Wall Street underwriting firm and had been 
secretary of treasury. Erwin Griswold, who had been dean of 
the Harvard Law School, and later solicitor general. Lane 
Kirkland, who was the president of the AFL/CIO. General 
Lemnitzer, who was former chairman of the joint chiefs of 
staff. Ronald Reagan, who until recently had been governor of 
California. And Edgar Shannon, who I think was a professor of 
English at the University of Virginia. It was an interesting 
commission. 

As the report indicates, we covered various sensitive 
areas where there had been evidence of domestic CIA activity. 
The area of my particular responsibility was Watergate 
[referring to the break-in of Democratic headquarters], because 
there had been charges that somehow or another, the CIA had 
been involved in the Watergate coverup. 

It turned out there was absolutely nothing to it. But I 
did make a pretty thorough investigation. I remember 
interviewing a lot of people, including Charles Colsen, among 



ISA 



Hicke: 
Schwarzer : 



Hicke: 

Schwarzer: 

Hicke: 



others, about their activities and whatever contact they had 
with the CIA. 

The most interesting part of this was getting into the 
files of the CIA and talking to people on the staff. This was 
totally unprecedented. The CIA was hermetically sealed to 
outsiders for all of the time since it was created in 1948, and 
no outsider had ever been inside to look at their files or to 
interview staff members. Among other things, I remember 
sitting in the office of Richard Helms, who was then the CIA 
director, and taking his deposition under oath about all sorts 
of activities that had a possible impact on their domestic 
activities. I remember talking to one of the managers at the 
CIA, whose job it was to develop cover for people that went 
abroad for the CIA--creating false identities, false 
corporations, fronts. That was very interesting. 

We went through a lot of files, and I think we were the 
first people to see, for example, the correspondence that 
involved the attempts by the Kennedys to get the Mafia to help 
them assassinate [Fidel] Castro. And you will have read about, 
what was the name of that maf ioso--Giancarlo--who was based in 
Nevada and was negotiating a deal to eliminate Castro. 

I remember reading about Judith Exner, who was involved 
in all that and later became notorious for having had an affair 
with Kennedy. Lots of interesting things. We read about the 
bugs that the CIA was able to plant in Kruschev's limousine and 
about the meetings between Golda Meir and King Hussein in the 
desert. All of that has since come out, but we were the first 
to see it. That didn't have much to do with the domestic 
activities, but we ran across it when we were reading the 
files. 

In your notes here, you said they sent Castro exploding cigars. 

The Kennedys were hellbent to eliminate Castro. And they were 
pursuing all sorts of harebrained schemes like exploding 
cigars. They were going to send him a wet suitthey did send 
him a wet suit that was treated inside so that it would cause 
him to want to scratch himself, make him itch. But Castro 
never fell for any of those things. 

That's right out of Tom Clancy. 

Well, it's more like the Keystone Kops, I think. [laughter] 

Yes, that's true. 



185 



Schwarzer: They did find some questionable activities, like for a time the 
CIA opened selected mail that was going through the New York 
post office. The files that were accumulated, as it turned 
out, were of people who were involved in activities during the 
war in Vietnam, which concerned the government, because they 
feared that there were foreign connections and that these 
activities were fronts for foreign Communist, underground 
activities to try to cause disruption in the United States. 

It turned out that these basically antiwar groups never 
had any foreign connections. But that was the origin of these 
files that were at the CIA, and those were then eventually 
eliminated . 



Hicke: 



Schwarzer: 



These events took place in 1968 and '69, and there was a 
lot of concern about what was happening in the country. First, 
there was the assassination of Martin Luther King. The burning 
of Washington. A lot of violent protest movements, which led 
to this paranoia on the part of [Richard] Nixon. It was a very 
troubled time. Security agencies like the CIA and the Army 
Intelligence were quite concerned about security and about 
obtaining intelligence, fearing that underground activities 
would undermine the government. That was the origin of it. 

We didn't have a lot of time; the final report came out 
in June. It emphasized the importance of having outside 
civilian oversight for CIA activities. And to some extent, 
there has developed a modest amount of civilian oversight, but 
I'm not sure how effective it really is. There's the 
President's Foreign Intelligence Advisory Board, but it's 
questionable that it would get into the kind of detail that 
might be necessary. 

Our investigation laid the groundwork for the large 
investigation by Senator [Frank] Church's committee--that ' s the 
one that's had all the publicityand they investigated 
everything the CIA did. It was a major effort that went on, I 
think, for a couple of years. Ours was much more limited. 

You wrote that the code name for the CIA operation was CHAOS. 
Was that an acronym? 

Yes, they had code names for all the operations. And yes that 
was CHAOS; I had forgotten that. I think the operation to 
undermine the Cuban government was called Mongoose. It also 
included such things as putting sugar into the engines of 
freighters that carried sugar to sabotage the ships. But I 
don't think that had much of an impact. 



186 



Hicke: This is really an aside, but I wonder what Golda Meir and King 
Hussein ever accomplished, if anything. 

Schwarzer: Well, I can't say, but I think they both had a common interest 
to avoid the recurrence of war. I don't know what went on 
there, but I think it probably had an impact on avoiding 
misunderstandings in the relations between Jordan and Israel. 

It was an interesting commission. They met once every 
three or four weeks to go over the draft portions of the 
report . 

Hicke: Who drafted the report? 

Schwarzer: The staff did. But Rockefeller had his own editor. He brought 
him in; he had worked for him when he was governor and also for 
the Readers' Digest. Rockefeller had his own ideas about how 
this report ought to go. He was very supportive of the CIA, 
contrary to his popular image; you wouldn't regard him as a 
liberal in these matters. He was very concerned about the 
Communist threat and wanted to make sure that this report would 
not undermine the ability of the CIA to function. So he was 
quite protective. 

We had some disagreements with him, but the commission 
itself had no problems with the report. I remember there were 
some minor differences about wording, and I remember that 
Reagan was quite effective in resolving differences and coming 
up with language that everybody could accept. He made quite a 
good impression on the members of the commission and the staff. 

I remember one day when he was leaving, I think in his 
riding boots, or something like that--he had to get off to an 
appointmenthe left the room, and Rockefeller said, "He is 
really quite a guy," which was surprising because there was 
never any love lost between Rockefeller and Reagan. They were 
quite competitive. I remember having one conversation with 
Reagan, cocktails before lunch, in which he was holding forth 
on the constitution. He said that the only mistake the 
founding fathers made was they didn't ensure the politicians 
would not take over the government of the United States. 

Hicke: One of his famous one-liners. 
Schwarzer: Yes. 

Hicke: Do you thinkother than the effect on the Church hearings-- 
that there was any other impact from your report? 



187 



Schwarzer: It's hard to say. I think it probably put to rest the 

speculation about any CIA role in the Watergate coverup; that 
much was pretty clear. I think it had an impact in the CIA, if 
that was necessary, to alert them or remind them again of the 
restriction against domestic intelligence. There's a long 
history of jurisdictional squabbles between the CIA and the FBI 
[Federal Bureau of Investigation] . Intelligence activities 
within the United States are supposed to be the function of the 
FBI and not the CIA, but it's not always that clear where you 
draw the line. When you have an intelligence operation going 
on abroad that touches on people in the United States, it's 
difficult for the agency to say, "Well, we'll just turn this 
over to the FBI." So there were some things that the CIA did 
that were really connected with foreign intelligence even 
though they took place in this country. 

I think that continues to be something of an issue, and 
we couldn't get it resolved. But this report reemphasized the 
limitations on CIA jurisdiction, and I think that was probably 
useful. 



Hicke: And also perhaps made a little more civilian oversight 
possible . 

Schwarzer: Yes, it focused on the need for that. There had been oversight 
by a congressional committee, but it was perfunctory at best. 
The chairs of that joint committee had generally taken the view 
that the less they knew about what was going on, the better. 
So they didn't encourage the CIA to come and clear sensitive 
operations with them before they had started, although, 
frequently the CIA did. But not invariably. They weren't 
encouraged to submit to oversight, but I think the need for 
oversight became clear and obvious to people after this report. 

Hicke: Were there any members of the commission that strike you as 

being particularly effective? You talked about Reagan and the 
Rockefeller interest. 

Schwarzer: I can't recall that anyone was particularly outstanding. I 

think that Dean Griswold was an articulate defendant of civil 
rights and constitutional rights and the importance to 
safeguard those rights against intrusion. He would speak up on 
those issues. It was not a very vocal group of people, and 
they didn't become deeply involved, and they didn't have any 
deep commitments to positions. 

Hicke: Yes, that was what I was getting at. There's one thing we 

haven't talked about and that's your political involvement, if 
any, as we go along here. 



188 



Schwarzer: It was minor to say the least. I did register as Democrat when 
I came out here, and that was about the time when Adlai 
Stevenson was running. Both my wife and I were enthusiastic 
about Stevenson. One thing I remember: I think my principal 
political activity was passing out handbills during the 1952 
election campaign on Market Street. Can you imagine passing 
out political handbills for a presidential candidate at night 
on Market Street? 

I was never active in the party, although I probably 
voted for more Democratic than Republican candidates over the 
years. In about 1966, a friend of ours in Mill Valley decided 
to run for the board of supervisors in Marin County. He had a 
contested primary election. He was a Republican. There was a 
republican primary. In order to help him get two more votes, 
both my wife and I changed our registration, and we registered 
Republican, and we maintained that registration. 

When my name came up for consideration for appointment to 
the court, the first thing that the people in the political 
chain of command did was to check my registration, and found 
that I was a Republican. So that made it okay for me to get 
appointed. And that's how I became a federal judge, 
[laughter] Well, it's true. I remember Mr. Enersen told me 
that story. I think he was asked to check me out by people in 
the Republican organization. Peter Behr was our friend who ran 
for the board of supervisors. He later became a state senator 
and a leader in the conservation movement. 

Hicke: Yes, a very significant figure. 

Schwarzer: So, that's the extent of my political involvement. [laughter] 

Hicke: Crucial, though, apparently. Anything more to say about the 
commission? 

Schwarzer: Well, I'll just say a word about Rockefeller. He was a very 
different person, when you got to know him, than the public 
image that he had. He essentially ignored the people on his 
staff who worked for him. I think it took quite some doing 
before he was finally willing to have some meetings with us in 
his office to talk about issues. 

Here we had all dropped everything we were doing at home 
and came out to Washington to do this thing for his commission, 
and he never showed appreciation. He never once had a social 
event, never entertained us, never had us out to his house. 
Nothing at all. 



189 



Hicke: 
Schwarzer : 






Hicke: 



Schwarzer: 



He was a very cold person, and I really felt put off by 
him. He did, indirectly through his secretary, give us 
colored, autographed photos of him. But the color has faded 
by now. 

I have no doubt, though, that my association with that 
commission was a factor that supported my appointment. Now 
whether he actually gave me a recommendation--! listed him as a 
reference or whether it was just the fact that I was there and 
had done this work, it was helpful, without doubt, to my 
getting appointed. 

So it was a good thing. We took a small apartment, 
cockroaches and all. My wife was there part of the time, and I 
traveled back and forth a few times. But we worked all the 
time, and contrary to the experience that I had some years 
later when we moved back, it was not a very exciting 
experience, living in Washington. We didn't ever get into the 
Washington life; we didn't take advantage of that opportunity. 
It was just a superficial, brief introduction to Washington. 

What I did learn was something about how government 
commissions operate, and we all know that when there's a 
problem that confronts the government, the first inclination is 
always to say, Can we appoint a commission to look into it? 

Yes. Dianne Feinstein just recommended that for the--. 

Yes, you hope it's going to go away. This gave me some good 
insight. We had a lot of struggles within the staff, very 
different opinions. I remember one of the counsel was Ernest 
Gellhorn, a very smart lawyer. We had a lot of differences. 
The director, David Bellin, was not an easy person to work 
with. So we had differences. But in the end, we turned out a 
pretty good report, I think. 

Were these philosophical differences or procedural? 

Both. Legal interpretation of the relevant law, some 
philosophical differences, some procedural differences; you 
know, who would get to do something that was a relatively 
prominent chore? Who would get to talk to whom? Who would do 
what? All in all, it was worthwhile. 



Hicke: Good stopping place. 
Schwarzer: Okay. 



190 



VI FEDERAL DISTRICT JUDGE, 1976-1990 

[Interview 7: July 29, 1997] 

Appointment 

Hicke: Tell me when you first thought about becoming a judge. 

Schwarzer: The simple truth is that it never crossed my mind. I never had 
any thought about becoming a judge. In my early years of 
practice, I thought of leaving eventually to become a law 
teacher, but I was talked out of that by at least one partner 
of the firm. He persuaded me not to consider it. I got so 
wrapped up in law practice, I never thought about that anymore. 
And I certainly never thought of becoming a judge. 

But one day in April, 1975--I remember this distinctly--! 
was having lunch with Brent Abel, and I think there were a 
couple of other partners along; it was just a social lunch. He 
mentioned that there was a search on to appoint judges to 
replace Judges Zirpoli, Wollenberg, and Sweigert, who were then 
retiring or had just retired that is, taken senior status. 

I remember that just on an impulse, I said to him, "Well, 
I might be interested in doing that; would you mention my 
name?" He said he would. I was still spending time in 
Washington on the Rockefeller Commission, so while I was there 
one day, I went to see Pete McCloskey, who was one of the three 
Republican congressmen from the Northern District of 
California; that is, the judicial district comprised, I don't 
know how many, maybe five, maybe six congressional districts. 

Now I need to step back here to explain the political 
situation. Normally, appointments to the district court are 
the primary political responsibility of the senators of the 
president's party. They make the recommendation, and generally 



191 



the president goes along. In 1976, there were no Republican 
senators from California. So in the absence of Republican 
senators, the recommendation was left to the congressman of the 
president's party from the districts within that judicial 
district. 

There were three congressmen, and I'm ashamed to say the 
only one whose name I remember is Pete McCloskey. One of the 
other Republican congressmen came from Arcata. He was a very 
conservative person and very much concerned with the welfare of 
the lumber industry up there. 

Later this person was defeated by a Democrat. The 
district had a way of going back and forth between Democrats 
and Republicans. The third was a congressman from the Monterey 
area, whom I never knew and never met. I don't remember his 
name at all. 

In any case, I went to see McCloskey while I was still in 
Washington. I explained to him I was in the running, and I 
assumed that my name had been mentioned to him. He said that 
he had never heard of me, and nobody had ever said anything to 
him about it. It was a little embarrassing. But anyway, we 
had an interview. I spent some time with him, and he was very 
gracious and friendly, but completely noncommittal. 

He recommended I go and see the others. I did see the 
other congressman, and talked with him briefly, and his main 
interest was how I stood on issues affecting the lumber 
industry. As I recall, I just said I had no preconceived 
notions about it. I'd just decide whichever way the law 
required that I decide. That is about all I remember of the 
beginning of this effort. 

I don't know just exactly how my name got into serious 
contention and whether that was a result of these interviews or 
not, because none of those three congressmen had any particular 
interest in me. Pete McCloskey was actively supporting 
[William] Bill Ingram, who ultimately became a judge the same 
time I did, and who was from his area (San Jose) and they had 
known each other for a long time. The other two had no 
particular interest in any person at that point. 

Shortly thereafter, quite a number of names popped up, 
all of whom had political connections, which I did not. One of 
them was a lawyer from Eureka, who had been the president of 
the state bar, and I don't remember his name now. He was 
ultimately knocked out of the running because he had at one 
time been committed to a substance abuse program, alcohol. 



192 






There was another lawyer from Monterey who was a serious 
candidate, and he was eventually knocked out of the running, 
because while he was an assistant district attorney, he had a 
run-in with some judge, which resulted in a black mark. There 
were quite a number of other people who were interested: Bob 
Huber, who was an active Republican, and a lawyer in the city, 
at one time mayor of Mill Valley. 

In addition, there was strong support both locally and I 
think from the administration for Cecil Poole, who was then a 
lawyer, an African American, who had been nominated for the 
District Court during the Johnson administration, but had run 
into problems with then senator George Murphy, who, for some 
reason, didn't like him, and probably also Senator James 
Eastland, who made it difficult for any African American to be 
appointed. So his nomination died. There was a good deal of 
support for him, at this point, in light of that history. 

Hicke: He was a Democrat, wasn't he? 

Schwarzer: He was a Democrat. He had also been U.S. attorney during the 
Johnson administration in the Northern District. But every 
administration always likes to appoint somebody who is from the 
opposite party, and in that case, the Ford administration 
thought that politically this would be a good move, and he was 
well regarded. 

During that time, the responsibility for the decisions on 
who was going to be nominated was in the hands of the deputy 
attorney general. That had also been true in the Nixon 
administration. The selection of district judges was on a more 
professional and less political basis in those days. Later, 
beginning with the Carter administration, politics of one sort 
or another became a much larger factor. 

The deputy attorney at that time was Harold Tyler, 
who was a former district judge but had left the bench to 
become deputy attorney general in the Ford administration. He 
was also a distinguished former lawyer from New York City. He 
had sat on the southern district bench. He was also a member 
of the American College of Trial Lawyers. 

In addition to the deputy attorney general, the American 
Bar Association Standing Committee on the Federal Judiciary had 
a more significant role in those days than it does now. Their 
job is to interview lawyers to get a reading on the way that 
the proposed nominee is regarded in his or her profession. A 
number of the members of that committee were members of the 
American College of Trial Lawyers. 



193 



By reason of my having been a member of the college then, 
and being somewhat known as a lawyer with a national practice, 
I was well regarded by the members of the Standing Committee. 
And by Tyler. Now I should say that Bill Ingram was also a 
member of the American College of Trial Lawyers, but he had his 
political support in any case, which I did not. 

To make a long story short, this process began in April 
of '75, and finally at the end of May--l think it was over 
Memorial Day weekend--! was nominated; my nomination was sent 
to the hill. In the meantime, it was a real Perils of Pauline 
experience, because from time to time, I would get word that 
the decision had been made on who the three people were. 
Actually, my seat was really the only one that was in play; the 
other two were pretty well firmed up. 

Hicke: And there was John Busterud. 

Schwarzer: I was just coming to that, yes. So various people seemed to be 
in the ascendancy and then dropped off. In the end, around 
April, it was really between me and John Busterud, and John had 
very good political connections. He had been in the Nixon 
administrationhe had a fairly high-ranking position in the 
defense department. He started as a promising young man in the 
Republican party in California. He was head of the 
Constitutional Revision Commission, and had a very good record. 

But while his political credentials were strong, he 
really never made a name for himself as a practicing lawyer. 
And in the end, I think it was my lawyer's credentials and the 
fact that I was known and well thought of by the people who 
were making the decision, particularly Tyler, that I became the 
choice. But it was very close and came as quite a surprise to 
me. 

So, in May of 1996 my nomination went to the hill. The 
hearing on the three of us was scheduled in the latter part of 
June, and we appeared in Washington before Senator Roman 
Hruska, accompanied by I think Senator [John] Tunney, who was 
then one of the senators from California, and maybe Senator 
[Alan] Cranston, I'm not sure. It was a very brief and 
perfunctory hearing. 

I don't even remember what the senator asked me. We were 
under instructionyou get briefed by the Justice Department 
before you go in there, and they always tell you to say as 
little as possible and just get out of there and avoid trouble. 
I said very little. I think others remember questions; I just 



194 



don't remember as I sit here. We were scheduled to go to 
Europe for three weeks, and we took off. 

Hicke: You and your wife? 

Schwarzer: Yes, right. We came back shortly before the end of July and 
found out that our nominations had run into stormy weather in 
the senate. The deal was that we would go to the senate as a 
package, because the administration wanted to make sure that 
there would not be a problem with the confirmation of Cecil 
Poole. 

But it turned out that there was a problem, and this was 
at the end of Senator Eastland's career. While I don't know 
all of the details, I'm told that he was prepared to block 
Poole 's nomination, and that would have killed all three of us. 
It looked as though the nominations would die on the senate 
floor, but they were rescued, and we were confirmed. By the 
time I came back from Europe, that storm had blown over, and we 
had been confirmed. 



Hicke: Who rescued them? 

Schwarzer: I have no idea. I don't know what the politics were. I was 

sworn in, I think, in chambers by Judge Wollenberg on August 7. 
I moved into chambers here and got my cases, maybe 350 cases, 
something like that. I went to work on the cases, and I 
started sitting the first week of September. So, I think 
that's about the story of my going on the court. 

Hicke: What motivated you to take this appointment? 

Schwarzer: From a personal point of view, I should say that what motivated 
me to do this was I felt that I had reached a plateau in law 
practice. I thought it was getting repetitive taking 
depositions; spending time on discovery, which was most of the 
work that you did; occasional motions and trials. I also felt 
a certain sense of disappointment that I wasn't getting some of 
the more exciting work that was in the office that I thought I 
could do better than others who were doing it. 

I don't know what the thinking was of other partners, but 
perhaps their theory was that others needed bringing along more 
than I did. But I felt that I was in a rut, and it was getting 
fairly boring. This was an opportunity to do something else. 
In fact, as it turned out, once I got on the bench, it was like 
starting a profession all over again. It gave me a terrific 
charge of adrenaline and a new burst of energy. 



195 



I remember the installation ceremony, which the court 
always has for new judges. The court sits en bane, and various 
people come and say nice things. Judge [Robert] Peckham, who 
had just become chief judge, commented that I was known for my 
energy. He really hadn't seen anything yet, because I felt 
enormously energized when I got on the court that day. It was 
a tremendous challenge and very exciting. 



Early Experiences and Cases 



First Impressions 



Hicke: 
Schwarzer : 



Hicke: 



What were your first impressions of the court? 

I didn't have any particular impressions about the court when I 
first came on, because I spent the first three or four weeks 
just going through files with my new law clerks to try to get 
on top of these cases. I should say the way that new judges 
get cases is that they start out with a number which is equal 
to the average number of civil cases assigned to each active 
judge, and these cases are drawn about evenly from every judge 
on the court, so I got a cross-section. 

What struck me about these cases is how long many of them 
had languished in the court, and how little had been done on 
many of them. It seemed to me that a lot of those cases could 
have been resolved long ago and probably could have been 
settled or might have been resolved by motions. 

We went through these cases and set up a schedule to have 
a conference on every one of them to see what could be done. 
That was quite a change, because the court had really never 
been very much into active case management. In fact, active 
case management was a new idea that was just coming in. I was 
committed that I would try to move these cases along, to bring 
them to an earlier and more economical, fair resolution. 

So that took most of my time, when I first started out. 
There were, of course, some pending motions that we had to deal 
with. The first trial I had was a bank robbery. 



Let me interrupt just a minute, 
challenge of all these cases? 



Were you motivated by the 



196 



Schwarzer: Well, yes. It was a challenge to get on top of these cases, 
and to see what a judge could do to move them toward a 
resolution. That is, how one might play an active role, rather 
than just being passive and allowing those cases to languish or 
move forward as the lawyers might see fit, when they got around 
to it. 

Hicke: And had your experience as a trial lawyer contributed? 

Schwarzer: Not particularly. I had never really been exposed to or 

thought much about case management. As a trial lawyer, I had 
never given any thought to the judge's role in pre-trial 
management. My experience as a trial lawyer did have an impact 
in a number of areasmostly, of course, in the trial of cases, 
but also in the use of discovery and the need to control 
discovery; the overuse and misuse and sometimes abuse of 
discovery for improper purposes. That was something that I was 
well aware of and intended to control as a judge. 



Bank Robbery Case 



Hicke: 



Schwarzer: 



No doubt you'll be giving me examples as we move along, 
let's go on to the bank robbery. 



So 



I don't remember too much about it, except that I had never had 
any contact with any criminal case. I didn't know anything 
about criminal law, and the first issue that I confronted was a 
motion to suppress some evidence. I don't remember the details 
of it, but that was something of a challenge to figure out 
where to draw the line between legitimate and illegitimate 
activities in obtaining evidence by law enforcement people. 

1 remember that we had a longtime experienced FBI agent 
on the stand in that connection, and he told me later that he 
was really concerned about what I was going to do, because I 
was a complete wild card as far as they were concerned. But 
the case did go forward. It was United States v. Thomas. 
There was a conviction. Then we just went on from there. 



197 



Improving Jury Instructions 



Hicke: I'm interested in hearing about the conferences you set up with 
attorneys to identify issues and discuss procedures. Also, you 
worked to streamline jury trials and jury instructions. 

Schwarzer: Let's talk about the jury instructions; that's a distinct 
subject. I already mentioned to you my concern about jury 
instructions in connection with the Mount Hood antitrust case. 
At the time, the prevailing practice by lawyers and judges was 
to use a book called Devitt and Blackmar Federal Practice, 
which contained jury instructions that had passed muster in 
cases on every subject. Lawyers tended to go to that book to 
pick out jury instructions for submission, rather than to write 
them themselves. The book became a kind of an authority, 
although, in fact, it didn't have any authoritative status. 

Hicke: Sort of a boiler plate? 

Schwarzer: Well, yes and no. They started out mostly being instructions 

that had come out of cases that had not been reversed in other 
words, that had survived appeal. The only thing you could say 
for them was that they survived appeal. But the fact that they 
were challenged already cast a cloud over those instructions. 
And they were very generalized kind of instructions. 

Also, to a large extent, they were instructions that were 
taken out of appellant opinions, so they were written in 
legalese. They were written like an opinion and not like plain 
English that ordinary jurors could understand. 

I remember in one of my early cases there was a 
conspiracy charge, and I, like everybody else, used the 
conspiracy charge out of Devitt and Blackmar, which was about a 
page and a half long. I started reading the conspiracy charge 
to the jury, and I got completely lost in it. I broke out in a 
sweat, and I didn't know what I was saying any longer, because 
the sentences were so long. It was so convoluted that I just 
lost track of what I was reading. I finished it and the case 
went to the jury. But I then made up my mind that we would 
have to do something about jury instructions. 

So in my spare time, I started studying the literature 
and thinking about it. And one of the things that came out of 
that was the article in the California Law Review on 
communicating with jurors, which pointed out the problem and 



198 



made recommendations about how one might deal with the 
problem. ' 



Hicke: I see it in your list of publications. 

Schwarzer: So that article was published. About the same time, I gave 
some lectures to some judicial workshops, in which I 
recommended better drafting of instructions. That ultimately 
led to the creation in the Ninth Circuit of a Committee on Jury 
Instructions, and I was made the chairman of that. 

Now the effort to improve jury instructions was not 
something that I invented. It had been going on in the state 
courts for some years. There were, in California and 
elsewhere, what are known as pattern jury instructions. They 
were supposedly drafted with a view toward improved 
comprehension and better use of English. But they also became 
mandatory, that is to say, judges had to use them in the form 
in which they were published. There are two volumes in 
California, and I don't recall the name now. One is civil and 
the other one is criminal. 

My approach to improving jury instructions was different. 
I felt that giving jurors a standard instruction, say on 
conspiracy, for example, that was good across the board, a 
generic instruction, required that the terms, the language, be 
so general that it would be difficult for jurors to latch on, 
to comprehend, and to apply. So my approach to this was to 
give judges and lawyers model instructions, that is a well- 
drafted instruction in conspiracy, for example, that they could 
use as a model to adapt to their case, revising so as to take 
into account the particular facts of the case. 

In a civil case, for example, you wouldn't give people an 
abstract instruction on proximate cause. You would give the 
instruction to the jury in terms of the facts of the case-- 
whether the failure of the defendant to give a left turn signal 
at the intersection showed that he failed to exercise due care; 
whether it was unreasonable for him to fail to give a turn 
signal before making the turn. That way you would incorporate 
the facts. 



"'On Communicating with Juries: Problems and Remedies," 69 California 
Law Review 731 [May 1981) 



199 



That then led to some considerable work over a period of 
several years by the committee to write a manual of model jury 
instructions, and it was published by West Publishing Company 
sometime around 1984, '85. That has since been emulated in 
other circuits and by others, like the Litigation Section of 
the American Bar Associationpeople writing model instructions 
for particular areas of the law. 

That approach was important, because it put a premium on 
lawyers and judges thinking about the case and incorporating 
the factual issues, the factual controversy, into the 
instructions for the jury. So I did quite a bit of work there. 

There were some other articles that were spin-offs from 
the original article. But I think that it has had a 
significant impact in the trial of cases. And people recognize 
now that going to Devitt and Blackmar to pick up an old 
instruction phrased in appellant court language is not a 
satisfactory way to instruct jurors. It's falling into disuse 
now. 

Like every reform, it was an uphill battle, because 
judges are very sensitive to the possibility of getting 
reversed for giving an erroneous jury instruction. There's a 
great deal of inertia here opposing changes, because judges 
don't want to experiment. They don't want to try something new 
and risk being reversed. My answer to that was that there 
aren't that many reversals based on incorrect jury 
instructions. It's a rare case when that happens. 

In any event, if you're concerned about a fair system of 
justice, and if you want to make this system of jury trials 
work, the essential foundation is that jurors understand the 
issues, understand what they're being asked to decide, and how 
to go about it. Now that has other ramifications. 

I continued to work in this area, going beyond jury 
instructions to the management of a jury trial altogether, and 
that led to the article called "Reforming Jury Trials," which 
appeared in the 1990 University of Chicago Law Forum [119], 
which incorporated the ideas that I developed over time about 
giving jurors instructions at the beginning of the case so they 
would know what the case was about, making life comfortable for 
them, treating them in ways that would make them feel good and 
respected, treating them as an important part of the justice 
process, helping them understand the case as the case goes 
along, all of things that were done so badly in the O.J. 
Simpson case, which is a horrible example of how not to run a 
jury trial. All of those things I tried to put together, put 



200 



into practice, and then put together in this article on 
reforming jury trials, which has had wide circulation and, I 
think, some impact on the way judges run trials. 

Hicke: How are judges persuaded to change? You said there was a 

certain amount of inertia, which seems to be true everywhere. 

Schwarzer: I guess you could say, there's nothing in it for them, except a 
certain amount of risk. But I think judges have gradually come 
around to the view that these ideas are good and they're right. 
More and more judges now, almost every judge by now gives the 
jurors a written copy of the instructions. That used to be 
unthinkable. Now it's standard practice. 

More and more judges instruct before the trial begins, in 
addition to instructing later. Judges are more and more 
conscious of the fact that it's a bad idea to recess and let 
the jury sit out in the waiting room while the lawyers argue 
some motion. I think fundamentally, these are all common sense 
propositions, and common sense persuades most judges to adopt 
those kinds of reforms. 



Hicke: 



Schwarzer: 



So I think great progress has been made. There are still 
controversial areas. Some people still argue against pre- 
instructions . Some people still argue against letting jurors 
take notes or ask questions. But we've come a long way in the 
last twenty years. 

Probably you began using these kinds of things in your own 

work, and other judges did too, and got positive feedback, so 

this all helped. Can you tell me a bit about the kind of 
impact this had on your own work? 

Well, all of these things that I've described, I've put into 
practice. One of the things that I started to do early on was 
to give jurors an exit questionnaire, in which I asked them to 
grade the trial and the way it was handled, and to point out 
what they liked and what they didn't like, and how they felt 
about the experience, and what they would change. 

Sometimes you get back some suggestions and ideas. But 
it was clear that the jurors were very appreciative of the way 
the trial was being handled, so that was a good indication- 
good feedback that we were doing it right. Jurors, after all, 
are important, and the reason for a jury trial, among other 
things, is to give the public a part, to make them feel that 
they are participants in the justice process. 



201 



If they go away mad or disgusted, that undermines the 
acceptance and stature of the justice process in society. It's 
important that jurors feel good about the way jury trials are 
being run, because that's the purpose to have citizens be 
satisfied with the way the justice process works and with their 
part. So these questionnaires weren't just an idle exercise. 
They were an important part of making a jury play the role that 
they're supposed to play in society. 

Also, I spent a fair amount of time lecturing and 
teaching. The feedback from other judges was almost 
universally positive, and the reports that came back to me 
informally about how judges were changing their way of trying 
cases indicated to me that we were on the right road and 
progress was being made. I shouldn't say that I'm the only one 
who had these ideas; others did too. But I did take a very 
active part in implementing them and teaching them and 
promoting those ideas in the judiciary. 



Role of the Courts and the Justice System 



Hicke: I don't want to put words in your mouth, so tell me if this is 
not right. But it sounds like you're saying that you kind of 
think of the public as your clients and the jury as 
representative of the public, and that they're the ones that 
you're really serving. 

Schwarzer: Well, the courts are a public institution, and they serve the 

litigants primarily. So I don't know that I would put it quite 
the way you did. But the institution of the jury is not 
something that stands apart. It is an integral part of our 
system of justice, and the jurors are a bridge between the 
courts and the public. The system reflects a purpose that 
justice isn't supposed to be just in the hands of an elite 
composed of people who are called judges, but that it's also in 
the hands of citizens, and we want the citizens to feel that 
they are playing an important role, and to be satisfied with 
the way that they're asked to play the role. We want people 
who come in contact with jurors, who may not themselves ever 
serve as jurors, to get the right idea about the justice system 
from what they learn from jurors. 

Jurors go out and they talk to their families and 
friends, and those people form their ideas about the justice 
system in part on the basis of what they hear of the jurors 



202 



experience. This is the way that I think jurors play a 
significant role in our society. 



Impact of the Media 



Hicke: What part does the media play? 

Schwarzer: I don't think the media play much of a part, except in the 

relatively small number of cases that have a more or less high 
profile. The media, of course, in the cases which they cover, 
which is a small number, are a way in which the public has 
access to what goes on in the courts, because very few of them 
could ever go to court. So they have an important 
responsibility in reporting the process fairly and accurately. 

They do play an important role, and it's important that 
the courtroom is open to the media. And that, in my view, 
includes not only print media but also broadcast media. This 
is a controversial topic, particularly, within the judiciary, 
and I am definitely in a minority on this. But I think we 
have, as usual, a tendency to blame the messenger for the bad 
news. We're blaming television for what we don't like about 
the O.J. Simpson case; that's a prime example. 

Now, it's no doubt true that if there had been no 
television coverage, that case might have gone somewhat more 
smoothly. But the responsibility for the way that case was 
handled was essentially in the hands of the judge, and the 
judge failed to control it. The media brought us the bad news, 
about how badly it was controlled. 

Now it is true that a judge like Judge [Lance] Ito, a 
state court judge, does not have lifetime tenure, and when 
faced with a high profile case can be legitimately concerned 
about how his conduct would affect his chances at the next 
election. But I'm not persuaded that if he had managed that 
case as well as say, the Oklahoma bombing trial was managed by 
Judge Richard Matsch, that would have impaired his chances of 
getting re-elected. Nobody would have had any legitimate 
reason to criticize him or complain about it. So I don't think 
that the media have an inevitable influence over elected 
judges. 

The argument for having television coverage in the 
courtroom is that it gives people, not a complete coverage of 
the case and a profound understanding of what was going on, but 



203 



some sense of who the people are and what's going on in the 
courtroom. You can get that sense from just watching bits and 
pieces, watching the judge, and watching some of the lawyers 
and witnesses and the defendant and the prosecutors. So I 
think there's an argument in favor of having television 
coverage in most cases in which there is some public interest. 

Now, the problem with the O.J. Simpson case is that the 
interest in that case was primarily lurid and prurient. A case 
that involves race, sex, and murder is likely to evoke very 
strong public reaction. The interest in it isn't just because 
of legal issues but for a lot of other extraneous reasons. So 
I would not have faulted a judge for saying that this is not a 
good case for television coverage, that it may stir up a lot of 
feelings unrelated to the merits of the case that are better 
not stirred up. 

Given the prominence of the defendant, the coverage would 
make it extremely difficult, if not impossible, to select a 
fair and impartial jury. So there are reasons why a judge 
might reasonably exclude cameras in a particular case. 

On the other hand, I would have thought that the Oklahoma 
bombing case was of such enormous and legitimate interest on 
the part of much of the public that it might have been well to 
broadcast it. As it turned out, it was broadcast, of course, 
closed circuit to a limited audience in Oklahoma City, which 
was a recognition that those people had a real interest, and 
that their interest justified their being able to watch the 
trial . 

I don't think that case would have been a circus, because 
it was very well managed, both by the judge and the lawyers on 
both sides. So it would be better, I think, if federal judges, 
trial judges, were given the authority to decide. As it is 
now, all of the circuits except the Second Circuit, I believe 
have categorically barred cameras from trial courts, although 
not from the court of appeals. The Second Circuit, I think, 
gives the trial judge discretion. 

In California, the state trial court has discretion, but 
I think rarely exercises the discretion to exclude cameras. So 
that's my view on it. But my impression is that most judges 
and lawyers are very much opposed to having cameras in the 
courtroom. It's accepted that the cameras will not show the 
jurors; the jurors' privacy is always protected. 

There's a question whether, in some cases, it might deter 
witnesses. The typical case, for example, might be a medical 



204 



malpractice case in which doctors would not want to appear on 
television testifying on one side or the other. Those are the 
considerations that could be brought to the judge's attention, 
and the judge can exercise his judgment on how to deal with it. 
But that's not enough of a reason to categorically bar cameras 
in all cases. 

Hicke: Aside from reporting or showing the case and the people 

involved, does the media show an interest in such things as 
jury management, instructions to the jury, or any of that? 

Schwarzer: No. That's the argument that the opponents make. They say the 
media just wanted background anyway; most of the coverage is 
with voice-over, and you don't really hear what is going on, 
and you don't really get a picture of the courtroom. But I'm 
thinking, for example, of a case like the Charles Keating case, 
in which thousands of people who had been defrauded by his 
activities might have been very interested in seeing him on the 
witness stand being questioned. That would be a legitimate 
case, it seems to me, a high-profile case where the public 
interest is very legitimate. 



More on Jury Management 



Hicke: We kind of got off of the subject of reforming jury management. 
Is there more to be said about that, just in general? 
Particular challenges that you saw as you went along? 

Schwarzer: There's a fundamental issue in jury trials. We trust them to 
decide enormously important questions, questions of life and 
death, questions involving the fortunes of individuals and 
corporations. But we tightly restrict the evidence that they 
may hear. Of course, it is legitimate to keep out of the 
courtroom highly prejudicial and inflammatory evidence, because 
we want the jury to decide on the basis of relevant facts. The 
problem is that jurors don't come into courtrooms with a blank 
slate. They have their own experiences, their own body of 
knowledge and information, against which they assess the 
evidence in the case. 

The biggest issue that comes up in that connection is the 
issue of insurance. I remember that I had a medical 
malpractice case, which was a very serious case, a clear case 
of malpractice by the doctor which adversely affected the 
child. The jury returned a plaintiff's verdict, but they only 
came in with $600,000, which was a very small amount. 



205 



I would have expected well over a million dollars. When 
they talked to me later, they said they felt that they should 
not impose on the insurance company excessive costs that were 
not justified. So they took the welfare of the insurance 
company into account, assuming, of course, there was insurance 
in this case. It was unfortunate, but that was their choice. 
Jurors will always make assumptions about insurance, express or 
tacit. They may assume that there is insurance or they may 
assume that there's no insurance. But you can never tell them 
in the courtroom one way or another. I had leaned toward 
telling the jurors more rather than less, and explaining to 
them how they must deal with this information. 

There's another illustration of that. I was trying an 
antitrust case and talked to the jury later. They were telling 
me how they calculated the damages. Now under the antitrust 
laws, the jury awards damages, if the plaintiff wins, and the 
judge then is required to treble the damages. 

This juror said, "We took into account that these damages 
are increased afterwards." Now the law has been quite clear 
that the judge is not supposed to tell the jury about trebling. 

II 

Schwarzer: What this juror told me was that his daughter went to law 

school, and she had taken a course in antitrust law, and she 
had told him that the judge quadruples the damages. So this 
was in the back of his mind when he was deciding, along with 
other jurors, how much to award in damages. That makes a 
pretty strong case for dealing openly with matters that are 
likely to be in the backs of jurors minds that they may know 
about, and telling them honestly about the rules that are there 
and how they should deal with them. 

Those are some illustrations of the problems that we get 
into, the inconsistencies, I guess maybe is a better word, of 
our present practice. Present practice calls on the judge to 
tell the jurors that they can't discuss the case, they can't 
talk to each other about the case until they start the 
deliberations at the end, after the evidence is in. But in 
fact, it's contrary to human nature for jurors, particularly in 
a lengthy case, not to talk about the case with each other. 

I think, although there are arguments on the other side, 
I think, on the whole, it's better for jurors to talk to each 
other, as long as they do it privately and not out in the 
elevator or in the hall, so they get some sense of what others 



206 



are thinking, and it gives them some relief from the enormous 
tension that they're under while they're hearing the evidence. 

I eventually stopped telling them. I didn't tell them 
you can do it, but I didn't tell them that you can't do it. 
But this is controversial, and judges will argue that it's a 
very bad thing for jurors to talk to each other. But everybody 
knows they do it anyway. 

Hicke: Why is it considered bad? 

Schwarzer: They think that they will make up their mind too soon. I think 
that's a non sequitur. I think they could make up their mind 
at the beginning of the case, whether they talk to each other 
or not. In fact, by talking to each other, they're likely to 
find out that there's more than one point of view about the 
evidence. So I think it works the other way. But you can't 
test empirically. 

Well, I think that's about all on jury trials. 



Colleagues on the Bench 



Hicke: I'd like to hear a bit about the court and some of the people 
who were here when you came. 

Schwarzer: Judge Peckham had become the chief judge. Judge Carter had 

just died. Judges Zirpoli and Wollenberg and Sweigert had been 
on the court the longest time. Although they had taken senior 
status, they were here every day trying cases. Judge [Robert] 
Schnacke was there. 

They were all, I would say, really beloved judges. They 
were highly regarded in the community. I don't know if there 
were any polls then, but Wollenberg and Sweigert and 
particularly Zirpoli would surely win any popularity contest. 
They were wonderful people. They weren't necessarily great 
giants in the legal world, but they had common sense. They 
knew how to try cases. They were not case managers; that 
wasn't on their agenda. They came out of a different time. 
They were just great human beings. They were compassionate, 
humane, and had a sense of humor about themselves, perhaps 
uncommon among federal judges. 

I remember trying some cases before Judge Sweigert--! was 
still a pretty young lawyer and he would make me restate and 



207 



restate a question until it was absolutely tight and clear, 
with no extra words and no ambiguities, before he would let the 
witness answer. That was just his way of bringing young 
lawyers along. 

Hicke: Right there in court? 

Schwarzer: Right there in court. It was a learning experience. It was a 
little intimidating at the time. But when I think back now of 
what I learned in that court about asking questions-- 
specif ically , phrasing questionsbut more generally, about 
using the English language well, it was invaluable. 

When you sit in court and listen to lawyers ask 
questions, or when you're in depositions and they ask 
questions, they're often a mess. I mean, lawyers are largely 
incompetent, or at least marginally competent about phrasing 
questions, not thinking about the question they want to ask 
before they start asking it. 

All three judges were like that. It was a pleasure to 
appear before them, because you know you'd get a fair hearing 
and you'd learn a lot in the process. Judge Schnacke, too, was 
an outstanding trial judge. I always enjoyed trying cases 
before him. He was level-headed, common sense, fair. And he 
knew how to try a case. 

Judge Stanley Weigel had been on the court the longest. 
Judge [Samuel] Conti had come on the court the same time as 
Judge Schnacke, and I did not know him well. I don't know that 
I had any experiences with him. Judge Spencer Williams came on 
at the same time. The most recently appointed judges were 
Judge [William] Orrick and Judge [Charles] Renfrew, who had 
come on in 1974. Judge [George B.] Harris was still around, 
but I think he was pretty well retired. 

It was a wonderful court in which to try cases. I really 
had the highest regard for those judges. But it was also a 
court that reflected earlier times, when the litigation process 
was unhurried, when discovery had not yet become the monster 
that it became later. As a result, the cost of litigation had 
not yet become a dominant factor. 

All that changed in the late seventies. The dimensions 
of cases increased. The volume of litigation increased. 
Lawyers became more aggressive about discovery. Cost became a 
significant factor, and so until that time, there had been no 
concern about case management or any aspect of case management. 
But about the time that I came on, both Judge Peckham and I 



208 



became very interested in the need for case management, because 
of these changing conditions. I've already talked to you 
earlier on my views on case management. 

We were entering a new era in the court, in which case 
management became a significant factor in the way the court 
operated. Obviously, not everybody approached it the same way. 
Some judges never really took to case management. Some did it 
better than others. But it became an important factor in the 
life of the court, the operation of the court. 

Hicke: Were the cases backed up at the time you came? 

Schwarzer: Some certainly were. 

Hicke: You said you had quite a long list that had been there a while. 

Schwarzer: Yes. I know, for example, it took Judge Zirpoli a long time to 
get cases out. But when he got them out, they had been 
perfectly worked over. I can tell, in the cases I got, a lot 
of them had been around for a long time, and not much had been 
done on those cases. 

The fact that Judge Peckham became the chief judge at the 
same time, in 1976, also had a major impact on the court, 
because he was innovative, open to new ideas, very much 
committed to case management, to alternate dispute resolution 
and in other ways modernizing the court. His leadership had a 
significant impact on the way that the court operated. 

I guess I should say a word about San Jose. Judge 
Peckham was from San Jose, of course, and San Jose was just 
beginning to grow. Nobody foresaw what has happened since 
then. But the San Jose bar was interested in having a federal 
court presence. So, when Judge Ingram was appointed, he 
decided to sit down there. Judge Peckham would sit there 
occasionally. But Judge Ingram shortly became essentially 
full-time in San Jose. 

There was no federal courthouse, so he sat in a trailer, 
which had a lot of problems, including a security problem. I 
think once they lost a prisoner who broke out of the trailer 
and took off. Judge Richard Chambers, who had been the chief 
judge of the Ninth Circuit until 1976, when James Browning took 
over, was also very much in favor of having a presence down 
there and having a courthouse. 

So about that time the effort to build the San Jose 
courthouse began. Early in the 1980s it was completed, and at 



209 



Hicke: 
Schwarzer : 



Hicke: 



that time Judge Ingram and Judge [Spencer] Williams began to 
sit down there full-time, and Judge Peckham part-time. 

You can't argue with the fact that San Jose has become an 
enormous legal presence. That court now, the San Jose branch 
of our court, is the leading court in the United States for 
intellectual property litigation. So retrospectively, it made 
a lot of sense. 

But I was never happy about the idea of dividing up the 
court, because I think it resulted in a loss of the collegial 
quality of the court, and we basically lost contact with the 
judges down there. When I came, it was a very collegial court. 
We had the lunchroom, which we still do. But in those days, 
the judges ate there virtually everyday, virtually all the 
judges. You could learn a great deal from being around these 
experienced judges. It was a collegial group, got along very 
well, enjoyed each other's company. The lunchroom was a 
wonderful institution. 

Later in the 1980s, one of the judges in the court, who 
has since died, Judge [John P.] Vukasin, took it in his mind 
that there should also be a federal court in Oakland, because 
he lived over there and liked being over there and didn't want 
to commute. Regrettably, he had very strong political 
connections and was able to persuade the GSA [General Services 
Administration) to take on that project. 

There was no interest whatsoever on the part of the bar 
in Oakland, or Alameda County, which didn't have any federal 
court. But he pushed it through, and the rest of the court was 
not inclined to oppose it and some, I suppose, mildly favored 
it. But it was completely unnecessary. There have been three, 
now there are two active judges, one has taken senior status, 
who sit over there. But a lot of the cases that they handle 
come from San Francisco, and it was a further dispersion of the 
judges in the in this court and a further loss of collegiality . 

Where do they sit? 

A federal building was built over there, and it includes 
accommodations for district court as well as bankruptcy judges. 
The bankruptcy judges had been over there for many years, and 
that made a lot of sense. 

Are their cases thrown into the same hat as the ones in San 
Francisco? 



210 



Schwarzer: It's a very complicated system, and 
revised. Generally speaking, yes, 
wheel out of which the Oakland and 
The San Jose cases are all San Jose 
the intellectual property cases are 
everybody because they've exceeded 
judges to handle. There's just too 
more judges handling those cases, 
same work load as the judges here. 
Francisco. 



it's constantly being 
there is a single civil 
San Francisco cases come. 

cases, except at the moment 

being distributed to 
the capacity of the San Jose 

much, and there should be 
The Oakland judges have the 

A lot of it comes from San 



So the lunchroom is not what it was when I came on the 
court. The district judge attendance is sporadic. There are 
rarely more than two or three down there, except at the judges' 
meetings. In recent years, the lunchroom has been opened up to 
the magistrate judges, which increases the number of people 
there. And that's fine; magistrate judges are playing an 
increasingly important part in the operations of the court. 



Magistrate Judges 



Schwarzer: Perhaps a word about magistrate judges is appropriate, because 
in this court, they play a significant role. The position was 
created some time in the 1970s. Before that, they were 
commissioners. The responsibility of magistrate judges has 
grown. They are appointed for a term by the court itself. So 
they don't have the constitutional power that district judges 
have . 

They can try cases with the consent of the parties, and 
to some extent they do. They hear the criminal calendar, that 
is, the arraignment and certain motions in criminal cases, and 
they hear discovery disputes and those kinds of civil motions 
that judges refer to them. 

But the most important role that they have played in this 
court, and in some respects I think this court was innovative, 
was that they became settlement masters, that is, judges would 
refer cases to them for settlement conferences. Helping 
parties and lawyers settle their cases was a crucial part of 
the case management process. As it turned out, the magistrate 
judges in this court became outstanding settlement masters. 
They had tremendous success; I believe they settle over 800 
cases a year, over 10 percent of filings. 



211 



Hicke: 



Schwarzer : 



Hicke: 



Schwarzer: 



In recent years, they would handle something like a 
thousand settlement conferences a year. Most civil cases would 
go to them. They wouldn't necessarily settle them, but most 
did. 

Within the last couple of years, the court also decided 
to encourage lawyers to try their cases before magistrate 
judges. So now magistrate judges are in the wheel just like 
district judges. The case can be assigned to a magistrate 
judge, and it would stay with the judge unless one of the 
lawyers says, "I want a regular district judge." Then it would 
be reassigned. It's sort of a presumption of consent. So the 
magistrate judges now are essentially overwhelmed by their 
duties. 

The result may be that their ability to settle cases will 
be impaired, because now they are also assigned the full 
responsibility for cases. It's an interesting evolution. 
They've become very important and productive in the operation 
of this court. But it may be that too much responsibility is 
being pushed on them. 

You said the difference is in the way they're appointed? 

They're not appointed by the president. They're actually 
appointed by the court. They go through a merit selection 
process. For every position, there are well over a hundred 
applicants. The court has been very fortunate in having had 
outstanding applicants and having selected excellent people to 
be magistrate judges. 

One of those people that we selected during the 1980s has 
since been appointed to this court as a district judge, Judge 
[Claudia] Wilken. 

Is there some restriction on the number of magistrate judges? 

Yes, it's fixed by the Judicial Conference. As the work load 
increases, new positions are authorized. The numbers have 
grown. There are something like eight magistrate judges now in 
this court. 



212 



Law Clerks 



Hicke: At some point, and again I don't know if this is the right 
time, but I want to talk about law clerks perhaps the ones 
that you started out with. 

Schwarzer: When I was appointed, I had to start looking around. I found 
two people who happened to be available on short notice. One 
of them was Cathy Silak, and the other was Tony Tanke . Cathy 
Silak has had a distinguished career and is now on the supreme 
court of Idaho. Tony Tanke has had a successful career as a 
lawyer. 

Each year I've hired two law clerks. In the normal 
course, you hire them in February or March of the clerk's 
second year of law school. So it's almost a year and a half 
before they actually come to work. This is the way the process 
has developed. It's regrettable that you really only have 
first-year grades to go on, plus whatever achievements they 
have on their record or on their resumes. 



But I think most district judges feel the same way, that 
the law clerks are one of the great rewards of the system. 
Some hire them for two years, some for permanent positions. 
Most, including me, hire them for only one year. So each year 
you get two people more or less fresh out of law school they 
might have been out for a yearwith new ideas, new interests, 
and new perspectives, and it's stimulating to have these bright 
young people come in each year, and to work with them. 

Of course, it takes quite a while to train them to do 
what you want them to do. We expect a great deal, much more 
than we can reasonably expect from somebody just out of law 
school. But they do amazingly well. It has been a rewarding 
experience for me, because almost without exception, they've 
done a wonderful job. As much as anything, they've forced me 
to think. They test my analysis and my conclusions and my 
approaches to cases. 

They're never people who quietly say yes and go along. 
We have lots of arguments and discussions. In the process, 
they force me to rethink what my assumptions might have been, 
to work through cases and arrive at a better product then I 
could have produced if I had been doing this alone. They are, 
of course, tremendously helpful; they do a great deal of 
research and draft opinions. I couldn't operate without them. 



213 



Hicke: 
Schwarzer : 



They really become part of your family. You generally 
stay in touch with them, and they stay in touch with you. You 
watch their progress, and it's rewarding to see them doing well 
and going out in the world and contributing to their 
profession. That's a nice part of the job. 

In addition to law clerks, most of us here, in most years 
have also had externs, who are generally second or third year 
students, who are here for a semester to help out. You don't 
have the same close relationship with them, but some of them 
have made real contributions, and they've been an interesting 
group of people. 

What is the job description for an extern? 

The extern basically does low-level work similar to what the 
law clerk does, but doesn't get paid, and is here for credit. 



Alternate Dispute Resolution 



Hicke: Next in your notes is mandatory nonbinding arbitration. 

Schwarzer: Yes, I think we can say something about that. ADR, Alternate 

Dispute Resolution, came on the radar screen in the late 1970s. 
The attorney general wanted to see some pilot programs 
established. So Judge Peckham volunteered us, and two other 
courts went along, and we prepared this process for nonbinding 
mandatory arbitration of civil cases that involved less than a 
hundred thousand dollars. I remember that I was asked to draft 
the rules for the program, which I did. 

The program went this way. Cases would be assigned to a 
judge in the regular way, but if they involved less than a 
hundred thousand dollars, they would go to arbitration before a 
single arbitrator or a panel of three volunteer lawyers, 
although I think later on they got paid a nominal amount. That 
would be done within the first hundred days. There would be a 
hearing and the arbitrators would make their decision. 

Now, if both sides accepted it, that would be the end of 

the case. They didn't have to accept it, either one could turn 

it down. And then the case would go forward in the regular 
way. 

II 



214 



Schwarzer: That program seemed to dispose of quite a few cases. A judge 
could take a case out of the program, if he wanted to do that, 
but that was rarely done. Several hundred cases went to 
arbitration every year, and most of them, the vast majority of 
them would terminate, not necessarily on the basis of the 
arbitration award, but that would be the basis for a settlement 
between the parties. 

Because the experiment was proving successful, Congress 
passed a statute that authorized a program that hadn't been 
authorized before in ten pilot districts, including ours, which 
meant that we could get some money to pay an administrator to 
run the program. There was a sunset provision in the statute--! 
think it was for ten years. And it would endWell, actually, 
it ended in the late eighties, and then it was renewed. 

The Federal Judicial Center [FJC] was required under the 
statute to make a study of this program, and the study started 
shortly before I went to the Judicial Center in 1990. It was 
completed when I was there. The conclusion of the study was 
very positive, that the program should be authorized for all 
districts . 

So, the FJC report went to the Judicial Conference of the 
United States, that's the policy-making body of the Federal 
Judiciary, composed of the chief judge of each circuit and one 
district judge from each circuit. The chief justice presides. 

When it got before the Judicial Conference, it turned 
into a real donnybrook. There was a small number of judges who 
felt that this program, along with all ADR programs annexed to 
courts, undermined jury trials. These were people who were 
passionately devoted to jury trials and felt that anything that 
might get in the way of people trying cases to juries was bad. 

This was a handful of people, led mostly by Judge Thomas 
Eisele of Arkansas, but they made a lot of noise. They got at 
least two members in the Judicial Conference to speak against 
this recommendation. They were highly respected and 
influential, and so the Judicial Conference defeated the 
recommendation and ultimately arrived at a compromise 
recommendation that would only permit the existing districts to 
continue their programs. 

Meanwhile, there was, in the House of Representatives, a 
subcommittee of the House Judiciary Committee which was charged 
with oversight of the federal courts--! think it was called the 
Subcommittee on Courts and Intellectual Property. It was 
headed by Congressman [John] Hughes from New Jersey. He was a 



215 



strong advocate of ADR programs, and he wanted mandatory 
arbitration in all the districts. 

He latched onto the FJC study and called me to testify 
about it. There were other witnesses too. I testified about 
the study and also about my own experiences in San Francisco, 
which was favorable. That resulted in one of the major rows 
during my time at the Judicial Center, the effects of which are 
still being felt, and that is the issue over whether the 
director of the Federal Judicial Center should be able to 
express views publicly that might be seen to be at odds with 
the official position of the Judicial Conference. 

Of course, the row might not have been as serious as it 
turned out to be had it not been for the director of the 
Administrative Office of the United states [AO] , who serves the 
Judicial Conference, acts as its secretary, and implements its 
directions, Ralph Mecham, who fanned the flames of what would 
otherwise have been a rather minor issue, motivated by his 
longstanding and deeply seated hostility to the Federal 
Judicial Center. We'll have more to say about that as we go 
along. 

But this is a brief summary of the controversial history 
of mandatory, court-annexed arbitration. What people tended to 
overlook was that while the arbitration was mandatory, it was 
not binding. So people could walk away from it. Nevertheless, 
there was philosophical opposition. 

I guess the last chapter in the story of court-annexed 
arbitration is the Rand Corporation study conducted for 
Congress under the Civil Justice Reform Act that was adopted in 
1990. That study was intended to evaluate methods of case 
management, because Congress thought that the federal courts 
were not sufficiently aggressive in case management Congress 
meaning basically Senator [Joseph] Biden from Delaware, who 
pushed this legislation. The Rand study, which came out 
earlier this year, determined that there were no demonstrable 
benefits from these kinds of court-annexed programs. 

It was a counter-intuitive conclusion; it's open to a lot 
of question. But it again gave new energy to those who wanted 
to eliminate court-annexed ADR programs by cutting off funds. 
But the effort to cut off funds to support those programs has 
been momentarily stalled, and the question remains up in the 
air. Over the years, in this court particularly, the ADR 
programs were expanded beyond mandatory arbitration to include 
mediation, which is quite different, early neutral evaluation, 
and other alternatives. The idea was that the court would 



216 



Hicke: 



Schwarzer : 



offer litigants a menu of alternative dispute resolution 
techniques that they could resort to. Mediation, of course, is 
an interest-based approach to try to find common ground between 
litigating parties, whereas arbitration is a rights-based 
approach that is intended to arrive at an evaluation of the 
legal rights and duties of the two parties, so they're quite 
different. 

At this point, mediation is the dominant method of ADR 
and properly so. Arbitration is on the decline as an ADR 
method in a court-annexed environment. Now, of course, parties 
can agree to do what they want to on their own. But that's, I 
think, the ADR story in a nutshell. 



Hicke: What's happening now? 
or authorized? 



The program is continuing to be funded 



Schwarzer: Yes, at the moment it's still funded. Funds may have declined, 
but this court has an administrator for those programs. In 
fact, I think it has a staff of two people. Not every court 
does, but most district courts have some staffing. 

That was another thing I was going to ask. In the early days 
when you first started looking at this, was this same sort of 
thing going on elsewhere? 

When I came on the court in '76, there was no ADR annexed to 
any court. Our program was the first. There were two other 
districts, Connecticut and New Jersey, that also experimented 
with arbitration. But there was no money at that point. It 
was done out of the clerk's office. 

So, the money didn't come to support the administrator 
until Congress authorized the program for the ten pilot 
districts, which was in the early eighties. That authorization 
ran for maybe five years, and then it was renewed subject to 
the FJC study. If it hadn't been for the Judicial Conference 
being persuaded to oppose the notion philosophically by a 
handful of people, if they had supported the efforts of 
Congress to make this program permanent, it would have been 
available to any district that wanted to do it. Now it's true 
that Hughes wanted to push it further than we did. He wanted 
to make the programs mandatory. All we wanted to do was to 
have an option for the courts to elect that program if they 
wanted to do it. Then they could get funding for it. 

Hicke: So was the impetus for it to begin here due to one person, or 
to several others? 



217 



Schwarzer: I think the reason that we went into the pilot program in 1978 
was because Judge Peckham wanted to do it. I helped him with 
it, and I drafted the rules, but without him, we would have 
never gotten into it. He had always been a strong advocate and 
continued to be one. I think that ADR might not have even gone 
as far as it did without his support. That was one of his 
major achievements, I think. 



War on Drugs 



Hicke: 



Schwarzer: 



We have a few more minutes . 
want to cover today? 



Is there one more thing that you 



We might talk a little about the so-called war on drugs. Drugs 
were not a big factor in the life of the court in the early 
eighties. There was an increase in drug prosecutions, but it 
wasn't a big factor. But in 1986, crack came on the scene. 
There was the case of a prominent basketball player named Len 
Bias, who died of an overdose of crack. That plus other 
publicity around the country drove the Congress to get into 
action. 

Congress passed a series of mandatory minimum sentencing 
laws. Under those laws, the sentence imposed on a defendant 
was determined wholly by the amount of the drugs charged to 
him. If he had, for example--! don't recall exactly what the 
numbers were, and they're still in effect--! think five grams 
of crack, that required a minimum sentence of five years. 

The crack penalties were a hundred times as severe as the 
ones that were created for cocaine. So possession of only 5 
grams of crack resulted in a five year mandatory sentence, 
while it took 500 grams of cocaine to get the same sentence. 
This had an enormous impact, because people might be caught 
with a small amount of drugs on them. Or they might be 
involved in a drug deal because somebody asked them to stand at 
the corner and be a look-out, and they never even had their 
hands on drugs, or had nothing to do with the transaction. 
High school kids would be sentenced to long prison terms 
because somehow through lack of judgment, stupidity, they just 
stumbled into some drug deal. 

Most judges were very concerned about the injustice that 
produced. I had a case involving a man named Richard Anderson, 
an African American, who had never been in trouble with the 



218 



law, as far as I knew, and was employed as a longshoreman in 
Oakland. 

The evidence in the case was that he was driving through 
Oakland one time, and he stopped for a young black person whom 
he knew, who asked him for a ride. This fellow got in, 
carrying paper bag, and he asked Anderson to take him to a 
supermarket parking lot, which he did. There the young man got 
out, but left the paper bag in the car. 

Shortly after that, some man, whom Anderson didn't know 
and had never seen before, stuck his head through the open 
window in the truck and said, "Where is the stuff?" Anderson 
pointed to the paper bag. He was promptly arrested. The young 
man disappeared and was never caught. The man who had stuck 
his head through the window was a Drug Enforcement 
Administration agent. 

Anderson was arrested and charged with possession of 
crack with intent to distribute. I don't remember what the 
exact quantity in that bag was, but it was something over five 
grams. That was enough to make a ten-year sentence mandatory. 

He went to trial. The question, of course, for the jury 
was whether he knew. It was clearly in his truck, and he had 
control of it. Did he know what was in it? He denied it. The 
government said that he knew, he must have known. The jury 
found him guilty. 

One of the worst experiences I ever had on the court was 
to sentence him. I had to sentence him to ten years. I said 
how terrible it was that we should lose our soul in dealing 
with this evil of drugs. And I called the [San Francisco] 
Chronicle before that and told the reporter, Harriet Chang, I 
thought she might want to cover it. She did, and it got a lot 
of publicity. There was long story about it in the American 
Lawyer. 

It became quite a notorious case and raised the 
consciousness of people to the injustice of these sentences. 
Unfortunately, in spite of all the efforts that have been made 
in the last ten years, they are still what they were. There's 
a slight change. There's a very narrow window for a first 
offender involved in a small quantity, where the judge might 
have discretion to depart below the mandatory minimum. But it 
rarely applies. 

Most recently, the Justice Department made a proposal to 
the Congress to raise the minimum quantity of crack to I think 



219 



maybe fifty grams, something of that sort, before the mandatory 
minimum cut in. But at the same time, they also proposed an 
offset of lowering the quantity necessary in the case of 
cocaine for the mandatory minimum to cut in. 

The argument had been that because crack is primarily a 
crime involving African Americans, and cocaine more frequently 
involves Caucasians or Hispanics I suppose, that there was a 
racial aspect underlying the disparity in the sentencing. 
That's probably an unjust charge. I think Congress was much 
more concerned with crack than cocaine, based on the evidence 
before them. 

It just so happened that crack offenses tend to be more 
frequently committed by blacks because of the particular 
appeal, I guess, that crack has in the inner cities. So 
there's the disparate impact that more blacks get prosecuted 
for crack more often than whites, and more whites are 
prosecuted for cocaine than blacks. 

But as Randall Kennedy points out in his recent book 
Race, Crime, and the Law, there's no basis for saying that 
that's evidence of racism. However, that doesn't make these 
mandatory minimum laws any less offensive, because when you 
take away the discretion that judges have to assess 
culpability, to take into account all of the various 
circumstances that would go into the sentencing decision, 
you're creating a system of injustice, because you are treating 
people who are totally differently situated in the same way. 
That doesn't make for justice. 

So it's a terrible system. I think if you talk to people 
in Congress, they will admit that it's not a good system. But 
the war on drugs has become so politicizedas crime has 
generallythat nobody in Congress has been willing to stick 
their heads up, and certainly not enough people there are 
willing to stick their heads up to lead an effort to bring 
about some change in this system. 

When people criticize the sentencing guidelines, which we 
can talk about later, they're more likely to have in mind a 
case involving a mandatory minimum sentence. Because whatever 
the guidelines provide, if a mandatory minimum applies, because 
of the involvement of drugs and weapons, the guidelines don't 
permit the court to go below the mandatory minimum, although, 
they might provide for going above it. 

Hicke: Are there any studies that have been done to show what effect 
if any the mandatory guidelines have had? 



220 



Schwarzer: Oh, there are lots of studies. There are no studies that show 
whether sentences have had an effect on deterring crime. 

Hicke: Yes, I guess that's what I really meant. 

Schwarzer: The statistics on the prevalence of drugs are pretty shaky. 
There's some evidence that some drug use has gone down; then 
there's evidence that it has increased. We don't really know. 
The best statistics we have, I think, are of admissions to 
emergency rooms where people are routinely tested for drugs. 
The results there have fluctuated. 

There certainly seems to have been a general decline in 
crime in the United States. But I don't know whether the use 
of drugs has gone down. I don't know that anybody knows. 
There are certainly still plenty of drugs coming into the 
country. 

Hicke: And nobody knows what effect the mandatory sentences have? 

Schwarzer: When you talk to people, as I have, in prisons, they'll tell 
you they had no idea about these sentences. The people that 
commit these crimes are not like bank robbers or white collar 
criminals who know the penalties. They don't know. They know 
that it's against the law, but they don't know that they're 
facing mandatory minimum sentencing. 

They had no idea. They'd be willing to gamble on a year 
or two because of the profit. But they may not necessarily 
wish to gamble on ten or twenty years. They don't know that. 
So deterrence doesn't work except with people that are informed 
and sophisticated. I don't think that deterrence has been 
significant as a result of these sentences. 

But some people argue, and it's probably true, that a lot 
of drug dealers have been locked up. The problem is that most 
people that are locked up are at the bottom of the distribution 
chain. It's rare that they get the big fish. There's probably 
an endless, inexhaustible supply of young men in the inner city 
who are willing to get into the drug business to take the place 
of those who have been locked up. 

Hicke: I think that's a good stopping place. 
Schwarzer: Okay. 



221 

Case Management 

[Interview 8: July 30, 1997] 



Hicke: You wanted to add more on the subject of case management. 

Schwarzer: Yes, we touched on it briefly, but it's probably worth 

exploring a bit, because there are quite different views of 
case management. The general notion grows out of Rule 1 of the 
Federal Rules of Civil Procedure, which calls on courts to 
administer cases to bring about the just, speedy, and 
inexpensive determination of all cases. 

As I said, the growing volume of cases and the increased 
expense and drain on judicial resources in the late 1970s made 
judges more conscious of the need to implement Rule 1. Now, 
the idea of many judges was that meant to set an early and firm 
trial date and also a firm discovery cut-off date. That would 
focus the attention of lawyers on the case and would tend to 
bring about early settlement. In fact, many judges still feel 
that an early, firm trial date is the best way to get cases 
settled. And there is certainly some truth in that. 

I don't disagree with that, but I took a somewhat 
different view, which is shared by a number of judges, and that 
is to focus attention on an early conference with the lawyers 
in chambers or in court to discuss the case. The main reason 
for having this kind of conference is to require lawyers to 
focus on the case to determine what kind of evidence they had, 
what the issues were, and what the cost and benefits of the 
litigation would be. 

The most important thing is to get lawyers to identify 
the issues at the conference and then to determine what would 
be the most effective way to resolve them, and to explore the 
possibility of settlement. A management conference such as 
that is not a settlement conference, but it does invite lawyers 
to start thinking about it in light of what they hear from the 
other side, and how they themselves assess their case. 

Hicke: This would be with the two opposing counsel and yourself? 

Schwarzer: Yes. In my experience, I find that, frequently, the lawyers 

had not talked to each other about the case at all and had not 
really analyzed the issues, what they would have to prove, how 
they would defend the case, how they could prevail if they were 
the plaintiff. So the case management conference often laid 
the foundation for an early settlement conference, or for an 



222 

early summary judgment motion, and thereby could avoid the 
expense and delay involved in preparing the case for trial. 
Lawyers can then focus their early discovery on issues pivotal 
to settlement or motions and avoid the investment to prepare 
comprehensively for trial, wasteful because few cases go to 
trial. That's why I favor the intensive use of those kinds of 
conferences. Of course, they require the judge to be prepared, 
to think about the case, to get into it. To a considerable 
extent, it is an intellectual exercise, which not every judge 
may be disposed to engage in. 

That was my approach to case management, and that was the 
way we taught it at the Federal Judicial Center. The materials 
that we put out focused on the need have those kinds of 
conferences and to use them effectively, not just as a 
perfunctory meeting that would take a few minutes, which is 
what some judges did. The 1993 Amendments to Rule 26 of the 
Federal Rules contemplated that judges would have these kinds 
of conferences early on before discovery even began. They 
embodied this approach to case management. 

I think that is still the prevailing approach among 
federal judges, although I must say that federal judges conduct 
these conferences with very different degrees of personal 
involvement, preparation, intensity, and success. I think 
that's case management in a nutshell. 



Complex Litigation and the Insurance Antitrust Case 



Schwarzer: Now, I guess beyond that, I should also say something about 

complex litigation. Different kinds of cases require different 
degrees of judicial involvement in case management. I don't 
think that this is a case where one size fits all. 

Beginning in 1960, the Judicial Conference and the 
Federal Judicial Center put out a manual which later came to be 
known as the Manual for Complex Litigation. One of the tasks I 
set myself at the Judicial Center was to publish a new, updated 
version of it that incorporated new and more sophisticated 
ideas of case management and gave judges some hands-on 
guidance. The third edition of the Manual for Complex 
Litigation, which came out in 1994 and was largely my work, is 
a manual for case management of complex litigation, although it 
has utility in other kinds of cases, too. 



223 



In addition to that, at the center, we published a little 
manual called the Elements of Case Management, which laid out 
in simple terms what I've just described. We also published a 
Manual on Litigation Management, which was applicable to cases 
generally and was a handbook for judges to use in developing 
approaches to the management of the litigation. 

Hicke: Are you going to get into the specifics a bit more when we talk 
about the insurance litigation? 

Schwarzer: I think that as far as case management generally is concerned, 
I've pretty well described the essentials. The insurance 
litigation was a particular kind of complex litigation. The 
disposition of that case really turned on substantive law, and 
I pushed it to summary judgement on the basis of what I 
understood to be the underlying substantive law. I probably 
pushed it harder than many other judges would have. We can 
talk about that case at this point, if you want to do that. 

Hicke: Why don't we, since we're on it? 

Schwarzer: That was a case brought by various attorneys general against 
insurance companies primarily , reinsurance companies. It 
arose in a period when the insurance industry was heavily 
stressed by claims made under commercial general liability 
policies, in particular, policies that covered environmental 
risks . 

The problem was that the insurance policies that were 
outstanding had allowed coverage for whenever the claim arose, 
as long as it was based on events that occurred during the 
policy period. In effect, insurance companies and reinsurance 
companies were on the hook under policies for many years 
thereafter, because the policies had what is known in the trade 
as a long tail; that is, a claim could be asserted under the 
policy long after it expired, as long as it related to events 
during the time when the policy was in effect. 

The insurance companies made an effort to restrict the 
terms, change the terms of their policies that were being 
issued, and to restrict coverage to claims that were made 
during the policy period. 

Hicke: Cut off the tail? 

Schwarzer: Yes. By the time the case came up, the problem had pretty well 
taken care of itself, because the insurance claims were under 
control again, and insurance companies were issuing coverage to 
public entities, commercial entities, which for a while they 



224 



Hicke: 
Schwarzer ; 



had not done because of the exposure that they feared. 
Nevertheless, the attorneys general brought this antitrust 
action, charging that the insurance companies conspired in 
violation of the antitrust laws to restrict coverage under 
their policies. 

The antitrust laws contained an exemption for insurance 
companies, recognizing that in the insurance business, 
companies have to cooperate on policies as well as on the 
assessment of risks, and they have to exchange information in 
order to be able to have a database reflecting loss experience 
from which they can calculate what the premium should be. 

So this conduct was exempt under the antitrust laws, 
unless it fell within an exclusion under this exemption for 
boycotts. The question was whether this was a boycott. The 
facts were undisputed. There was no dispute that the companies 
had meetings and had agreed on changes in the terms of the 
policy. I held that that was not a boycott. That it was a 
legitimate activity. Boycotts were agreements among 
competitors to exclude people from the trade, traditionally, 
and this was not a boycott. 

To restrict freedom of entry to the business? 

Well, a boycott would be where traders would come together and 
agree that they would exclude somebody, and, in effect, drive 
them out of business. It's a very specific kind of traditional 
tort. It had been established under the common law. 



The other part of the case was that most of the 
defendants were reinsurance companies and that most of the 
activities complained of took place in London, where the 
reinsurance market is located, and involved reinsurance brokers 
that would go around and place risks. Companies would accept 
them or decline them. 



Hicke: 



Schwarzer: 



There was a general tendency to decline American 
environmental risks in the reinsurance market, because of the 
unlimited exposure. So, on that part, I held the antitrust 
laws couldn't apply to activities in the London reinsurance 
market that were regulated by the British authorities 
themselves . 

Was there case law on that? 

Yes, there was. It was conflicting case law. It went to the 
Ninth Circuit, which reversed the summary judgment on both 
counts in a very brief and rather superficial opinion. Then it 



225 



Hicke: 
Schwarzer : 



Hicke: 
Schwarzer: 



Hicke: 



went to the Supreme Court. The Supreme Court basically agreed 
with my analysis of boycott. It disagreed with the analysis 
concerning the extraterritorial application of the antitrust 
laws and said that if any activity carried on abroad has an 
impact on trade in the United States, then it could be made 
subject to the American antitrust laws. 

But because the court essentially rejected the boycott 
argument made by the plaintiffs, there wasn't a whole lot left 
of the lawsuit. When it came back, 1 was gone, and it went to 
another judge in this court. Eventually it was settled on 
nominal terms. I think I did the right thing in getting this 
case to summary judgment, which I think not too many judges 
would have done. 

When I held one or two early pre-trial conferences, I 
used the ceremonial courtroom; it was full of lawyers, and 1 
commented that you could hear the thunder of lawyers' time 
clocks ticking away. 

You mean lawyers participating in the litigation? 

In the litigation. Enormous numbers of lawyers. If the case 
had been permitted to go on and follow the usual course of 
discovery, millions of dollars would have been spent to no 
avail. It wasn't necessary to have discovery, because the 
activities had all been previously investigated by the 
insurance departments of the various states, so they had all 
the information. There was no need to go further. 

There was no need to go to trial; the issues could be 
decided as a matter of law. Although the summary judgment in 
the form in which I rendered it was not upheld, in effect the 
ruling laid the foundation for an early termination of the 
case. So that was an illustration of how aggressive but 
carefully researched case management could avoid the waste of 
large amount of private and public resources, including the 
courts own resources. 

It includes a certain amount of risk-taking on your part. 

Well, it requires a certain amount of courage, although 
obviously, the judge isn't exposed to any risks other than 
being reversed. You do want to be on as solid ground as 
possible, but if you take the safe course, that's not 
necessarily the best course. 

Well, there are factors in complex litigation, obviously, that 
don't apply to all forms of case management. 



226 



Schwarzer: Yes. In recent years, the major growth in complex litigation 
has been in the product-liability field, and particularly in 
the area of toxic substances, of which asbestos is the most 
prominent example. The courts have been struggling with how to 
deal with this kind of litigation, which involves many actual 
and potential plaintiffs. 



Some of 
that is, at 
all is going 
the injuries 
issue now is 
litigate and 
settlements 
defined and 
claims . 



these toxic substances involve latent claims; 
the time the case is going on, you don't know who 
to end up being a plaintiff eventually, because 
don't manifest themselves for many years. The hot 
the extent to which class actions can be used to 
mostly settle these cases. Class action 
allow the extent of the defendant's liability to be 
fixed, and a procedure set up for the payment of 



The great difficulty is trying to arrive at a resolution 
that is fair both to the present plaintiffs and to those whose 
claims may not arise until the future. That's a huge 
management problem. It involves the issue of the powers of the 
court, and it involves serious constitutional issues, due 
process . 

Hicke: One more question on this. Does each one of these complex 
cases have to resolve these issues on its own? Or is there 
some kind of a generic possible resolution? 

Schwarzer: No. Each litigation is sui generis, because it depends on what 
kind of substance is involved, what's known about it. What are 
its physical manifestations? Asbestos, for example, is what's 
called a mature tort, in which there's no question about its 
harmful effects, and to a large degree, asbestos has what is 
known as a signature, a series of signature diseases. 
Asbestosis, for example, is only caused by asbestos. Lung 
cancer, of course, can be caused both by asbestos and by 
smoking. And there is an interrelationship between smoking 
injury and asbestos injury, which complicates those cases. 

But there are tens of thousand, hundreds of thousands of 
people who have had sufficient exposure to asbestos to be 
potential plaintiffs out there. Of course, many of them have 
already sued, because the injury has manifested itself. But 
there are still people out there from whom one hasn't heard. 
That's quite different from a situation, for example, where 
toxic injury is claimed because of a leaking waste dump. There 
you have a single cause and a defined group of defendants. 
Although the injuries can be latent, you're dealing with a 



227 



Hicke: 



Schwarzer : 



fairly clearly defined universe of actual and potential 
plaintiffs. 

Then you have cases involving a particular product which 
becomes associated with adverse impacts, but there's not yet a 
biological, a clinical relationship establishedcause and 
effect. So when claims are made of injury, allegedly 
attributable to the use of the product, each claim has to be 
examined, and the evidence of a causal relationship closely 
analyzed. 

I could go on for hours talking about the complexities 
and problems of this kind of litigation. But it confronts 
courts with challenges for which they really were never 
designed. Courts are basically designed for the resolution of 
two-party disputes. But here you're getting into disputes 
involving many, many parties over many years, many of which are 
not even known yet. We tried to help out with the asbestos 
litigation and with the breast implant litigation, which is, 
again, a distinct kind of litigation, while I was at the 
Judicial Center, but the problems continue and will be with us 
for quite a while. 

This is also a subject on which 1 spend quite a bit of 
time in the teaching that I do, in the course that I teach; 
complex litigation, at Hastings now. 

So even with the help that you gave them at the FJC, which was 
directed to the cases, there was not any way to make some kind 
of generalization? 

No. We were trying to help as we could with the management of 
those cases preparing materials, arranging for meetings, 
things of that sort. 



Summary Judgment 



Hicke: Are we finished with that? 

Schwarzer: That's about all, I think, on case management. Closely related 
is the matter of summary judgment. Summary judgment is a 
procedure for resolving cases without trial where there are no 
fact disputes that need to be resolved in the trial. It's 
provided for in Rule 56 of the Federal Rules of Civil 
Procedures. 



228 



Hicke: 
Schwarzer : 

Hicke: 
Schwarzer; 



I became interested in developing the use of summary 
judgment. It had a bad name, because judges were under the 
impression that the appellate courts were prone to reverse 
summary judgment by finding that there was some issue that 
required a trial. There was a lot of confusion in the cases. 

I made a study and published an article on the analysis 
and decision of summary judgment motions in 1983. About that 
time, I met Justice [William] Rehnquist at a Ninth Circuit 
Judicial Conference. We were standing in line out on one of 
the islands in Puget Sound at a salmon bake. I got to talking 
to him about summary judgment and about the desirability for 
the Supreme Court to speak out on it and legitimize that 
procedure. I gave him a copy of my article. 

Three years later, he did just that, and decided three 
cases, the lead case is Celotex v. Catrett, in which he wrote 
the opinion. [477 U.S. 317 (1986)] The court eventually 
adopted my analysis and cited my article. Since that 1986 
trilogy, summary judgment has become much more widely used, 
much more respectable, and people have more confidence in the 
procedure. So, that was an aspect of the overall subject of 
case management. 

And less subject to reversal on appeal? 

Yes. Then at the Center, we published a new edition, an 
updated edition of that article. It became a monograph on 
summary judgment. 

That sounds like a rather valuable salmon bake. 

Yes, that was a good experience. It was interesting to get to 
know him, and I think that may have had some effect on my 
having been asked become the director of the Judicial Center 
later. 



Judicial Exchange with Canadian Bench and Bar 



Schwarzer: He had also invited me to take part in a judicial exchange with 
Canadian justices and lawyers in 1987. That was one of the 
exchanges periodically sponsored by the American College of 
Trial Lawyers in cooperation with the justices of the Supreme 
Court. He led the American team, in which I was asked to 
participate. I think I was the only district judge. 



229 



It included various people who later acquired celebrity 
or notoriety, as the case may be, including Kenneth Starr and 
Patricia Wald, both then of the Court of Appeals for the 
District of Columbia. The Canadian side was led by the chief 
justice of Canada, and included a number of other judges and 
lawyers. It was a very interesting experience, so I was 
fortunate to have been asked by him to participate in that, 
probably in part because of my belonging to the American 
College. 

Maybe another thing that came out of my acquaintance 
with, by that time, Chief Justice Rehnquist was being appointed 
chair of the Committee on Federal-State Jurisdiction of the 
Judicial Conference, which was an interesting experience for 
me. The Committee dealt with various issues of federal 
procedure relevant to the state-federal relationship. We can 
talk about that some more later, because it ties into some of 
the work done at the FJC. 



Changes in Federal District Court Judges; Robert Aguilar 



Schwarzer: One more thing, just a little out of sequence: you asked me 

yesterday about the judges on the court at the time that I came 
in, and I mentioned various names. But I should mention that 
within three years, the court underwent quite a change. Judge 
Carter had died; that created a vacancy. Judge Renfrew left to 
go to the Justice Department to become deputy attorney general, 
Judge Poole was elevated to the Court of Appeals. 

So when the Carter administration came in shortly 
thereafter, there were three vacancies. Those were filled by 
the selections of Senator Cranston, who was the senior senator 
from California. He was determined to make this bench more 
diverse. In 1979, the first female judge came on the court, 
Marilyn Patel, the incoming chief judge. A black judge came on 
the court, Thelton Henderson, who's now the outgoing chief 
judge. And the first Hispanic judge came on the court, Robert 
Aguilar. 

More women and African-American judges were appointed 
later during the Reagan and Bush and Clinton administrations, 
although there haven't been any more Hispanics, and the 
nomination of an Asian American was withdrawn. 

I suppose I should say something about Judge Aguilar, 
because that is a part of our court's history and one of the 



230 



more unfortunate aspects of it. Even as he came on the court 
he was under a cloud. He had a relationship with a friend of 
Senator Cranston, I don't recall exactly what it was, but there 
were some problems in his background. But there are some 
senators who are so senior and so powerful, at least in those 
days, they could put anybody on the court. There are some 
other cases that illustrate that too, although, not in this 
court. 

Judge Aguilar had been on the Superior Court, and when he 
was appointed to this court, instead of resigning from the 
Superior Court, he remained on it in order to run for re 
election, so as to preclude an open battle for his seat by 
various people, and then making it possible for him to resign 
so the then governor, I guess it was Jerry Brown, could appoint 
his successor and it was pretty well determined, I guess, who 
his successor would be. 

The fact that for political purposes, he would stay on 
the Superior Court after he had been appointed to the Federal 
Court, if only recently, was regarded as poor form. Then I 
remember a battle over his insistence on bringing to the court 
his court reporter from the Superior Court. The court had its 
own staff of reporters, and judges didn't bring their own 
reporters along. And there were other issues like that, which 
some saw as a reflection on his judgment and inability to adapt 
himself to the situation in which he found himself. 

About 1987, the FBI came to Judge Peckham for authority 
to conduct a wire tap on some people who they believed were 
mafia members. The government has to make a pretty thorough 
showing with a lot of detailed information in order to get 
permission from the judge to conduct a wire tap. So Judge 
Peckham knew about the people that were being wire tapped. 
Shortly thereafter, he had information that Aguilar was having 

social contacts with some of these people. 



He told Aguilar something to the effect that these people 
were under investigation and it wouldn't be a good idea for 
him, as a federal judge, to be seen with themwell intended 
advice, which turned out to be disastrous because Aguilar then 
told his friends that the FBI was wire tapping them. Of 
course, that was a breach of the secrecy that attaches to those 
wire taps. I don't remember exactly how this came to the 
attention of the government prosecutorsprobably by reason of 
what they overheard on the wire taps. In any case, he was 
indicted for violation of a statute that makes it a crime to 
disclose wire taps. 



231 



Hicke: Judge Aguilar? 

Schwarzer: Judge Aguilar, right. There are other things that occurred 

during this time too. He intervened with one of the judges on 
this court on behalf of a friend who had lent him $10,000, but 
who was facing probation revocation in this court. In another 
instance where he talked to one of the judges on this court to 
try to find out whether a decision would be forthcoming that 
related to the cases involving these supposed mafioso. 

There was another instance in which I believe he helped 
his secretary move to Mexico to avoid an income tax 
prosecution. And there was another instance in which he urged 
a lawyer who was going to testify in his grand jury proceedings 
to tailor his testimony favorably. Much of this, although not 
necessarily all of it, came out in his later trial. 

I think the first trial ended in a hung jury. Then the 
government retried it, and they got a guilty verdict on one 
count, but not on another. It went up on appeal to the Ninth 
Circuit; there was a split decision. It went to the Supreme 
Court, which sent it back for a new trial. The central issue 
in the criminal prosecution was whether he had violated the 
statute. At the time he told his friends about the wire tap, 
the authority for it had expired. The Supreme Court was 
divided on this. Eventually, sometime in 1996, the government 
worked out a deal with him under which they would drop the 
prosecution and he would be permitted to resign but keep his 
lifetime salary. 

For a period of about nine years, this was a cloud that 
hung over the court's head. Most of the time, he could not 
take cases. He certainly couldn't take any criminal cases. 

From time to time, he would take civil cases. But he 
insisted on sticking it out, I suppose primarily to get to the 
point where his salary would vest and he would be eligible for 
senior status. 

He was in line to become the chief judge of the court. 
In his seniority, he followed me, and would have become the 
chief judge in January of 1990 when I went to the Judicial 
Center, had he not been persuaded at that point to waive. He 
had not been willing to do that before, but he did, because of 
the status of the prosecution; that time he did waive. That's 
how Judge Henderson became the chief judge. But that was 
another terrible headache for the court the prospect that he 
would become the chief judge of the court. The statute makes 



232 



it a matter of simple seniority. So that's an unfortunate 
chapter in the history of our court. 

I don't know that I have anything else to say about the 
judges on this court. As a general proposition, this has been 
a good court, a collection of very different personalities with 
very different skills. Some, obviously, are better judges than 
others. Some, obviously, have better judicial temperament than 
others. But I think on the whole, it's a well-regarded court. 
So, where do you want to go from here? 



Joseph Alioto and Look Magazine 



Hicke: I guess we can go to the case of [Joseph] Alioto against Look 
[Magazine]. And is that Cowles? 

Schwarzer: Cowles Communication. 1 
Hicke: Yes, okay. 

Schwarzer: Yes, they're the publisher of Look. Look magazine, which is 
long defunct, published an article which built on persistent 
rumors of associations between then Mayor Alioto and the mafia. 
I think he may have represented a San Jose cheese company, 
which sometimes was said to have been associated with the 
mafia. 



This article came out I think in 1967, when he was mayor 
and also a nationally prominent figure in the Democratic party. 
There was talk that he was a likely vice presidential nominee 
on a ticket headed by Vice President [Hubert] Humphrey in the 
upcoming 1968 Democratic Convention. The article came out a 
few months before that. 

The article talked about meetings held at the Nut Tree 
Restaurant between him and people that supposedly were 
associated with the mafia. He, of course, denied any 
association, denied the truth of the charges, and claimed with 
some justice that the article besmirched his reputation. The 
case went to trial before a jury in this court, and the jury 
hung. I believe that there were three jury trials, and each 
time the jury was unable to reach a unanimous verdict. 



l Alioto v. Cowles Communications, Inc., 430 F.Supp. 1363, 2 Media L. 
Rep. 1801 (N.D.Cal., May 3, 1977) (NO. CIV. 52150-WWS) 



233 



Hicke: 



Schwarzer : 



Hicke: 



Schwarzer: 



So, the parties agreed that they would try the case once 
more, and waive the jury. As I recall, Judge Peckham asked 
whether anybody would volunteer to take that case. I 
volunteered, and I tried it. The law provided, if the 
plaintiff was a public figure, the defendant cannot be held 
liable for defamation, unless it acted with actual malice. 
That's under the decision of the Supreme Court in New York 
Times v. Sullivan. [376 U.S. 254 (1963)] 

The question was whether the editors at Look had been 
shown to be malicious. The evidence developed that the editor 
responsible for this article took the stories that the 
reporters had written and some pictures, went to his weekend 
house in Long Island, and concocted this article. The end 
product was quite different from what Look's reporters had 
written in their stories sent to the editor. It was obviously 
done for the purpose of coming up with something sensational. 
So I found this was a clear case of malice on the part of the 
editors and ruled in favor of Alioto. 

But he had difficulty showing any damages. There was no 
evidence that showed that he had lost any income or any 
advantageous relationships or any business deals or clients or 
anything of that sort. So the damages that I awarded him, 
which I think was $650,000, was essentially his legal fees and 
the cost of litigation to clear his name. He won a moral 
victory, and that's about all. It was an interesting case. He 
is a charismatic person, made a good witness on the stand, a 
powerful personality. It was interesting that because he was 
such a controversial figure in San Francisco he could never get 
a jury to agree on his case. 



I believe that several times it went up on appeal, 
after you decided the case? These were in 1977. 



Was this 



Well, that was before I took the case. I remember that the 
case had gone to the Ninth Circuit on some issues of law, but 
that was before I got into it, and I don't remember the 
details. 

I recall that he told me, too, that this had some effect on his 
political career. 

It's possible that when this came out shortly before the 1968 
convention, that damaged his chances. He was not in the 
running for vice president at the '68 convention. Now whether 
he would have been otherwise is only speculation. But it 
certainly damaged his standing in the Democratic Party. 



Hicke: 



234 



I think he wanted to enter the primary and run for governor, 
But that was after he nominated Humphrey at the convention. 



Schwarzer: I don't know about that. 



Drug Cases 



Hicke: Well, do you want to talk about this one? This is an article 
that I found on another drug case. I suppose you had various 
drug cases. This was 1990. 

Schwarzer: I talked earlier about the severe drug penalties, drug and gun 
penalties, that Congress adopted around 1986. That launched a 
trend by which state prosecutors took their cases into federal 
courts in those states where the state penalties were light 
compared to the federal penalties; that is, they went into the 
federal court to get access to much more severe sentences. 

Hicke: There's a quote in there somebody who said they wanted to take 
the case to the place where it was more likely to have a 
favorable decision; this was the prosecutor. I don't remember 
exactly where it was. 

Schwarzer: That depends on how you evaluate the jury that you're going to 
get in the federal court versus the jury that you get in the 
state court. That would differ according to the locations. 
But 1 suppose in Alameda County, for example, the jury would 
tend to be much more heavily composed of African Americans than 
in the federal court, where the jury is drawn from a much 
larger area, including many suburban areas. 

That may be part of the calculation, but I think mostly 
state prosecutors wanted to take the more serious case to the 
federal court for the penalty. And also, because it then gave 
them the benefit of having the person, if he was convicted, 
sent to a federal prison, so it relieved the state prisons of 
prospective population. 

Hicke: How is it they have a choice? Maybe you were going to get to 
that. 

Schwarzer: The federal statute provides that the attorney general may 
designate a state prosecutor as a special United States 
attorney. So the prosecutor would apply to the United States 
attorney, and he would make a decision whether he would let him 



235 



come in to try the case. He'd have to get written approval 
from the Justice Department, which I think was pretty routine. 

Certainly throughout California, but elsewhere too, there 
was an increasing flow of state prosecutions into the federal 
courts, and they were prosecuted by state prosecutors. Federal 
judges were not at all pleased with what was happening. They 
had plenty of work without getting the state cases. They felt 
that they were being used and that this was an end-run around 
state public policy which set the level of punishment for state 
offenses . 

If the state chose to impose a certain range of 
punishment, why should the state prosecutors then be able to 
get punishment different from what the state legislature chose 
to adopt? So this was really quite offensive to the federal 
judges, and they looked askance when a case like that came in. 

There was an additional factor. That factor came to the 
fore in this particular case that came to me involving two 
defendants who had been charged in Contra Costa County with 
dealing in a large quantity of cocaine. Actually, there were 
three defendants: Wallace, Zuniga, Durango Palazzio. The case 
was prosecuted by an assistant district attorney from Contra 
Costa County named Harlan Grossman. 

From the very outset, I had serious questions about the 
qualifications of Grossman. It later developed that he put on 
the stand one or two witnesses who claimed to have seen, from 
their positions, the defendants carrying a box or suitcase into 
the house, which was critical evidence to the case. But the 
pictures--! think there were still photos, there may have been 
a videotape taken from the location where these people were 
showed that their view was obscured by bushes. They could not 
have seen those people carrying anything into the house. To my 
mind, that was an obvious fact that should have been known to 
the prosecutor. 

I remember complaining bitterly to the United States 
attorney about permitting designations to be made of people 
that didn't have the competence or qualities of lawyers that 
practice in the federal court. I objected not merely to 
bringing any state cases into the federal court, but bringing 
state prosecutors into the federal court who were not 
accustomed to practice according to the standards that 
prevailed in the federal court. 



236 



Hicke: Who was the U.S. attorney? 

Schwarzer: The acting U.S. attorney was Bill McGivern, who defended the 
decision and disagreed with me. But in any case I threw out 
the conviction. 1 don't know what finally happened to those 
defendants. But I have a distinct recollection that there was 
another problem with Harlan Grossman that arose later in 
connection with another case, in which he failed to disclose to 
the defense evidence in his possession that should have been 
disclosed. 

In the other case, I was informed that he had exculpatory 
materials in his possession, which he did not disclose to the 
defendants, which is a violation of the Constitution. I don't 
know what ever came of that. I don't know exactly how it tied 
into matters before me. But in any case, the information I 
learned about him later confirmed my impression about the way 
that he had handled the Wallace case. He ultimately became a 
superior court judge in Contra Costa County. 



Federal-State Jurisdiction 



Schwarzer: On the broader question of the relation of federal and state 

courts in the area of criminal law: in the late 1980s, that was 
a hot issue. There was a feeling that Congress had federalized 
criminal law and that, as a result of that, the federal courts 
were getting a lot of cases that should be in the state court. 
I think the concern over that has diminished, and the 
statistics don't seem to bear out that the federal courts are 
doing an undue share of criminal work that should be in the 
state courts. 

Curiously enough, in the last five, six years or more, 
there has not been a steady increase in the number of federal 
criminal cases filed. Just a little fluctuation here and 
there. The growth in the criminal cases hasn't been in the 
number of trials, but it has been in the length and complexity 
of trials and the number of defendants. 



It's probably fair to say that, for the most part, the 
criminal cases that get into the federal court are the heavy 
cases, and you can't argue with the proposition that it's 
appropriate for the federal courts to handle the heavy cases, 
because they obviously have a national impact, or regional 
impact. The federal courts also have the resources; they are 
pretty well-equipped to handle those kinds of cases. 



237 



So I think our concern over federalization has somewhat 
dissipated, in part, of course, because we've gotten used to 
the idea. We are getting drug cases which involve use of 
weapons that might otherwise be in the state court. But the 
predictions back in the mid-eighties that the federal courts 
would be inundated with state criminal cases have not come to 
pass. We did a monograph on this issue while at the Federal 
Judicial Center, which explored both sides of that argument. 

Hicke: Did you come to some conclusions? 

Schwarzer: No. We suggested some guidelines. It was supposed to be a 
think piece. People considered the arguments on both sides. 
We didn't reach any particular conclusion. But I think on the 
whole, probably, the guidelines are largely followed now. 

Hicke: They were guidelines for the courts? 

Schwarzer: Well, as a practical matter, they were guidelines for policy 
makers in the executive and legislative branches. 

Hicke: That's what I was wondering. 

Schwarzer: Courts can't do anything about it. Courts have to take the 

cases that are brought to them. But the guidelines basically 
reflect what I just said. The cases which go to the federal 
court should be the larger cases with a larger impact, and also 
cases in which the state court might be hampered in giving a 
fair trial, such as cases involving corruption on the part of 
local officials. 

Hicke: Were drugs more targeted for federal courts than, say, other 
state criminal cases? 

Schwarzer: It was the drug cases largely, of course, that gave rise to 

this concern that the criminal law was being federalized. The 
large drug cases tend to get in the federal court, because the 
federal government has much more extensive investigatory 
resources, and they're the ones who develop those cases. They 
might, and they often do, work in cooperation with state 
authorities. But when the federal agents do most of the work 
developing a case, then certainly the case belongs in the 
federal court. 



238 



Apple Computer Corporation Litigation 



Hicke: 



Schwarzer : 



Hicke: 
Schwarzer : 



You don't have any notes on the Apple case, 
talk about that. 



But maybe we can 



Oh, Apple v. Microsoft. Yes, well, that's a kind of a sad 
chapter, because this is one case where one's sympathies were 
likely with the plaintiff, but all the facts were the other 
way. [laughter] When I went to the Judicial Center, I found 
it's one of the few organizations the only one in the judicial 
branch that uses exclusively Macintosh computers. So it's set 
up apart from the rest of the judiciary, all of which use 
Microsoft [software]. 

That's where I learned to use a computer. And I have a 
soft spot in my heart for the Macintosh, which I think is 
certainly was and probably still is--a superior product over 
the PC [personal computer] with Microsoft Windows software. 

I've heard it's much more user-friendly. 

Oh, it is. And, of course, it was the Apple people that in the 
first place developed the user-friendly interface, the pull 
down menu, the cursor, the pointer, and all of that, the mouse. 
But when they developed the Apple computer, they needed people 
to write software. They weren't equipped to write their own 
software. Hardware manufacturers generally don't write their 
own software. 



So they went to Microsoft to get software this was back 
in the early eighties and they entered into a contract under 
which Microsoft would provide software, but it also gave 
Microsoft the right to use some aspects of the interface--! 
don't remember exactly how the contract read. But it made the 
Apple interface available for Microsoft's use. So when 
Microsoft came out with its own software for PCs with this kind 
of a user-friendly interface, using a mouse and a cursor and 
pull-down menus and icons, Apple got very upset. 

Let me back-track. Microsoft's original software was a 
DOS-type software, which was controlled from the keyboard. 
When they came out with their first Windows program in the 
middle 1980s, they had a user-friendly interface, and they used 
icons and pull-down menus, which resembled what Apple was 
using. So Apple brought this lawsuit claiming that Microsoft 
had appropriated its concept. 



239 



Hicke: 
Schwarzer : 



Hicke: 



Schwarzer: 



They had a magic word for this concept: look and feel. 
They complained that Microsoft, although there were differences 
in the details of its Windows program from the Apple program, 
had basically appropriated the look and feel of the Apple 
program. 

That case came before me, and I looked at the contract 
that Apple and Microsoft had entered a few years earlier, and 
it seemed to me that it pretty much eliminated any claim that 
Apple had, because it gave Microsoft access to the interface 
that Apple was using, the use of the interface. 

I granted a partial summary judgment on most of the 
claims. But at that point, I leftFebruary 1990--and I turned 
the case over to Judge [Vaughn] Walker, who took all of my 
cases when I left. He granted summary judgment on all the 
claims, although he allowed the parties to pursue the case 
somewhat longer. 

Microsoft won the case. As a practical matter, I could 
see no way that Microsoft could be enjoined from using an 
interface that had not really been protected by copyright or 
patent laws, and to which Apple could make no proprietary claim 
in view of the contract that it had entered into. 

That was a gigantic mistake, that contract? 

Well, you could say that it was poor judgment. But it's also 
true that the problem with Apple has always been, and the 
reason that it's in such bad shape now, that it never had the 
software, the enormous variety of software that was available 
to use with the P.C. operating system. In part, I'm told, that 
was due to the fact that Apple chose never to license 
manufacturers to make clones. So there weren't enough Apple 
machines out there to create an incentive for software 
developers to put in their time and energy and resources to 
develop software. For lack of software, Apple never caught on 
and never had more than 10 or 15 percent of the market. It's a 
sad story. It explains why going to Microsoft to get software 
was a sensible decision, but whether they had to give away as 
much as they did is another question. 

According to my notes, Hewlett-Packard was involved in the case 
also somehow. 

Yes. Hewlett-Packard was a peripheral defendant, because they 
were also using elements of the interface that resembled what 
Apple was using; they were a minor defendant. 



240 



Hicke: I also have a note about a case that involved the discharge of 
an employee for drugs, violating the Rehabilitation Act. 

Schwarzer: Yes. I don't know what ever came of that case. I think it was 
a Justice Department employee, who was using drugs. Under the 
regulations of the Justice Department, he was sent off for 
treatment to a drug rehabilitation center. When he came back, 
I believe that he was fired. I think I found that was a 
violation of the Americans with Disabilities Act. They were 
going to appeal it, but I never heard what happened. 



Actually what happened when I went to Washington was I 
lost track of all of my cases. Somebody else would take over 
the case, and they would get all the mail on it, and I didn't 
find out what happened to cases. 



Another Case Management Method 



Hicke: That's all that I have on your major cases, but maybe you could 
think about whether we should discuss any more of them. 
Obviously, we have passed over a lot of material. 

Schwarzer: Well, let's see. I was on the court for fourteen years, and on 
the average three hundred cases a year are filed. So, you can 
do the mathematics, it's between forty and fifty thousand 
cases. As I sit here now, 1 have some fragmentary memories of 
any number of cases, but I don't know right now that any 
particular case is worth mentioning. 

I suppose there is one that is of more than passing 
interest. I think this was an employment discrimination case; 
it was handled by a lawyer named Deborah Halvonik. She was 
married to a judge of the [California] State Court of Appeal. 
One day the police broke into their house and found that they 
were growing marijuana plants. I think he was charged; I don't 
think she was. 

That actually happened later. But in the early stages of 
this litigation, I felt that she didn't seem to be with it. I 
made an order requiring her to prepare all of the direct 
testimony in her case of her plaintiffs in written form and 
give it to me in advance of the pre-trial conference, so that 1 
would be sure she would be prepared. Well, she didn't show up 
at conferences, or she was late. I don't know whether it was 
marijuana use or what, but she was not reliable. 



241 



She refused to do it . I held her in contempt, and she 
appealed to the Ninth Circuit Court of Appeals. They held that 
I was well within my authority to require her to submit this 
testimony. That was an important case, because the use of 
written direct testimony of witnesses exchanged in advance of 
trial, where there was not a jury trial, but a court trial, 
with the witness then required to appear at the trial prepared 
to be cross-examined before the direct evidence could be 
received, was one of the techniques of case management that 
enabled me and others who used that to speed up trials and 
improve the quality of the performance at the trial and the 
quality of the record. That decision established the right to 
do that. [Chapman v Pacific Telephone & Telegraph Company, 613 
F2d 193 (9th Cir. 1980)] 

Well, maybe I'll think of some more cases, but that's 
probably enough. 



Improving Discovery 



Hicke: I don't know if we fully covered the changes of techniques and 
procedures that were going on particularly in discovery. 
You've referred to that, but I know it was a major topic for 
you, so maybe you could elaborate. 

Schwarzer: I had an interest in improving discovery. And one of the 

things I did was to write a book with my former partner called 
Civil Discovery and Mandatory Prediscovery Disclosure [with 
Lynn H. Pasahow] to try to improve the quality of discovery, to 
avoid misusing discovery, to help people ask better questions, 
use the right discovery devices, and just carry it out more 
effectively. In the court, the practice of many judges had 
been to send discovery disputes to magistrate judges to handle. 
I felt that had a tendency to cause a minor dispute to be blown 
out of proportion, because lawyers have to write briefs and 
make arguments. They have to make much more of it than it 
might be worth. 

So I instituted the practice of having lawyers call me on 
the telephone when they had a discovery disputewhen there was 
a dispute at a deposition or over whether some question should 
be answered, or documents produced. And like magic the 
discovery disputes pretty well went away, because nobody likes 
to call the judge and make a fool of himself. Also, if you get 
a quick ruling, it removes the incentive to use discovery 
disputes as a strategic device to obstruct the other side. 



242 



So I had very few discovery disputes. Occasionally I'd 
have people write me a letter, and 1 resolved it. I never 
referred it to magistrate judges. That was an effective way of 
dealing with that problem. 

Then in 1987 I was asked to give a lecture at the 
University of Pittsburgh Law School. I developed the idea that 
maybe a party should be required voluntarily to put the 
relevant materials on the table, right at the beginning of the 
lawsuit, before there was any discovery, in order to eliminate 
game-playing, to avoid unnecessary discovery, to speed up the 
process, and also to make people think twice about the position 
they've taken in the litigation, because they knew they had to 
face the truth right at the outset. 

I wrote this article for the Pittsburgh Law Review, and 
the idea got a lot of publicity. A somewhat similar idea some 
years before had been suggested by Wayne Brazil; it didn't seem 
to have gone anywhere. I wrote another article on the same 
subject in Judicature. ["Slaying the Monster of Cost and 
Delay: Would disclosure be more effective than discovery?"] 
Then the Advisory Committee on Civil Rules of the Judicial 
Conference, as part of their 1993 revision of the discovery 
rules, incorporated a version of my idea of mandatory 
prediscovery disclosure. 

It was controversial, but it went through the Judicial 
Conference. It went to the Supreme Court, and the Supreme 
Court approved it with three justices dissenting. Justice 
Scalia wrote an opinion: he thought this was contrary to the 
adversary process, which it wasn't, because the same 
information you would have to disclose later anyway, if you 
were asked the right question. You've just eliminated game- 
playing. 

The rule in the 1993 amendments of the Federal Rules of 
Civil Procedure gave districts an option. So some districts 
opted out. Some districts had their own version of the rule, 
and some districts followed that rule as written. It turned 
out that the world didn't stop turning, and the grass didn't 
stop growing, and the courts and the bar are living with this 
system. Sometimes it works better than at other times. 

It's not clear that it has produced great results. But 
there's no indication that it has done any harm. I think now 
most of the districts are using some form of mandatory 
disclosure. But it made people think about lawyers' 
obligations of candor and ethical conduct, and about the need 



243 



to get a grip on discovery that had gotten out of hand, 
about all. 



That 



Hicke: It sounds like it goes back to Morris Doyle's discussion of the 
right way to do business. 

Schwarzer: Well, I think that a lot of lawyers did follow the practice of 
voluntary exchanges of information. In my case management 
conferences, I always encouraged people to do that, so that 
they would know what they were facing early on. They wouldn't 
have to guess or play games. 



Amendment to Rule 11 on Sanctions 



Hicke: One thing I think we haven't really talked about is the 
amendment to Rule 1 1 on sanctions. 



Schwarzer: In the late seventies, when the litigation environment was 

changing, there was a growing feeling that there was a lot of 
abusive activity. There was something called Rule 1 1 in the 
Federal Rules, which gave judges the power to impose sanctions 
where there had been willful misconduct. But it was a dead 
letter, it was a useless rule, and sanctions were never imposed, 

Hicke: Can I interrupt and ask you to explain what sanctions would do? 

Schwarzer: Oh, a sanction would be a penalty imposed on a lawyer. It 
might be a monetary penalty, say, having to pay the other 
side's fees that were incurred as a result of misconduct. Or 
it might be more extreme, like striking a pleading. 

So in 1983, the Judicial Conference adopted a revised 
Rule 11. 

** 

Schwarzer: The basic idea of the revised rule was that sanctions could be 
imposed on a lawyer who filed a paper that didn't have a basis 
in fact, or in law, or where it was not possible to make a 
reasonable argument that this should be the law. The basic 
idea was to require lawyers to stop and think before they filed 
a paper and to do the necessary investigation. 

But this generated a lot of confusion, and it was a 
complicated rule. I wrote an article shortly after it was 
amended pulling together the cases that had been decided. 



244 






Hicke: Is that "1994 Rule 11: Entering a New Era"? 
Schwarzer: I think there was one before that. 

Hicke: I would just like to be able to cite these when we're talking 
about them. 

Schwarzer: It was "Sanctions Under the New Federal Rule 11" in 1985 [ 10A 
F.R.D. 181]. And there are some later articles. I got 
involved in quite a lot of activity as a result of that, 
because it was controversial, and there was a lot of interest. 
I tried to lay down some principles and guidelines that would 
make for a reasonable application of the rule, so that people 
wouldn't go overboard in imposing sanctions that could be quite 
chilling and intimidating, or, on the other hand, that the rule 
wouldn't be ignored. 

That got a lot of attention. I think it has been 
frequently cited. There were a number of occasions where I did 
impose sanctions. Now, it's my feeling that I only imposed 
sanctions where there was a strong case for doing so. But 
because of my involvement with the subject, I think I acquired 
a reputation as a judge who was very pro-sanctions, which is 
not justified. I wasn't, but I did feel that the rule should 
be used when lawyers were abusing the system. 

There were a couple of interesting cases that came up. 
One of them involved Senator Quentin Kopp, who was representing 
a man who had been prosecuted in the federal court and found 
guilty. He then brought a lawsuit against the assistant United 
States attorney who had prosecuted the case, charging him with 
a conspiracy and all sorts of misconduct. It was a 
preposterous lawsuit. There was absolutely no justification 
for bringing it. I imposed a sanction of $35,000 to reimburse 
the federal government for having to defend the case. 

Hicke: On Senator Kopp? 

Schwarzer: On Kopp, and he paid it. He was not very happy about it. 
Obviously he got a lot of publicity. But he had done some 
other things in litigation that indicated that he had his own 
view of what a lawyer's professional obligations were, and I 
suspect this taught him a lesson. I believe in later years he 
recognized that he had been wrong. He made a mistake. I think 
he blamed it on his client for not telling him the facts, but 
he didn't investigate. 



245 



Now, the other case was also a celebrated case, called 
Golden Eagle v. Burroughs. 1 It involved a lawsuit by a small 
company that had bought a computer from Burroughs that didn't 
work right. The case was transferred from Minnesota to this 
district, and the law of Minnesota was different than the law 
in California. The defendant, who was represented by a large 
Chicago firm, moved to dismiss the case on the ground that it 
would have been barred under Minnesota law. I'm greatly 
oversimplifying this, because it was a very complicated 
situation. 

The point of it, though, was that when they made their 
motion, they misrepresented the law in Minnesota and failed to 
disclose cases that were contrary to their position. So I 
imposed sanctions under Rule 1 1 on them for doing that in 
essence, because I interpreted Rule 1 1 as imposing on lawyers a 
duty of candor. My position was that there is not much point 
in having Rule 11 if you gave lawyers the freedom to mislead 
and deceive judges. 

By its terms, it didn't specifically talk about duty of 
candor. It didn't provide for the imposition of sanctions 
expressly on the ground that the lawyer had deceived or misled 
the court. It seemed to me, though, that this was implicit. 

The sanctioned lawyers appealed it, and this got to be a 
celebrated case, because they brought in big guns to argue the 
appeal. Jim [James] Brosnahan was brought in for appellants, 
and Arthur Miller was brought in to defend the ruling. 

The problem, of course, with these cases in which there's 
an appeal from an order granting sanctions is that nobody is 
there defending the judge. In this case, you had Burroughs, 
which is a very large company, and a large law firm 
representing them, who had a strong interest to get the 
sanction order set aside. On the other side, you had this 
little company, who was the plaintiff, who had very little 
interest in the sanctions; they were just interested in getting 
ahead with this lawsuit. That happened quite frequently in 
these kinds of cases. 

It came before a panel of the Ninth Circuit which 
fortuitously consisted of at least two judges, who had taken a 



'Golden Eagle Distributing Corp. v. Burroughs Corp., 103 F.R.D. 124, 
40 Fed.R.Serv.2d 346 (N.D.Cal., Sep 19, 1984) (NO. C-84-0523-WWS) , Rev ' d 
801 F2d 1531 (9th Cir. 1986), dissent from denial of En Bane hearing, 809 
F2d 584 (1987). 



246 



public position in 1983, opposed to the adoption of the revised 
Rule 11, because they felt that it would chill innovative 
lawyering and would probably operate to the disadvantage of 
civil rights plaintiffs. So that panel made very short shrift 
of my theory of the duty of candor. 

Circuits have been split on this. Other circuits adopted 
my interpretation. It remained an ongoing issue until 1993, 
when the advisory committee again looked at Rule 1 1 in response 
to complaints about the rule and amended it. In an early 
version of the amendment, they had an express provision 
incorporating the duty of candor, but they later took it out, 
and now there's only a reference to it in the notes; the notes 
themselves are not the rule, but the notes illustrate how the 
rule is to be interpreted. And the notes reflect the view that 
a duty of candor is imposed on lawyers. To my knowledge, there 
hasn't been any more litigation on this issue, although people 
still debate it. I'm not aware of any case where it has come 
up again. 

I've written quite a bit on the subject. I've given a 
lot of lectures and been on panel discussions. The Judicial 
Center made a study before I came on how Rule 11 was operating 
and found that judges thought it was satisfactory. Some 
lawyers complained; some liked it. There's a lot of sentiment 
in support of Rule 11. The enforcement of it has been very 
uneven. Some judges would never impose sanctions; others did 
it with excessive enthusiasm. There is quite a lot of 
literature on the subject. But I think now since the 1993 
amendments made it more difficult to use the rule and limit the 
availability of sanctions, the business has settled down. 
There isn't much activity any longer. It was an interesting 
chapter for about ten years. 

Hicke: Thanks for reviewing that. 




Anglo-American Legal Exchange, London, 1994. Back row unidentified; 
front row, left to right: U.S. Supreme Court Justices Steven Breyer, 
Anthony Kennedy, and Sandra Day O'Connor; William W Schwarzer. 




Farewell reception at U.S. Supreme Court, March 1995. Left to right: 
son Andrew Schwarzer, daughter Jane Fields, grandson Paul Fields, 
William W Schwarzer, wife Anne Schwarzer, and U.S. Supreme Court Chief 
Justice William H. Rehnquist. 




William and Anne Schwarzer at Ninth Circuit Judicial Conference, Coeur 
D'Alene, Idaho, August 1988. 



247 



VII SOME ASPECTS OF LEGAL PROCEDURES AND PHILOSOPHY 

[Interview 9: July 31, 1997] 

Expert Witnesses in the Courtroom 

Hicke: Do you want to start with loose ends? 

Schwarzer: Yes. We've talked a fair amount about case management and its 
various ramifications. One particular ramification of it 
related to the growing use of expert witnesses, beginning say 
in the mid-1980s. This was partly because science became much 
more of an issue in litigation, particularly product liability 
and toxic tort cases, but also because of a general perception 
in the legal profession that it was useful to have expert 
witnesses, and studies supported that, because they carry more 
weight with juries than do lay witness. 

So there was a growing use of expert witnesses. And 
there was a backlash about what was called junk science. 

Hicke: What do you mean by junk science? 

Schwarzer: That refers to experts who were hired guns and would advance 
all sorts of off-the-wall theories that found no support in 
science. That raised a lot of concern. One of the things that 
came out of that was a study by the Carnegie Corporation. It 
created a commission on science in government and law to study 
the various aspects of science, including science in the 
courtroom and how to make more intelligent use of it. 

When I came to the Judicial Center, we established 
contact with the commission, and I began to attend their 
meetings. One of the things that they wanted to do was to 
create a manual for judges that would help them deal with 
scientific evidence. We agreed to take that on. Then they 



248 



Hicke: 



Schwarzer : 



Hicke: 



actually volunteered to make grant of about a million dollars 
to the center to help us go forward with our project. 

About the same time, the Supreme Court decided what has 
become now a famous and important case, Daubert, v. Merrell Dow 
[113 S. Ct. 2786 (1993)], which came out of the Bendectin birth 
defect litigation. It established the role of the district 
judge as a gatekeeper in the admission of scientific evidence. 

That was a wonderful coincidence, because our manual, 
which was directed at the judicial function and was supposed to 
help the judge deal with scientific evidence, came out shortly 
after this decision. That was the center's manual of 
scientific evidence, which has had an impact on courts and the 
legal profession generally. 

It stirred up a fair amount of controversy, because a 
part of the professionmostly plaintiff's lawyers feels that 
basically everything should go to the jury, for the jury to 
decide. They were not particularly enthusiastic about a manual 
that supported a judicial role that was more confining with 
respect to the admission of that kind of evidence. 

Well, I had this on my list to bring it up this morning. 
This morning I received a letter from West Publishing Company, 
which I thought was a coincidence. I thought you might get a 
kick out of looking at it. 

West had just published a new treatise on scientific evidence 
and expressed its appreciation for the groundbreaking 
contribution of F JC ' s reference manual that so thoroughly 
engaged the debate. It added: 

Please accept the enclosure with the compliments of the 
authors and a more general gratitude for the effort you 
have made to bring issues in scientific evidence to a 
level of conversation that should see much interest among 
the bench and litigating bar in the content of modern 
scientific evidence. 

That is an illustration of the impact that this manual had. Of 
course, a number of people worked on that with me, including, 
particularly, Joe Cecil, who was one of the senior research 
persons at the Federal Judicial Center. 

Does the import of this mean that the judge has the 
responsibility to decide whether--? 



249 



Schwarzer: Whether there is a scientific basisnot whether he agrees or 
disagrees, or whether he thinks it's right or wrong, but 
whether one can say that there's a scientific basis. If 
someone came in as an expert in the field of astrology, he 
might be a great expert in astrology, but I think it would be 
difficult to find that particular field has a basis in any 
science as we know it experimental or logical or what have 
you. 

There are, of course, areas on the fringe, but we tried, 
in this manual, to make scientific reasoning in various fields 
accessible to judges. Okay, that's one thing I wanted bring 
up, because of the coincidence. 

Hicke: Yes, incidently it was signed Jon A. Olson of the West 
Publishing Company. 



Federal Practice Guide on Civil Procedure 



Schwarzer: One other area that perhaps we should touch on before we get to 
the Federal Judicial Center. About 1985, I was approached by 
William Rutter of the Rutter Group Publishing Company, who had 
come to me at the recommendation of the then district judge, 
Malcolm Lucas, who later became chief justice of California. 
The Rutter group was about to undertake the preparation and 
publication of a practice guide on federal procedure before a 
trial. 

They lined up three of us: myself, then district judge 
Wallace Tashima, who is now on the Court of Appeals, and James 
Wagstaffe, who is a practicing lawyer in San Francisco, to 
write this manual. We started writing it, and most of the 
writing was done by Wagstaffe, but the two of us also 
participated in it and reviewed it extensively and contributed 
to it. It came out in the late 1980s, and it has turned out to 
be really quite a best seller. 

Hicke: What's the name of this manual? 

Schwarzer: It's Practice Guide: Federal Civil Procedure Before Trial. 

Hicke: Yes, it's in your bibliography. 

Schwarzer: It is updated each year. Each year we put out a substantial 

revision to pick up new cases. That gave me an opportunity to 
dig into federal jurisdiction and procedure. I learned a great 



250 



Hicke: 



Schwarzer: 



Hicke: 

Schwarzer: 

Hicke: 

Schwarzer: 



deal from working on that book. And I've become involved in 
that particular area of the law. By keeping up with it, I have 
been able to acquire a fair amount of expertise in the area. 

As I said, the book has sold very well. It's gratifying 
to walk into a judge's chambers or into a law office and find 
the book on somebody's desk, usually open. It makes federal 
practice very accessible. 



Can you tell me briefly what kinds of things it covers? 
procedures? 



What 



The main emphasis in it, the heavy-duty part of that book, is 
the subject matter jurisdictionwhat kinds of cases, and under 
what circumstances does a federal court have jurisdiction? 
What are the limits of the jurisdiction? And how is that 
translated into procedures, dismissals, removals, and what have 
you? It's a highly complex and technical area. It's a two- 
volume book, and each volume has something like four or five 
hundred pages. 

Is it that red book? [indicates book] 
The red books, yes. 
Yes, it's gigantic. 

Each year we work on that, prepare the update, and that keeps 
us up to date with that area of the law. That has been a 
fairly important part of my work. 



Rule of Law Abroad and Travel to Eastern Europe and the Far 
East 



Hicke: I'd like to mention a couple of other things: rule of law 
abroad. 

Schwarzer: After the Berlin Wall fell, there was a sudden explosion of 

interest in helping the former socialist countries behind the 
Iron Curtain to develop legal systems, to develop the rule of 
law, because under the Communist governments, there had been no 
rule of law; the Communist party ran the courts. And courts 
did what the party officials told them to do. 

My first contact with it was a phone call in 1990 from a 
friend who is a lawyer in New York asking me to go on a mission 



251 



to Slovenia, which was then part of Yugoslavia, to meet with 
judicial officers from the various Yugoslav Republics Bosnia, 
Serbia, Montenegro, Macedonia, Croatia, Slovenia--to discuss 
with them the establishment of a constitutional court. 

European countries all have constitutional courts that 
review the validity of acts under their constitutions. 
Constitutional questions, therefore, are not adjudicated, as 
they are in our courts, in the regular course of litigation but 
in separate proceedings in constitutional courts. The Yugoslav 
Republics were planning to establish one or more constitutional 
courts, so we met with them for a few days outside of Lubljana, 
in Slovenia to discuss that. It was an interesting experience, 
because there was fair amount of tension at the time. 



Hicke: This was 1990? 

Schwarzer: This was the beginning of 1990. The tension arose mostly 
because of the perception that the Communist leaders in 
Belgrade still exercised control and could block movement 
toward democracy. There were no visible signs yet of a break 
up of Yugoslavia; the break-up of Yugoslavia had been expected 
ever since [Marshal Josip Broz] Tito died, but nobody expected 
the blood bath it resulted in. It was not apparent to us then 
that that would follow. 

In any case, that mission was organized by a newly formed 
group within the American Bar Association called the Central 
and Eastern Europe Law Initiatives, better known as CEELI, 
whose director was Mark Ellis. I became involved in their 
work, and those activities consisted of helping the countries 
in Central and Eastern Europe which had been under socialist 
regimes develop codes, legal procedures, a judiciary that was 
truly independent. CEELI sent missions to the various 
countries. It ultimately stationed representatives there to 
work with the local people. CEELI reviewed draft laws and did 
a variety of things to assist in the development of the rule of 
law. 

It had substantial support from the Agency for 
International Development and also from the ABA and various 
foundations. I became involved in that effort and went on the 
advisory board, where I served until recently. 

Hicke: Can you elaborate on the meaning of rule of law? 

Schwarzer: It means a system where people could take their civil 

complaints to court and have them adjudicated according to 
established law, or where people charged with crimes would have 



252 



a procedure to protect their rights. The Federal Judicial 
Center also became involved because many people came from other 
parts of the world looking for advice, guidance, direction in 
their own efforts in their countries to develop the rule of 
law. 



So, we established a small office that served as a 
liaison for those kinds of visits. Later, when the Russian 
government became interested in re-instituting jury trials, we, 
in cooperation with others, ran a series of seminars for 
Russian legal officers to assist them in organizing and running 
jury trials. And there were other things along those lines 
that the Center became involved in. Some people went abroad to 
assist on various missions. We had a lot of visitors. That 
was a very active thing going on during those years. 

Hicke: What kind of response did you get from the people you were 
talking to? 

Schwarzer: The people that came over, of course, and the people we met 

with were all strongly committed to the development of the rule 
of law. But that was not necessarily a universally shared view 
in those countries. I went to Romania one time for a week to 
help establish a school for judges and prosecutors. In those 
countries, judges and prosecutors are closely linked, their 
training is linked. It's quite different from our system. 

Hicke: I know in Germany, if you're going to be a judge, you just 
train to be a judge. 

Schwarzer: Yes, that's right, but you can shift back and forth between 

being a judge and a prosecutor. It's quite a similar track at 
Eastern European countries up to a certain point. They had a 
magistrate school, as they called it, but it was limping along, 
and a few of us went over there to help them strengthen and 
build it up. 

The people that were associated with it were very bright, 
intelligent, sophisticated people who were deeply committed to 
the rule of law but were constantly running into resistance in 
the legislature and in their in their own ministry of justice, 
which opposed these kinds of what they saw as foreign 
influences on their legal system. There was still a lot of 
residual resistance to democratization. 

And actually, in Romania, it was only early this year 
that a general election threw out the old Communist retainers 
and put in a democratic government. Those were the kinds of 
problems you ran into. You found people who were very strongly 



253 



committed to the rule of law, but other people who had grown up 
in the Communist system, to whom this was a foreign idea of 
which they didn't approve. 

Hicke: What did they have under the Communist system? 

Schwarzer: The party ran the so-called justice system. They had courts, 
but the courts were staffed by party functionaries who carried 
out the directions of the party, and the outcomes of cases were 
determined by party policy and not by some objective body of 
law that was administered independently of party policies. 

We ran into the same thing when we visited Russia in 
October 1990. It was going through a transition. There were 
people, particularly lawyers, who were committed to the rule of 
law, but you could see that it was a difficult transition for 
the judges who had been appointed under the Communist 
government and were accustomed to taking their directions from 
the party and were basically serving the party and not serving 
the law. 



Hicke: I've read that a written, systeraized form of law arose out of 

the Roman Empire originally because the lower classes wanted to 
have some procedures so they could be assured of being heard, 
as opposed to, say, the Chinese system, which had no actual 
written system. So I would think that most of the European 
systems have had at one time or another some form of this rule 
of law and there was some tradition for it. 

Schwarzer: The wellspring of all continental law was the code of 

Justinian. The Emperor Justinian created the notion of having 
a written code of laws. But when the Communists came in, that 
was superceded by their own structures, the Communist 
constitutions, which, while they mouthed all the right things, 
were meaningless. Decisions were made on the basis of party 
policies and not of a code of laws that was independently 
administered. 

Even where there were regulations, they were administered 
not by independent judges but by party functionaries, who used 
them to advance policies of the party and not to do justice. 

Hicke: Were the people you were talking to, who were interested in 

change, young people? Or were they people who were much older 
and remembered how things were before? 

Schwarzer: The younger people were those who tended to be much more 
progressive and interested in change. It was much more 
difficult for older people to accept the idea of change, 



254 



although, older people were involved as well. But one of the 
difficulties those countries faced was what they were going to 
do with all those judges who had grown up in the Communist 
system and who probably were permanently tainted and would 
never be able to serve usefully in a system under the rule of 
law. 

I remember, for example, in the Czech Republic, they 
replaced virtually all of the judges who had been in office. 
There was a great shortage of judges, of course, and a shortage 
of trained people. That was one of the critical problems that 
they faced. 

Hicke: Did you feel that you had some important impact? 

Schwarzer: Oh, I think, without doubt, CEELI as a whole had a significant 
impact. The most important aspect of the impact, I think, was 
on those people who wanted to bring change and who wanted to 
bring a democratic government to those countries; the fact that 
the United States cared, that we were willing to work with 
them, that people would come over to help them, that we would 
support their efforts was enormously important to them. It 
meant that we thought that we had a stake in it, and that gave 
them a great deal of encouragement and support, even though 
they really had to solve their own problems. I think a lot of 
progress has been made there. 

Hicke: In that outline I just gave you, on page 3, I listed the 

people-to-people meetings; were they a part of this theme, or 
were they separate? 

Schwarzer: Well, that was different. The People-People Organization 

organized and promoted professional exchanges. Among other 
things, they organized groups of judges and lawyers to travel 
abroad and meet with their counterparts in other countries in 
some fashion. I met one of the organizers, I think, at a 
conference here. He asked me to lead a group of judges and 
lawyers to Southeast Asia in 1987. 

We put together a group of judges and lawyers, most of 
whom were people that we knew, and went to Hong Kong, Bangkok, 
Kuala Lumpur, Singapore, and Taiwan. And then I went on my own 
to Beijing. We met with judges and lawyers in those places. 
But it was as much a pleasure trip and social trip as a legal 
one . 

It was a lot of fun, and we met some interesting people. 
One of the most significant impressions I took away from there 
was a visit to a prison in Taiwan. I still have a mental 



255 



picture of that place. It was immaculately clean. There were 
flowers growing around the buildings. Nobody was in the 
sleeping quarters during the day. Everybody was working. They 
were either in shops and factories on the grounds, or they were 
bused out in the morning to work on building construction 
outside. Nobody was lounging around. 

When we went into some of the workshops where they were 
working they would immediately stand up very respectfully to 
greet you. There were some mothers there who had their small 
children with them. And they were able to keep them with them. 

Hicke: In the prison? 

Schwarzer: Yes. And the sleeping accommodations were large halls, in 

which when the prisoners came back at night and had eaten and 
were ready to go to bed, they would unroll their sleeping bags, 
and they would all sleep in this large hall. In the morning, 
they would roll them up and put them away and clean up the 
hall. They assured me that their recidivism rate was less than 
15 or 10 percent. That can't be verified, but it doesn't 
surprise me too much. 

We took a very thorough look at it, but we saw no 
evidence of any kinds of inhumane conditions, any places where 
they locked people away. And it didn't seem to me that this 
was necessarily a minimum security prison. I think that the 
people who were inmates there were ordinary criminalsmaybe 
not the worst kind but it was a different approach to prison 
management and the treatment of inmates. It impressed me. I 
can't help but wonder whether we can't do better over here. 

Well, that was one trip. I guess I should mention other 
trips to the Far East. In the fall of 1978, the Board of 
Trustees on the World Affairs Council got an invitation to send 
a delegation to the People's Republic. That was just before 
diplomatic relations were reestablished in December, 1978. So 
we spent three weeks traveling through China. 

That was a time when it was still difficult to go to 
China. I remember that when we came out of Hong Kong, we took 
the train to a place called Shenzhen; you had to get out of the 
train, walk across the tracks, and then get on the People's 
Republic train and go from there. There was no direct service 
between Hong Kong and the People's Republic. 



256 



Schwarzer: The year '78 was just the time when China was coming out of the 
Cultural Revolution. It was an amazing experience. The 
Chinese for the most part had not seen any people from the 
West. So when our minibuses stopped and we would get out, 
people would stop and congregate to look at these strange 
people with these odd-looking faces they had never seen before. 

The streets were full of people. They were all wearing 
blue Mao suits. It was interesting to see these masses of 
people on the street, while at the same time the official line 
of the People's Republic was that there was no unemployment, 
that all of the people in the People's Republic were fully 
employed. It was an indication of the gap between propaganda 
and reality in the country at that time. 

That was just before Deng Xiaoping came back into power 
and was rehabilitated and changed all that, of course, and 
adopted a pragmatic economic policy for China. The leaders, 
the intellectuals, in the country had been sent out to the 
farms, and it was quite obvious that there was a great gap in 
the leadership of institutions, because so many of the people 
who knew what they were doing had been forced out and sent to 
plow the fields and shovel manure. 

There was great lack of people who were competent. They 
basically had to start all over again to educate their people. 
This was the watershed time between the Cultural Revolution and 
the adoption of new policies that brought success and 
prosperity to the People's Republic over the years. So that 
was an interesting experience. 

I guess the outstanding sight in China then was not so 
much the Great Wall but the excavation of the terra cotta 
soldiers at Sian, an incredible sightnot so much for the 
figures that you saw but knowing that there were thousands more 
under the ground that they hadn't excavated yet, a whole huge 
army of life-size terra cotta figures that were placed there to 
guard the grave of the first emperor of the Han Dynasty. 

Hicke: Did you go there? 



Schwarzer: Yes. 
Hicke: 



Schwarzer: 



I have China, Taiwan, Yugoslavia, Romania, and Russia as the 
major destinations that I knew about. 

I made a trip to Taiwan for the Asia Foundation. This was in the 
middle eighties, just as democracy was beginning to take hold. An 
opposition party had recently been organized. I forget the exact 



257 



Hicke: 



name of it. I think it's the People's Democratic Party. And they 
were beginning to run people in the election. But the government 
of Taiwan, which was still dominated by Kuomintang people, and to 
some extent, by people who had left China with Chiang Kai-shek in 
1948, felt insecure and therefore felt that there had to be 
restrictions on free speech. 

At the same time, they recognized that in a democratic 
country there had to be some liberalization. They recognized 
they had to accept a degree of democratization to support the 
great economic expansion and enterprise in that country. So 
they were interested in how the United States reconciled free 
speech and national security, particularly during the Cold War 
period. 

They were particularly interested in the supreme court 
decision in Dennis v. United States [341 U.S. 494 (1951)] 
upholding the conviction of leaders of the U.S. Communist party 
for violating the Smith Act, which restricted free speech when 
it was a threat to the United States. It was a controversial 
decision, finding that the activities of the party created a 
clear and present danger to the country. 

I was there for a few days discussing free speech 
doctrines, and how to reconcile security and freedom. It was 
an interesting exercise. But time has passed all of that by, 
and Taiwan has now become so strong and successful, that's not 
an issue anymore. They have a truly democratic government, 
democratically elected with an opposition that is unrestrained 
by the government. 

So, we've covered all those places. 



Schwarzer: Yes. 

Hicke: There is maybe one more thing that I want to ask about, and 
that is fee-shifting; again I don't know where this goes, 
chronologically. 

Schwarzer: I went to England; we've made several trips over there. In 
1991, I think, the ABA Litigation Section had a meeting in 
London in a joint program involving British and American judges 
and lawyers. I became interested in the notion that lawyers' 
fees, to some extent, should be paid by the loser. But there 
are a lot of problems with that idea because you don't want to 
penalize people just because they bring a lawsuit and lose. 
Anybody can lose a lawsuit that is perfectly legitimate. 



258 



What they had in England was a procedure under which the 
defendant could say, "Okay, now, the way I figure it 1 owe you 
$10,000. So I will put $10,000 in court. If you take it right 
now, then that's the end of the lawsuit. But if you don't take 
it, and you go on with the litigation, and you don't get more 
than $10,000 at the end of it, then you have to pay my fees, 
but only those fees incurred after the time that 1 put the 
$10,000 in court. Of course, if you get more than $10,000, I 
don't get my fees." 

So, that's what's known as a fee-shifting offer of 
judgment. There were a lot of wrinkles to that, and it's 
complicated. I tried to figure out a way that we could adapt 
it to American procedure, and in fact there is a rule in the 
Federal Rules of Civil Procedure, Rule 68, which to a very 
limited extent adopts that procedure, but not including 
lawyers' fees, only court costs. And court costs don't amount 
to much. 

I discussed that with one of the researchers at the 
Judicial Center, John Shepard, who had some ideas along the 
same lines. We worked out a sophisticated approach that 
contained limitations that prevented it from having a severe 
impact on anybody and yet still provided incentives for early 
settlement . 

I published an article on that, and it generated a lot of 
discussion and controversy. There is a real split on this 
issue. Some people believe that it would be an effective way 
of discouraging lawsuits--! mean lawsuits that are basically 
unmeritorious--because it would make them costly, and also of 
encouraging early settlement by risk averse people, because of 
the incentive it creates to settle early. 

There are others who feel that it would unduly penalize 
plaintiffs, create an obstacle to civil rights litigation, and 
would have unfair impacts. Economists and some other thinkers 
thought that it would skew the relationship between parties and 
risk assessments. There were a lot of complicated theories 
spun out about this. The Advisory Committee on Civil Rules 
took it up and was quite interested in adopting some version of 
this proposed amendment of Rule 68. 

But ultimately, they concluded that the potential of 
unintended consequences of this rule was too great, at that 
point, to justify taking the risk. So it's still out there, 
and maybe someday it will come to life. But right now, it 
doesn't seem to be going anywhere. I think a couple of states 



259 



have rules like that, 
others . 



Alaska does, and maybe one or two 



The key to ray approach was to put a ceiling on how much 
anybody could be required to pay in attorneys' fees if they 
became subject to having to pay. The idea was that the 
plaintiff would never have to pay more than what he would get 
out of a lawsuit. That is, the plaintiff may have to pay 
everything he got in a judgment back to the defendant for his 
attorneys' fees if he didn't do better than the offer. But he 
would not have to dig into his own pocket to come up with 
attorneys' fees. So that was the safeguard. I still think 
it's a good rule, but it scared people. 

Hicke: These same factors must be at work in the British courts. 

Schwarzer: Oh, yes. But the British system differs in this respect: it's 
much less capricious. It's much more predictable because, with 
very few exception, there are no jury trials, and the amount of 
damages is pretty well established by appellant decisions. So 
you have a pretty good idea, if you have a broken arm, how much 
you can expect the judgment to be. The only question usually 
is one of liability. 

So in the tort field the litigation environment is 
totally different. Now, business litigation is a different 
matter, but it seems to work all right, and there's no concern 
about it. They have a long tradition in the British system 
that the loser pays fees. They're used to it, and they accept 
it. We would not want such a system. This is not a loser-pays 
system that 1 advocate; this is an offer of judgment. The 
loser can avoid attorneys' fees by offering to settle the case. 

Hicke: Yes, it would be a whole different type of motivation. 
Schwarzer: Yes, right. 



260 



VIII FEDERAL JUDICIAL CENTER: DIRECTOR, 1990-1995 



Appointment as Director 



Hicke: The next thing to talk about is the Federal Judicial Center. 
How did you start thinking about this? You began work in 
1990. 

Schwarzer: In November 1989 I got a letter from Judge Ruggiero Aldisert, 
who was then the chair of the search committee looking for a 
new director for the Federal Judicial Center. The statute 
provides for a mandatory retirement age of seventy, and then- 
Director Judge John Godbold, was going to turn seventy in 
March of 1990. So they had to get a new director. Aldisert 
wrote me a long letter, urging me to make myself available. 

I considered it, and then I wrote back and said I 
couldn't really do it because I was scheduled to take over as 
chief judge of this court in December of '89. As I pointed 
out before, at that point, if 1 had not taken over, the next 
in line was Judge Aguilar. Not only did I want to become 
chief judge, because I had ideas about a lot of things that I 
would have to have done, and being chief judge of a sizable 
district is interesting and rewarding, but I was concerned 
because it was pretty clear that Judge Aguilar was not of a 
mind to pass up the opportunity to become chief, even though 
he was still involved in this prosecution against him. 

I wrote to Judge Aldisert expressing my thanks for his 
interest, but saying, no thanks. I got another letter back 
saying that I really couldn't say no, they thought they needed 
somebody like me, and that at least I should go forward with 
the interviews and then go on from there. 

I was really torn. But my wife pointed out that I always 
had an interest in doing something in Washington, and the 



261 



Hicke: 
Schwarzer : 



Rockefeller Commission was not a particularly rewarding 
experience, and this was a great opportunity for me, that I 
ought to go. So I agreed to go to the interview. I went down 
to Los Angeles and interviewed with the search committee, 
consisting of three judges. Other people were being 
interviewed too. 

Sometime thereafter, they asked me to come to the meeting 
of the Center board in Phoenix the first week of February for 
a final round of interviews. They had then narrowed it down 
to three candidates. I remember that at about that time, 
there were rumors floating around that somebody was asking to 
have the statute amended to eliminate the mandatory retirement 
date so that Judge Godbold could stay on as director. 

Now by that time, as those things happen, I had really 
become quite committed to the race for this position. Having 
gotten to that point, 1 was quite disturbed that something was 
being done that would change the picture. At the same time, 
though, I was assured, 1 remember, by one of the judges in 
this court that there was no question but that I would be 
appointed the next director. 1 don't know how he knew. 

I went to Phoenix and interviewed then with the full 
board, except that the chief justice was not present during 
the interview. It was quite a lengthy and searching interview 
in which I made it clear that I wanted to have a free hand in 
designing and directing and carrying out the program of the 
center. 

During the administration of Chief Justice [Warren] 
Burger, who retired in 1985, he ran the Center as the 
statutory chair of the board, and the director had virtually 
no autonomy. It wasn't clear to me that Judge Godbold was 
asserting much executive authority, although, I didn't really 
know. So I tried to have a clear understanding that if I 
went, I would run the Center, and if they didn't like it, they 
could always tell me to leave. If what I was doing was not 
satisfactory to them, they could fire me, because I served at 
their pleasure. But I didn't want to simply carry out the 
programs that the board wished to have done. I didn't want to 
just implement their decisions. 

Did you outline specific goals that you had? 

I don't recall that we talked about specifics. We might have 
talked about teaching judges to be better case managers. I 
think that was one of the key ideas that I had. I went back 



262 



Hicke: 



to the hotel, and about two hours later, I got a call saying 
that I had been selected. 

Well, I had never thought about becoming the director of 
the Federal Judicial Center. I mean, nobody ever talked to me 
about it before. It never occurred to me as something that I 
wanted to do. For that matter, I never had, to be honest, a 
particularly high regard for the Federal Judicial Center, I 
wasn't too impressed with their programs or their 
publications . 

But I thought this was an exciting opportunity to do 
something new, maybe make a contribution. I had never thought 
about leaving the trial court; I enjoyed the work thoroughly. 
But as this opportunity came up, I also came around to the 
view that it wouldn't be a bad thing to do something else for 
a while. 

I came back to San Francisco and fortuitously, that was 
the day that Judge Vaughn Walker was sworn in as a new judge 
in this court. So I turned over all of my cases to him. It 
was agreed that when I left, he would take over my chambers. 
Within a couple of weeks, I cleaned up all of my affairs and 
took off for Washington. 

That's fairly fast. 



Moving to Washington, D.C. 



Schwarzer: It was crazy. When I think back about it now, if I had known 
what was involved, I probably would have never done it. I 
left my wife behind to wind up our household. I went back and 
looked for a place to live, and shortly after I arrived, early 
in March, I bought a co-op apartment on Connecticut Avenue. 
In the meantime, we also had to find somebody to lease our 
house, which we did; fortunately, one person came along and 
was willing to lease it. 

All of that was done within the space of a few weeks. I 
actually took over as director on March 27, so that was six 
weeks, I think, after I was appointed. 

Hicke: That was, what, four months after you first even thought about 
it? 



263 



Schwarzer: Yes, it happened very fast. We had decided we wanted to do 

this right. Or, rather, I suppose I had decided we wanted to 
do this right, and my wife went along with this. We shipped 
everything we had back to Washington and moved into this large 
apartment. It was an enormous effort to do that, and 
basically, she did it all, encountering all kinds of problems 
in the process. 

The tenant moved into the house, and we also had painting 
and other work done on the apartment in Washington. But 
around the first week of May, I think, we were all settled 
down and established in Washington. Now, just looking five 
years ahead, when my job ended there, we moved everything back 
again to California, and it was a horrendous job. 

It was a transcontinental movement of your whole 
household, furniture and everything else. It takes you a long 
time to dig out from under that. I know there's no way in the 
world I could ever do it again. I guess if I knew then what I 
know now, I think we would have done it in an easier way, but 
it was a great challenge, and we did it. And it was fun. By 
having gotten established in Washington, we had a more 
pleasant life there than if we had settled on a temporary kind 
of existence. 

Hicke: Yes, it's probably nice to have your household around you, 
more or less. 

Schwarzer: Yes. 

Hicke: Can I back up a bit and ask you who recommended you for this 
position? How did that happen? 

Schwarzer: I can't point to any specific person. It's certainly possible 
that the chief justice might have recommended me to the 
committee. But with all of the writing and speaking that I 
had done--I participated in a lot of FJC programs as a 
lecturer--! had pretty broad exposure during the 1980s, and I 
was well known as a person who was interested in judicial 
reform, who had ideas, who wrote and published, who spoke, and 
had all the apparent qualifications and interests for this 
position. There were other people that were interviewed, but 
I guess nobody had quite the resume that I had. 

Now, what I did not have was management experience. But 
you're not likely to find anybody with management experience 
on the bench anyway, or among likely applicants. And if there 
were somebody who really had been in management to any 
significant degree, he probably wouldn't have experience in 



264 



judicial administration and federal procedure and courtroom 
management and those kinds of things. That didn't turn out to 
be a problem anyway. I think I had enough natural ability to 
manage the Center that I could do that job well enough. 

Hicke: You wrote a very nice article on the history and the work of 
the Federal Judicial Center. 

Schwarzer: This is the one in the Davis Law Review? 

Hicke: Yes. 1 Perhaps you can add some personal ideas about that. 

Schwarzer: The purpose of that article was, of course, to enlighten 

people who are interested about some of the general background 
information about the Center. But you have to recognize that 
when it was written in 1994 and '95, the Center was 
confronting a serious crisis. 



Background of Previous History and Turf Wars 



Schwarzer: There is a history of animosity between the Center and the 

Administrative Office going back to the time when Ralph Mecham 
became the director of the Administrative Office of the United 
States Courts in 1985. The Administrative Office is a 
statutory agency that serves that Judicial Conference. It is 
that the administrative agency for the courts; it provides 
support services for the courts. It manages its money, 
personnel, buildings, and all the other administrative 
functions, which are innumerable, that must be performed for 
the courts to operate. It is the operating agency, 
functioning under the general direction and oversight of the 
judicial conference. 

It has some 600 employees, and a budget of over $40 
million, so it's a sizable operation. It dwarfs the Federal 
Judicial Center, which, at its peak when I was there, only had 
about 150 employees and a budget of about $18 million; much of 
that is money that's paid to reimburse judges for travel to 
meetings . 



'William W Schwarzer, "The Federal Judicial Center and the 

Administration of Justice in the Federal Courts," University of California 
at Davis Law Review Vol 28, // 4, Summer 1995. 



265 



Hicke: 
Schwarzer : 



But from the beginning, it was Mecham's idea that there 
should not be two agencies in the Judiciary; that divides 
power and authority. The Administrative Office should be in 
charge of all that goes on, and the Center should be 
subsidiary to the Administrative Office, or, more 
specifically, at least to him. 

That view caused no particular problems for the first few 
years that he was there, because the Federal Judicial Center 
operated in a nonaggressive fashion. First, under Professor 
Leo Levin and then under Judge Godbold, it was a pretty placid 
place that didn't seem to make Mecham feel that his position 
was threatened. Nevertheless, he had this feeling all along. 

Shortly before I came, there was one row while the 
Federal Courts Study Committee was considering a proposal for 
a Long-Range Planning Office for the courts and had proposed 
to put it into the research division of the Center. He 
opposed the proposal bitterly, and it died. There was no 
Long-Range Planning Office creatednot until much later. 

There was no evidence of any open warfare at the time. 
But I remember that when I came, Judge Godbold suggested that 
I take Mecham out to lunch and make sure that we had a good 
relationship. Well, I did take him out to lunch. But he's a 
strange kind of a person. You can never penetrate his 
exterior. He never really looks at you, and his mind seems to 
work in ways that are not really fathomable. 

So shortly after I came, we had a center board meeting. 
At the meeting, there suddenly appeared a memorandum which he 
had prepared, which argued that the center had failed to 
provide badly needed training services on the order of some 
$20 million worth of services. The memorandum could be 
construed as an appeal for a larger budget for the center; it 
could also be construed as an attack on the center's work and 
management. It created a disturbing atmosphere. 

The next thing that happened was that another memorandum 
came to light. I have to give you all of this background in 
order for you to understand the Davis article. 

Okay, well, this is important. 

This is the heart of the story, really. A memorandum came to 
light, which he had sent to all the chairs of the committees 
of the Judicial Conference. There are about twenty- five 
committees that do the real work of developing policy for the 
Judiciary; mainly the Criminal Law Committee, the Court 



266 



Administration and Case Management Committee, the Judicial 
Resources Committee, the Automation Committee, the Rules 
Committee, the Bankruptcy Committee, to name the most 
important ones. 

The thrust of the memorandum was that if any committee 
wanted research services from the Center, it would have to go 
through him. Well, we saw the impact of that memorandum as 
devastating. The Center was established for the purpose of 
serving the Judicial Conference. It was an independent 
agency, and for him to be the gatekeeper to the Center would, 
in effect, subjugate the Center to his direction. 

So we fought back, and there were a lot of bitter and 
nasty memoranda written back and forth. He tried to explain 
away the memoranda. In the meantime, the next thing that 
happened was the Center was working on some software for one 
of the automation programs. Automation was generally under 
the direction of the Administrative Office, but the Center at 
that time had an automation division, which it was authorized 
to have under the statute, which was developing this software. 

I don't remember the details of the program, but it was 
clear that this was a program that wasn't going anywhere. It 
was premised on the use of an obsolescent computer chip. 
Computers then were running on Intel 286 chips, but shortly 
the 486 chips would come in, which would completely change the 
computing environment. So I advised the Administrative Office 
that I had directed the Automation Division to stop working on 
this program. This had been a matter that had been discussed 
for some time, but not decided. 

Well, the next morning I found out that the 

Administrative Office had hired the whole automation staff of 
the Federal Judicial Center. There were about twenty-five or 
thirty people whisked away from us overnight, without a word 
to me. 



Hicke: Weren't they civil servants? 

Schwarzer: No. I think one person stayed. I was furious. I took this 
to be a direct attack on me and on the Center. I had a 
meeting of all the staff at the Center to tell them we were 
going to fight this battle, and we would prevail. The battle 
got so nasty that eventually the Chief Justice called the two 
of us in. We met with him in the Supreme Court conference 
room where the justices meet to decide their cases. 



267 



Here they had sat to decide Brown v. Board of Education, 
and all the other great cases--.Roe v. Wade. And here, the 
Chief Justice and Mecham, and I were sitting and he was 
reading us the riot act. Well, Mecham claimed it was all my 
fault, and that I had announced that I was coming to 
Washington to fight turf battles. I said that was a blatant 
lie. And he said, "Well, it was right in the New York Times." 
I said, "Well, send me the article." 

Of course, he never did. I know what he was referring 
to. There was an article that had been written by somebody 
about my coming to the Judicial Center. It referred to the 
fact that there had always been turf battles between the AO 
[Administrative Office] and the FJC and that they could be 
expected to continue. But this was a reporter's opinion; it 
didn't quote me. I had nothing to say about it. 

In any case, the Chief Justice made us shake hands and 
promise to behave ourselves. We went back to work. The 
automation people stayed at the AO. It's an ill wind that 
blows no one some good. As it turned out, this meant that we 
had about two and a half million dollars to spend on other 
things, because the AO had to pay their salaries and we 
didn't. They didn't get the money; they only got the people, 
[laughter] 

We were well-off getting out of the software-design 
business, which really wasn't anything we were particularly 
suited for. But there continued to be sporadic outbursts of 
this kind of hostility. The AO would try to interfere with 
the F JC ' s relationships with committees, although on the 
whole, the committees regarded the work of the Center very 
highly and depended on it and called on the Center to continue 
to do work. 

There were no further episodes as critical as those that 
occurred in the first year. But my various efforts to try to 
establish a working relationship with Mecham were totally 
unsuccessful. He refused to talk to me, and would only deal 
with the FJC through my deputy director, Russell Wheeler. I 
don't know what he thought of me or about me. It was a very 
strange relationship, and his conduct certainly cast some 
doubt over the rationality of his thinking. 

Then came the episode which I described earlier that came 
out of the mandatory court-annexed arbitration controversy and 
my giving testimony, which described the favorable assessment 
of the program in the Center's study, which some people took 



268 



to mean that I was taking a position contrary to that of the 
Judicial Conference. 

And about that time, or shortly thereafter, the federal 
courts were undertaking a long-range planning study. There 
had been a committee appointed to develop a long-range plan. 
One of the issues, of course, concerned the future of the 
Federal Judicial Center, whether it should continue as a 
separate agency or be merged into the Administrative Office. 
There were some who thought that a merger would enhance 
efficiency and economy. The Chief Justice came out squarely 
in favor of maintaining a separate independent Federal 
Judicial Center. 

That was ultimately adopted as a plank in the long-range 
plan, but it also provided that the Federal Judicial Center 
should not take positions that were contrary to those taken by 
the Judicial Conference. That is, the judiciary should speak 
with one voice. Just what that meant, obviously, is open to 
interpretation. 

Hicke: Vis a vis Congress? 

Schwarzer: And the public. But the independence of the Center was a 

plank in the long-range plan, and it had been expressly, on 
more than one occasion, endorsed by the Chief Justice. Well, 
about that time, in 1995, the new Congress came in, the 104th. 
And with it the new Republican majority. 

Hicke: Yes, that was 1995. 

Schwarzer: They were determined to cut appropriations and eliminate 
government agencies. The subcommittee of the House 
Appropriations Committee, which has the judiciary, among other 
agencies, in its area of responsibility was studying how 
appropriations for the judiciary might be reduced. Well, that 
was the opportunity for Mecham. 

He had his staff work with the staff of the committee, 
arguing that there was unnecessary duplication between the FJC 
and the Administrative Office and that economies and 
efficiencies could be achieved by the elimination of the 
Federal Judicial Center. That was a serious issue. I managed 
to get the Chief Justice to invite the chairman of the 
subcommittee, Harold Rogers, to lunch at the Supreme Court to 
explain to him the importance of preserving the Center. 

But Mecham, although he was obviously serving at the 
pleasure of the Chief Justice, went right ahead with his plan, 



269 



Hicke: 



even though it was directly contrary to the instruction of the 
Chief Justice. And I, and others too, talked to the Chief 
Justice about this. In fact, he had been urged to fire 
Mecham. But his answer always was, "Who will I get to take 
his place?" and "He does an effective job in other respects." 

When the Davis article was written, the fat was in the 
fire about the future of the Federal Judicial Center. It had 
to be written with great care, because it was perfectly clear 
that whatever I wrote would be circulating through Washington. 
So you have to read it with this historical background in 
mind. [laughter] That's a long answer to your question. 

There's a lot more in it than just the history of the Federal 
Judicial Center. 



Schwarzer: Yes. But it's truthful, and it's informative. It also skirts 
around real problems that exist and will continue to exist 
certainly as long as Ralph Mecham is the director of the 
Administrative Office. 

Hicke: Well, maybe we ought to just finish this story and see how it 
came out--at least as far as your term is considered. 

Schwarzer: We held our own, and during my time, the operations of the 

Center grew. I have no doubt that the stature of the Center 
grew. I made an effort not just to do good work, but to raise 
the profile of the Center to make it known to people, have 
people find out what the Center was doing, and have it play a 
more significant role in the life of the law generally. 

When I left the Center, I was satisfied with what we had 
done. But it was also a time of peril, because of what was 
going on in the Congress and because of the ongoing need to 
handle Mecham and his staff in appropriate fashion. I was 
replaced by Judge Rya Zobel. She obviously came in at a very 
difficult time, because the budget was declining. The 
judiciary did not have the support on the Hill that it used to 
have. It was much more difficult for her. My impression is 
that problems with Mecham erupted from the very beginning and 
seem to be worse now than they had been for years. Now 
whether those problems are there now because he feels freer to 
do things than he did when I was there, or whether the 
problems have been aggravated by her perhaps more aggressive 
efforts to protect the Center, I can't judge. 

But there seems to be a much greater preoccupation with 
the troubles between the two agencies now than there was 
during the later years of my administration. Somebody relayed 



270 



to me what may only be apocryphal--it may be true--a statement 
by Mecham: he said that he thought that I was bad, but that 
Judge Zobel was much worse than I was. Whatever that means, 
[laughter] 

It's appalling. It would be funny if it weren't so sad 
that two agencies like that, which have no reason whatsoever 
to fight over turf, should have so much trouble and should 
devote so much of their effort and thought to turf battles, 
which are wholly inconsequential. 

Hicke: It sounds like one of those only-inside-the-beltway stories. 

Schwarzer: Yes, you'd think that if the Federal Judicial Center and the 
Administrative Office can't get along, how is it possible for 
the State Department and the Defense Department to get along? 
[laughter] It has always been a mystery to me. 

Hicke: A lot of people have a lot of vested interests. 

Schwarzer: Well, there are a lot of problems about the Administrative 

Office and the way that it was managed. But that's really not 
anything that we need to discuss. 



Description of the FJC Facility and Personnel 



Hicke: 



Now I'd like to back up. In your notes you had a description 
of the building and the working offices and the numbers of 
employees and the budget, which I think would be nice to get 
in the record. 



Schwarzer : 



Hicke: 
Schwarzer: 



The Judicial Center, when I came, was located in the Dolly 
Madison House on Lafayette Square, which actually belonged to 
Dolly Madison, who was James Madison's wife. 

The house that they lived in? 

Yes. It was a lovely old building, catty-cornered from St. 
John's Church on Lafayette Square, and catty-cornered from the 
White House. A wonderful location, but totally inadequate to 
the work of the Center. The Center's staff was scattered in 
four different locations in the neighborhood. 

One of the many things that Mecham did accomplish, and I 
will say that he did accomplish many things as director of the 
Administrative Office, and the Administrative Office gave much 



271 



better service to the judges than it ever had before he came, 
he and Justice Burger succeeded, together with Senator 
[Patrick] Moynihan, in passing legislation to build a new 
administration building for the courts. It was called the 
Judiciary Office Building, and it was located across the 
street from Union Station on Columbus Circle, at the foot of 
Capitol Hill. 

The rare accomplishment was that this, unlike any other 
federal building, was financed through the issuance of bonds. 
It was privately constructed and operated by the government 
under a thirty-year, lease-back arrangement. As a result of 
that, we got a first-class building built at a cost below 
budget and within the time scheduled. And it really is one of 
the gems of Washington. 

We moved in there in October, 1992. We had one whole 
floor, and in addition to that, in the basement, a learning 
center and auditorium and teaching rooms, and state of the art 
studios for making films and videotapes. That was an 
important part of the Center's work and became more important - 
-producing videos for training and for various other purposes. 
Most recently, the Center has begun to use it as a broadcast 
studio for national videocasts of programs. 

That was a great improvement; it was wonderful being in 
that building. When I came to the Center, there were about 90 
employees, and when I left, we had about 150, something like 
that. The budget had grown from about $10, $11 million to 
about $19 million, but then in the last year it had begun to 
decline again because of reductions in the appropriations. 

Before I came, there had been created something called 
the Federal Judicial Center Foundation, which was established 
as a vehicle to receive funds to help finance the work of the 
Center; the Center couldn't take money otherwise. Without the 
foundation, if somebody gave money to a government agency, it 
would just go to the treasury. 

We had the foundation, and I tried to activate that and 
encourage solicitation of funds. But that didn't get anywhere 
until we established our relationship with the Carnegie 
Commission. The million dollars that we got from them went 
into the foundation. In addition to that, we also developed 
the idea that money that was left over from class action 
settlements, residual funds, for which there were no 
claimants, could be directed to the foundation, because they 
had to go somewhere under the settlements. We began to get 
some money from class action settlements. 



272 



Schwarzer: Something about the people at the Center: most of them had 
been there for quite a while. It was a dedicated and 
enthusiastic staff and on the whole, quite competent. But a 
number of changes had to be made. The deputy director had 
been there for a number of years, and one of the things that 
Judge Godbold had told me was what a valuable person he was 
and how I could rely on him and count on him to do whatever 
was necessary. 

That was an ironic bit of advice, because it soon became 
apparent to me that there was a very serious morale problem at 
the Center. I traced it to the way that the deputy director 
treated the people under him. This was a classic situation in 
a bureaucracy, that a person in a particular position would 
ingratiate himself and make himself invaluable to his 
superiors, but would be abusive, intolerant, basically 
impossible to the people under him. 

I went around and interviewed a lot of people at the 
Center and concluded I had to do something about him. He had 
a drinking problem in addition, I think, to a wife-abuse 
problem. I told him that I thought he should take a thirty- 
day leave of absence and get substance abuse treatment. He 
argued with me about it and wouldn't do it. 

I insisted for some time and he finally went to the Chief 
Justice and resigned. After I searched around, I decided to 
appoint, as the new deputy director, Russell Wheeler, who had 
been with the Center over ten years, but in a kind of a 
peripheral position, handling certain kinds of programs, but 
really outside of the mainstream of activity. He was eager to 
become the deputy. 

While I was not sure about him, I did select him, and the 
board confirmed him, and that was the best decision I ever 
made, because he turned out to be an invaluable person and 
still is. He is smart, sensitive, cooperative, just an 
excellent person to work with, hard working, totally 
dependable. I don't know where the Center would be without 
him. So, that was one of the best things that happened to the 
Center. 

The director of judicial training was a nice person, but 
one of those people who's difficult to communicate with and 
not very innovative. Fortunately, he decided to leave on his 
own and I appointed a man named Denis Hauptly, who had been 
with the sentencing commission, and he turned out to be a 



273 



brilliant choice. He raised the judicial training programs to 
an entirely new level, brought creativity, innovation, great 
skill as an educator, very good with people. Our judicial 
training programs took off. 

I had some involvement, but as much as anything, it was 
his doing. He was wonderful 

Hicke: Is he still there? 

Schwarzer: He left because his wife got a job in Minneapolis, and he's 
now with the West Publishing Group. We reorganized the 
divisions of the Center. We moved judicial training into a 
new division. And created a court training division, which 
was responsible for all the training programs for non-judicial 
officers, and appointed a new director for it who was very 
energetic, enthusiastic, had a lot of good ideas. 
Unfortunately, after a while he had to leave. It was 
gratifying then to appoint the first woman to be a division 
director, who is there now. Her name is Emily Huebner, and 
she's doing a very good job. 

The Research Division was under Bill Eldredge, who had 
been with the Center from its inception and was the 
institutional memory for the Center. It was very successful, 
having a diverse staff of creative and independent people 
working effectively to turn out some very good things. 

We created a new division called the planning and 
technology division after the automation division was 
abolished. It was a kind of a catch-all. It was responsible 
for all the in-house technology, which was getting quite 
sophisticated, with all the automation equipment that we had 
to serve the Center and its functions. The head of that was 
Gordon Bermant, who participated in a number of the monograph 
projects that we undertook when we did think pieces on various 
policy issues, some of which I've described. He worked on 
those. 

Then we created an office, not a division, the office of 
interjudicial affairs. Actually, there had been something 
like that in the Center before, but it wasn't active. The 
office of interjudicial affairs handled two areas, one of 
which I've already described, which were our relations with 
foreign judiciaries, foreign judicial visitors, and programs 
involving foreign judiciaries. 



274 



More on Federal-State Jurisdiction 



Schwarzer: The other one, which was new, to which we attached a lot of 
importance, was dealing with the state judicial systems, and 
there's a whole story there. Historically, the state and the 
federal courts never talked to each other. They were 
operating in separate universes. There was virtually no 
communication, let alone cooperation between the two systems. 
That seemed to me to be a terrible attitude, and 
counterproductive . 

Schwarzer: From the beginning, I was looking for ways to bridge the gap 
between the two systems. That's not only desirable as a 
matter of policy, but it became imperative, because an 
increasing amount of this mass litigation involved cases that 
were both in state and federal courts. The breast implant 
litigation, for example, is in state and federal courts around 
the country. 

Unless the two court systems learn to cooperate, there is 
a source of constant friction there, a waste of effort and 
resources, inefficiencies, and ultimately, injustice. So this 
office was responsible for coordinating programs and 
encouraging ideas that furthered this objective. It worked 
with the State Justice Institute, and others. James Apple was 
the person that headed that office and still does. 

One of the things that came out of that office was that 
we began to work with the State Justice Institute on a 
National Conference on State-Federal Judicial Relations, which 
was held in Orlando in 1992. We had state and federal judges 
from around the country. Nothing like that had ever been done 
before. It was a great success. It generated a whole new 
attitude on the part of judges when they went back to their 
courts, and the effects percolated from there, about seeing 
the systems as a single whole, as Alexander Hamilton once 
said. 

We published the papers from that conference in the 
Virginia Law Review, including the opening remarks by the 
Chief Justice, who strongly supported this effort. I wrote an 
article called "Judicial Federalism in Action: Coordination of 
Litigation in State and Federal Courts," 1 which chronicled the 



'78 VA.L. Rev. 1689 (Nov. 1992). 



275 



cooperative efforts made in ten pieces of litigation around 
the country. 

This article on judicial federalism has been widely cited 
and gave an impetus to judges looking to the other system, 
when there was litigation in both systems, to find ways in 
which state and federal courts could coordinate and cooperate 
to rationalize that sort of litigation. So that has been a 
good thing that has come out of this interjudicial affairs 
activity. 



Work of the FJC under Judge Schwarzer's Directorship 



Schwarzer: The Center, of course, had administrative staff, and it had a 
Publication and Media Division, headed by Sylvan Sobel, which 
comprised writers, editors, video producers and directors. 
They were excellent people, and the quality of the videotapes 
and the publications was very high. They've been highly 
regarded. 

Hicke: I assume you would set guidelines for all these people to work 
under. 

Schwarzer: Well, I generated ideas. I would oversee what was going on. 
I tried to be informed about what everybody was doing. I 
would get involved in some of the activities and less so in 
others. We had weekly staff meetings, so that I knew what was 
going on. Then when I had some idea that I thought ought to 
be pursued, I would talk to the people in that division and 
see whether we might do something, and what we should do. 

I was very active and walked around the offices and 
looked at what people were doing and talked to them, and my 
door was open. I was very much involved in all the work that 
was going on. But I tried to encourage them to think for 
themselves as well, be creative and innovative and not just do 
what I suggested. It was a good operation. I thought that 
the morale was high. People really extended themselves and 
felt good about the work of the Center. 

Hicke: Did you find managing personnel fairly challenging? That was 
probably one type of experience you didn't have. 

Schwarzer: I didn't have any experience. As it turned out, Russell 
Wheeler was quite adept at doing that. 



276 



Hicke: Sounds like you had a lot of good people. 

Schwarzer: We did have some personnel problems that would come up from 

time to time, but they were managed. It didn't take a lot of 
my t ime . 

Hicke: It seems like it would be one of the hardest parts of 
management . 

Schwarzer: Yes, it can be. But, you know, it's a lot like the what they 
say about running a prison. As long as you give prisoners 
good food, you're going to have very little trouble with them. 
I'm not saying this is directly analogous. But as long as 
people have interesting work, and they're challenged, and they 
feel like they're appreciated, you're not going to have a lot 
of personnel problems. 

Hicke: They're finding more and more that relates to physical health 
and illness and time off the job and so forth. It's getting 
pretty close to two hours. I don't know, whether you want to 
cover anymore today. 

Schwarzer: Well, let me think if there's something else. I mentioned the 
1992 National Conference on State-Federal Relations. There 
was a follow-on conference two years later, a National 
Conference on Mass Tort Litigation, which again brought 
together state and federal judges. 

We put that on in cooperation with the State Justice 
Institute and the National Judicial College in Reno [Nevada] . 
The focus of that conference was on managing mass tort 
litigation, such as the asbestos litigation for example. I 
wrote and presented a paper, which proposed a revision in the 
multidistrict litigation statute, which is 28 USC 1407, to 
expand the scope of multidistrict coordination to include 
state court discovery. 

This is a fairly technical thing that would take a good 
bit of time to explain. But the idea was that if you had 
cases that had been brought together under the federal 
multidistrict procedure from federal courts, then that court 
that has all of those cases for pretrial management should be 
able to extend its control to cases in the state courts just 
for purposes of controlling the discovery. 

All of the papers were published in an issue of the Texas 
Law Review. ' The Justice Department was interested in the 
proposal and planned to include it in a legislative packet 



'73 Texas Law Review No. 7 (June 1995). 



277 



that they were going to propose, 
dropped by the wayside. 



But it also seems to have 



We might be able to wind up the FJC discussion by just 
touching on one other subject, and that is the expansion and 
changes in judicial training during my time that I was there. 
Just a few things about that. Number one, I felt, like most 
people involved in adult education feel, that when you're 
dealing with adults, you have to have to have a participatory 
approach to education. 

You can't just lecture at adults; you have to have panel 
sessions. You have to have a format that enables people in 
the session to join the discussion. So that was the focus of 
much of our judicial education. The crown jewel of the 
judicial education program, of course, is the New Judges 
Seminar in Washington, to which judges come after they've 
served on the bench for about nine months, more or less. 

Hicke: Is that what you referred to as the "baby judges school"? 

Schwarzer: That's the baby judges school. We changed the format there, 
to get away from lectures, to have panel programs, to have 
programs that give judges ideas about how they can do a better 
job managing their work load. I got away from the traditional 
notion that a judge would get up and say, this is how you 
should do this. Instead, we would have a group of judges who 
would discuss different ways to do these things. The way a 
judge manages a case should suit the case, and his/her 
temperament and all the circumstances. We tried to give 
people a spectrum of options, and get them to think for 
themselves and be innovative and flexible. 

Hicke: Did you attend that when you became a judge? 

Schwarzer: I attended baby judges school, and I didn't think it was very 
good. That was my memory of the Judicial Center. I tried to 
get away from those traditional ways of doing things. In our 
program, when the judges first came on the bench, we also had 
a video seminar. 

They would be watching FJC videos on aspects of their 
work, and then they'd have a discussion with one or two 
experienced judges. It would be a group of six to ten judges, 
held in different places around the country. That was their 
immediate crash training when they first went on the bench. 
They don't come to baby judges school until six to nine months 
later. 






278 



Hicke: But every new judge attends? 

Schwarzer: Yes, although nobody has to. We can't make federal judges do 
anything, but they all attend. In addition we also developed 
specialty programs with experts that would allow judges who 
were interested go into depth: advanced civil procedure, 
advanced criminal procedure, environmental litigation, 
admiralty litigation, intellectual property litigation. Those 
would be programs that would be held around the country, and 
twenty to forty people would attend. So, that enriched the 
programs, and made them more interesting. We had programs in 
science, for example, programs on genetics, programs on 
statistics. The hope was that you'd get some judges who would 
get this extra training and become sophisticated in an area, 
and that it would percolate out to others and would have an 
effect beyond the judges immediately involved. 

Then we tried to go a little further to have programs 
that offer judges some intellectual enrichment and still be 
connected to judging. The prime example of that was an annual 
program that we had at Princeton for both state and federal 
judges, mostly with the Princeton faculty, on subjects that 
might not have an immediate connection to judging but would 
expand the vision of judges, so that they could see their role 
in a broader humanistic fashion. 

We would have lectures on architecture and engineering, 
on biotechnology, astronomy, just to name a few examples, on 
the Civil War. Not just to enlarge judges' vision, but also 
to regenerate some brain cells that might go dead if all you 
do is judicial work all the time, and to make judges think 
about the importance of being a complete person, and not just 
a person who's grinding out decisions and running a courtroom 
all day. Probably, there's more that could be said about 
judicial training, but it took off. There was a lot of 
excitement, and a lot of good feedback. I think it did some 
good. 

Hicke: Do you think we've finished the FJC? 

Schwarzer: Yes. 

Hicke: If anything more occurs to you, we can include it. 



279 



IX JUDGE AND LAW PROFESSOR: 1995 TO PRESENT 
[Interview 10: August 4, 1997] ft 

Return to San Francisco 



Hicke: We can start this morning with your move back to San Francisco 
--how that went and what you decided to do. 

Schwarzer: The Federal Judicial Center's organic statute, as I mentioned, 
provides for mandatory retirement of the director at age 
seventy. It's a mixed blessing. It makes life a lot simpler 
for the director, and certainly my wife was happy to know that 
there would be a definite day when we would move back. You 
don't have to make a decision on that. 

There were some people who offered to have an amendment 
passed in Congress that would strike that provision. I think 
it would have easily passed, because that's about the only 
mandatory retirement age that's left. The Age Discrimination 
Employment Statute outlaws mandatory retirement ages except in 
certain professions like law enforcement and aviation. I don't 
know that running the Judicial Center would equate to those 
categories. But I think there's a benefit to turnover in 
positions like that, and I was ready to leave. 

As it happened, my departure came at a good time. I felt 
that I had pretty much accomplished what I had set out to do. 
The atmosphere in Washington was changing with the new Congress 
and the campaign to reduce government spending and eliminate 
agencies. Life became a lot less pleasant than it had been, 
and it was much more of a struggle to get funding, and there 
was more interference from Congress. So it was a good time to 
leave . 

Now I had been anticipating the end of my term for some 
time. I felt it was important for the board to start early to 



280 

seek suitable candidates for the position. I felt strongly 
that we should find the best candidate possible, and that was 
the board's responsibility. So over a year before I had to 
leave, we started the process of advertising, encouraging 
people to apply, forming a search committee, defining the 
duties and responsibilities and skills and assets that were 
sought in a director. 

Hicke: Did that change somewhat during the period you were there? 

Schwarzer: Well, it had never been done before; that is, nobody had really 
sat down to spell out in writing what all the Center did, what 
the director should do, what the director should be able to do, 
and what you were looking for in a director. A search 
committee of the board was appointed. They had a number of 
interviews. There weren't a lot of people applying for the 
job. 

In the end, the selection came down to a choice between 
Judge Sam Pointer of the district court in Birmingham, Alabama, 
and Judge Rya Zobel of the district court in Boston. They were 
both outstanding judges with excellent records and strong 
candidates. The board selected Judge Zobel, in part, of 
course, because other things being equal, there was something 
to be said for having a woman as a director for the first time 
in the years of the Center's existence. 

So, I left at the end of March, 1995, and she took over 
shortly thereafter. We had to sell our apartment in 
Washington. As always happens, we had bought at the top of the 
market and then we were selling at a much lower market . It was 
difficult to sell it. Curiously, we received only one offer, 
and that came from a woman in northern California who was 
moving to Washington. 

So, it worked out quite well that we were able to sell 
our apartment at the beginning of January of '95. At that 
time, the lease on our house in Mill Valley ran out. So we 
moved ourselves back to California in the middle of January, 
although, I stayed on in a small apartment until my service 
ended at the end of March. 

Actually, the experience of leasing our house to tenants 
could have been a lot worse, but it was somewhat hair-raising, 
because the person who had leased our house for five years had 
her own business, which went bankrupt after two years, and she 
had to leave. There wasn't a thing that I could do about that. 
But she did find a tenant to take her place, and that was 
fortunate . 



281 



But that tenant moved in with a family of I don't know 
how many people--! think there were six people living in our 
house. It took quite a beating as a result of that, and we're 
still busy restoring it, but it could have been a lot worse. 
We did manage to lease it during the entire time. So it wasn't 
too costly an episode. The moving back and forth and buying 
and selling real estate was costly, but well worth the 
investment . 

I remember, about the time I left, Phil Heyman, 
who was the deputy attorney general, but only served for a 
relatively brief period, was asked in a closing press 
conference what he would have done differently had he known 
then what he knew now. He said, "I would have leased." I 
guess I would have said the same thing. Or, perhaps more 
accurately, I would have rented. 

So we packed up again and moved back into our house, and 
that was a big job. I think we're probably still looking for 
things that we know are somewhere, but we don't know where. It 
isn't something I'd want to do again, but, as I said, the 
experience in Washington was well worth all the trouble. 
Still, I don't know whether if we had known when we first 
embarked on it how much of a chore it was going to be, whether 
we would have moved with quite as much alacrity as we did. 

I was back in court on the first of April, and they had 
these chambers more or less ready for me, although, things have 
changed a lot. I had to scrounge around the building to find 
furniture, and what I have in this office is castaway 
furniture, for the most part, that came from other chambers. 



Asbestos Removal from the Courthouse 



Hicke: Did they do this retrofitting, or whatever they did around 
here, while you were gone? 

Schwarzer: That's something worth commenting on. During the 1980s, with 
the paranoia about asbestos, the government decided that they 
would have to remove the asbestos from this building. The 
project started just after I left, in 1990. It was a horrible 
prospect, because the judges would have to move two or three 
times, and everything would be turned upside down. 



Hicke: 



That was one good reason for leaving. [laughter] 



282 



Schwarzer: I was delighted. I left just before the project started, and 1 
came back just after it finished. That was one of the benefits 
of being in Washington, avoiding the upheaval that took place 
here. When I came back, all the work was finished. It was 
extraordinarily expensive and, I think, the general consensus 
is, totally unnecessary, because there was very little asbestos 
and it could have been sealed into the walls. In any case, 
they tore everything down, floor by floor, and built it back 
up. In the end, however, the building was considerably 
improved over what it was before. 



Visiting Judge on Circuit Courts 



Schwarzer: So I moved in here. I wanted to move to the 18th floor. I 

didn't want a full-size courtroom, because I didn't expect to 
try cases. While I was in Washington, I did a lot of thinking 
about what I wanted to do when I came back. I knew I wanted to 
remain in the judiciary. Under no circumstances would I have 
wanted to leave the judiciary. Once you are eligible for 
senior status, you can resign and still retain your full 
salary, and a number of judges in the recent past have left to 
go on to law practice. I didn't want to do that. But I also 
wasn't keen about going back on the trial bench. I had taken 
senior status shortly after going to Washington so there would 
be a vacancy on the court to which a new judge would be 
appointed. 

So I began to talk to a few judges around the country 
about the possibility of sitting by designation in various 
courts of appeal, and I got a favorable response. So I started 
making arrangements to sit on various courts of appeals upon my 
return, the Ninth Circuit and others. 



Part-time Teaching at Hastings College of the Law 



Schwarzer: I also had thought about doing some teaching. I talked to the 
dean at Boalt Hall, who was not encouraging. He persuaded me 
that they didn't have enough money to fill their regular 
vacancies. Then, I talked to Dean Mary Kay Kane, at Hastings 
[College of the Law]. I've known her for some time, and she 
was delighted to have me come as a visiting professor. 



283 



I made arrangements with her to start teaching in the 
fall of '95--a course in complex litigation in the fall and a 
seminar in judicial administration in the spring; that would be 
a half load half of what a regular professor carries. 1 had 
taught the seminar in complex litigation for two years at 
Georgetown [Law Centers] while I was in Washington. So I had a 
little background in the subject. My plan was to carry a half 
load in courts of appeals; that would be enough to retain my 
two law clerks and a secretary, and to teach at Hastings. 

Shortly after I came back, my first assignment was to sit 
for a few days with the Third Circuit in Philadelphia. 

Hicke: Is that what they call a visiting judgeship? 

Schwarzer: I was a visiting judge. You have to be designated by the chief 
justice, but most of the court of appeals were anxious to have 
help, and they need visiting judges. The filings continue to 
rise while many vacancies remain unfilled. So being invited 
and designated wasn't very difficult. During the year, I sat 
with the Third, and the Ninth and the Eighth and the Fifth, I 
think, and then I've been continuing to circulate like that. 

There was a newspaper story about my plan to do this, and 
I got some feedback that there was negative comment among some 
active judges in the Ninth Circuit, for reasons that are 
obscure to me. But that never amounted to anything, and it 
obviously passed, because they're perfectly happy to have me 
sit with them and help fill their desperate need for judges. 
Given that they now have ten vacancies, they're overburdened. 

Hicke: Can I ask you to explain a little bit about how that works? Do 
you sit as a regular member of one of the three-member panels? 

Schwarzer: Yes, you sit as a member of a panel. You work out the week 

during which you want to sit. The chief judge of the circuit 
assigns you to a panel, and you work just the same way as an 
active judge. You get the cases, the briefs, and the records 
in those cases about a month in advance, and you work through 
that material to prepare for the arguments. 

Then after the arguments, the writing assignments are 
divided up, and normally each judge takes a third of the cases 
to write. So I sit now the equivalent of about four weeks a 
year. I sit on about a hundred and ten cases, and I write 
about thirty-some-odd opinions a year, some of which are 
published, some are not. 



284 



Controversy Over Splitting the Ninth Circuit 



Hicke: Is this a good time to talk about the Ninth Circuit? 

Schwarzer: Yes, we could do that. The Ninth Circuit has always been, or 
at least for many years has been a source of controversy. I 
think that it was 1978 when Congress added about ten judges, 
and five more were added in the early eighties. So it's a 
twenty-eight-judge court. It's an eight-hundred-pound 
guerilla. What it does has a significant impact. 

Some people think that some of the decisions are off the 
wall, that it's a court that's out of control, but there's a 
lot of unfair criticism of the court. The fact that in the 
last term the Supreme Court reversed twenty-eight out of 
twenty-nine cases it took from the Ninth Circuit doesn't really 
tell you a whole lot, when you consider that the Ninth Circuit 
receives over four thousand cases a year, about 10 percent of 
all filings, and that the Supreme Court tends to take cases, 
not because it agrees with the court of appeals, but because it 
may disagree with it. So reversals aren't that unusual. 

But, having said that, you would also have to recognize 
that the Ninth Circuit is probably more innovative, less 
inhibited by conservatism or precedent, and faced with more 
cutting-edge issues than perhaps than any other circuit. In 
part, I think it's because in the West more new things happen. 
A lot of the innovation in the country originates in 
California; this is an innovative environment. 

In a lot of areas, the Ninth Circuit is the trailblazer; 
that's true in intellectual property, it's true in immigration 
law. It's probably true in some aspects of civil rights law. 
This is an area in ferment, and that's to be expected; it is to 
be expected that would be reflected in the decisions of the 
court. It is certainly true in environmental law, because I 
think this area has a heightened interest in the environment. 

It was probably the environmental cases as much as 
anything that generated political backlash against the Ninth 
Circuit. To some extent, it is true also of death penalty 
cases, but not as much. There was a series of cases involving 
the infamous spotted owl, which had an adverse impact on the 
lumber industry. That agitated senators from the Northwest. 
These were environmental cases in areas that are sensitive 
politically, particularly the Pacific Northwest--in Washington 
and in Alaska, to a lesser extent in Oregon, Montana. 



285 



Those controversies stimulated efforts to split the Ninth 
Circuit. Now, consideration had been given to splitting the 
Ninth Circuit way back in 1973, when there was commission under 
Senator Hruska that looked into the question of dividing the 
circuit just because it was getting bigger than all of the 
others. But the conclusion that commission reached was that it 
would have no impact on the allocation of cases, or dividing 
cases equally between two circuits, unless you split 
California. And nobody wanted to split California. So that 
was a dead issue. 



Hicke: When you say it's getting bigger, you meant in the number of 
cases? 

Schwarzer: The size of the case load, yes, the volume of cases. But the 
renewed effort to bring about a split was really based on 
regionalism. The senators from the Northwest said they wanted 
to have their own judges decide their cases. Now that, of 
course, runs squarely against the fundamental premise of the 
federal judicial system, and particularly the courts of 
appeals, that although they sit in circuits, they are national 
courts and the law is national. There's no place for one 
environmental law in the Northwest and a different 
environmental law say in the South. So that was misguided, but 
it certainly had a good deal of political resonance. This 
agitation became much more powerful when the Republican party 
gained control of the House and the Senate. 

Senators from the Northwest and Alaska pushed a plan to 
create a new circuit in the Northwest. They couldn't get it 
out of the Judiciary Committee, because the chair of the 
Judiciary Committee, Senator Orrin Hatch, was not in favor of 
doing this. To get more votes, they succeeded in getting the 
senior senator from Arizona on board, Senator John Kyi. The 
way they did that was by extending the circuit to include 
Arizona. 

The proposal was a circuit that stretched from Alaska to 
Arizona, which would have about 40 percent of the present case 
load, but about 60 percent of the judges. It would also have 
two clerks of court, one in Seattle and one in Phoenix, and two 
headquarters defined in the plan as being co-equal. Now, what 
two co-equal clerks of court 2,000 miles apart would do, nobody 
has yet figured out. It is about as hair-brained a scheme as 
you could ever come up with. 

There's no way that you can construct an argument that 
would make any sense out of this plan. Certainly it isn't 
going to create a smaller circuit, except the volume of cases 



286 



would be divided. But geographically, it would be as large as 
the present circuit. 

Hicke: You're talking about an additional circuit? 
Schwarzer: This would be the new Twelfth Circuit. 
Hicke: That excludes California? 

Schwarzer: That excludes California, Nevada, and Hawaii. 1 think the 

Ninth Circuit then would consist only of California, Nevada, 
and Hawaii. That proposal came out of the Senate 
Appropriations Committee, because it couldn't get out of the 
Judiciary Committee. In the end, the Senate-House conference 
punted and created a five-person commission to be appointed by 
the chief justice to study the structure, not only of the 
Ninth, but all the circuits. It has a year to report back. 
Then the political fight presumably will resume. 

Now, arguments can be made for reducing the size of the 
circuit. The senators made a lot of misleading arguments, such 
as the volume of work and the length of time that it takes to 
get decisions. But the volume of cases isn't going to decline 
by splitting the circuit. Given the same number of judges, the 
cases aren't going to get decided any sooner. So that's a 
false argument, as are all the other arguments that have been 
advanced. 

But arguments could be made for dividing the West and 
having a contiguous circuit of Alaska, Washington, Oregon, 
Idaho, Montana that would be the Twelfth Circuit and the 
existing Ninth Circuit would be California, Nevada, Arizona, 
and Hawaii. 

Those states are quite closely integrated in many ways, 
and it would make sense to treat them as unit. In addition, 
that approach would require that the judges be equally divided, 
that is, that judges be split according to the relative 
percentage of the filings that the two circuits would have, so 
that probably the Ninth Circuit would have at least half the 
judges, or maybe one more. 

Whether cases will get decided any sooner will depend on 
whether the court will be full strength. I mean, the size of 
the circuit has very little to do with the rate at which 
they're decided. The reason that the Ninth Circuit is slow now 
is because it has ten vacancies. 



287 



As a result of that, it takes longer for a case to get to 
argument, to get to hearing. There are fewer judges to make up 
panels, so it takes longer to get the case to hearing. But 
that's the responsibility of the Congress and the President in 
not filling the vacancies. Once the case has been argued, it 
doesn't take any longer to get it decided in the Ninth Circuit 
than any other circuit. 

Hicke: Why haven't the vacancies been filled? 

Schwarzer: The vacancies aren't filled in part because the president is 
slow in nominating people. And the confirmation process has 
been effectively blocked in the Senate by the senators who want 
to have the Ninth Circuit split, and who say, "We're not going 
to allow any confirmation of any new nominees until that matter 
has been resolved." 

The only advantage really that might come from having a 
smaller circuit is enhanced collegiality . When I say 
collegiality , I don't mean that people are more friendly and 
get along better. I mean that judges of the circuit will sit 
more frequently with their colleagues. The way it is now, it 
may be years between the times that you sit with a particular 
colleague, and the same three-person panel may not be 
replicated for a long, long time. 

If you spend more time sitting with your colleagues, you 
get a better sense of their thinking, of how they approach 
problems, their philosophy about certain kinds of issues. That 
will contribute, I think, to greater cohesion within the 
circuit in the decision-making process. 

The other thing is that for the smaller circuit, it's 
easier for the judges to keep up with the decisions of the 
circuit. They're better able to read the new decisions that 
come out and become familiar with the trend of the law in the 
circuit. Right now, the judges are so busy that they have 
little time to keep up with the output of this large circuit. 

It may be that the smaller circuits would be somewhat 
easier to administer. And there's one other point. If you 
have two circuits of fifteen or sixteen judges each, then you 
can have a full en bane. That's the complaint that some people 
have now, about the Ninth Circuit. It's so large that as a 
practical matter, you could only go with the "bobtailed" en 
bane, which is ten judges drawn at random and the chief judge. 
So on these difficult issues that go to en bane courts, you 
never get the input from all of the judges. A smaller circuit 



288 



would restore the traditional en bane, 
that came be made. 



So there are arguments 



The argument on the other side, of course, is that the 
large circuit has great judicial resources, and it has always 
been true that workloads fluctuate, and district judges who are 
in a court that's going through a period of low filings can go 
and help others in the court. And the diversity itself 
enriches the court. That would be lost if the circuit is 
divided. So there is room for intelligent, informed discussion 
on this subject, and from the point of view of improved 
judicial administration, there are legitimate arguments that 
could be made. But none of that is being heard. 



Legal Missions and Foreign Civil Law //// 



Schwarzer : 



Hicke: 



Schwarzer: 



The Salzburg Seminar, I know, is on your list, 
checked off? 



Did you have it 



You alluded to it very early on, but you didn't really say much 
about it. So, why don't you go into a little more detail about 
that? 

There were a couple of interesting foreign experiences during 
the time that I was in Washington, and one I actually carried 
over. I was asked to be on the faculty of the Salzburg Seminar 
in 1991. That was a program that was initially created shortly 
after World War II to help bring German legal and other 
officials together with those from other countries and help to 
socialize them, particularly, young lawyers and judges. Later 
it spread into a number of other programs that are offered 
there during the year. 

The one I participated in was one on American legal 
institutions. The interesting thing about that three-week 
program was that it brought together relatively young people 
who were lawyers or legal officials, administrators from around 
the world but particularly Western and Eastern Europe, who were 
rising in their careers. 

We had a young man who was very active in the democracy 
movement in Bulgaria, for example. We had people who worked in 
the European Community in the Brussels headquarters. You got 
some very good insights into what's going on in these 
countries, how democracy was evolving in Eastern Europe, and 
how the European Union was affecting the lives of people all 



289 



over Western Europe, because of the commonality that was 
introduced into their trade and commerce, the fact that people 
could move around freely from one country to the other. They 
could change their jobs and move into another country. It was 
quite an insight into how Europe was changing. 

Hicke: Is the European Union affecting the legal systems? 

Schwarzer: Not yet, although, there are efforts being made toward greater 
uniformity in legal procedures. I was invited to a conference 
last year, sponsored by NYU [New York University] in Florence 
[Italy] in which people mostly from European countries, but 
also from Asia, were comparing notes on their various efforts 
at civil procedural reform. It was quite striking the 
differences from country to country in their civil law system. 

We think of Europe as having a civil law system which 
differs in certain fundamental respects from our common law 
system. But there are great differences across the countries 
of Europe, and differences in the amount of interest and 
energies that they're devoting to reforming their system. Yet 
they all have the common problem of delay and cost--just as you 
hear about here. 

It's interesting to see that just because you have a 
civil law system, that doesn't mean that the courts are going 
to operate more efficiently, although, some people here are 
inclined to think that. No, there is no uniformity in their 
legal systems. The fundamental concepts are common. But the 
way the courts operate, the procedures, are quite different in 
detail. 



Another interesting project that I mentioned before was 
the Canadian-American Legal Exchange. In 1994, the American 
College organized anotherthe Anglo-American Legal Exchange. 
That was one in a series, but they hadn't had one for a while. 
It was led on the American side by Justice [Sandra Day] 
O'Connor and Justice [Anthony M.] Kennedy. I went, as did 
Justice Stephen Breyer and District Judge Barbara Crabb from 
Wisconsin. Then there were about four or five lawyers from the 
American College of Trial Lawyers. 

On the British side, we had all of the leading legal 
officials. We had the permanent secretary of the Lord 
Chancellor, who is the chief legal officer in the United 
Kingdom, the master of the rolls, the lord chief justice, one of 
the Lords of Appeal, and a judge on the high court, a judge of 
the circuit court, and several barristers. 



290 



It gave us an insight into the way the British system was 
working, and a fresh perspective on our own system. Much as we 
admire the British system, which is more elitist and probably 
more merit-based than ours, we have come much further in 
adapting to the new conditions created by mass litigation. But 
at that time, the British had under way major civil justice 
reform project under the Direction of Lord Harry Woolf, who was 
a member of the team. 

We spent a week in London and had some very interesting 
and searching discussions bringing together our various 
experiences on the justice system and the pressure points for 
reform. I think we contributed considerably to the final 
report that Lord Woolf prepared and that is now in the process 
of being implemented. The British then returned the visit a 
year later in the fall of 1995. We met in Washington and 
Boston to continue the discussions, focusing on developments in 
American law. 

These were the best exchange programs that I had 
experienced. It was a very good group of people, and I think 
we all benefited. 



More on Expert Witnesses 



Hicke: I'm just going to let you go through the outline of topics and 
pick out what you want to discuss. 

Schwarzer: Nothing else occurs to me here. As we talk, the meeting of the 
American Bar Association is taking place here in San Francisco. 
Two days ago, I was on a panel, and it concerned itself with 
the ethics of expert witnesses. I think we've already talked a 
little about the growing role that science plays in litigation. 
And I think we talked about the manual of scientific evidence 
that the Federal Judicial Center sponsored. 

We haven't touched on one of the big problems in civil 
and criminal justice today, and that's the role of expert 
witnesses in litigation. The numbers of expert witnesses, the 
percentage of cases in which experts are used as witnesses, has 
been exploding. It is has been a staggering development. 

I looked through the booth of support organizations at 
the ABA meeting, and there's one that specializes in referring 
experts to lawyers. They publish a brochure that lists subject 
matter on which they refer experts. They had about 7500 



291 



Hicke: 



Schwarzer : 



titles. It's a matter of enormous importance. Studies show 
that juries and judges are much more heavily influenced by the 
testimony of expert witnesses than they are by other witnesses. 
An expert's testimony can make a difference in how a case comes 
out, whether it's civil or criminal. 

There have, of course, been horror stories, and a whole 
book, at least one book, devoted to the abuse of expert 
witnesses and expert testimony in trials, a book called 
Galileo's Revenge by Peter Huber, that first made prominent the 
notion of junk science. We've all heard of that. That phrase 
gets bandied about. There is certainly some truth that there 
is scientific evidence, purportedly scientific evidence, that 
is offered that has no scientific basis. It's also true that 
there are experts who are basically "guns for hire." But I 
would not condemn the whole system. 

My concern has been over the ethical obligations of 
experts. It's a difficult area, because the expert who is 
retained by one side or the other is retained, of course, to 
help them, to help that side prevail. So to what extent can 
the expert be neutral, objective, dispassionate as opposed to 
being an advocate and a part of that team? There are very 
complex questions that people haven't thought about a great 
deal. It's an issue right now really in the forefront of our 
concern with the integrity of the justice system. 

So I've spoken on the subject and I've written on it, but 
I don't have any answers. I think it's important, though, to 
raise people's consciousness and direct their attention to the 
fact that although expert testimony is presented to help one 
side or the other to win a lawsuit, from the point of view of 
the lay person this is neutral, objective, scientific testimony 
on which they can rely. It's important that experts don't sail 
under false colors, that they aren't acting as advocates while 
purporting to be objective scientists. It's an issue that 
requires attention and concern. 

Can the judge point out to the jury that this man is being paid 
by one side or the other? 

That will always come out. Both sides will have experts, and 
they'll bring out the fact that they are being paid and other 
factors that will indicate to the jury this is not a neutral 
and impartial person, but he is working for one side or the 
other. But that doesn't mean that an expert could not abuse 
his position, express opinions for which there is no scientific 
support, using false methodology or unreliable methodology, 
making tests that are not properly conducted, or concealing the 



292 



results of unfavorable tests. There are a variety of issues 
like that that go to the ethical conduct of the witnesses. 

Hicke: Would this be the joint responsibility of the person who is 
testifying and the lawyer who hired him or her? 

Schwarzer: The lawyer certainly has a responsibility to ensure that expert 
testimony will be presented with integrity. And the expert 
himself or herself should be sure that he or she doesn't turn 
out to be just a hired gun, but that the testimony that the 
expert will give is supported by facts and consistent with 
accepted and reliable scientific methodology. 



Trial Advocacy, Justice, and the Law 



Hicke: We talked a bit about trial advocacy, but perhaps there is more 
to be said about that. 

Schwarzer: Well, I don't think we've really discussed it thoroughly. I 
have had an interest in it, and it is related also to the 
subject of expert ethics, because it touches on the whole 
conduct of trials and the way lawyers conduct themselves. The 
adversary system expects lawyers to do their best to advance 
the interests of their clients. They're not supposed to be 
judges; they're supposed to be advocates. 

But there is an ongoing debate. What are the limits of 
advocacy? It's not exactly the same in the criminal and the 
civil context. In the criminal context, the defense lawyer 
certainly has an obligation to push as hard as he can to make 
the government prove its case. The government always has the 
burden. That doesn't mean you can put on perjured testimony. 
But you certainly don't have an obligation to bring out the 
truth. It's the government's burden to present the case. You 
can resist the government's efforts to prove its case. 

The civil system hasn't as much leeway, and the 
obligations, I think, are a little stricter on lawyers. They 
advocate the client's cause, but they're not supposed to 
mislead the court, and they're not supposed to cover up 
unfavorable information. It gets complicated, because there 
usually is a disparity of competence. If you have a competent 
and effective lawyer on one side, and a bumbler on the other 
side, the scales are unbalanced, the judge can see that one 
side's case is not being effectively presented. 



293 



Hicke: 



Schwarzer ; 



Now, in the adversary system, the judge isn't supposed to 
put his or her thumb on the scales, but can't help but be 
concerned when one side obviously is not being effectively 
represented. There is not all that much the judge can do, but 
it is a concern. So I had been interested right along in trial 
advocacy training to bring about improved court room 
performance . 

I participated in the trial advocacy program at Harvard 
and in the National Institute of Trial Advocacy. We launched a 
program here in the court some years ago of trial advocacy 
training for lawyers in this district. I concluded that you 
can't do enough. Trial advocacy is not a natural instinct for 
most lawyers, and training is important, both to know the 
techniques, the nuts and bolts, and also to know the ethical 
dimensions . 

The quality of trial advocacy is uneven. There are lots 
of lawyers practicing in the courts that really shouldn't be 
trial lawyers. They just don't have the instinct or the 
ability or the talent. Those things are necessary. It doesn't 
mean that you necessarily have to be a great jury lawyer. But 
you need to know how to organize a case and know how to present 
it to somebody who doesn't know anything about it and make it 
comprehensible and to bring out the strong points in your case, 
without, at the same time, being deceptive or misleading or 
dishonest; that's not easy. 

Looking at the problem you just discussed from the judge's 
point of view, is there always this shading of difference 
between the law and justice? 

Justice, as an abstract proposition, really doesn't play a role 
in the litigation and trial of cases. There are procedures 
that govern the way that cases are processed. A case is 
supposed to be tried and decided in accordance with the 
established procedures and the applicable rules of law. When a 
case goes to a jury, the jury is supposed to be correctly 
instructed on the law. It's up to the jury then to find the 
facts . 

You may not agree with the way the jury comes out, but if 
the process has moved in accordance with the rules, that's all 
we can expect of the justice system. You can talk about 
philosophical or abstract justice, but that's a different 
matter. It's beyond the realm of the administration of 
justice. So I think it confuses the issue to get justice as an 
abstract mixed into the process of judicial resolution of 
disputes. Does that respond? 



294 



Hicke: Yes, I think so. I think as you described it, it sounded as if 
having one opposing counselor who was a humbler would result in 
something of an injustice, but as you point out, that's an 
abstract, I guess, consideration. 

Schwarzer: Well, yes, I think you're right that if the system doesn't work 
well, because one side is not adequately represented, that 
would certainly interfere with accomplishing the purposes of 
the justice system, and that is the just resolution of 
disputes . 



295 



X COMMUNITY AND RECREATIONAL ACTIVITIES 



Bohemian Club 



Hicke: Now I want to get into a few of your community activities. I 
know you're working on one now. 

Schwarzer: In 1979, after being on the waiting list for about thirteen 
years, I was invited to join the Bohemian Club in San 
Francisco. That was before I became a judge. Fortunately, 
when I was going through the confirmation process, membership 
in the Bohemian Club was not an issue; that didn't come up 
until later in the Carter administration. Today it's probably 
safe to say that nobody could be confirmed by the Senate if 
they're a member of the Bohemian Club. 

Now it's become controversial, because it's one of the 
few remaining men's clubs. I have a lot of sympathy for the 
position and the feelings of professional women who don't want 
to be excluded. The Bohemian Club has acquired a kind of an 
aura as a place where powerful men sit around and make 
important decisions and where you do networking that's 
important to your professional advancement. I think both of 
these conceptions are vastly exaggerated. 

Essentially, the Bohemian Club is where men go to have a 
good time--an innocent good time. I think there's a place for 
men's social clubs. There's something about male 
companionship that may seem silly to some, but there's 
something to it. The attraction of the Bohemian Club to me is 
that its focus is on creative activity. Not that everyone is 
involved in creative activity, but it does give opportunities 
and it encourages members to be involved in dramatics, and 
music, painting, sculpture, writing-- 



296 



Schwarzer: A lot of members are professionals or semi-professionals, and 
they contribute greatly to the life of the club. But even if 
you're not a professional, you have an opportunity to try your 
hand at doing these things. There are a number of these 
opportunities, and one of them is the musical play that's 
produced each year, at the Encampment. That's a striking 
setting, in the redwood trees. The stage itself is on the 
side of a hill, surrounded by thousand-year-old redwood trees. 

This setting inspires people to try their hand at writing 
plays. Lots of people try, and very few are accepted, 
obviously-- just one a year. So it's competitive, and it's 
difficult to write one that will be accepted. 

I did become inspired and started working on a play about 
Galileo. After about five years or so, they did accept it, 
and then there was a two-year process working with another 
person who was a kind of professional to get it in shape and 
have it produced. It was a successful play, well received. 
People still talk about it. 

A play represents an enormous effort, to write it, first, 
to the satisfaction of the committees that have to pass on it. 
And then the casting. Somebody writes the music; some people 
design and construct the stage settings. It's at least a two- 
year project to get a play on the stage after it's been 
written. There are always two in progress, because one is put 
on each year. But it's only shown once; they never repeat it. 
So that's a big effort for a single performance. But it was a 
great opportunity to be able to write one. 

It was something that enlarges your horizons and gives 
you some exposure to the world of theater that you never would 
have otherwise, because there are a good many professionals 
that are working on various aspects of it who are members of 
the club. 

Hicke: Have you done any other creative writing of plays or fiction? 

Schwarzer: No. For a while I was interested in doing it, but I haven't 
done any others. I haven't done any fiction writing. I've 
written essays, but nothing else has been published. 



297 



Horseback Riding and Skiing 



Hicke: We talked about skiing earlier, and I also know you like 
horseback riding. You didn't mention that. 

Schwarzer: I started horseback riding when I was very young, because my 
father was always devoted to it, enthusiastic about it. I've 
ridden intermittently. He used to own horses in Los Angeles, 
and when I visited there, I would ride with him. I've never 
owned a horse. When we went to the Sea Ranch, there was a 
woman there who kept a number of horses and rented horses out, 
I did a fair amount of riding on the trails in the hills 
behind the Sea Ranch, which is beautiful countrymostly 
redwood forests. 



Hicke: 
Schwarzer: 



When logging began, riding became more problematical, 
because horses get very nervous when they see logging 
equipment around, bulldozers. So it became less attractive, 
and I haven't ridden for years. So that has not been a major 
life activity for me. 

I started skiing when I was about ten and did a fair 
amount of skiing when I was living in Los Angeles. In our 
early years here, we would go up to Squaw Valley and 
occasionally to Alta, Utah, and intermittently I continued to 
do that until the late seventies. I used to think that I was 
very busy as a lawyer. But somehow, once I got on the bench, 
I seem to have had less time for spare-time activities than I 
did when I was practicing law. So my skiing has been becoming 
less and less of an activity. 

The last major trip I took was in 1975 when I went to the 
Bugaboo Mountains in the Canadian Rockies and spent a week 
skiing off helicopters. That's a challenging experience, 
because you're skiing away from crowds and ski lifts. The 
snow is unbroken. You ski in all sorts of conditions. You 
have views of vast mountain ranges, with no sign of 
civilization. 

But it's also dangerous. Avalanches are common. When 
you ski, you have to carry a radio locator device around your 
neck, so that if you get caught in an avalanche, they can 
locate you and dig you out. 

A little keg of brandy? 

Well, that might be useful. You probably wouldn't have a 
chance to use it. Avalanches move with fantastic speed. I 



298 



Hicke: 
Schwarzer : 



was on the edge of one when one of the people we were with was 
knocked over. Suddenly you see the snow moving rapidly. You 
can't appreciate the enormous power that they have. Of 
course, you always ski with a guide, and they look out for 
you. There aren't too many accidents. 

My worst experience up there was coming down a hill and 
falling into the snow. The snow is so deep there that there's 
a circle around the trees marked by the spread of the 
branches. Under those branches there's snow, but it's lightly 
packed, because not as much falls under the tree as all around 
it. I fell under a tree and hit this soft spot along the 
trunk of the tree and went into it head first. I was hanging 
by my skis--they were on top of the groundwith my head down, 
and there wasn't any way that I could get out of there. It 
was a deep hole. But it's not obvious it's a hole until 
you're in it, because it's lightly covered on top by snow like 
a trap. I was pulled out, and nothing happened. 

And I've read that you're interested in music. 

For a while, I was taking piano lessons. I then decided that 
it was too demanding and frustrating. I could never seem to 
get above a certain plateau of marginal competence. So I gave 
that up. My interest in music is passive, but we do listen to 
a lot of it. 



Family Life 



Hicke: I wonder if you could talk just a bit about the impact of your 
career on your family life, as compared to other careers 
perhaps . 

Schwarzer: Well, I think the obvious impact is that my children saw 

enough of it to be sure that they never wanted to be lawyers, 
[laughter] They avoided the competitive careers. I spent a 
lot of time working, but I think I was not an absent father. 
We did take a lot of family trips. I think I was always a 
presence at home, and I was involved in activities with my 
children. 

I can only give you my perception. Who knows what other 
people would say in my family if they were asked that 
question? But I don't think that my professional career was 
disruptive of family life. It made it possible to live 
reasonably well and to have an interesting life, to meet 



299 



interesting people, and be involved in interesting and 
stimulating activities. That certainly has been true since I 
became a judge. 

When I started getting around in the judicial community, 
and then particularly after becoming director of the Judicial 
Center, the position gave me a certain amount of prominence 
and the opportunity to go around the country and to meet a lot 
of judges and other people too, in government, in the legal 
profession. My wife has participated in all of that, and has 
met lots of people and is well known and well liked. So that 
has been a good way for her to reach out and expand her 
horizons . 



300 



XI PERSPECTIVES ON THE LEGAL LANDSCAPE 



Hicke: There have obviously been a lot of changes in legal practice 

and court procedure during your career, and also opportunities 
for observation. For instance, I asked Spencer Williams if he 
had some good questions for you, and he said, "Ask him how he 
compares administrating to judging." You've seen those 
different sides of legal work. 

Schwarzer: Somebody asked me at dinner yesterday what I think has become 
of the quality of judges. That is, are the judges that are 
coming on now, are they any better or any worse than the 
judges who were appointed during earlier times? I've heard 
different people express different views. Some will say that 
the quality has deteriorated, in part because not the same 
quality of people is attracted to the job any longer. In 
part, because of money. And also because of what you have to 
go through to get confirmed. 

I don't share that view. I think, when I look back over 
the judges I've known in the forty-plus years that I've 
practiced law, I think there were some weak judges on the 
bench then, and there probably are some now. I think that the 
selection process has become much more demanding. In part, 
that may have served to discourage some outstanding lawyers 
from even getting into this process in the first place, 
because they don't want to be subjected to it. They don't 
want to have to publicize their financial affairs, and all 
that goes with it. But it also has generally kept weak 
appointments from being made. It's no longer easy for the 
president or a senator to put an old buddy on the federal 
court just because of friendship. The scrutiny has become 
more searching than it used to be. 

So I think that even though salaries now are even lower 
in relation to what lawyers make than they were ten or twenty 
years ago--I mean, there is a real disparity--! still think 
that the job is attracting very good people Just looking at 



301 



my own court, the recent appointments, on the whole, have been 
of outstanding people. 1 think the federal judiciary is 
strong. 

Now, obviously, as I said before, there are different 
talents and different strengths that judges bring to the 
bench. Some people are strong intellectually. Some people 
are compassionate. Some people have a better understanding of 
human beings than others. Some have more practical experience 
than others. But I think that the federal court continues to 
be a strong institution composed of competent people. 

Of course, you don't need me to say that the nature of 
the legal profession has changed dramatically in the last 
twenty years. It's much more competitive. For many lawyers, 
it's much more profitable than it ever has been, although I 
think there is a wide gap between the top and the bottom. But 
the price of financial success is also high. I think it's 
much harder to practice law today. Greater pressures; more 
travel. The electronic revolution means that you can never 
get away from your office. You're always within reach by cell 
phone and fax. 

Of course, what I know about current practice is second 
hand from what people tell me. But it seems that a lawyer's 
word is no longer accepted at face value. You can't 
necessarily depend on a lawyer's representation anymore. 
Lawyers seem to have to get everything in writing, and then 
the writings go back and forth, and there are fax wars. Each 
one trying to top the other makes it difficult to reach 
agreement. I guess the stakes are higher. And then law firms 
lack the collegiality that they used to have. Becoming a 
partner in a firm used to be a lifetime commitment. It isn't 
anymore. Law firms raid each other, and your close colleague 
and partner today may be your adversary tomorrow at another 
firm. 

So it doesn't seem to be as much fun to practice law, and 
some young people become disillusioned and look for other 
alternatives after they've practiced for a while. That's 
unfortunate, but probably not much can be done about it. 

There are efforts to bring civility back into the 
profession. But I don't see how you can bring civility back 
unless people want to be civil. Unless they feel committed to 
it, you can't tell them to be civil. They have to feel they 
want to be civil. Still I suppose we have to keep working on 
it. 



302 



Hicke: 



Finally, the litigation process as a whole, the process 
in our society of resolving disputes, has come under 
criticism. People get exercised over some of the verdicts 
that come down. I think the media give the wrong impression. 
The O.J. Simpson case is an example. People are making 
judgments about the criminal justice system based on the way 
that case went, but that case was a horrible example where 
everything went wrong. It's no basis for making judgments 
about the system. No, I think that while there's room for 
improvement, we have a good criminal justice system. 

I think on the civil side, people are able to get their 
disputes resolved quite well. In most courts, people also 
have access to alternative means of dispute resolution without 
having to go through trial. I think on the whole, the courts 
are well organized and administered. It takes less time today 
to get a case resolved than it did thirty years ago, even 
though the volume of cases has increased. The courts are more 
efficient. And I think there is good access to the courts if 
you need it. 

People complain about the cost of litigation. It's true 
lawyers' fees are higher than they used to be. In large 
litigation costs can be staggering. But when you look at the 
cost of everything else, I don't know that the litigation cost 
increase has been disproportional to the cost of other things 
in our lives. 

I don't take a negative view of the justice system in 
this country. We need to keep working on it, but I think it's 
the best in the world. When you meet with people from other 
countries and when you travel around on these legal missions, 
you realize that our rule of law is probably the greatest 
export from this country, perhaps our greatest contribution to 
the world. It is the most envied part of our society. I 
think we can be justly proud of it. Anything else? 

I just want to say that some of the things you said, where you 
said, "You don't need me to tell you this," may be obvious 
today, but someone reading this fifty or a hundred years from 
now would really appreciate that sort of summing up of the 
things that you've seen. And I thank very, very much for your 
thoughtful and reflective recollections and the time you've 
spent on this oral history. 



Schwarzer: I thank you. 

Transcribed by Quandra McGrue 
Final Typed by Caroline Sears 



303 



TAPE GUIDE--William Schwarzer 



Interview 1: May 15, 1997 

Tape 1 , Side A 

Tape 1, Side B 

Tape 2, Side A 

Tape 2, Side B not recorded 



Interview 


2: 


May 29, 


1997 


Tape 


3, 


Side A 




Tape 


3, 


Side B 




Tape 


A, 


Side A 




Tape 


A, 


Side B 




Interview 


3: 


May 30, 


1997 


Tape 


5, 


Side A 




Tape 


5, 


Side B 




Tape 


6, 


Side A 




Tape 


6, 


Side B 




Interview 


A: 


July 21 


, 1997 


Tape 


7, 


Side A 




Tape 


7, 


Side B 





Tape 8, Side A 
Tape 8, Side B 

Interview 5: July 23, 1997 
Tape 9, Side A 
Tape 9, Side B 
Tape 10, Side A 
Tape 10, Side B 
Excerpts from Tape 10, Side B and notes 

Interview 6: July 25, 1997 
Tape 11, Side A 
Tape 11, Side B 
Tape 12, Side A 
Tape 12, Side B 

Interview 7: July 29, 1997 
Tape 13, Side A 
Tape 13, Side B 
Tape 1A, Side A 
Tape 1A, Side B 



1 

16 
23 



33 
A2 
51 
59 



65 
7A 
8A 
93 



100 
108 
116 
12A 



130 
138 
1A6 
15A 
158 



159 
168 

175 
183 



190 
198 
205 
213 



304 



Interview 8: July 30, 1997 

Tape 15, Side A 

Tape 15, Side B 

Tape 16, Side A 

Tape 16, Side B 

Interview 9: July 31, 1997 

Tape 17, Side A 

Tape 17, Side B 

Tape 18, Side A 

Tape 18, Side B 

Interview 10: August 4, 1997 

Tape 19, Side A 

Tape 19, Side B 

Tape 20, Side A 

Tape 20, Side B not recorded 



221 
229 
235 
243 



247 
255 
264 
272 



279 
288 
295 



APPENDIX 

A William W Schwarzer Curriculum Vitae 305 

B William W Schwarzer Bibliography 312 

C William W Schwarzer Citations List 321 

D "Tribute and Farewell to Judge William W Schwarzer," 
The United States District Court for the Northern 
District of California, En Bane, March 1, 1990 343 



305 APPENDIX A 



12/22/97 



WILLIAM W SCHWARZER 

AB cum laude, University of Southern California, 1948 
LLB cum laude, Harvard Law School, 1951 

Born April 30. 1925 

Married -- Anne Halbersleben Schwarzer 

Children -- Jane born 1955, Andrew born 1958 

Office Address: 450 Golden Gate Avenue 
Box 36060 

San Francisco, CA 94102 
(415) 522 4660; fax (415) 522 4632 

Senior United States District Judge, Northern District of California, appointed August 9, 1976 
Distinguished Professor of Law, University of California Hastings College of the Law, 1996- 
Director, Federal Judicial Center, 1990-1995 

McCutchen, Doyle, Brown & Enersen, San Francisco, Associate 1952-60, Partner 1960-76 
Teaching Fellow, Harvard Law School, 1951-1952 

Senior Counsel, President's Commission on CIA Activities Within the United States (Rockefeller 
Commission) 1975 

Judicial Fellow, American College of Trial Lawyers 

Recipient, Samuel E. Gates Litigation Award, American College of Trial Lawyers 

Member, American Law Institute (Advisory Committee on Complex Litigation) 

Fellow, American Bar Foundation 

Member, Council on Foreign Relations 

Recipient, Meador-Rosenberg Award, American Bar Association 

Chairman and Member, U.S.Judicial Conference Committee on Federal-State Jurisdiction, 

1984-90 

Past Member, Ninth Circuit Education Committee, Ninth Circuit Rules Committee 

Past Chairman, Ninth Circuit Committee on Jury Instructions, Principal Draftsman Ninth Circuit 

Manual of Model Jury Instructions 
Past Chairman, Rules Committee, Northern District of California, Principal Draftsman Northern 

-1 - 



District Local Rules 

Past Judicial Representative, Council of the ABA Section of Antitrust Law 
Past Member, ABA Section of Litigation Committee on Jury Comprehension 
Member, Canadian- American Legal Exchange 1987; Anglo-American Legal Exchange 1994-95 
Frequent Lecturer, Panelist and Seminar Leader at Judicial Training and C.L.E. programs 
Participant in rule of law missions to China, Taiwan, Yugoslavia, Romania and Russia 
Faculty Member, Salzburg Seminar 1991 
Adjunct Professor, Georgetown Law Center 1993-94 

Member, Advisory Board ABA Central and East European Law Initiative (CEELI) 
Moderator, Aspen Institute Justice and Society Seminar 1994 

Past Trustee, World Affairs Council of Northern California 
Past Member, Visiting Committee, Harvard Law School 
Past Chairman, Marin County Aviation Commission 
Past Chairman, Board of Trustees, Marin Country Day School 

United States Army, Military Intelligence Service in European Theatre, 1943-1945 



-2- 



307 



PUBLICATIONS 
BOOKS. MONOGRAPHS AND MANUALS 

Management of Expert Evidence, in Reference Manual on Scientific Evidence (Federal Judicial 
Center 1995) 

Manual for Complex Litigation, Third (editor with FJC staff) (Federal Judicial Center 1995) 

Civil Discovery and Mandatory Disclosure: A Guide to Efficient Practice, with Lynn H. 
Pasahow and James B. Lewis (Prentice Hall Law & Business 1994 ed.). 

On the Federalization of the Administration of Civil and Criminal Justice (with Russell Wheeler) 
(Federal Judicial Center 1994); republished in 23 Stetson University School of Law 
Law Review 651 (Summer 1994) 

Practice Guide: Federal Civil Procedure Before Trial (with A. Wallace Tashima and James M. 
Wagstaffe) (The Rutter Group 1997 ed.) 

Imposing a Moratorium on the Number of Federal Judges (with FJC staff) (Federal Judicial 
Center 1993) 

The Modern American Jury-Reflections on Veneration and Distrust (with Alan Hirsch), in 
Verdict, Assessing the Civil Jury System (The Brookings Institution 1993) 

Manual for Litigation Management and Cost and Delay Reduction (with FJC staff) (Federal 
Judicial Center 1992) 

Judicial Federalism in Action: Coordination of Litigation in State and Federal Courts (with 
Nancy Weiss and Alan Hirsch) (Federal Judicial Center 1992); republished in 78 Va. Rev. 1689 
(1992) 

Long Range Planning for Circuit Judicial Councils (Federal Judicial Center 1992) 

Summary Judgment Under Rule 56 FRCP (with Alan Hirsch and David Barrans) (Federal 
Judicial Center 1991); republished 139 FRD 441 (1992) 

The Elements of Case Management (with Alan Hirsch) (Federal Judicial Center 1991) 

Defining Standards of Review, in The Federal Appellate Judiciary in the 21st Century (Federal 
Judicial Center 1989) 

Instructing the Jury, in Master Advocates' Handbook, (National Institute Trial Advocacy 1986) 



-3- 



308 



Managing Antitrust and Other Complex Litigation, (Michie Bobbs-Merrill 1982) 

PERIODICALS 

Federal Preemption--A Brief Overview, in Resource Materials, Civil Practice and Litigation in 
Federal and State Courts (ALI-ABA 7th ed. 1997) 

Case Management in the Federal Courts, 15 Civil Justice Quarterly (England) (April 1996) 

Structuring Multiclaim Litigation: Should Rule 23 be Revised? 94 Mich. L. Rev. 1250 
(March 1996) 

Governing the Federal Judiciary, Legal Times (Dec. 11, 1995) 

Ethics and the Expert Witness, Shepard's Expert and Scientific Evidence Quarterly, v. 2 , No. 3, 
p. 587 (Winter 1995) (AAFS Keynote) 

Settlement of Mass Tort Class Actions: Order Out of Chaos, 80 Cornell L. Rev. 837 (May 
1995) 

The Federal Judicial Center and the Administration of Justice in the Federal Courts, 28 
U.C.Davis Law Review 1 129 (Summer 1995) 

A Small Claims Calendar in Federal District Courts: A Proposal for a Pilot Program. 78 
Judicature No. 5 (Mar./Apr. 1995; reprinted in 32 Court Review No. 4 (Winter 1995) 

Rule 11: Entering A New Era, 28 Loyola of Los Angeles L. Rev. 1501 (Nov. 1994) (Burns 
Lecture) 

Open Questions About ADR (Keynote Address at National ADR Institute for Federal Judges), 
Center for Public Resources Alternatives v. 12, No. 16 (Jan. 1994). 

Civil and Human Rights and the Courts under the New Constitution of the Russian Federation. 
28 The International Lawyer 825 (Fall 1994) 

Judicial FederalismA Proposal to Amend the Multidistrict Litigation Statute (with Alan Hirsch 
and Ed Sussman), 73 Texas L. Rev. 1529 (June 1995) 

Summary Judgment After Eastman Kodak (with Alan Hirsch) 45 Hastings Law Journal 1 
(November 1993), 154 FRD 311 (1994) 

In Defense of "Automatic Disclosure in Discovery", 27 Georgia L Rev. 655 (Spring 1993) 

Sentencing Guidelines and Mandatory Minimums: Mixing Apples and Oranges, 66 
So.Cal.L.Rev. 405(1992) 

-4- 



309 



Democracy's Dawn-American Judges and the Rule of Law Abroad, (Robert H. Jackson Lecture. 
National Judicial College) 31 Judges' Journal 4, p. 34 (Fall 1992) 

Fee Shifting Offers of Judgment-- An Approach to Reducing the Cost of Litigation, 76 
Judicature 147 (Oct/Nov. 1992) 

Sentencing Guidelines and Mandatory Minimums: The Need for Separate Evaluation, 4 Federal 
Sentencing Reporter 352 (May /June 1992) 

New Discoveries for the Discovery Process, Legal Times (Nov. 25, 1991) 

Punishment Ad Absurdum, 1 1 Calif. Lawyer No. 10 p.l 16 (Oct. 1991) 

Judicial Discretion in Sentencing, 3 Federal Sentencing Reporter 339 (May/June 1991) 

Science and Technology in Judicial Education and Research, 1 Courts, Health Science, and the 
Law No. 4, 423 (Spring 1991) 

Slaying the Monsters of Cost and Delay: Would Disclosure be More Effective Than Discovery. 
74 Judicature No. 4 (Dec.-Jan. 1991); 1 Trial Practice 1 (St. Bar Az. Fall 1990) 

Reforming Jury Trials, 1990 Univ. of Chicago Law Forum 119; 132F.R.D. 575(1991) 
Reflections on a Visit to the Soviet Union, 3 Cal. Int. Law Section Newsletter 4 (Winter 1990) 
New Frontier for U.S. Courts, San Francisco Chronicle (Aug. 1, 1990) 
The Cost of Rule 1 1, 7 The Compleat Lawyer 27 (A.B.A., Spring 1990) 
Federal Courts Turn 200 Years Old, San Francisco Chronicle (Sep. 20, 1989) 

The Federal Rules, The Adversary Process, and Discovery Reform, 50 Pittsburgh L. Rev. 
703 (Spring 1989) 

Oral Argument, The Recorder, San Francisco (June 29, 1989) 

Mistakes Lawyers Make in Discovery, 15 Litigation No. 2 (Winter 1989) 

Rule 11 Revisited, 101 Harvard L.Rev.1013 (March 1988) 

The Workload of the Federal Courts, New York University Symposium on Federal Courts 
(1987) 

Guidelines for Discovery, Motion Practice and Trial, 1 17 F.R.D. 273 (1987) 

-5- 



310 

Summary Judgment and Case Management, 56 Antitrust Law Journal 213 (1987) 
The Constitution and Foreign Relations, San Francisco Chronicle (Feb. 1 1, 1987) 
Summary Judgment: A Proposed Revision of Rule 56, 1 1 F.R.D.2 13(1 986) 
Sanctions under the New Federal Rule 11, 104F.R.D. 181 (1985) 
Grading the Judge, 10 Litigation No. 2 (Winter 1984) 

Summary Judgment under the Federal Rules: Defining Genuine Issues of Material Fact, 99 
F.R.D. 465(1984) 

Book Review: Court Reform on Trial, 71 Calif. L. Rev.1572 (Sept. 19 83) 

Remarks to National Conference on Discovery Reform, in 3 Review of Litigation 1 18 (Winter 
1982) 

Remarks to Annual Meeting of A. B. A. Antitrust Section in 51 Antitrust Law Journal 223 (1982) 
Jury Instructions: We Can Do Better; 8 Litigation No. 2 (Winter 1982) 
On Communicating with Juries: Problems and Remedies; 69 Calif. L. Rev. 731 (May 1981) 
Assuring Effective Assistance of Counsel, 7 Litigation No. 2 (Winter 1981) 
Dealing with Incompetent Counsel: The Trial Judge's Role, 93 Han-. L. Rev. 633 (Feb. 1980) 
Beating the Trial Court Paper Chase, 5 Litigation No. 3 (Spring 1979) 
Reflections on a Visit to China, 54 Cal. St. Bar J. 162, 234 (May /June, July/August 1979) 
Managing Civil Litigation: The Trial Judge's Role, 61 Judicature 400 (April 1978) 
Regulated Industries and the Antitrust Laws, 41 ICC Practitioners J. 543 (July/August 1974) 
Flying the Canadian Rockies, AOPA Pilot (August 1969) 
Toward World Law - A Reply, 37 Cal. St. Bar J. 66 (January/February 1962) 
World Peace Through World Law: The Disarmament Problem, 47 ABAJ 1171 (Dec. 1961) 
A Break for Farmers - A Further Word, 33 Cal. St. Bar J. 290 (May/June 1958) 
Practical Problems of Organizing Closely-Held Corporations, in Advising California Business 

-6- 



311 



Enterprises (C.E.B. 1958) 

Enforcing Federal Supremacy: Relief Against Federal-State Regulator)' Conflicts, 43 
Calif. L. Rev. 234 (May 1955) 

Presidential Power and Aggression Abroad (with Robert R. Wood) 40 ABAJ 394 (May 1954) 

Wages During Temporary Disability, 5 Stanford L. Rev. 30 (Dec. 1952), reprinted in 8 
Industrial Law Rev. Quarterly (England) 12 (July 1953). 



rev. Dec. 1997 



-7- 



312 APPENDIX B 



Judge William W. Schwarzer 
Bibliography 



Books 

WILLIAM W. SCHWARZER, ET AL. FEDERAL CIVIL PROCEDURE BEFORE TRIAL (The Rutter 
Group, 1993) 

WILLIAM W. SCHWARZER, ET AL . , CALIFORNIA PRACTICE GUIDE: FEDERAL CIVIL PROCEDURE 
BEFORE TRIAL (TRG 1992) 

WILLIAM W. SCHWARZER & LYNN H. PASAHOW, CIVIL DISCOVERY: A GUIDE TO EFFICIENT 
PRACTICE (1988) 

WILLIAM W. SCHWARZER & LYNN H. PASAHOW, MAKING DISCOVERY WORK: A HANDBOOK FOP. 
LAWYERS AND JUDGES (1985) 

WILLIAM W. SCHWARZER, MANAGING ANTITRUST AND OTHER COMPLEX LITIGATION: A HANDBOOK 
FOR LAWYERS AND JUDGES (1982) 

Articles 

William W. Schwarzer & Russell R. Wheeler, On the Federalization of 
the Administration of Civil and Criminal Justice, 23 STETSON L. REV. 651 
(1994) 

William W. Schwarzer, In Defense of "Automatic Disclosure in 
Discovery, " 27 GA . L. REV. 655 (1993) 

William W. Schwarzer & Alan Hirsch, Summary Judgment After Eastman 
Kodak, 45 HASTINGS L.J. 1 (1993) 

William W. Schwarzer, Sentencing Guidelines and Mandatory Minimums : 
Mixing Apples and Oranges, 66 S. CAL. L. REV. 405 (1992) 

William W. Schwarzer, Democracy's Dawn: American Judges and the Rule 
of Law Abroad, 31 JUDGES' J. 34 (1992) 

William W. Schwarzer, Fee-Shifting Offers of Judgement A Approach 
to Reducing the Cost of Litigation, 76 JUDICATURE 147 (Oct. /Nov. 1992) 

William W. Schwarzer, et al . , Judicial Federalism in Action: 
Coordination of Litigation in State and Federal Courts, 78 VA. L. REV. 
1689 (1992) 

William W. Schwarzer, et al . , The Analysis and Decision of Summary 
Judgment Motions: A Monograph on Rule 56 of the Federal Rules of 
Civil Procedure, 139 F.R.D. 441 (1992) 



313 



William W. Schwarzer, Punishment Ad Absurdum, 11 CAL. LAW. 116 (19S1) 
William W. Schwarzer, Reforming Jury Trials, 132 F.R.D. 575 (1991) 

William W. Schwarzer, Experts Use and Abuse: Commentary, 60 
ANTITRUST L. J. 363 (1991) 

William W. Schwarzer, The Federal Rules, the Adversary Process, and 
Discovery Reform, 50 U. PITT. L. REV. 703 (1989) 

William W. Schwarzer, Mistakes Lawyers Make in Discovery, 15 LITIGATIC 
31 (Winter 1989) 

William W. Schwarzer, Rule 11 Revisited, 101 HARV. L. REV. 1013 (1988 

William W. Schwarzer, Summary Judgment and Case Management, 56 
ANTITRUST L. J. 213 (1987) 

William W. Schwarzer, Guidelines for Discovery, Motion Practice and 
Trial, 117 F.R.D. 273 (1987) 

William W. Schwarzer, Summary Judgment: A Proposed Revision of Rule 
56, 110 F.R.D. 213 (1986) 

William W. Schwarzer, Sanctions Under the New Federal Rule 11 A 
Closer Look, 104 F.R.D. 181 (1985) 

William W. Schwarzer, Summary Judgment Under the Federal Rules: 
Defining Genuine Issues of Material Fact, 99 F.R.D. 465 (1984) 

William W. Schwarzer, Book Review, 71 CAL. L. REV. 1572 (1983) 
(reviewing MALCOLM M. FEELEY, COURT REFORM ON TRIAL (1983)) . 

William W. Schwarzer, Techniques for Identifying and Narrowing Issue 
in Antitrust Cases, 51 ANTITRUST L. J. 223 (1982) 

William W. Schwarzer, Communicating with Juries: Problems and 
.Remedies, 69 CAL. L. REV. 731 (1981) 

William W. Schwarzer, Dealing With Incompetent Counsel -- The Trial 
Judge's Role, 93 HARV. L. REV. 633 (1980) 

William W. Schwarzer, Reflections on a Visit to China, 54 CALIF. STATI 
BAR J. 162 (1979) 

William W. Schwarzer, Excerpts From Comments to the National 
Commission for the Review of Antitrust Laws and Procedures, 48 ABA 
ANTITRUST L. J. 357 (1979) 

William W. Schwarzer, Managing Civil Litigation: The Trial Judge's 
Role, 61 JUDICATURE 400 (1978) 



314 

William W. Schwarzer, .Regulated Industries and the Antitrust Laws 
An Overview, 41 ICC PRAC. J. 543 (1974) 

William W. Schwarzer, Toward World Law:.. A Reply, 37 CALIF. STATE BAR J. 
66 (1962) 

William W. Schwarzer, World Peace Through World Law: The Disarmament 
Problem, 47 A.B.A. J. 1171 (1961) 

William W. Schwarzer, Break For Farmers: A Further Word, 33 CALIF. 
STATE BAR J. 290 (1958) 

William W. Schwarzer, Enforcing Federal Supremacy: Relief Against 
Federal-State Regulatory Conflicts, 43 CAL. L. REV. 234 (1955) 

William W. Schwarzer, Presidential Power and Aggression Abroad: A 
Constitutional Dilemma, 40 A.B.A. J. 394 (1954) 

William W. Schwarzer, Wages During Temporary Disability: Partial 
Impossibility in Employment Contracts, 5 STAN. L. REV. 30 (1952) 

Federal Judicial Center Publications 

William W. Schwarzer, Challenges in Developing a Long-Range Plan for 
the Judicial Council of the Ninth Circuit, in LONG-RANGE PLANNING FOR 
CIRCUIT COUNCIL: SPEECHES PRESENTED AT THE MEETING OF THE JUDICIAL COUNCIL OF THE 
NINTH CIRCUIT (1992) 

WILLIAM W. SCHWARZER, ET AL., THE ANALYSIS AND DECISION OF SUMMARY JUDGMENT MOTIONS 
A MONOGRAPH ON RULE 56 OF THE FEDERAL RULES OF CIVIL PROCEDURE (1991) 

WILLIAM W. SCHWARZER & ALAN HIRSCH, THE ELEMENTS OF CASE MANAGEMENT (1991) 

WILLIAM W. SCHWARZER & ALAN HIRSCH, MANAGING ANTITRUST AND OTHER COMPLEX LITIGATION 
A HANDBOOK FOR LAWYERS AND JUDGES (1982) 

Published Opinions 

Ninth Circuit Court of Appeals 

United States v. Barry, 814 F.2d 1400 (9th Cir. 1987) 

Lowe v. City of Monrovia, 775 F.2d 998 (9th Cir. 1985) (dissenting) 

Tenneco West, Inc. v. Marathon Oil Co., 756 F.2d 769 (9th Cir. 1985) 

Menhorn v. Firestone Tire & Rubber Co., 738 F.2d 1496 (9th Cir. 1983) 

United States v. Whitten, 706 F.2d 1000 (9th Cir. 1983) 



315 



Zurn Indus, v. NLRB, 680 F.2d 683 (9th Cir. 1982) 

United States v. First Nat'l Bank of Circle, 652 F.2d 882 
(9th Cir. 1981) 

NLRB v. Max Factor & Co., 640 F.2d 197 (9th Cir. 1980) 

United States v. Mills, 597 F.2d 693 (9th Cir. 1979) (concurring) 

Sias v. City Demonstration Agency, 588 F.2d 692 (9th Cir. 1978) 

SEC v. United Fin. Group, 576 F.2d 217 (9th Cir. 1978) 

Southern Pac . Transp . Co. v. ICC, 565 F.2d 615 (9th Cir. 1977) 

Salmon River Canal Co. v. Bell Brand Ranches, Inc., 564 F.2d 1244 
(9th Cir. 1977) (concurring) 

Basse tt v. McCarthy, 549 F.2d 616 (9th Cir. 1977) 

United States v. UCO Oil Co., 546 F.2d 833 (9th Cir. 1976) 

United States District Court for the Northern District of Californi 

Fidelity & Deposit Co. of Maryland v. Zandstra, 756 F. Supp . 429 (N 
Cal. 1990) 

Czechowski v. Tandy Corp., 731 F. Supp. 406 (N.D. Cal. 1990) 
Dosier v. Burns Int'l Sec. Servs . , 729 F. Supp. 695 (N.D. Cal. 1990 

Cadtrak Corp. v. Commodore Bus. Machs . , 1990 U.S. Dist. LEXIS 19357 
(N.D. Cal. 1990) 

Miller v. Maxwell's Int'l, 1990 U.S. Dist. LEXIS 10479 (N.D. Cal. 
1990) 

Vietnamese Fishermen Ass'n of Am. v. Yost, 1989 U.S. Dist. LEXIS 15 
(N.D. Cal. 1989) 

In re Insurance Antitrust Litigation, 723 F. Supp. 464 (N.D. Cal. 
1989) 

Nisperos v. Buck, 720 F. Supp. 1424 (N.D. Cal. 1989) 

Apple Computer, Inc. v. Microsoft Corp, 717 F. Supp. 1428 (N.D. Cal 
1989) 

Samura v. Kaiser Found. Health Plan, 715 F. Supp. 970 (N.D. Cal. 19 
Scripps Clinic & Research Found, v. Genentech, Inc., 724 F. Supp. 6 

4 



316 



(N.D. Cal. 1989) 
Miller v. Galazzo, 1989 U.S. Dist. LEXIS 17034 (N.D. Cal. 1989) 

United States v. Pacific Gas & Elec. Co., 714 F. Supp . 1039 (N.D. Cal. 
1989) 

Yuan Chen v. China Airlines Ltd., 713 F. Supp. 1322 (1989) 
Safwat Gaballah v. PG&E, 711 F. Supp. 988 (N.D. Cal. 1989) 
Student A. v. Metcho, 710 F. Supp. 267 (N.D. Cal. 1989) 

Independent Union of Flight Attendants v. Pan Am, 1989 U.S. Dist. 
LEXIS 14759 (N.D. Cal. 1989) 

Apple Computer, Inc. v. Microsoft Corp., 709 F. Supp. 925 (N.D. Cal. 
1989) 

Risk v. Kingdom of Norway, 707 F. Supp. 1159 (N.D. Cal. 1989) 

Scripps Clinic & Research Found, v. Genentech, Inc., 707 F. Supp. 1547 
(N.D. Cal. 1989) 

Riley v. Dow Chem. Co., 123 F.R.D. 639 (N.D. Cal. 1989) 

Sharek v. Harford Accident & Indem. Co., 703 F. Supp. 59 (N.D. Cal. 
1988) 

Ehrlich v. Oxford Ins. Co., 700 F. Supp. 495 (N.D. Cal. 1988) 

American Guar. & Liab. Ins. Co. v. Vista Wed. Supply, 699 F. Supp. 787 
(N.D. Cal. 1988) 

Klein v. Amfac, Inc., 688 F. Supp. 1415 (N.D. Cal. 1988) 

Hydros torage , Inc. v. Northern California Boilermakers Local Joint 
Apprenticeship Comm., 685 F. Supp. 718 (N.D. Cal. 1988) 

Image Tech. Servs . v. Eastman Kodak Co., 1988 U.S. Dist. LEXIS 17218 
(N.D. Cal. 1988) 

Hong Kong T.V. Video Program, Inc. v. Ilchert, 685 F. Supp. 712 (N.D. 
Cal. 1988) 

Group W Cable v. City of Santa Cruz, 679 F. Supp. 977 (N.D. Cal. 1988) 

Scripps Clinic & Research Found, v. Genentech, Inc., 678 F. Supp. 1429 
(N.D. Cal. 1988) 

United States v. Packwood, 687 F. Supp. 471 (N.D. Cal. 1987) 



317 



Group W Cable v. City of Santa Cruz, 669 F. Supp . (N.D. Cal. 1987) 

Hall v. Bowen, 669 F. Supp. 976 (N.D. Cal. 1987) 

Peinado v. United States, 669 F. Supp. 953 (N.D. Cal. 1987) 

Scripps Clinic v. Genentech, Inc., 666 F. Supp. 1379 (N.D. Cal. 198' 

Thomsen v. Chevron Research Co., 1987 U.S. Dist . LEXIS 14909 (N.D. 
Cal. 1987) 

Knecht v. City of Redwood City, 683 F. Supp. 1307 (N.D. Cal. 1987) 

Matson Plastering Co. v. Plasterers Local No. 66, 658 F. Supp. 1580 
(N.D. Cal. 1987) 

Garcia v. Hudson Lumber Co., 679 F. Supp 961 (N.D. Cal. 1987) 
Sierra Club v. California, 658 F. Supp. 165 (N.D. Cal. 1987) 

Gerrard v. United States Officer of Educ . , 656 F. Supp. 570 (N.D. d 
1987) 

NEC Corp. v. Intel Corp., 654 F. Supp. 1256 (N.D. Cal. 1987) 

Bank of the West v. Commercial Credit Fin. Servs . , 655 F. Supp. 807 
(N.D. Cal. 1987) 

SilverJburg v. Bowen, 1987 U.S. Dist. LEXIS 14725 (N.D. Cal. 1987) 
Ackerman v. Western Elec. Co., 113 F.R.D. 143 (N.D. Cal. 1986) 

Southern Pac. Transp. Co. v. PUC of California, 647 F. Supp. 1220 
(N.D. Cal. 1986) 

Cranford Insurance Co., Inc. v. All West Insurance Co., 645 F. Supp 
1440 (N.D. Cal. 1986) 

Ackerman v. Western Elec. Co., 643 F. Supp. 836 (N.D. Cal. 1986) 
Estate of Bradford v. United States, 645 F. Supp. 476 (N.D. Cal. 19 
Safeco Ins. Co. of Am. v. Simmons, 642 F. Supp. 305 (N.D. Cal. 1986) 

Scripps Clinic & Research Found, v. Genentech, Inc., 231 U.S.P.Q. 
(BNA) 978 (N.D. Cal. 1986) 

King v. United States Forest Serv., 647 F. Supp. 20 (N.D. Cal. 1986) 
Stewart v. County of Sonoma, 634 F. Supp. 773 (N.D. Cal. 1986) 
Bay Area Bank v. Fidelity & Deposit Co., 629 F. Supp. 693 (N.D. Cal, 

6 



318 

1986) 

California Cooler, Inc. v. Loretto Winery Ltd., available in LEXIS 
(N.D. Cal. August 12, 1986) 

Reggi v. United States, 632 F. Supp . 5 (N.D. Cal. 1986) 

PLM, Inc. v. National Union Fire Ins. Co., available in LEXIS (N.D. 
Cal. December 2, 1986) 

Meadows v. Dominican Republic, 628 F. Supp. 599 (N.D. Cal. 1986) 

Globe-Union Inc. v. Tiegel Mfg. Co., 228 U.S.P.Q. (SNA) 58 (N.D. Cal. 
1985) 

Filice v. United States, 621 F. Supp. 1184 (N.D. Cal. 1985) 

Sherrill v. Brinkerhoff Maritime Drilling, 615 F. Supp. 1021 (N.D. 
Cal. 1985) 

Owens v. Heckler, available in LEXIS (N.D. Cal. July 17, 1985) 
Paulo v. Bepex Corp., available in LEXIS (N.D. Cal. June 14, 1985) 

Mesa Verde Constr. Co. v. Northern California Dist. Council of 
Laborers, 602 F. Supp. 327 (N.D. Cal. 1985) 

Sierra Club v. Tosco Corp., 22 Env't Rep. Cas . (BNA) 2117 (N.D. Cal. 
1984) 

Reid v. Delta Air Lines, Inc., available in LEXIS (N.D. Cal. September 
20, 1984) 

Homart Dev. Co. v. Bethlehem Steel Corp., 22 Env't Rep. Cas. (BNA) 
1357 (N.D. Cal. 1984) 

Stud v. Transamerica Airlines, available in LEXIS (N.D. Cal. December 
3, 1982) 

Interpetrol Bermuda Ltd. v. Kaiser Aluminum Int'l Corp., available in 
LEXIS (N.D. Cal. March 5, 1982) 

Radcliffe v. United States, 82-1 U.S. Tax Cas. (CCH) P9103 (N.D. Cal. 
1981) 

Oler v. Trustees of the California State Univ. & Colleges, 80 F.R.D. 
319 (N.D. Cal. 1978) 

Murphy Tugboat Co. v. Crowley, 454 F. Supp. 847 (N.D. Cal. 1978) 
United States v. Finer, 452 F. Supp. 1335 (N.D. Cal. 1978) 



319 

In re Widdershoven, 452 F. Supp . 503 (N.D. Cal . 1978) 

Vetco Offshore Indus, v. Rucker Co., 448 F. Supp. 1203 (N.D. Cal. 
1978) 

Mobley v. IRS, 42 A.F.T.R.2d (P-H) 5359 (N.D. Cal. 1978) 
Wilshire v. Standard Oil Co., 447 F. Supp. 756 (N.D. Cal. 1978) 
Hlivka v. Califano, 443 F. Supp. 917 (N.D. Cal. 1978) 
Chevron Chen. Co. v. Costle, 443 F. Supp. 1024 (N.D. Cal. 1978) 

Hayden v. RCA Global Communications, Inc., 443 F. Supp. 396 (N.D. C< 
1978) 

Harriss v. Pan Am, 441 F. Supp. 881 (N.D. Cal. 1977) 

Benda v. Grand Lodge of the Int'l Ass'n of Machinists & Aerospace 
Workers, 442 F. Supp. 431 (N.D. Cal. 1977) 

Castel v. Moller, 441 F. Supp. 851 (N.D. Cal. 1977) 

Colonial Gas Energy Sys . v. Unigard Mut . Ins. Co., 441 F. Supp. 765 
(N.D. Cal. 1977) 

Gay v. Waiters' & Diary Lunchmen's Union, Local No. 30, 22 Fair Emp! 
Prac. Cas. (BNA) 280 (N.D. Cal. 1978) 

Capricorn Coffees, Inc. v. Butz, 432 F. Supp. 917 (N.D. Cal. 1977) 
Alexander v. Califano, 432 F. Supp. 1182 (N.D. Cal. 1977) 
Cross v. Fong Eu, 430 F. Supp. 1036 (N.D. Cal. 1977) 

Macey v. World Airways, Inc., 14 Empl . Prac. Dec. (CCH) P7791 (N.D. 
Cal. 1977) 

Walker v. University Books, Inc., 193 U.S.P.Q. (BNA) 596 (N.D. Cal. 
1977) 

Congressional Testimony 

Hearings Before the Subcomm. on Courts and Administrative Practice c 
the Senate Comm. on the Judiciary (statement of Hon. William W. 
Schwarzer, October 29, 1993), available in LEXIS, News Library, CNG1 
file. 

Litigation Crisis in Federal and State Courts: Hearings Before the 
Subcomm. on Intellectual Property and Judicial Administration of th 
House Comm. on the Judiciary, 102d Cong., 2d Sess . (1992) (statement 



320 

of Hon. William W. Schwarzer) 

Hearings Before the Subcomm. on Intellectual Property and Judicial 
Administration of the House Comm. on the Judiciary, 103d Cong., 1st 
Sess. (1992) (statement of Hon. William W. Schwarzer 

Misc . 

William W. Schwarzer, et al . , Judicial Federalism A Modest 
Legislative Proposal, submitted to the Judicial National Mass Tort 
Conference (November 10, 1994) 



321 APPENDIX C 



CITATIONS LIST Search Result Documents: 267 

Database: ALLFEDS 

1 . U.S. v. Terry Lynn Beydler, F.3d -, 1 997 WL 405971 , 
97 Cal. Daily Op. Serv. 5777, 97 Daily Journal D.A.R. 9264 
(9th Cir. (Or.), Jul 22, 1997) (NO. 96-30035) 

2. U.S. v. Richard Glen Mathews, - - F.3d - , 1997 WL 400345, 
97 Cal. Daily Op. Serv. 5698, 97 Daily Journal D.A.R. 9193 
(9th Cir.(CaL), Jul 17, 1997) (NO. 95-50361) 

3. Michael Light, Sr. v. Social Security Administration, Commissioner, 
F.3d - , 1997 WL 400346, 97 Cal. Daily Op. Serv. 5696, 

97 Daily Journal D.A.R. 9191 (9th Cir.(0r.), Jul 17, 1997) 
(NO. 95-36149) 

4. Exxon Shipping Co., a Delaware Corporation, Exxon Corporation, a New 
Jersey Corporation, Exxon Pipeline Company, a Delaware Corporation v. 
Airport Depot Diner, Inc., Merle Aaker, Cipriana Abad, Ricardo Abad, 
Jr., Richard Abad, Sr., Rosemarie C. Abad, Conrado Abasta, W. Findlay 
Abbott, C. E. Abelogaard, David Aberle, Florencia Abille, Ricardo 
Abille, Sagani Abille, Alfredo Aboueid, Aired Aboured, Dennis 
Abrahamson, Lydia Abrigo, Felipe Accaide, Sergio, F.3d 

1997 WL 386081, 97 Cal. Daily Op. Serv. 5527, 

97 Daily Journal D.A.R. 8987 (9th Cir. (Alaska), Jul 14, 1997) 

(NO. 95-35819) 

5. Phillip J. Connell, Charles Nelson v. Trustees of Pension Fund of 
Ironworkers District Council of Northern New Jersey, Northern District 
Council of Ironworkers, its Constituent Local Unions, F.3d , 
1997 WL 375578 (3rd Cir.fN.J.), Jul 09, 1997) (NO. 96-5047) 

6. Abdel-Razek v. I.N.S., 1 1 4 F.3d 831 , 97 Cal. Daily Op. Serv. 4241 , 
97 Daily Journal D.A.R. 7133 (9th Cir., Jun 05, 1997) (NO. 95-70395, 
A71-953-257) 

7. U.S. v. Gonzalez, 1 1 3 F. 3d 1 026, 97 Cal. Daily Op. Serv. 3466, 
97 Daily Journal D.A.R. 5971 (9th Cir. (Or.), May 09, 1997) 
(NO. 96-30161) 



322 



8. U.S. v. Cazares, 1 1 2 F.3d 1 391 , 65 USLW 2748, 

97 Cal. Daily Op. Serv. 3382, 97 Daily Journal D.A.R. 5861 

(9th Cir. (Or.), May 07, 1997} (NO. 96-30098, 96-30108, 96-30129) 

9. U.S. v. Longoria, 113 F.3d 975, 97 Cal. Daily Op. Serv. 3385, 
97 Daily Journal D.A.R. 5847 (9th Cir.(0r.), May 07, 1997) 
(NO. 96-30010) 

10. Delk v. C.I.R., 113 F.3d 984, 65 USLW 2757, 79 A.F.T.R.2d 97-2483, 
97-1 USTC P 50,407, 97 Cal. Daily Op. Serv. 3377, 

97 Daily Journal D.A.R. 5853 (9th Cir., May 07, 1997) (NO. 95-70920) 

11. Klitzkev. Steiner Corp., 110 F. 3d 1465, 133 Lab. Cas. P 33, 514, 
3 Wage & Hour Cas.2d (BNA) 1537, 97 Cal. Daily Op. Serv. 2666, 
97 Daily Journal D.A.R. 4769 (9th Cir. (Or.), Apr 1 1 , 1 997) 

(NO. 95-36084) 

1 2. Snell v. Bell Helicopter Textron, Inc., 1 07 F.3d 744, 65 USLW 2561 , 
Prod. Liab. Rep. (CCH) P 14,876, 97 Cal. Daily Op. Serv. 1187, 
97 Daily Journal D.A.R. 1793 (9th Cir. (Cal.), Feb 20, 1997) 
(NO. 95-56365) 

13. In re Niles, 106 F.3d 1456, 65 USLW 2583, 30 Bankr.Ct.Dec. 453, 
Bankr. L. Rep. P 77,266, 97 Cal. Daily Op. Serv. 1013, 

97 Daily Journal D.A.R. 1496 (9th Cir. (Cal.), Feb 12, 1997) 
(NO. 95-55968) 

14. Leila G. Newhall Unitrust v. C.I.R., 105 F.3d 482, 65 USLW 2502, 

79 A.F.T.R.2d 97-547, 97-1 USTC P 50,159, 97 Cal. Daily Op. Serv. 459, 
97 Daily Journal D.A.R. 711 (9th Cir., Jan 21, 1997) (NO. 95-70501) 

15. In re Exxon Valdez, 104 F.3d 1 196, 1997 A.M.C. 940, 
27 Envtl. L. Rep. 20,621, 97 Cal. Daily Op. Serv. 419, 

97 Daily Journal D.A.R. 667 (9th Cir. (Alaska), Jan 17, 1997) 
(NO. 94-36007) 

1 6. Broadcast Music, Inc. v. Hirsch, 1 04 F. 3d 11 63, 65 USLW 2500, 

79 A.F.T.R.2d 97-551, 97-1 USTC P 50,209, 1997 Copr. L.Dec. P 27,602, 

41 U.S.P.Q.2d 1373, 97 Cal. Daily Op. Serv. 359, 

97 Daily Journal D.A.R. 585 (9th Cir. (Cal.), Jan 15, 1997) 

(NO. 95-56144, 95-56185) 



323 



17. In re Exxon Valdez, 102 F.3d 429, 36 Fed.R.Serv.Sd 964, 
96 Cat. Daily Op. Serv. 8961, 96 Cal. Daily Op. Serv. 9144, 

96 Daily Journal D.A.R. 14,861 (9th Cir. (Alaska), Dec 12, 1996) 
(NO. 94-35650, 94-35671) 

18. Adkins v. Trans-Alaska Pipeline Liability Fund, 101 F.3d 86, 
1997 A.M.C. 536, 96 Cal. Daily Op. Serv. 8439, 

96 Daily Journal D.A.R. 13,987 (9th Cir. (Alaska), Nov 21, 1996) 
(NO. 95-35291) 

19. U.S. v. Calhoon, 97 F.3d 518, 51 Soc.Sec.Rep.Ser. 740, 
Medicare & Medicaid Guide P 44,718, 45 Fed. R. Evid. Serv. 1081 
(1 1th Cir.(Ga-), Oct 16, 1996) (NO. 95-8171) 

20. Reo v. U.S. Postal Service, 98 F.3d 73, 65 USLW 2253 
(3rd Cir.(N.J.), Oct 15, 1996) (NO. 96-5051) 

21. Lainez-Ortiz v. I.N.S., 96 F.3d 393, 65 USLW 2209, 

96 Cal. Daily Op. Serv. 6895, 96 Daily Journal D.A.R. 1 1 ,334 
(9th Cir., Sep 16, 1996) (NO. 94-70214) 

22. U.S. v. Range, 94 F.3d 614, 45 Fed. R. Evid. Serv. 757, 96 FCDR 3751 
(1 1th Cir.fGa.), Sep 1 1, 1996) (NO. 93-9476) 

23. Riley v. Newton, 94 F.3d 632 (1 1th Cir.(Ga.), Sep 1 1 , 1 996) 
(NO. 95-8873) 

24. U.S. v. Ellis, 90 F.3d 447, 24 Media L. Rep. 2370 

(1 1th Cir.(Fla-), Aug 02, 1996) (NO. 93-3230, 94-2570) 

25. U.S. v. Johnson, 89 F.3d 778 (11th Cir.(Fla.), Jul 31, 1996) 
(NO. 94-2149) 

26. Beverly Enterprises-Pennsylvania, Inc. v. District 1 199C Nat. Union of 
Hosp. and Health Care Employees, AFSCME, AFL-CIO, 90 F.3d 93, 
152 L.R.R.M. (BNA) 2931, 132 Lab.Cas. P 11,630 

(3rd Cir. (Pa.), Jul 29, 1996) (NO. 95-2025) 

27. Coffin v. Malvern Federal Sav. Bank, 90 F.3d 851 
(3rd Cir. (Pa.), Jul 29, 1996) (NO. 96-1007) 

28. Waller! v. Federal Home Loan Bank of Seattle, 83 F.3d 1575, 
96 Cal. Daily Op. Serv. 3413, 96 Daily Journal D.A.R. 5580 
(9th Cir.(0r.), May 15, 1996) (NO. 94-35414, 94-35470) 



324 



29. Kramer v. Smith Barney, 80 F.3d 1080, 64 USLW 2738, 

Pens. Plan Guide P 2391 9K (5th Cir.lTex.), Apr 23, 1 996) (NO. 95-1 0441 ) 

30. U.S. v. Petty, 80 F.3d 1384, 96 Cal. Daily Op. Serv. 2454, 
96 Daily Journal D.A.R. 4126 (9th Cir.lWash.J, Apr 10, 1996} 
(NO. 94-30394) 

31. Conservation Law Foundation, Inc. v. Busey, 79 F.3d 1250, 42 ERC 1385, 
26 Envtl. L. Rep. 20,959 (1st Cir.(N.H.), Apr 02, 1996) (NO. 92-1335, 
95-1020, 92-1464, 95-1047, 95-1019, 95-1048) 

32. Smolen v. Chater, 80 F.3d 1273, 50 Soc.Sec.Rep.Ser. 500, 
Unempl.lns.Rep. (CCH) P 15161B, 96 Cal. Daily Op. Serv. 2159, 
96 Daily Journal D.A.R. 3640 (9th Cir.lOr.), Mar 29, 1996) 
(NO. 94-35056) 

33. Chakales v. C.I.R., 79 F.3d 726, 77 A.F.T.R.2d 96-1499, 
96-1 USTC P 50,175 (8th Cir., Mar 27, 1996) (NO. 95-1742) 

34. Aetna Cas. & Sur. Co. v. Iso-Tex, Inc., 75 F.3d 216 
(5th Cir. (Tex.), Feb 21, 1996) (NO. 95-20308) 

35. U.S. v. Byrd, 76 F.3d 194 (8th Cir.(S.D.), Feb 05, 1996) (NO. 95-2979) 

36. U.S. v. Dupaquier, 74 F.3d 615 (5th Cir. (La.), Jan 26, 1996) 
(NO. 95-30068) 

37. Magnussen v. YAK, Inc., 73 F.3d 245, 1996 A.M.C. 517, 
96 Cal. Daily Op. Serv. 1 1 5, 96 Daily Journal D.A.R. 1 74 
(9th Cir. (Wash.), Jan 03, 1996) (NO. 94-35796) 

38. Miller v. U.S., 73 F.3d 878, 95 Cal. Daily Op. Serv. 9373, 

95 Daily Journal D.A.R. 1 6,345 (9th Cir. (Mont.), Dec 1 1 , 1 995) 
(NO. 94-35629) 

39. Ramsdell v. Bowles, 64 F.3d 5 (1st Cir. (Me.), Aug 30, 1995) 
(NO. 95-1148) 

40. Messick v. Horizon Industries Inc., 62 F.3d 1227, 

68 Fair Empl.Prac.Cas. (BNA) 986, 66 Empl. Prac. Dec. P 43,665, 
95 Cal. Daily Op. Serv. 6314, 95 Daily Journal D.A.R. 10,772 
(9th Cir. (Or.), Aug 10, 1995) (NO. 94-35025) 

41 . Clean Ocean Action v. York, 57 F.3d 328, 41 ERC 1025, 

25 Envtl. L. Rep. 21,236 (3rd Cir.(N.J.), Jun 12, 1995) (NO. 94-5489) 



325 



42. U.S. v. Barry, 814 F.2d 1400, 22 Fed. R. Evid. Serv. 1560 
(9th Cir.(CaL), Apr 16, 1987) (NO. 86-5137) 

43. Tenneco West, Inc. v. Marathon Oil Co., 756 F.2d 769, 

55 A.F.T.R.2d 85-1642 (9th Cir.(CaL), Mar 29, 1985) (NO. 84-6333) 

44. Menhorn v. Firestone Tire & Rubber Co., 738 F.2d 1496, 

5 Employee Benefits Cas. 2193 (9th Cir.(Cal.), Aug 03, 1984) 
(NO. 82-6084) 

45. U.S. v. Whitten, 706 F.2d 1000, 13 Fed. R. Evid. Serv. 384 

(9th Cir.(CaL), May 25, 1983) (NO. 82-1315, 82-1293, 82-1294, 82-1303) 

46. Zurn Industries, Inc. v. N.L.R.B., 680 F.2d 683, 

110 L.R.R.M. (BNA) 2944, 94 Lab. Cas. P 13,708 (9th Cir., Jul 02, 1982) 
(NO. 81-7219, 81-7331) 

47. U. S. v. First Nat. Bank of Circle, 652 F.2d 882, 81-2 USTC P 961 5 
(9th Cir. (Mont.), Aug 07, 1981) (NO. 79-4739) 

48. N.L.R.B. v. Max Factor and Co., 640 F.2d 197, 105 L.R.R.M. (BNA) 2765, 
89 Lab. Cas. P 1 2,232 (9th Cir., Sep 09, 1 980) (NO. 79-71 1 8) 

49. Sias v. City Demonstration Agency, 588 F.2d 692, 

18 Fair Empl.Prac.Cas. (BNA) 981, 18 Empl. Prac. Dec. P 8773 
(9th Cir.(CaL), Nov 08, 1978) (NO. 77-2390, 77-2624) 

50. Securities and Exchange Commission v. United Financial Group, Inc., 
576 F.2d 217 (9th Cir. (Or.), Apr 10, 1978) (NO. 76-3441) 

51. Southern Pac. Transp. Co. v. I. C. C., 565 F.2d 615 
(9th Cir.(CaL), Dec 06, 1977) (NO. 75-2175) 

52. Bassett v. McCarthy, 549 F.2d 616 (9th Cir. (Cat.), Jan 06, 1977) 
(NO. 75-1978) 

53. U. S. v. UCO Oil Co., 546 F.2d 833 (9th Cir.(CaL), Dec 13, 1976) 
(NO. 76-2141) 

54. In re Richmond Produce Co., Inc., 195 B.R. 455 (N.D.Cal., Apr 09, 1996) 
(NO. C93-3845 MMC, C93-3852 MMC, C94-0428 MMC) 

55. Wilson v. City and County of San Francisco, 1996 WL 134919 
(N.D.Cal., Mar 18, 1996) (NO. C-95-2165 MMC (PJH)) 



326 



56. Craig v. Lowe, 1 996 WL 1 1 6822, 78 A.F.T.R.2d 96-5488, 

96-2 USTC P 50,416 (N.D.Cal., Mar 07, 1996) (NO. C-95-3006 MMC) 

57. Czechowski v. Tandy Corp., 731 F.Supp. 406, 

12 Employee Benefits Cas. 1171 (N.D.Cal., Feb 14, 1990) 
(NO. C-88-2868-WWS) 

58. Fidelity and Deposit Co. of Maryland v. Zandstra, 756 F.Supp. 429, 
59 USLW 2557 (N.D.Cal., Feb 08, 1990) (NO. C-89-1 258-WWS) 

59. Dosier v. Burns Intern. Sec. Services, 729 F.Supp. 695, 

1 33 L.R.R.M. (BNA) 3046, 1 1 5 Lab. Cas. P 1 0,038, 5 IER Cases 477 
(N.D.Cal., Jan 31, 1990) (NO. C-89-2145-WWS) 

60. Miller v. Maxwell's Intern., 1 990 WL 91 801 , 

52 Fair Empl.Prac.Cas. (BNA) 1486, 53 Empl. Prac. Dec. P 39,914 
(N.D.Cal., Jan 17, 1990) (NO. C-87-1 906-WWS) 

61. In re Insurance Antitrust Litigation, 723 F.Supp. 464, 

1989-2 Trade Cases P 68,879 (N.D.Cal., Oct 10, 1989) (NO. MDL 767) 

62. Nisperos v. Buck, 720 F.Supp. 1424, 58 USLW 2179, 

56 Fair Empl.Prac.Cas. (BNA) 1887, 52 Empl. Prac. Dec. P 39,535, 
1 A.D. Cases 1514 (N.D.Cal., Sep 12, 1989) (NO. C-88-4039-WWS) 

63. Apple Computer, Inc. v. Microsoft Corp., 717 F.Supp. 1428, 58 USLW 2130, 
1989 Copr. L.Dec. P 26,453, 1 1 U.S.P.Q.2d 1618 (N.D.Cal., Jul 25, 1989) 
(NO. C-88-20149-WWS) 

64. Samura v. Kaiser Foundation Health Plan, Inc., 715 F.Supp. 970 
(N.D.Cal., Jul 18, 1989) (NO. C-89-141 3-WWS) 

65. Scripps Clinic and Research Foundation v. Genentech, Inc., 
724 F.Supp. 690, 12 U.S. P.O. 2d 1157 (N.D.Cal., Jul 18, 1989) 
(NO. C-83-5423-WWS, C-83-5424-WWS) 

66. Harris v. Duty Free Shoppers Ltd. Partnership, 1989 WL 108283, 
1989-2 Trade Cases P 68,684 (N.D.Cal., Jul 17, 1989) 

(NO. C-87-4843-WWS) 

67. U.S. By and Through Western Area Power Admin, v. Pacific Gas and Elec. 
Co., 714 F.Supp. 1039 (N.D.Cal., Jun 08, 1989) (NO. C-88-1600-WWS) 



327 



68. Gaballah v. PG & E, Nuclear Reg. Rep. P 20,481 , 71 1 F.Supp. 988, 
118 Lab.Cas. P 56,572, 4 IER Cases 1039 (N.D.Cal., May 10, 1989) 
(NO. C-89-0770-WWS-TSC) 

69. Student A. By and Through Mother of Student A. v. Metcho, 
710 F.Supp. 267, 53 Ed. Law Rep. 118 (N.D.Cal., Apr 13, 1989) 
(NO. C-89-0150-WWS) 

70. Independent Union of Flight Attendants v. Pan American World Airways, 
Inc., 1989 WL 123203, 132 L.R.R.M. (BNA) 2520, 112 Lab.Cas. P 11,414, 
1 1 3 Lab.Cas. P 1 1 ,672 (N.D.Cal., Apr 07, 1 989) (NO. C-88-31 20-WWS) 

71. Apple Computer, Inc. v. Microsoft Corp., 709 F.Supp. 925, 57 USLW 2578, 
1989 Copr. L.Dec. P 26,417, 10 U.S. P.O. 2d 1677 (N.D.Cal., Mar 20, 1989) 
(NO. C-88-20149-WWS) 

72. Risk v. Kingdom of Norway, 707 F.Supp. 1 1 59 (N.D.Cal., Mar 02, 1 989) 
(NO. C-88-1435-WWS) 

73. Scripps Clinic and Research Foundation v. Genentech, Inc., 

707 F.Supp. 1547, 1 1 U.S.P.Q.2d 1 187 (N.D.Cal., Feb 24, 1989) 
(NO. C-83-5423-WWS, C-83-5424-WWS) 

74. Chen v. China Airlines Ltd., 713 F.Supp. 1322 (N.D.Cal., Jan 26, 1989) 
(NO. C-88-4997-WWS) 

75. Riley v. Dow Chemical Co., 123 F.R.D. 639 (N.D.Cal., Jan 13, 1989) 
(NO. C-88-1358-WWS) 

76. Ehrlich v. Oxford Ins. Co., 700 F.Supp. 495 (N.D.Cal., Dec 09, 1988) 
(NO. C-88-4192-WWS) 

77. American Guarantee and Liability Ins. Co. v. Vista Medical Supply, 
699 F.Supp. 787, 69 Fair Empl.Prac.Cas. (BNA) 1531 
(N.D.Cal., Nov 10, 1988) (NO. C-88-0965-WWS) 

78. Sharek v. Hartford Ace. & Indem. Co., 703 F.Supp. 59 
(N.D.Cal., Nov 02, 1988) (NO. C-88-1425-WWS) 

79. Klein v. Amfac, Inc., 688 F.Supp. 1415, Fed. Sec. L. Rep. P 94,032 
(N.D.Cal., Jul 26, 1988) (NO. C-88-2242-WWS, C-88-2246-WWS, 
C-88-2241-WWS, C-88-2244-WWS, C-88-2245-WWS) 



328 



80. Hydrostorage, Inc. v. Northern California Boilermakers Local Joint 
Apprenticeship Committee, 685 F.Supp. 718, 56 USLW 2680, 

9 Employee Benefits Cas. 2109 (N.D.Cal., May 04, 1988) 
(NO. C-87-2401-WWS, C-88-0804-WWS) 

81. Image Technical Services, Inc. v. Eastman Kodak Co., 1988 WL 156332, 
1989-1 Trade Cases P 68,402 (N.D.Cal., Apr 18, 1988) 

(NO. C-87-1686-WWS) 

82. Hong Kong T.V. Video Program, Inc. v. llchert, 685 F.Supp. 712 
(N.D.Cal., Mar 04, 1988) (NO. C-87-2062-WWS) 

83. Group W Cable, Inc. v. City of Santa Cruz, 679 F.Supp. 977 
(N.D.Cal., Feb 10, 1988) (NO. C-84-7546-WWS) 

84. Yarbrough v. Estelle, 677 F.Supp. 1033 (N.D.Cal., Feb 09, 1988) 
(NO. C-86-5360-WWS) 

85. Scripps Clinic and Research Foundation v. Genentech, Inc., 
678 F.Supp. 1429, 6 U.S.P.Q.2d 1018 (N.D.Cal., Feb 05, 1988) 
(NO. C-83-5423-WWS) 

86. Hall v. Bowen, 669 F.Supp. 976, 19 Soc.Sec.Rep.Ser. 285, 
Unempl.lns.Rep. (CCH) P 17,553 (N.D.Cal., Sep 15, 1987) 
(NO. C-84-2932-WWS) 

87. U.S. v. Packwood, 687 F.Supp. 471 (N.D.Cal., Sep 15, 1987) 
(NO. CR-86-938-WWS) 

88. Group W Cable, Inc. v. City of Santa Cruz, 669 F.Supp. 954, 
63 Rad. Reg. 2d (P & F) 1656, 14 Media L. Rep. 1769 
(N.D.Cal., Sep 09, 1987) (NO. C-84-7546-WWS) 

89. Scripps Clinic and Research Foundation v. Genentech, Inc., 
666 F.Supp. 1379, 3 U.S. P.O. 2d 1481 (N.D.Cal., Jul 20, 1987) 
(NO. C-83-5423-WWS) 

90. Peinado v. U.S., 669 F.Supp. 953, 60 A.F.T.R.2d 87-5329, 

87-2 USTC P 9527 (N.D.Cal., Jun 23, 1987) (NO. C-87-0075-WWS) 

91 . Knecht v. City of Redwood City, 683 F.Supp. 1 307, 

28 Wage & Hour Cas. (BNA) 504, 108 Lab. Cas. P 35,021 
(N.D.Cal., May 29, 1987) (NO. C-86-5837-WWS) 



329 



92. Matson Plastering Co., Inc. v. Plasterers and Shophands Local No. 66, 
658 F.Supp. 1580, 125 L.R.R.M. (BNA) 2399 (N.D.Cal., May 08, 1987) 
(NO. C-86-5962-WWS) 

93. Garcia v. Hudson Lumber Co., 679 F.Supp. 961, 126 L.R.R.M. (BNA) 2933, 
111 Lab.Cas. P 10,975 (N.D.Cal., May 06, 1 987) (NO. C-85-8688-WWS) 

94. Sierra Club v. Thomas, 658 F.Supp. 165, 55 USLW 2574, 25 ERC 1868, 
17 Envtl. L. Rep. 20,875 (N.D.Cal., Apr 08, 1987) (NO. C-86-0971 -WWS) 

95. Gerrard v. U.S. Office of Educ., 656 F.Supp. 570, 60 A.F.T.R.2d 87-5582, 
87-2 USTC P 9647, 38 Ed. Law Rep. 994 (N.D.Cal., Mar 23, 1987) 

(NO. C-86-4484-WWS) 

96. NEC Corp. v. Intel Corp., 654 F.Supp. 1256, 2 U.S.P.Q.2d 1528 
(N.D.Cal., Mar 05, 1987) (NO. C-84-20799-WAI) 

97. Bank of the West v. Commercial Credit Financial Services, Inc., 
655 F.Supp. 807, 3 UCC Rep.Serv.2d 240 (N.D.Cal., Feb 25, 1987) 
(NO. C-85-3815-WWS) 

98. Silverburg v. Bowen, 1987 WL 155966, Unempl.lns.Rep. (CCH) P 17,647 
(N.D.Cal., Jan 30, 1987) (NO. C-86-01 06-WWS) 

99. Ackerman v. Western Elec. Co., Inc., 1 13 F.R.D. 143, 

56 Fair Empl.Prac.Cas. (BNA) 1803 (N.D.Cal., Dec 04, 1986) 
(NO. C-84-3037-WWS) 

100. PLM, Inc. v. National Union Fire Ins. Co. of Pittsburgh PA., 
1986 WL 74358 (N.D.Cal., Dec 02, 1986) (NO. C-85-71 26-WWS) 

101. Southern Pacific Transp. Co. v. Public Utilities Com'n of State of Cal. 
647 F.Supp. 1220 (N.D.Cal., Nov 03, 1986) (NO. C-86-2480-WWS) 

102. Cranford Ins. Co., Inc. v. Allwest Ins. Co., 645 F.Supp. 1440 
(N.D.Cal., Oct 14, 1986) (NO. C-85-731 6-WWS) 

103. Ackerman v. Western Elec. Co., Inc., 643 F.Supp. 836, 
48 Fair Empl.Prac.Cas. (BNA) 1354, 1 A.D. Cases 968 
(N.D.Cal., Sep 02, 1986) (NO. C-84-3037-WWS) 

104. Estate of Bradford v. U.S., 645 F.Supp. 476, 58 A.F.T.R.2d 86-6393, 
86-2 USTC P 13,693 (N.D.Cal., Aug 15, 1986) (NO. C-86-0297-WWS) 



330 



105. Safeco Ins. Co. of America v. Simmons, 642 F.Supp. 305 
(N.D.Cal., Aug 11, 1986) (NO. C-86-0325-WWS) 

106. CIS Printex, Inc. v. American Motorists Ins. Co., 639 F.Supp. 1272 
(N.D.Cal., Jul 17, 1986) (NO. C-86-2132-WWS) 

107. King v. U.S. Forest Service, 647 F.Supp. 20 (N.D.Cal., May 30, 1986) 
(NO. C-85-3670-WWS) 

108. Stewart v. Sonoma County, 634 F.Supp. 773, 

51 Fair Empl.Prac.Cas. (BNA) 1806, 42 Empl. Prac. Dec. P 36,855 
(N.D.Cal., May 01, 1986) (NO. C-83-5821-WWS) 

109. G. Fruge Junk Co. v. City of Oakland, 637 F.Supp. 422, 
1986-1 Trade Cases P 67,126 (N.D.Cal., Apr 21, 1986) 
(NO. C-85-8049-WWS) 

1 10. Bay Area Bank v. Fidelity and Deposit Co. of Maryland, 629 F.Supp. 693 
(N.D.Cal., Mar 10, 1986) (NO. C-84-1642-WWS) 

111. Reggi v. U.S., 632 F.Supp. 5, 57 A.F.T.R.2d 86-938, 86-1 USTC P 9294 
(N.D.Cal., Mar 04, 1986) (NO. C-84-7375-WWS) 

112. Hatch v. Heckler, 626 F.Supp. 1367, 12 Soc.Sec.Rep.Ser. 705, 
Unempl.lns.Rep. (CCH) P 16,835 (N.D.Cal., Feb 06, 1986) 

(NO. C-85-3931-WWS) 

1 1 3. Meadows v. Dominican Republic, 628 F.Supp. 599 (N.D.Cal., Feb 05, 1 986) 
(NO. C-80-4626-WWS) 

1 14. Rolex Watch U.S.A., Inc. v. Dauley, 1986 WL 12432, 230 U.S. P.O. 617 
(N.D.Cal., Feb 04, 1986) (NO. C-84-61 50-WWS) 

115. Federal Election Com'n v. Sailors' Union of the Pacific Political Fund 
624 F.Supp. 492 (N.D.Cal., Jan 03, 1986) (NO. C-84-7763-WWS) 

116. Filice v. U.S., 621 F.Supp. 1 184, 56 A.F.T.R.2d 85-6047, 

85-2 USTC P 9748 (N.D.Cal., Nov 20, 1985) (NO. C-84-6854-WWS) 

117. Chua Han Mow v. U.S., 619 F.Supp. 1332 (N.D.Cal., Oct 15, 1985) 
(NO. C-85-2399-WWS, CR-73-351-WWS) 

1 18. Globe-Union Inc. v. Tiegel Mfg. Co., 1985 WL 5296, 228 U.S. P.O. 58 
(N.D.Cal., Oct 08, 1985) (NO. C-84-61 1 1-WWS, C-84-7037-WWS) 



331 



119. Filice v. U.S., 1985 WL 6382, 56 A. F.T.R.2d 85-6047, 85-2 USTC P 9748 
(N.D.Cal., Oct 07, 1985) (NO. C-84-6854-WWS) 

120. In re Consolidated U.S. Atmospheric Testing Litigation, 616 F.Supp. 759, 
54 USLW 2161 (N.D.Cal., Aug 28, 1985) (NO. C-84-0022-WWS) 

121. Sherrill v. Brinkerhoff Maritime Drilling, 615 F.Supp. 1021, 
1985 A.M.C. 2855, 1986 A.M.C. 1013 (N.D.Cal., Aug 09, 1985) 

(NO. C-82-0836-WWS, C-82-2565-WWS, C-82-2566-WWS, C-82-2568-WWS, 
C-82-2569-WWS, C-83-0603-WWS, C-83-0604-WWS, C-83-0605-WWS, 
C-83-0606-WWS) 

1 22. In re Currivan's Chapel of the Sunset, 51 B.R. 217, 

13 Collier Bankr.Cas.2d 746 (N.D.Cal., Jul 23, 1985) (NO. C-85-3427-WWS) 

123. Owens v. Heckler, 1985 WL 71749, Unempl.lns.Rep. (CCH) P 16,330 
(N.D.Cal., Jul 17, 1985) (NO. C-84-6246-WWS) 

124. James v. American Airlines, Inc., 1985 WL 17878, 109 Lab.Cas. P 10,513 
(N.D.Cal., Jun 12, 1985) (NO. C-851 1 79-WWS) 

125. Garay v. I.N.S., 620 F.Supp. 1 1 (N.D.Cal., Jun 1 1 , 1985) 
(NO. C-84-7740-WWS) 

126. Kendrick v. Zanides, 609 F.Supp. 1 162, Fed. Sec. L. Rep. P 92,294 
(N.D.Cal., May 23, 1985) (NO. C-84-6295-WWS) 

127. Lamminations Music v. P&X Markets, Inc., 1985 WL 17704, 

1985 Copr. L.Dec. P 25,790 (N.D.Cal., Apr 24, 1985) (NO. C 84 6840 WWS) 

128. Levy v. Department of Housing and Urban Development, 1985 WL 5842 
(N.D.Cal., Mar 22, 1985) (NO. C 84 7983 WWS) 

1 29. Hall v. Heckler, 602 F.Supp. 1 1 69, 9 Soc.Sec.Rep.Ser. 464, 
Unempl.lns.Rep. (CCH) P 16,119 (N.D.Cal., Feb 11, 1985) 
(NO. C-84-2932-WWS) 

130. Mesa Verde Const. Co. v. Northern California Dist. Council of Laborers 
602 F.Supp. 327, 121 L.R.R.M. (BNA) 3497 (N.D.Cal., Feb 1 1 , 1985) 
(NO. C-84-4389-WWS) 

131. Killingsworth v. Department of Health and Human Services, 
602 F.Supp. 640, 37 Fair Empl.Prac.Cas. (BNA) 148 
(N.D.Cal., Jan 23, 1985) (NO. C-84-6395-WWS) 



332 



132. Mesa Verde Const. Co. v. Northern California Dist. Council of Laborers 
598 F.Supp. 1092, 121 L.R.R.M. (BNA) 3490 (N.D.Cal., Dec 13, 1984) 
(NO. C-84-4389-WWS) 

133. WSB Elec. Co., Inc. v. Rank & File Committee to Stop 2-Gate System, 
103 F.R.D. 417, 117 L.R.R.M. (BNA) 2994, 40 Fed.R.Serv.2d 568, 

109 Lab.Cas. P 10,528 (N.D.Cal., Nov 09, 1984} (NO. C-84-2431-WWS) 

134. Larkin v. Heckler, 1984 WL 62834, Unempl.lns.Rep. (CCH) P 15,728 
(N.D.Cal., Oct 30, 1984) (NO. C-83-4224-WWS) 

135. Baker v. Kaiser Aluminum and Chemical Corp., 608 F.Supp. 1315 
(N.D.Cal., Oct 10, 1984) (NO. C-83-4226-WWS) 

136. Golden Eagle Distributing Corp. v. Burroughs Corp., 103 F.R.D. 124, 
40 Fed.R.Serv.2d 346 (N.D.Cal., Sep 19, 1984) (NO. C-84-0523-WWS) 

137. Heimbaugh v. City and County of San Francisco, 591 F.Supp. 1573 
(N.D.Cal., Sep 07, 1984) (NO. C-84-1039-WWS) 

138. Investment Co. Institute v. Conover, 593 F.Supp. 846, 
Fed. Sec. L. Rep. P 91,643, 5 Employee Benefits Cas. 1953 
(N.D.Cal., Aug 28, 1984) (NO. C-84-0742-WWS) 

139. Mercy-Peninsula Ambulance, Inc. v. San Mateo County, 592 F.Supp. 956, 
1984-2 Trade Cases P 66,264 (N.D.Cal., Aug 08, 1984) 

(NO. C-84-1184-WWS) 

140. SRI Intern, v. Matsushita Elec. Corp. of America, 591 F.Supp. 464, 
224 U.S. P.O. 70 (N.D.Cal., Jul 23, 1984) (NO. C-82-3625-WWS) 

141. Casey v. Diet Center, Inc., 590 F.Supp. 1 561 , 

1 984-2 Trade Cases P 66,1 1 7 (N.D.Cal., Jul 1 7, 1 984) 
(NO. C-83-1043-WWS) 

142. Grigsbyv. CMI Corp., 590 F.Supp. 826, Blue Sky L. Rep. P 72, 126, 

Fed. Sec. L. Rep. P 91,836 (N.D.Cal., Jul 09, 1984) (NO. C-82-6452-WWS) 

143. Swope v. Heckler, 592 F.Supp. 803, 7 Soc.Sec.Rep.Ser. 322, 
Unempl.lns.Rep. (CCH) P 16,371 (N.D.Cal., Jul 06, 1984) 
(NO. C-83-4408-WWS) 

144. Carver By and Through Carver v. U.S., 587 F.Supp. 794 
(N.D.Cal., May 29, 1984) (NO. C-81-4035-WWS) 



333 



145. Cable Elec. Products, Inc. v. Genmark, Inc., 586 F.Supp. 1505, 
223 U.S. P.O. 291 (N.D.Cal., May 25, 1984) (NO. C-83-0897-WWS) 

146. Granite Rock Co. v. California Coastal Com'n, 590 F.Supp. 1361, 
22 ERC 1399, 14 Envtl. L. Rep. 20,911 (N.D.Cal., May 21, 1984) 
(NO. C-83-5137-WWS) 

147. Larkin v. Heckler, 584 F.Supp. 512, 40 Fed.R.Serv.2d 1202, 
5 Soc.Sec.Rep.Ser. 611, Unempl.lns.Rep. (CCH) P 15,727 
(N.D.Cal., May 10, 1984) (NO. C-83-4224-WWS) 

148. Wilcox v. Ho-Wing Sit, 586 F.Supp. 561, Fed. Sec. L. Rep. P 91,510 
(N.D.Cal., May 03, 1984) (NO. C-84-061 5-WWS) 

149. Allen v. Faragasso, 585 F.Supp. 1114, 39 Fed.R.Serv.2d 1 54 
(N.D.Cal., Apr 27, 1984) (NO. C-84-1003-WWS) 

1 50. Huettig & Schromm, Inc. v. Landscape Contractors Council of Northern 
California, 582 F.Supp. 1519, 117 L.R.R.M. (BNA) 2991, 
101 Lab.Cas. P 1 1,164 (N.D.Cal., Apr 13, 1984) (NO. C-83-2935-WWS) 

151. Cable Elec. Products, Inc. v. Genmark, Inc., 582 F.Supp. 93, 
223 U.S. P.O. 287 (N.D.Cal., Feb 29, 1984) (NO. C-83-0897-WWS) 

152. Frankletv. U.S., 578 F.Supp. 1552, 84-1 USTC P9151 
(N.D.Cal., Jan 09, 1984) (NO. C-83-3938-WWS, C-83-3939-WWS, 
C-83-3957-WWS, C-83-3958-WWS, C-83-4003-WWS, C-83-4004-WWS, 
C-83-4218-WWS, C-83-421 9-WWS) 

1 53. Taylor v. Heckler, 576 F.Supp. 1 1 72, 4 Soc.Sec.Rep.Ser. 404, 
Unempl.lns.Rep. (CCH) P 15,315 (N.D.Cal., Dec 14, 1983) 
(NO. C-83-2047-WWS) 

154. Martinez v. Sonoma-Cutrer Vineyards, 577 F.Supp. 451 
(N.D.Cal., Dec 05, 1983) (NO. C-82-571 8-WWS) 

155. Pekarsky v. Ariyoshi, 575 F.Supp. 673 (D.Hawai'i, Nov 28, 1983) 
(NO. CIV. 76-0455) 

156. U. S. v. American Can Co., 1983 WL 1937, 1984-1 Trade Cases P 65,773 
(N.D.Cal., Nov 01, 1983) (NO. 26345-WWS) 

157. Meadows v. Bicrodyne Corp., 573 F.Supp. 1030 (N.D.Cal., Nov 01, 1983) 
(NO. C-82-4975-WWS) 



334 



158. U.S. v. Continental Can Co., Inc., 1983 WL 17843, 
1989-1 Trade Cases P 68,521 (N.D.Cal., Nov 01, 1983) 
(NO. CIV. A. 26346-WWS) 

159. Weyerhaeuser Co. v. Western Seas Shipping Co., 568 F.Supp. 1220, 
1984 A.M.C. 765 (N.D.Cal., Aug 19, 1983} (NO. C-83-31 59-WWS) 

160. Brownton v. Heckler, 571 F.Supp. 140, 3 Soc.Sec.Rep.Ser. 424, 
Unempl.lns.Rep. (CCH) P 15,226 (N.D.Cal., Aug 05, 1983) 

(NO. C-82-5981-WWS) 

161. Moreno v. City and County of San Francisco, 567 F.Supp. 458, 
32 Fair Empl.Prac.Cas. (BNA) 1 100 (N.D.Cal., Jul 25, 1 983) 
(NO. C-83-0398-WWS) 

162. R.V. Cloud Co., Inc. v. Western Conference of Teamsters Pension Trust 
Fund, 566 F.Supp. 1426, 118 L.R.R.M. (BNA) 2415, 100 Lab.Cas. P 10,955, 
4 Employee Benefits Cas. 1905 (N.D.Cal., Jul 08, 1983) 

(NO. C-82-5342-WWS) 

163. Fisher v. Schweiker, 568 F.Supp. 900, 2 Soc.Sec.Rep.Ser. 1097, 
Unempl.lns.Rep. (CCH) P 15,124 (N.D.Cal., Jun 30, 1983) 

(NO. C-82-6525-WWS) 

164. Certified Stainless Services, Inc. v. U.S., 569 F.Supp. 302, 

83-2 USTC P 16,402 (N.D.Cal., Jun 10, 1983) (NO. C-82-5992-WWS) 

165. Carter v. CMTA-Molders & Allied Workers Health & Welfare Trust, 
563 F.Supp. 244, 1 16 L.R.R.M. (BNA) 3309, 100 Lab.Cas. P 10,774 
(N.D.Cal., May 11, 1983) (NO. C-79-0248-WWS) 

166. U.S. v. Continental Can Co., Inc., 1983 WL 1840, 
1983-1 Trade Cases P 65,453 (N.D.Cal., Apr 29, 1983) 
(NO. 26346 (REASSIGNED TO) 

167. Meadows v. Bicrodyne Corp., 559 F.Supp. 57 (N.D.Cal., Mar 28, 1983) 
(NO. C-82-4975-WWS) 

168. Pabelico v. Schweiker, 559 F.Supp. 730, 1 Soc.Sec.Rep.Ser. 901 
(N.D.Cal., Mar 11, 1983) (NO. C-82-41 23-WWS) 

169. Ribisi v. U.S., 1983 WL 1581, 83-1 USTC P 9236 
(N.D.Cal., Mar 01, 1983) (NO. C-82-0539-WWS) 



335 



170. Goldwater v. Jackson Nat. Life Ins. Co., 555 F.Supp. 1022 
(N.D.Cal., Feb 08, 1983) (NO. C-82-01 04-WWS) 

171. Zaustinsky v. University of California, 96 F.R.D. 622, 
30 Fair Empl.Prac.Cas. (BNA) 1535, 9 Ed. Law Rep. 914, 

12 Fed. R. Evid. Serv. 1090 (N.D.Cal., Feb 04, 1983) (NO. C-80-0752-WWS) 

172. Pacific Gas and Elec. Co. v. U.S., 554 F.Supp. 345 
(N.D.Cal., Jan 12, 1983) (NO. C-79-0596-WWS) 

173. Williams v. United Airlines, IAM Local 1781, 553 F.Supp. 863, 
113 L.R.R.M. (BNA) 2025, 30 Empl. Prac. Dec. P 33,311, 

97 Lab.Cas. P 10,035 (N.D.Cal., Dec 28, 1982) (NO. C-82-2452-WWS) 

174. E.G. Ernst, Inc. v. Contra Costa County, 555 F.Supp. 122 
(N.D.Cal., Dec 23, 1982) (NO. C-82-0410-WWS) 

175. Wolf v. Banco Nacional De Mexico, 549 F.Supp. 841, 

Fed. Sec. L. Rep. P 98,882 (N.D.Cal., Oct 26, 1982) (NO. C-82-1 328-WWS) 

176. City of Antioch v. Candidates' Outdoor Graphic Service, 557 F.Supp. 52 
(N.D.Cal., Oct 15, 1982) (NO. C-82-0731-WWS, C-82-0832-WWS) 

177. Cook v. U. S., 545 F.Supp. 306 (N.D.Cal., Aug 05, 1982) 
(NO. C-78-2041-WWS, C-78-2769-WWS, C-80-1 882-WWS) 

178. Pantoja v. City of Gonzales, 538 F.Supp. 335 (N.D.Cal., May 06, 1982) 
(NO. C-81-4465-WWS) 

179. U. S. v. Turner, 532 F.Supp. 913 (N.D.Cal., Feb 24, 1982) 
(NO. CR-78-0400-WWS) 

180. E-H Intern., Inc. v. Autek Systems Corp., 1982 WL 1908, 
1 982-83 Trade Cases P 65,026 (N.D.Cal., Feb 1 1 , 1 982) 
(NO. C-78-0905-WWS) 

181. Randolph! v. Schweiker, 532 F.Supp. 579 (N.D.Cal., Feb 02, 1 982) 
(NO. C-81-0058-WWS) 

182. Letson v. Dean Witter Reynolds, Inc., 532 F.Supp. 500 
(N.D.Cal., Jan 25, 1982) (NO. C-81-1 227-WWS, C-81-1 21 9-WWS) 

183. Beers v. Southern Pacific Transp. Co., 1981 WL 2380, 

110 L.R.R.M. (BNA) 2782, 93 Lab.Cas. P 13,374 (N.D.Cal., Dec 23, 1981) 
(NO. C-81-1111) 



336 



184. Radcliffev. U.S., 1981 WL 1925, 82-1 USTC P9103 
(N.D.Cal., Dec 08, 1981) (NO. C-81-0628-WWS) 

185. Salveson v. Western States Bankcard Ass'n, 525 F.Supp. 566, 
1981-2 Trade Cases P 64,383 (N.D.Cal., Oct 22, 1981) 

(NO. C-81-1707-WWS, C-81-31 57-WWS) 

186. Adleson v. U. S., 523 F.Supp. 459 (N.D.Cal., Oct 01, 1981) 
(NO. C 79-3345-WWS) 

187. JBL Enterprises, Inc. v. Jhirmack Enterprises, Inc., 519 F.Supp. 1084, 
1981-2 Trade Cases P 64,158 (N.D.Cal., Jul 09, 1981) 

(NO. C-78-1227-WWS, C-80-0249-WWS) 

188. Continental Cas. Co. v. U. S. Fid. & Guar. Co., 516 F.Supp. 384 
(N.D.Cal., May 19, 1981) (NO. C-79-3721 -WWS) 

189. In re Airport Car Rental Antitrust Litigation, 521 F.Supp. 568, 
1981-1 Trade Cases P 63,983 (N.D.Cal., Apr 16, 1981) (NO. MDL 338) 

190. Rappenecker v. U. S., 509 F.Supp. 1018 (N.D.Cal., Mar 10, 1981) 

(NO. C-76-0298-WWS, C-76-0422-WWS, C-77-0565-WWS, C-77-0939-WWS) 

191. JBL Enterprises, Inc. v. Jhirmack Enterprises, Inc., 509 F.Supp. 357, 

210 U.S. P.O. 438, 1981-1 Trade Cases P 63,870 (N.D.Cal., Feb 25, 1981) 
(NO. C-78-1227-WWS, C-80-0249-WWS) 

192. Falstaff Brewing Corp. v. Philip Morris Inc., 89 F.R.D. 133, 
1981-1 Trade Cases P 64,005 (N.D.Cal., Jan 28, 1981) 
(NO. C-77-2733-WWS) 

193. Smith v. Christie, 1980 WL 1483, Fed. Sec. L. Rep. P 97,828 
(N.D.Cal., Dec 24, 1980) (NO. C-79-1844) 

194. Browne v. McDonnell Douglas Corp., 504 F.Supp. 514 
(N.D.Cal., Dec 19, 1980) (NO. C-77-201 6-WWS, C-77-2030-WWS, 
C-77-2031-WWS, C-78-0997-WWS, C-78-2935-WWS, C-79-2804-WWS) 

1 95. Contra Costa Theatre, Inc. v. City of Concord, 51 1 F.Supp. 87 
(N.D.Cal., Nov 26, 1980) (NO. C-80-3564-WWS) 

196. Randall v. Califano, 500 F.Supp. 691 (N.D.Cal., Oct 29, 1980) 
(NO. C-77-0626-WWS) 



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197. Pacific Mailing Equipment Corp. v. Pitney Bowes, Inc., 1980 WL 2010, 
1981-1 Trade Cases P 64,002 (N.D.Cal., Sep 26, 1980) 

(NO. C-75-2673-WWS, C-80-0067-WWS) 

198. Shimek v. Department of Energy, 1980 WL 1064, Energy Mgt. P 26,266 
(N.D.Cal., Aug 20, 1980) (NO. CIVIL C-79-2063 WWS, CIVIL C-80-0143 WWS) 

199. Goldberg v. CPC Intern., Inc., 495 F.Supp. 233, 
1980-2 Trade Cases P 63,527 (N.D.Cal., Aug 13, 1980) 
(NO. C-80-1677-WWS) 

200. American & Far Eastern Trading Co. v. Sea-Land Service, Inc., 
493 F.Supp. 125, 1980 A.M.C. 2704 (N.D.Cal., Jul 08, 1980) 
(NO. C-79-3704-WWS) 

201. Rappenecker v. U. S., 509 F.Supp. 1024 (N.D.Cal., Jul 08, 1980) 

(NO. C-76-0298-WWS, C-76-0422-WWS, C-77-0565-WWS, C-77-0939-WWS) 

202. Pacific Mailing Equipment Corp. v. Pitney Bowes, Inc., 499 F.Supp. 108, 
1981-1 Trade Cases P 64,003 (N.D.Cal., Jut 07, 1980) 

(NO. C-75-2673-WWS, C-80-0067-WWS) 

203. Feldman v. Simkins Industries, Inc., 492 F.Supp. 839, 

Fed. Sec. L. Rep. P 97,548 (N.D.Cal., Jun 19, 1980) (NO. C-78-0380-WWS) 

204. Gay v. Waiters' and Dairy Lunchmen's Union Local No. 30, 86 F.R.D. 500, 

22 Fair Empl.Prac.Cas. (BNA) 1249, 23 Empl. Prac. Dec. P 30,929 
(D.C.Cal., Apr 30, 1980) (NO. C-73-0489-WWS) 

205. Carter v. CMTA-Molders & Allied Workers Health & Welfare Trust, 
489 F.Supp. 704, 91 Lab.Cas. P 12,732 (N.D.Cal., Apr 28, 1980) 
(NO. C-79-0248-WWS) 

206. Gay v. Waiters' and Dairy Lunchmen's Union, Local No. 30, 
489 F.Supp. 282, 22 Fair Empl.Prac.Cas. (BNA) 281, 

23 Empl. Prac. Dec. P 30,928 (N.D.Cal., Feb 06, 1980) 
(NO. C-73-0489-WWS) 

207. James v. U. S., 483 F.Supp. 581 (N.D.Cal., Jan 16, 1980) 
(NO. C-79-1833-WWS) 

208. Abille v. U. S., 482 F.Supp. 703 (N.D.Cal., Jan 02, 1980) 
(NO. C-78-0486-WWS) 



338 



209. Determined Productions, Inc. v. R. Dakin & Co., 514 F.Supp. 645, 
1980-1 Trade Cases P 63,063 (N.D.Cal., Nov 26, 1979) 

(NO. C-78-2785-WWS) 

210. Olsen v. Southern Pac. Transp. Co., 480 F.Supp. 773, 

23 Fair Empl.Prac.Cas. (BNA) 1234, 24 Empl. Prac. Dec. P 31,306 
(N.D.Cal., Nov 21, 1979) (NO. C-78-1717-WWS, C-78-2869-WWS) 

211. Lufthansa German Airlines v. Bank of America Nat. Trust and Sav. Ass'n 
478 F.Supp. 1195, 27 UCC Rep.Serv. 1067 (N.D.Cal., Oct 31, 1979) 
(NO. C-78-2388 WWS) 

212. Meyer v. California & Hawaiian Sugar Co., 1979 WL 267, 

27 Fair Empl.Prac.Cas. (BNA) 549, 20 Empl. Prac. Dec. P 30,152 
(N.D.Cal., Jul 23, 1979) (NO. C-78-2634-WWS) 

213. Barren v. U. S., 473 F.Supp. 1077 (D.Hawai'i, Jun 29, 1979) 
(NO. 76-0450) 

214. Famolare, Inc. v. Melville Corp., 472 F.Supp. 738, 203 U.S. P.O. 68 
(D.Hawai'i, Jun 14, 1979) (NO. C-77-0525-WWS) 

215. Hart v. King, 470 F.Supp. 1195 (D.Hawai'i, May 18, 1979) (NO. 78-0460) 

216. Falstaff Brewing Corp. v. Philip Morris Inc., 1979 WL 1665, 
1979-2 Trade Cases P 62,814 (N.D.Cal., May 10, 1979) 
(NO. C-77-2733 WWS) 

217. Tran Qui Than v. Blumenthal, 469 F.Supp. 1202 (N.D.Cal., Apr 27, 1979) 
(NO. C-77-1361-WWS) 

218. U. S. v. City of Pittsburg, Cal., 467 F.Supp. 1080 
(N.D.Cal., Apr 02, 1979) (NO. C-78-2910-WWS) 

219. U.S. v. Golden Gate Sportfishers, Inc., 1979 WL 1615, 

1979-1 Trade Cases P 62,571 (N.D.Cal., Mar 22, 1979) (NO. C78-1608 WWS) 

220. Murphy Tugboat Co. v. Shipowners & Merchants Towboat Co., Ltd., 
467 F.Supp. 841, 1979-1 Trade Cases P 62,527 (N.D.Cal., Mar 06, 1979) 
(NO. C-74-0189-WWS) 

221. Washington Trollers Ass'n v. Kreps, 466 F.Supp. 309 
(W.D.Wash., Feb 26, 1979) (NO. CIV. C-77-358S) 



339 



222. Estate of McDonald v. U.S., 1979 WL 1285, 79-1 USTC P9182 
(N.D.Cal., Jan 02, 1979) (NO. C-77-1 304-WWS) 

223. Paclinelli v. U.S., 1978 WL 1282, 79-1 USTC P 13,278 
(N.D.Cal., Dec 18, 1978) (NO. C-77-2396-WWS) 

224. Oler v. Trustees of California State University and Colleges, 
80 F.R.D. 319 (N.D.Cal., Nov 06, 1978) (NO. C-78-1 621-WWS) 

225. Zell v. InterCapital Income Securities, Inc., 459 F.Supp. 819 
(N.D.Cal., Oct 24, 1978) (NO. C-77-2934-WWS, C-78-1 1 55-WWS) 

226. Hofmayer v. Dean Witter & Co., Inc., 459 F.Supp. 733, 

Fed. Sec. L. Rep. P 96,618 (N.D.Cal., Oct 18, 1978) (NO. C-77-2808-WWS) 

227. State of Cal. By and Through Younger v. Blumenthal, 457 F.Supp. 1 309 
(E.D.Cal., Oct 03, 1978) (NO. CIV. S-78-356-TJM) 

228. Chapman v. Pacific Tel. & Tel. Co., 456 F.Supp. 77, 

23 Fair Empl.Prac.Cas. (BNA) 1067 (N.D.Cal., Sep 01, 1978) 
(NO. C-74-2282-WWS) 

229. Murphy Tugbi.at Co. v. Crowley, 454 F.Supp. 847, 
1978-2 Trade Cases P 62,172 (N.D.Cal., Jul 27, 1978) 
(NO. C-74-0189-WWS) 

230. U. S. v. Piner, 452 F.Supp. 1335 (N.D.Cal., Jun 21, 1978) 
(NO. CR 78-0023 WWS) 

231 . Matter of Widdershoven, 452 F.Supp. 503 (N.D.Cal., Jun 1 5, 1 978) 
(NO. C-77-2706-WWS) 

232. Mobleyv. I. R.S., 1968 WL 1747, 78-2 USTC P 9596 
(N.D.Cal., Jun 14, 1978) (NO. 77-1693) 

233. Chapman v. Pacific Tel. & Tel. Co., 456 F.Supp. 65, 

23 Fair Empl.Prac.Cas. (BNA) 1058, 84 Lab.Cas. P 33,728 
(N.D.Cal., May 16, 1978) (NO. C-74-2282 WWS) 

234. El Concilio of Stanislaus County v. Modesto Elementary School Dist., 
1978 WL 56, 17 Fair Empl.Prac.Cas. (BNA) 818, 

16 Empl. Prac. Dec. P 8351 (N.D.Cal., May 11, 1978) (NO. C-76-2479-WWS) 

235. Vetco Offshore Industries, Inc. v. Rucker Co., 448 F.Supp. 1203, 
200 U.S. P.O. 525 (N.D.Cal., Apr 10, 1978) (NO. C-75-0070-WWS) 



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236. Wiltshire v. Standard Oil Co. of California, 447 F.Supp. 756, 
18 Fair Empl.Prac.Cas. (BNA) 1259 (N.D.Cal., Mar 08, 1978) 
(NO. C-77-0912-WWS) 

237. Hlivka v. Califano, 443 F.Supp. 917 (N.D.Cal., Jan 31, 1978) 
(NO. C-77-1557-WWS) 

238. Chevron Chemical Co. v. Costle, 443 F.Supp. 1024, 

8 Envtl. L. Rep. 20,362 (N.D.Cal., Jan 25, 1978) (NO. C-76-1 552-WWS, 
C-76-1768-WWS, C-76-2222-WWS) 

239. Aronsen v. Crown Zellerbach, 1978 WL 12, 

18 Fair Empl.Prac.Cas. (BNA) 971, 15 Empl. Prac. Dec. P 8076 
(N.D.Cal., Jan 16, 1978) (NO. C-77-1210-WWS) 

240. Hayden v. RCA Global Communications, Inc., 443 F.Supp. 396, 

98 L.R.R.M. (BNA) 2028, 83 Lab.Cas. P 10,532 (N.D.Cal., Jan 16, 1978) 
(NO. C-77-0008-WWS) 

241. Harriss v. Pan Am. World Airways, Inc., 441 F.Supp. 881, 

16 Fair Empl.Prac.Cas. (BNA) 1060 (N.D.Cal., Dec 19, 1977) 
(NO. C-74-1884-WWS) 

242. Benda v. Grand Lodge of Intern. Ass'n of Machinists and Aerospace 
Workers, 442 F.Supp. 431, 97 L.R.R.M. (BNA) 2221, 83 Lab.Cas. P 10,317 
(N.D.Cal., Dec 15, 1977) (NO. C-77-2761-WWS) 

243. Castel v. Moller, A. P., 441 F.Supp. 851, 1978 A.M.C. 176 
(N.D.Cal., Dec 12, 1977) (NO. C-74-1439-WWS) 

244. Colonial Gas Energy System v. Unigard Mut. Ins. Co., 441 F.Supp. 765 
(N.D.Cal., Dec 01, 1977) (NO. C-76-0876-WWS) 

245. Golden Door, Inc. v. Odisho, 437 F.Supp. 956, 196 U.S. P.O. 532 
(N.D.Cal., Sep 20, 1977) (NO. C-76-0655-WWS) 

246. Harriss v. Pan Am. World Airways, Inc., 437 F.Supp. 413, 

15 Fair Empl.Prac.Cas. (BNA) 1663, 15 Empl. Prac. Dec. P 8015 
(N.D.Cal., Sep 02, 1977) (NO. C-74-1 884-WWS) 

247. Bannerman v. Department of Youth Authority, 436 F.Supp. 1273, 

17 Fair Empl.Prac.Cas. (BNA) 820, 16 Empl. Prac. Dec. P 8145 
(N.D.Cal., Aug 31, 1977) (NO. C-73-1377-WWS) 



341 



248. Blair Foods, Inc. v. Ranchers Cotton Oil, 1977 WL 1447, 
1977-2 Trade Cases P 61,576 (N.D.Cal., Jun 22, 1977) 
(NO. C-75-0689-WWS) 

249. Capricorn Coffees, Inc. v. Butz, 432 F.Supp. 917 
(N.D.Cal., May 19, 1977) (NO. C-75-0295-WWS) 

250. Alexander v. Califano, 432 F.Supp. 1 182 (N.D.Cal., May 17, 1977) 
(NO. C-76-1982-WWS) 

251. Alioto v. Cowles Communications, Inc., 430 F.Supp. 1363, 

2 Media L. Rep. 1801 (N.D.Cal., May 03, 1977) (NO. CIV. 52150-WWS) 

252. Fong v. American Airlines, Inc., 431 F.Supp. 1334 

(N.D.Cal., May 02, 1977) (NO. CIV76-2730-WWS, CIV76-0573-WWS) 

253. Fong v. American Airlines, Inc., 431 F.Supp. 1340 
(N.D.Cal., May 02, 1977) (NO. CIV 76-2730-WWS) 

254. Campton v. Johnson, 1977 WL 1649, 95 L.R.R.M. (BNA) 2788, 

81 Lab.Cas. P 13,189 (N.D.Cal., Apr 21, 1977) (NO. C-76-2748-WWS) 

255. Cross v. Fong Eu, 430 F.Supp. 1036 (N.D.Cal., Apr 08, 1977) 
(NO. C-76-1988-WWS) 

256. Macey v. World Airways, Inc., 1977 WL 882, 14 Empl. Prac. Dec. P 7791 
(N.D.Cal., Apr 07, 1977) (NO. C-75-0596-WWS) 

257. Duncan v. Andrus, 517 F.Supp. 1 (N.D.Cal., Mar 22, 1977) 
(NO. C-71-1572-WWS, C-71 -1 71 3-WWS) 

258. Macey v. World Airways, Inc., 1977 WL 812, 

14 Fair Empl. Prac. Cas. (BNA) 1426, 13 Empl. Prac. Dec. P 1 1,581 
(N.D.Cal., Feb 28, 1977) (NO. C-75-0596 WWS) 

259. Saal v. Middendorf, 427 F.Supp. 192, 17 Fair Empl. Prac. Cas. (BNA) 254 
(N.D.Cal., Feb 08, 1977) (NO. C-73-1299 WWS) 

260. Trans World Accounts, Inc. v. Associated Press, 425 F.Supp. 814, 

2 Media L. Rep. 1334 (N.D.Cal., Jan 31, 1977) (NO. C-75-1 166 WWS) 

261. Harriss v. Pan American World Airways, Inc., 74 F.R.D. 24, 

1 5 Fair Empl. Prac. Cas. (BNA) 1 640, 1 5 Empl. Prac. Dec. P 801 1 
(N.D.Cal., Jan 24, 1977) (NO. C-74-1884, C-72-0838, C-76-0512, 
C-74-1270, C-76-0079, C-74-2558, C-74-0224 WWS) 



342 



262. Mosley v. U.S., 425 F.Supp. 50, 18 Fair Empl.Prac.Cas. (BNA) 802 
(N.D.Cal., Jan 05, 1977) (NO. C-74-2445 WWS) 

263. Ernest W. Hahn, Inc. v. Codding, 423 F.Supp. 913, 
1977-1 Trade Cases P 61,425 (N.D.Cal., Dec 22, 1976) 
(NO. C-75-2706 WWS, C-76-2424 WWS) 

264. Oakland Raiders v. Brown, 1976 WL 953, 77-1 USTC P 9440 
(N.D.Cal., Nov 08, 1976) (NO. C-76-0427 WWS) 

265. Wynn v. Fields, Grant & Co., 422 F.Supp. 18, 

Fed. Sec. L. Rep. P 95,776 (N.D.Cal., Oct 19, 1976) (NO. C-75-0362 WWS) 

266. Affiliated Hospitals of San Francisco v. Scearce, 41 8 F.Supp. 711, 

93 L.R.R.M. (BNA) 2307, 79 Lab.Cas. P 1 1 ,771 (N.D.Cal., Sep 07, 1 976) 
(NO. C-76-1888 WWS) 

267. Lincoln v. U. S., 418 F.Supp. 1094 (N.D.Cal., Sep 02, 1976) 
(NO. C-76-0154 WWS) 

END OF CITATIONS LIST 



343 



APPENDIX D 



THE UNITED STATES DISTRICT COURT 



FOR THE NORTHERN DISTRICT OF CALIFORNIA 



EN BANG 



TRIBUTE AND FAREWELL TO JUDGE WILLIAM W SCHWARZER 



SPEAKERS; 

CHIEF JUDGE WILLIAM A. INGRAM 
JOHN A. SUTRO, SR . , ESQUIRE 
MORRIS M. DOYLE, ESQUIRE 
JOHN N. MAUSER r ESQUIRE 
LOYD W. MC CORMICK, ESQUIRE 
STEVEN A. BRICK, ESQUIRE 
TONY J. TANKE, ESQUIRE 
JUDGE CHARLES A. LEGGE 



THURSDAY, MARCH 1, 1990 
CEREMONIAL COURTROOM 
4:00 O'CLOCK 



REPORTED BY: ROBIN JORSTAD, OFFICIAL REPORTER 



RORTW ,IOP;TAr> . OFFTTTAI PFPOPTFP. II C riTCTDTTT rnilPT 



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I hu r s d ay x _Ma r c h 



E_E_Q_C _E_E_D_I _N_G_S . 

JUDGE INGRAM: We sit en bane today to honor and to bi 
Godspeed to our distinguished colleague, Judge William W 
Schwarzer, as he prepares to depart to Washington where for th 
next five years he will serve as director of the Federal 
Judicial Center. 

Of the years of that center's existence, Judge Schwarz 
will be the fifth incumbent of the directorship. The mission 
the Federal Judicial Center is to further the development and 
adoption of improved judicial administration through research, 
systems development and continuing education. 

One would be hard put, indeed, to think of a person 
better qualified for that work than is Judge Schwarzer. 

It's my pleasure at this time to introduce the members 
of the Court who are sitting today together with distinguished 
guests. 

Commencing in the top row at my extreme left are Judge 
Vaughn Walker, Judge John P. Vukasin, Jr., Judge Eugene F. 
Lynch, Judge William H. Orrick Jr., Judge Thelton Henderson, 
Judge Marilyn Hall Patel, Judge D. Lowell Jensen and Judge Fei 
Smith. 

Commencing in this row on my left are Judge Robert H. 
Schnacke, Judge Stanley A. Weigel, Judge Schwarzer, and to my 



345 

3 

immediate right, we are delighted to have sitting with us Chief 
Judge Alfred T. Goodwin of the Ninth Circuit, a firm friend of 
our Court and certainly welcome here. Next to Judge Goodwin is 
Judge Charles A. Legge and finally Chief Judge Robert F. 
Peckham. 

We are also very happy to have with us from the Ninth 
Circuit Court of Appeals the Honorable James R. Browning who, of 
course, for twelve years was the Chief Judge of our circuit, and 
who has never taken senior status but is now the administrator 
of that portion of the Court which is sometimes referred to as 
the middle kingdom. 

Now we are fortunate today in having, I think with one 
illness, all of the judges of the United States Bankruptcy Court 
for the Northern District and all of the magistrates of the 
Court except Chief Magistrate Woelflen who's not here. 

I think we have everyone. Chief Judge Lloyd King and 
Judges Wolfe, Carlson, Tchaiksovsky, Jellen, Newsome, Morgan, 
Grube, Jaroslovsky, and we are awfully happy to welcome Judge 
Arthur S. Weissbrodt who is just assuming his seat on the 
Bankruptcy Court. He will be sitting in San Jose, and we are 
delighted to have you with us. 

Chief Magistrate Woelflen is gone, but I see magistrate 
Claudia Wilken closest to me, Magistrate Joan Brennan, 
Magistrate Pat Trumbull, Magistrate Steele Langford and finally 
Magistrate Wayne Brazil. 



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We also have with us Greg Walters, Ninth Circuit 
Executive, and Cathy Catterson who's the clerk of the United 
States Court of Appeals for the Ninth Circuit. We are delighte 
to have both of you. 

Now, we have with us also member representatives of the 
organized bar. I think I saw Drucilla Stender Ramey, executive 
director and general counsel of the Bar Association of San 
Francisco, Steven A. Brick, president elect of the Bar 
Association of San Francisco, Sandy Willis, president of the 
Federal Bar Association, and we have Robert Cartwright Jr., 
president of the Barristers Club of San Francisco. 

We are happy to have with us as well Mr. Me Givern who 1 
representing Mr. Joseph Russoniello, the United States attorney 
we have Barry Portman, and we have United States Marshal Glen 
Robinson, three of the principal officers of our Court. 

Now we are happy to have with us Judge Goodwin. I was 
going to call on Judge Goodwin, but he has told me that it's 
hard for him to say goodbye, and in consequence, I am not going 
to put him to that task. 

We have with us several friends, friends of the Court, 
persons that know Judge Schwarzer, who have been with him in 
some cases for many, many years, and you are going to hear from 
them. 

I would like to, however, take the prerogative of the 
chair, as it were, before these other things are said to say 



347 5 

that this is not a sad time because Judge Schwarzer is going to 
return. This tenure is only for five years. However, Judge 
Schwarzer is the fortunate husband of Anne Schwarzer who's as 
delightful a friend and companion as anyone would want to have 
and who will be absent from our midst and our gatherings for 
that five years, so that is the downside. We will miss Judge 
Schwarzer. 

I see two other good friends. I see Lor en Buddress who 
is the newly appointed chief probation officer of our district 
and Primo Rodriguez who has been with us as Chief of the 
Pretrial Services Office. 

It's not sad because Judge Schwarzer is going on to a 
post of great opportunity and great honor. It reflects credit 
upon him, upon this circuit and upon this Court that he has been 
selected to fulfill the tasks that he is going to have which 
will be monumental. 

Coming out shortly will be the report of the Federal 
Courts Study Committee/ the study committee on the role of the 
courts in our society as the turn of the century approaches. 
The scope of the Federal Judicial Center may change 
substantially as the years go by and as the study committee 
looks at things, so it's a happy matter for Judge Schwarzer. 

We will be glad to see him come back. He is 

illustrious. He has been a great judge on this Court and will 
continue to be that. 



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D 

With us today is an old and staunch supporter of the 
projects that this Court has undertaken from time to time, an 
eminent lawyer with the firm of Pillsbury, Madison & Sutro for 
all of his professional life, former chairman and member of the 
ABA Standing Committee on the Federal Judiciary and currently 
president of the Northern District of California Historical 
Society. 

It's a pleasure to call on John A. Sutro, Jr. for some 
remarks. 

MR. SUTRO: Thank you, Judge Ingram, Your Honors. It's 
a great honor and privilege to say a few words. 

The fact that Judge Schwarzer has been elected director 
of the Federal Judicial Center is evidence of the high regard i 
which he is held, and in his new office Judge Schwarzer will 
direct the Center, which is the Federal Judiciary's education 
and research agency. 

The center sponsors training for judges and other Court 
personnel and conducts studies of other courts. A more 
qualified person for this office could not be selected. 

Before becoming a United States District Judge in 1976, 
Judge Schwarzer over a period of fifteen years tried many 
complex and protracted cases. He was highly respected by all 
lawyers with and against whom he tried these cases. He is a ma 
of the highest integrity, extremely bright and a hard worker 
with outstanding ability. 



349 

7 

For some months in 1975 Judge Schwarzer was senior 
counsel to the President's Commission on CIA activities in the 
United States. 

Those who came in contact with him held him in the 
highest regard and had the highest respect for his intellectual 
ability. 

Those with whom he worked on the Commission, although 
many were far apart in political and philosophical thinking, 
were of the opinion that, having in mind his professional 
competency, integrity and judicial temperament, he would be a 
superb judge. 

In addition, Judge Schwarzer while a trial lawyer and 
since a Judge has taken the time to author many outstanding 
legal articles published in law reviews, in the American Bar 
Association Journal and the State Bar of California Journal. 

In addition, during his years as a lawyer, he gave 
freely of himself to the good of civic, charitable, educational 
and other organizations. 

As a judge of this Court, Judge Schwarzer presided at 
trials of many complex and complicated lawsuits. He has proven 
himself to be an outstanding judge who knows the law, who 
applies the law, and who justifiably has earned the respect of 
all those lawyers who have been to his Court. 

Judge Schwarzer, I wish you an enjoyable five years at 
the Federal Judicial Center, for I know you will make a great 



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contribution, and we look forward, as Judge Ingrain said, to 
having you back with us. Thank you. 

JUDGE INGRAM: Thirty-eight years ago when Judge 
Schwarzer left his teaching post at Harvard, he joined the great 
San Francisco law firm of Me Cutchen, Doyle, Brown & Enersen, 
and he came within the ambit of influence of our next speaker, a 
distinguished California lawyer, a great football player of 
Stanford from the vintage of Biff Hoffman and Ernie Nevers, a 
devoted son of Stanford ever since, and then a member and 
president of the board of trustees, and importantly to us, Judge 
Schwarzer 's mentor as a young lawyer. 

I am delighted to be able to introduce Morris M. Doyle. 

MR. DOYLE: Thank you, Chief Judge Ingram, Chief Judge 
Goodwin, distinguished judges, fellow colleagues of the bar and 
ladies and gentlemen. 

It's a very warm pleasure for roe to join you in paying 
this tribute to Judge Schwarzer and to say something nice about 
him, not that I was asked to say anything nice about him, but 
Bill is one of those people of whom you can't reasonably speak 
without saying something nice. 

Indeed, the lawyers who try cases and lose before him 
are often heard to say, well, he is an awfully good judge even 
though he went wrong this time. That's the way even the lawyers 
felt when he was practicing law. 

A few more or less obscure biographical facts give you 



9 

the idea of the scope and depth of Bill's career. He was borne 
in Berlin, Germany in 1915. 

JUDGE SCHWARZER: 1925 

MR. DOYLE: 1925. Thank you, Judge, for the correction. 
It only seems that long ago. 

He came to Los Angeles as a boy of thirteen, I believe, 
when his family, his parents and sister, moved there. He went 
to high school, become a scout, became an assistant scout 
master, and then matriculated at UCLA where he spent only one 

to 

semester before going into the United States Army. 

The Army sent him to infantry training school, but then 
was smart enough to transfer him to Army intelligence where 
after a period of training he was dispatched to the European 
Theatre, and immediately engaged in the interrogation of German 
prisoners at the age of nineteen, if I am not incorrect, sir. 
After that stint of duty, again the Army Upgraded him to 
investigating German technology and dealing to some extent with 
underground activities. 

After the war he came back to Los Angeles, went to the 
University of Southern California, graduated with honors, went 
on to Harvard Law School and graduated with honors, and stayed 
on there as a teaching fellow for a year. 

In 1952, fortunately, he returned to California and was 
employed by the McCutchen firm in its San Francisco office as an 
associate. I remember him well. At that time he was a callow 



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youth, but, believe me, he matured very rapidly in the practice 
of law. It was only a short period of time until Bill as an 
advocate became a distinguished figure at the San Francisco Bar 
and soon farther abroad than that. He was elected to the 
American Law Institute, he became a fellow of the American 
College of Trial Lawyers, and he began to mature in his role as 
an outstanding advocate. 

During all of this period of time, he found time for a 
breadth of interests which included such diverse things as a 
horseman, a runner I think at least once in the San Franciscc 
marathon an author, a playwright, a music lover, and all of 
these he did with skill and dispatch and a real verve for livinc 
the fullest in terms of the life of the mind and the life of a 
healthy and strong body. 

After his appointment to the Federal Bench in 1976 
following his service to which Jack has adverted on the 
President's Commission to examine the domestic affairs of the 
CIA the recommendations, incidentally/ of that commission 
were largely adopted he received the appointment and was 
sworn in in August of 1976, and since that time has set a 
distinguished mark as one of our most eminent federal judges in 
this district. 

Not only has his judicial work been rather outstanding, 
but he has engaged in trial advocacy training both at the state 
and national levels by teaching in various trial advocacy 



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courses, and this is an important contribution to the 
development of the work of the bar. During the years he was 
practicing law with our firm, Bill was concentrating on the 
education of juries and judges and the facts and the law of the 
cases in which he was involved. 

Now he is narrowing that focus. He is going on to the 
Federal Judicial Center where he will be engaged in the 
education of federal judges about the complexities of the system 
in which they work, a system in which he has become himself an 
important, significant component. 

We know you will do a great job, Bill. We are proud to 
have you go. We don't envy you and Anne living on the Potomac 
as compared with the Bay Area and Sea Ranch, but we know that 
you will do an honorable representative job for all of us in 
this courtroom today. 

Thank you, sir. 

JUDGE INGRAM: John N. Hauser is in his fourth decade of 
friendship with Judge Schwarzer. They came to the Me Cutchen 
firm, I think, if I am not wrong, John, a year apart. They 
became partners in that firm on the same day, and for many years 
they occupied adjacent offices until Judge Schwarzer came here. 

Mr. Hauser probably knows as much as anybody about Judge 
Schwarzer, and I really think, Mr. Hauser, that this is your 
opportunity to tell the Federal Judicial Center and us 
everything we would want to know, so have at it. 



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MR. HAUSER: Thank you, Judge Ingrain. May it please 
this honorable Court, ladies and gentlemen, or I guess as we now | 
say, women and men, I do speak as a percipient witness. Bill 
and I, or Judge Schwarzer and I rather, came to San Francisco 
actually, Judge Ingram, a week apart, and we went to work there 
as associates with the Me Cutchen law firm. 

It had, with all due respect to my dear friend and 
mentor Morrie Doyle, it had a somewhat more euphonious name, 
Me Cutchen, Thomas, Matthews, Griffith and Green. In any event, 
Bill and I went to work a week apart. I got there a week 
earlier, and so for years I had priority in choice of offices as; 
we moved from one office to another. Finally, Bill prevailed om 
me to flip a coin and, of course, he won. 

But then after a number of years we both became partners, 
in 1960, partners in the Me Cutchen firm, and, of course, as we 
all know and are grateful for, Bill went on the Federal Bench in 
1976. 

He and I have remained, I certainly hope and believe, 
close friends. I think during the period that Judge Schwarzer 
has been on the Federal Bench he has only had one case in which 
I was counsel, and perhaps that has something to do with our 
remaining good friends. 

In any event, now Bill is going on to the Federal 
Judicial Center. It is, I've got to say, a great personal loss 
to me and I will miss the pleasure of his company and the 



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pleasure of Anne's company. But everything that Bill has ever 
done in his career, and I know what I am talking about, he has 
done with great distinction, and so like it or not, I am sure he 
will do the next job with great distinction, and I am happy to 
wish him well. 

Thank you. 

JUDGE INGRAM: One of the most valuable things done on 
our Court now, inaugurated by Chief Judge Peckham and coming to 
fruition under a succession of chair people of the Ninth Circuit 
delegation of lawyer representatives to the Ninth Circuit 
Judicial Conference, is the ability that we are now 
demonstrating to be together, to cooperate. 

Under Sue Illston and Loyd Me Cormick, we are entering 
or just about to embark on our second retreat in Napa county 
which are very, very helpful meetings. Our whole relationship 
under these able people, I think, is the most productive that it 
has ever been. It's very, very helpful to all of us. 

Loyd Me Cormick is here representing the lawyer rep 
delegation, and it's a great pleasure to have him. I will call 
on him now for a few words. 

MR. MC CORMICK: Members of the Court, ladies and 
gentlemen, it's a pleasure for me to be here to speak on this 
occasion. I am asked to keep these comments to two minutes, and 
I will try to do that. 

The first thing I observed when talking to the lawyer 



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delegates was that they were a rather chauvinistic lot. They 
were of the view that this Court was one of the most 
distinguished in the United States, that it ranks with the 
Southern District of New York and certainly with the District of 
Columbia. 

It's a Court that has a reputation for being one of 
excellence, and the appointment of Judge Schwarzer was 
consistent with that reputation of excellence. His performance, 
in the view of the lawyer delegation, has been consistent with 
the tradition of excellence. 

I asked some of the lawyers who are on the committee 
what they liked about his performance as a Judge, and they were 
pretty clear. They liked his hard work ethic and the fact that 
he was prepared when he came to Court. They liked his 
take-charge attitude toward his docket. He analyzed the cases 
early, and he pushed the lawyers and himself to resolve the 
disputes before him. 

Above all, he was not afraid to grant summary judgments, 
He demanded quality briefs and careful preparation in oral 
arguments, and he would not settle for less than the very best 
from the bar. And, obviously, he was a man of great integrity. 

There is one comment to Judge Schwarzer I would like to 
make, and that is, Bill, you have been a challenge to the 
lawyers in this Court. You have been a great complement to thi 
Court, and we will miss you. 



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Thank you. 

JUDGE INGRAM: Steven A. Brick started his legal life 
with this Court. He was law clerk to the late and well-beloved 
Albert C. Wollenberg. He went thence to his present firm of 
Orrick, Herrington & Sutcliffe, and he has become a very eminent 
lawyer. 

In the course of his practice, Mr. Brick has been a 
staunch worker doing committee work affecting the welfare of 
this court and has had occasion to work with Judge Schwarzer in 
the course of committee work and otherwise. 

It's great to have you, Steve. Will you come forward, 
please? 

MR. BRICK: Chief Judge Ingram, Chief Judge Goodwin, 
members of the court, honored guests and friends, it is, indeed, 
a privilege to speak today on behalf of the Bar Association of 
San Francisco and to wish Bill Schwarzer well. 

We have worked with him closely over the years and have 
always found the experience to be a helpful and wonderful one. 
His work with the organized bar and with individual attorneys 
has been gracious and has been open. 

He has, indeed, demanded and insisted upon the best from 
all of us, but the quality of justice for those who have 
appeared before him has resulted from those demands. We will 
miss you, and we will welcome your return. 

Thank you very much. 



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JUDGE INGRAM: Bill Schwarzer and I came to work about 
the same day. We had rooms right next to each other down on the 
18th floor, and one of the first people that came to work with 
us was our next speaker, Tony J. Tanke, who was Judge 
Schwarzer's first law clerk. 

Tony came to us from a similar post with the Supreme 
Court of Minnesota. I think I am correct in saying that in the 
course of his tenure he collaborated with Judge Schwarzer on 
several learned writings and articles. He had an interesting 
and successful practice of law here in San Francisco and 
recently elected to return to the more scholarly, perhaps, 
pursuits by joining the senior research staff of the Supreme 
Court of California, in which post he works closely with Chief 
Justice Malcolm Lucas. 

He represents really kind of a legion of law clerks 
now there's at least twenty-eight law clerks who have worked 
for Judge Schwarzer and for me in what seems like a few years 
but Mr. Tanke is going to speak for the law clerks. I don't 
know what he is going to say. 

Come forward, Mr. Tanke. 

MR. TANKE: Chief Judge Ingram, Chief Judge Goodwin, 
members of the Court and honored guests, it's truly an honor to 
speak today on behalf of Judge Schwarzer's law clerks regarding 
what he has shared with us and what we expect him to bring to 
the Federal Judicial Center. 



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Judge Schwarzer has a unique vision of the management of 
controversy and of the pursuit of the law. I am grateful to 
Judge Ingram for reminding me how I first came to understand 
Judge Schwarzer 's vision of the management of cases. 

When Judge Ingram visited our chambers within the first 
two weeks of our tenure, he found the place in shambles. There 
were fifty to a hundred case files on the couches, on the desks, 
on the floor, on the chairs, all over the place, and Gene 
Driscoll, our deputy clerk, kept wheeling more and more case 
files into the room. 

In the middle of this room there were three of us 
sitting, in some cases on chairs and in some cases on the floor, 
pawing through these files, and they were myself, Cathy Silak, 
my co-clerk and Judge Schwarzer. 

Judge Ingram surveyed this scene, and having a good bit 
of judicial experience himself, I'm sure wondered what was going 
on here. It looked like there had been a paper war and we were 
clearly on the losing side. 

But what we were doing is something that is very, very 
close, I think, to Judge Schwarzer 's philosophy. We were taking 
each one of the civil case files he had been assigned, and that 
was about 250 at that time and by the way, these were 
multivolume files and not particularly easy cases because at 
that time it was the practice of this honorable court to pick 
and choose the cases the new judge got, so we had very 



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interesting and trivial matters like Title VII class actions ant 
all sort of things to dig into but what we were doing is 
going through these 150 or 250 files to answer three questions 
on legal pad paper that we were scribbling on. 

Those questions were: What is this case about? What 
tools need to be taken from the judicial tool box to resolve it 
Then, in what order should we employee these tools in order to 
achieve the most prompt and efficient resolution of this case 
consistent with the rights of the parties and the law? 

These kinds of activities were the things we were 
engaged in time and time again with Judge Schwarzer as we 
attempted to get to the core or the bottom of each of our cases 
as quickly and efficiently as possible and to resolve it 
consistent with the law of our time. 

It's a philosophy and the position that Judge Schwarzer 
has best defined himself in his book. 

He says, "management is a process, pragmatic rather tha 
platonic, of identifying and solving the problems by the 
application of knowledge, experience, skill, diligence, 
patience, ingenuity and common sense, with a light touch if 
possible " 

Did you really write that? 

" to achieve with just speed an economical dispositio 
of litigation." 

All of this sounds like a management philosophy of the 



361 15 

kind that you might learn at the Harvard Business School, but to 
Judge Schwarzer this process was much, much more than that. He 
taught us that case loads consist of real people with real 
problems and of institutions, public and private, that are under 
the rule of law. When waste, delay and abuse are permitted by 
the Court, real harm is done to these real people and 
institutions. 

As philosophy teaches us that the unexamined life is not 
worth living, so Judge Schwarzer taught us that unmanaged cases 
and unmanaged case loads are a hallmark of injustice in the 
modern courts. 

But Judge Schwarzer had the ability to be platonic as 
well as pragmatic, to use his words. In the study of the law he 
was supreme. I thought I learned how to study law in law 
school, but I found quite differently when I started working 
with Judge Schwarzer. To him the study of the law was the most 
supreme discipline. He always regarded it as a rigorous search 
for the object and purpose of the law, using both its language 
and the spirit of its time. 

His process of examining new legal problems was 
something that we all learned a great deal from. He would 
critically examine and re-examine the text and history of a law, 
always rejecting the easy answers and always looking more and 
more deeply and from different perspectives before he would come 
up with a resolution of a legal problem. 



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I remember one particular opinion that we had a hard 
time on during our first year, and we were having such a 
difficult time, and it was such a frontier area of the law at 
that time I believe it was a Title VII action of some type 
that we did two drafts of the opinion, one going each way, and 
then we discussed and weighed these from a variety of 
perspectives before we finally came to a resolution and finally 
drafted the finished product. 

In addition to this critical examination and 

re-examination, Judge Schwarzer was always open to and fearless 
of ideas. He loved ideas and was willing to follow ideas 
wherever they would lead. 

But the thing I thought that was probably most 

interesting about his perspective on the law was his empathy an< 
sensitivity to different kinds of people and different kinds of 
perspectives. A sociologist might well predict that someone wh< 
spends twenty-five years at a law firm like McCutchen, Doyle 
Brown & Enersen would have a very set pattern of ideas and 
attitudes towards things. 

A sociologist would not have been able to predict Judge 
Schwarzer. His kinship with people whose lives were very 
different from his own, his willingness to look at life from 
their perspective, was a truly unique and wonderful thing to 
behold. 

I think it's probably summarized best in a work that is 



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one of Judge Schwarzer's favorites, Learned Hand's speech called 
"The Spirit of Liberty," and that speech reflects very much what 
Judge Schwarzer's attitude and perspective is with respect to 
legal problems. 

Judge Hand wrote: "The spirit of liberty is the spirit 
which is not too sure that it is right. The spirit of liberty 
is the spirit which seeks to understand the minds of other men 
and women. The spirit of liberty is the spirit which weighs 
their interests alongside its own without bias." 

So when we, as Judge Schwarzer's law clerks, look 
towards the Federal Judicial Center in Washington, we will 
expect a contribution along these lines: The management of 
controversy by means that are creative, efficient and sensitive 
and the pursuit of legal knowledge in ways that are fearless, 
open and compassionate. 

We think these developments are well worth following, 
and we ask you to watch with us. 

Thank you. 

JUDGE INGRAM: Finally, our brother Judge Charles A. 
Legge, will speak for the Court. 

JUDGE LEGGE: Judge Schwarzer Bill the Chief has 
asked me to express to you the thoughts of your colleagues on 
this bench. To be honest with you, Bill, this has not been an 
easy task, because so many of us have so many opinions about 
you. 



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I think, however, that I can sum up those opinions by 
saying that, frankly, Bill, you have been a great embarrassment 
to the rest of us. An embarrassment because you have set and 
have accomplished standards that most of us can only look to in 
wonder. 

Let's first look at the quantitative side of some of 
your accomplishments in these fourteen years on the bench: 

First of all, you have handled to conclusion 
approximately 4,000 cases. That in itself is quite a number. 

You have written almost 200 opinions for publication. 
By the way, in going through some of those opinions having 
nothing else to do I was looking for some of the words of 
Schwarzer and I found out a few interesting definitions that you 
use: I find that you use the word "crisis" to mean any 
situation that you want to change; that you *Qfr use the word 
"simplistic" to mean any argument you disagree with but can't 
quite answer; and that you use the phrase "a matter of 
principle" when there is an argument you liked but can't quite 
explain. 

But to return to the numbers. You have written about 
fifty law review articles, books and pamphlets. And by the way, 
I would like to say to the audience for Bill's benefit that his 
latest book, federal Civil Procedure Before Trial, is still must 
reading, if not must buying, even though Bill will no longer be 
here as a sitting judge. 



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Bill, over your career you have cited more lawyers for 
contempt and Rule 11 violations than the entire bar of the state 
of Rhode Island. 

You have given approximately 148 speeches and lectures, 
and I am not even including in that number those that you have 
given to your colleagues around the luncheon table. Those 
speeches have occurred all over the country, indeed, all over 
the world, and have earned you the title among your colleagues 
of "Marco Polo Schwarzer." 

You have handled approximately 3,000 status and case 
management conferences, which have earned you the title among 
the bar of "Managing Partner Schwarzer." 

You have rewritten our local rules 47 times, so that 
what was once a few pieces of paper stapled together in the 
Clerk's Office now looks like a volume of War_ and Peace. 

But enough of numbers. Let's look at the qualitative 
side of what you have accomplished. And it's here that you have 
really embarrassed us, both the bench and the bar. You have 
been what we have called in college and law school a "damned 
average raiser." 

You have demonstrated to us and to the bar that it's the 
quality of what we do that really counts. And that quality 
comes not just from the flashing light of genius but from the 
heat of very hard work. 

You have demonstrated that legal scholarship is not just 



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for scholars but finds its highest and best use in the hands of 
judges and lawyers. 

You have taught us that communication should be the 
sharpest tool of our professional trade. And that coramunicatioi 
means knowing what to say, saying it simply and saying it 
clearly. Hear the words of Schwarzer directed to lawyers on th< 
subject of communication: 

"Lawyers find it difficult to write plain English. The) 
use eight words when two would do. They use technical words am 
legal jargon to express commonplace ideas. Seeking to be 
precise, they become redundant. Seeking to be cautious, they 
become verbose. These occupational habits, hallowed by 
tradition, are not readily shed. The sense of security they 
provide to the practitioner is reinforced by the fact that it i; 
easier to write ponderously with prose than it is to write plaii 
and precise English." 

But the words of Schwarzer are also directed to his 
colleagues on the bench. In giving us a lecture about how we 
should be less verbose in jury instructions, he finishes up 
tersely: "Few cases, if properly prepared by the Judge, should 
require instructions taking more than twenty minutes to read." 

You have also taught, Bill, and demonstrated that juror 
are as important in this process of law as judges and lawyers, 
and that they should be made to feel equally important in the 
process. 



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Again, the words of Schwarzer: "For best results, 
jurors should be treated considerately and with respect. Too 
often, counsel and the Court all but ignore them while the 
evidence is coining in and talk down to them when they do address 
them. Jurors should be made to feel that their role in the 
trial is co-equal with that of the judge and the lawyers." 

Bill, you have also demonstrated for us that there are 
other sharp tools in our judges' and lawyers' tool boxes waiting 
to be used: case management; summary judgment; and the 
intelligent use of discovery. 

Hear the words of Schwarzer on the intelligent use of 
discovery: "For many lawyers, discovery is a Pavlovian 
reaction. When a lawsuit is filed and the filing stamp comes 
down, the word processor begins to hum and grind out 
interrogatories and requests for production. Deposition notices 
fall like autumn leaves." 

You have also taught us, Bill, that discipline I hate 
to use the term it's called Rule 11 is also a tool of our 
profession of interest to both the bench and the bar. Hear the 
words of Schwarzer: "Of all the duties of a judge, imposing 
sanctions on lawyers is perhaps the most unpleasant. A desire 
to avoid doing so is desirable. But if judges turn from Rule 11 
and let it fall into disuse, the message to those trying to 
abuse or misuse the litigation process will become all too 
clear. Misconduct once tolerated will breed more misconduct, 



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and those who might seek relief against abuse will instead 
resort to abuse in self-defense." 

There's another lesson which I sense that you have been 
teaching us of late, and that is that our present adversarial 
system, to which we have all become so devoted over these years 
could well benefit from the use of some of the tools of the 
continental law system, an idea that I think is still unfolding 
Hear the words of Schwarzer: "Strangely, perhaps, in the face 
of experience our profession's commitment to the adversary 
process seems to be undiminished. For the most part, lawyers 
speak and act as though nothing has changed. Like the Bourbon 
kings of France, many appear to have learned nothing and 
forgotten nothing. The adversarial ideal remains the lodestar 
of our profession. As a result, there is a growing gap between 
the traditional conception of the lawyer's role and his or her 
actual role." I think that this modification of the adversary 
system is something we will hear further from. 

Judge Schwarzer Bill you have also taught us that 
sometimes judges just plain have to endure. Hear the final 
words of Schwarzer: "The different views of judges and lawyers 
reflect the difference in their roles, but the trial lawyer's 
objective is to have his client's cause prevail over that of hi 
adversary. Judges must not only rule on the merits, but also 
regulate the activities of the lawyers to conform to the rules 
of the bench. The litigation process places lawyers and judges 



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in necessary opposition which inevitably breeds tension between 
them. Judges must realize that lawyers frequently will be made 
unhappy. Judges must be prepared to make unpopular rulings 
without looking over their shoulders or experiencing 
discomfort." 

In short, Bill, you have taught us that doing it better 
is one of our goals. And if you do it better, you have to care. 
And that caring becomes the devotion, because the excellence of 
our profession demands devotion. 

You have also demonstrated to us something about 
leadership. And that is that leadership is not just a matter of 
position, but has its highest expression in setting standards 
and examples. 

You have also taught us that collegiality 

friendship is an important factor in the functioning of any 
organization. 

All of this and more you have demonstrated to us, so is 
it any wonder that we are embarrassed when we look at your 
accomplishments and compare our own. 

There is, however, one field in which you have fallen 
down, or at least have not as yet exercised your talents, and 
that is expression in the poetic form. So I will do my best to 
fill that gap for you briefly. 

"As our bench knows so well, 

this Court is at its best 



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in our informal meetings, 

when each mingles with the rest. 

That's when we get to measure 

the depth of each one's worth, 

the breadth of life experience, 

the capacity for mirth, 

the use of common sense, 

the appetite for work, 

the sharing of our problems, 

those who do not shirk, 

the ideals that make the person, 

revealed by some chance remark, 

the ideas for doing better, 

those who have the spark. 

If you believe, as I do, 

that there's a high ideal 

to which the law aspires 

that tests our work and zeal, 

then there must be a higher place 

where the greatest judges go, 

if there is not, or I don't make it, 

I'm not sure I want to know. 

But I know when we all gather 

to talk of law and pending cases, 

we will measure what we do 



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by how Schwarzer covered all the bases." 

Bill, from your colleagues, keep on showing us the way, 
keep on raising that damned average, and keep on embarrassing 
us. 

JUDGE INGRAM: Thank you, Chuck. That was delightful. 

You know, for awhile, we thought from communications 
that possibly our dear friend, Circuit Judge Cecil Poole, even 
though in the depths of great distress, would be able to be with 
us today, and had he been, I was going to commune with him about 
the fact that Judge Schwarzer and Judge Poole and I were 
appointed to this Court on the same day, and we went through all 
the preliminaries you have to go through together. 

I was going to point out to Judge Poole that at least at 
this time he and I can commune and say of the three of us, at 
least one made good. Now I am going to introduce to defend 
himself, the one who made good, Judge Schwarzer. 

JUDGE SCHWARZER: Well, these are pretty tough acts to 
follow, but I take comfort in the words of Dr. Johnson who said 
"an epitaph is not an affidavit." 

The same can be said about these proceedings today, and 
I think we can all feel fortunate that none of the participants 
have been under oath. I am also reminded of Lawrence Olivier 
who was asked whether or not an actor has a tough time dealing 
with bad notices, and he said, no, good notices. 

I think there's something in that, but I am inclined to 



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24 
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372 

30 

agree with another anonymous sage who said that he much 
preferred compliments, even if insincere, over sincere 
criticism. 

The occasion reminds me of the story of an American 
businessman who all of his life wanted to own a parrot, and 
finally he reached a point in his life when he thought he could 
afford it. 

One day when he was in London he walked down the Strand 
and came by a pet shop which had some parrots in the window, anc 
in the window there was a beautiful blue and gold parrot. He 
went in and asked the owner, "How much is this parrot?" and the 
owner said, "It's 15,000 pounds." 

He said, "15,000 pounds?" 

"Well," the owner said, "this parrot speaks Japanese, 
Chinese and Tagalog, and if you trade in the Pacific Rim this 
will be an extremely handy bird to have." 

He thought it was a little expensive, and so he looked 
around and saw another very handsome green and gold parrot, and 
he asked the owner, "How much is this one?" 

He said, "Well, this one is 20,000 pounds." 

"20,000 pounds? What can he do?" 

"Well," he said, "Now this parrot speaks French, German, 
Italian and English, and he will be extremely useful in 1992 
which is just around the corner." 

The man shook his head and looked around some more, and 



373 



31 



he finally saw a very straggly brown parrot in the corner, and 
said, "How much is this parrot?" And the owner said, "Well, 
this one is 40,000 pounds." 

"Well," he said, what can he do?" And the owner said, 
"I don't know but the others all call him Director." 

Needless to say, I leave this job reluctantly. Bill 
Orrick told me when I was waiting for confirmation fifteen years 
ago now that it was the greatest job in the world, and some days 
are greater than others, but he was right. It certainly is. 
Yet the opportunity now to apply what I learned here on a larger 
scale is difficult to resist. 

I am also reminded of what my colleague Al Zirpoli said 
in connection with his appointment to the bench. He said it had 
the effect of instantly raising the average quality of the bench 
as well as of the bar that he was leaving, and maybe my move to 
Washington will have a similar effect. 

I am grateful to all of you for coming, and I am 
grateful to the lawyers that have contributed so much to the 
work of this Court. I see many of them in the audience, and we 
have benefitted greatly from it. 

Like Judge Goodwin, I don't like to say goodbye either. 

Well, what I really want to do is to express my 

appreciation for the opportunity to serve with these people whom 
you see sitting on this bench here today. They are really the 
real heroes on this occasion because they are staying behind in 



374 



32 



the trenches, and they truly are entitled to your tribute. 

You may feel from time to time that some of these judges 
are too fast and sometimes some of them are too slow. Sometimes 
you may feel that some of them are not smart enough and some may 
be too smart. 

But what I learned about them in all of these years 
working together is that they share total commitment to their 
job as officers of justice. As I look back, I can't think of a 
single occasion when I thought that any of them was taking a 
shortcut or looking for a way to cut corners, no matter how 
great the burden of their work. They may be skeptical at times 
but never have I seen any of them cynical about any case or any 
party before them. 

They manage to accomplish what is perhaps the judge's 
hardest job, and that is to treat each case before them as 
though it was their first case. Now you may think at times some 
of them have forgotten the evidence that they learned in law 
school or that some of them haven't forgotten enough. 

But their commitment to doing the right thing is 
unwavering most of the time, in spite of all the obstacles and 
difficulties, so I am indeed lucky to have been their colleague, 
and I take this occasion to salute them. 

Thank you. 

JUDGE INGRAM: Finally, I can see our Court Executive 
Clerk, Richard Wieking, up from where I am sitting. He is 



375 



33 



directed to spread these proceedings upon the records of this 
Court and to forward the transcript thereof to the publishers of 
the Federal Supplement for publication. 

We will have a reception outside. We invite all of you 
to come. We are told by the General Services Administration 
that they propose at 7:00 o'clock to turn off all the power, so 
should that hour approach and any of us are still here, let us 
stand not upon the order of our going but go quickly. 

We stand adjourned. 

(Proceedings adjourned.) 
oOo 



376 



INDEX--William W Schwarzer 



Abel, Brent, 92, 100, 106, 125, 190 
Adams, James, 91, 111, 112-113, 133 
Administrative Office, 26A-271 
Aguilar, Robert, 229-232 
Aldisert, Ruggiero, 260 
Alioto, Joseph, Look Magazine case, 

232-23A 
Alternate Dispute Resolution, 213- 

217 
American Bar Association, 176-177 

Central and Eastern Europe Law 

Initiatives, 251-259 
American College of Trial Lawyers, 

17A, 192-193, 228 
Anderson, Richard, 217-218 
Anglo-American Legal Exchange, 289 

290 

Apple Computer Corp. Case, 238-240 
Asia Foundation, 256 
Atlas Corp. , 149-151 



Baker, Ralph, 7A 

Balabanian, David, 1AA 

Behr, Peter, 188 

Blackstone, George, 11 

Bohemian Club, 295-296 

Borak, Eva, 128 

Boy Scouts of America, 32-37, A6 

Braucher, Robert, 73 

Briggs, Susan, 1A2 

Brosnahan, James, 2A5 

Brown, Robert, 91, 107 

Browning, James, 16A 

Burger, Warren, 261 

Burroughs Corp., 2A5-2A6 

Busterud, John, 193 



Canadian-American Legal Exchange, 

228, 289 
Carnegie Corp. Study on Science in 

Government and Law, 2A7 
case management, 196, 208, 221-222 
Cavers, David, 86 
Central Intelligence Agency, 182- 

189 



Chang, Harriet, 218 

Chrysler Corp., 122-123 

Civil Justice Reform Act of 1990, 

215 

Cohen, Jack, 152 

communication and language, 27-29 
complex litigation, 222-227 
Conley, Scott, 171 
Corbin, Sol, 182 
Costigan, Henry, 98 
Cox, Archibald, 7A-75 
Crew, Eugene, 161 



D and Insurance Co., 171-172 

Dillingham, Nicole, 1A3 

discovery, 2A1-2A3 

Doff, Jerry, AO 

Doyle, Morris, 90, 93, 95, 107, 

121-122, 133, 175 
drugs, 217-220, 23A-236 



Edmondson, Robert, 125 

Ehrlich, Jake, 115 

Eisele, Thomas, 21A 

Eldredge, William, 273 

Enersen, Burnham, 93, 139 

expert witnesses, 2A7-2A9, 290-292 

Exxon Corp. , 181-182 



Feather River Railway Co., 15A-159 
Federal Judicial Center, 21A-215, 

2A6, 2A7, 258, 260-280 
Federal Rules of Civil Procedure, 

Rule 1, 221-222 
Federal Rules of Civil Procedure, 

Rule 11, 2A3-2A6 
Federal Rules of Civil Procedure, 

Rule 56, 227-228 

federal-state jurisdiction, 236-237 
Ferguson, Clyde, 88, 27A-275 
Fields, Stanley, 85 
Fields, Jane Schwarzer, 8A-86 
Flagler, Hazel, 92, 101 
Freund, Paul, 7A-75 



377 



Fuller, Lon, 76 



Georgia Pacific Corp., 154-159 

Glueck, Sheldon, 73 

Goodwin, Alfred T., 161-163 

Gray Line, 152-154 

Green, A. Crawford [Jr.], 98 

Greene, Crawford [Sr.], 91, 93-94, 

97 

Greyhound Corp., 118-119, 160-167 
Griffiths, Farnham P., 91 
Griswold, Dean, 75, 187 



Hall, Livingstone, 75 
Halvonik, Deborah, 240-241 
Hamlin, Lewis, 111 
Harnagel, George, 89 
Harris, George B., 207 
Harvard Law School, 68-88 
Harvey Motors case, 146-149 
Hastings College of the Law, 282- 

283 

Hauptly, Denis, 272-273 
Hauser, John, 99 
Heafy, Gerry, 117 
Heilbron, David, 144, 151 
Heimerdinger , Charles, 101 
Henderson, Thelton, 229, 231 
Huebner, Emily, 272 
Hughes, John, 214-215 



Ingram, William, 191, 193, 209 
insurance companies case, 223-225 



Jameson, Owen, 92 
Jenkins, John, 152-153 
judicial training, 277-278 
Judicial Conference of the U.S., 

214-216 

Committee on Federal-State 

Jurisdiction, 229 
Judson Pacific Steel Co., 116-117 
jury instructions, improvement of, 

197-201, 204-206 



Kane, Mary Kay, 282 



Kaplan, Benjamin, 87 
Khourie, Michael, 161 
Kopp, Quentin, 244 



labor law cases, 159-160 
Lipman, Robert, 108-109 
litigation, training for, 122-123 
Lockheed Corp., 171-172 
Lowry, Walker, 93, 98, 105, 111, 

122-123, 130 
Lucky Lager Brewing Co., 168-170 



magistrate judges, 210-211 

Matthew, Allan P., 91, 119-120 

McCloskey, Pete, 190-191 

McCloud River Railroad Co., 116-117 

McCrate, Robert, 182 

McCutchen, Doyle, Brown & Enersen, 
89-189 

benefits, 139-140 
Executive Committee, 144-146 
hiring, 134-135, 142-144 
Los Angeles office, 135-138 
specialization, 138-139 

Mecham, Ralph, 264-270 

media, coverage of trials by, 202- 
204 

Microsoft Corp., 238-240 

Miller, Arthur, 245 

Moormon, Al, 99 

Morgan, Eddie, 82 

Mt. Hood Stages case, 160-165 

Murray, Richard, 148 



Ninth Circuit, controversy on, 284- 

288 
Niskanen, Bill, 160-161 



Ogdie, Susan, 142 
Oroville-Wyandotte Irrigation 

District, 156-159 
Orrick, William, 207 



Patel, Marilyn, 229 

Peckham, Robert, 206-209, 217, 230 

Poole, Cecil, 192, 194 



378 



pro bono work, 128-129, 141-142 
Public Utilities Commission, 155- 
159 



Railsback, Helen, 128 

Ray, Philip, 92, 98, 170 

Reagan, Ronald, 186 

Reese, John, 175 

Rehnquist, William, 228, 266-269, 

274 

Renfrew, Charles, 207 
Richards, Norman, 99 
Robert Dollar Co., 149-151 
Rockefeller Commission, 181-189 
Rockefeller, Nelson, 182-186, 188- 

189 

Rosch, Thomas, 144, 175 
rule of law abroad, 250-259 



Salzburg Seminar, 288 

San Jose courthouse, 208-209 

Schnacke, Robert, 206-207 

Schuller, Ruth Schwarzer, [sister] 
and family, 16-18 

Schwarzer, Andrew, 85-86 

Schwarzer, Anne Halbersleben, 71, 
83-84, 263, 299, passim. 

Schwarzer, Edith Daniel [mother], 
14-15 

John [father], 1-8, 14- 
31-32, 68-69 
Nancy Elder, 86 
William, antecedents of, 



2-4, 8, 
Schwarzer, 

17, 21, 
Schwarzer, 
Schwarzer, 

1-3 

Scott, Austin, 82 
Selvage, Eugene, 168-169 
sentencing guidelines, 219-220 
settlement of litigation, 173, 221- 

222 

Shell Oil Co. case, 112-113 
Shepard, John, 258 
Shows, Tinky, 40 
Signal Oil Co. , 172-173 
Silak, Cathy, 212 
Simpson Thacher and Barlett law 

firm, 149-151 
Skorzeny, Otto, 63-64 
Smith, Mortimer, 99 
Sobel, Sylvan, 275 



Stewart Hopps case, 114-116 
Steyer, Roy, 182 
Sullivan & Cromwell, 181-182 
summary judgment procedure, 227- 

228 
Sweigert, William, 147, 206-207 



Tanke, Tony, 212 

Teige, Peter, 99, 111 

TeRoller, Derk, 99 

Thomas, Fred, 91 

Trautman, Gerald, 92, 105, 108, 

116, 162, 175 
trial advocacy, 292-294 
Tyler, Harold, 192-193 



U.S. Steel case, 121 
University of Southern California, 
66-67 



Vandervoort, Ray, 101 
Vanyo, Bruce, 105 
Vukasin, John P. , 209 



Walker, Vaughn, 262 

Weber, Gordon, 92, 98 

Weigel, Stanley, 207 

Western Greyhound Lines, 152-154 

Western Pacific Railroad Co., 120 

Wheeler, Russell, 272, 275 

Wilken, Claudia, 211 

Williams, Spencer, 207, 209 

Witkin, Bernard, 110 

Wollenberg, Charles, 206 

Woodman, Roy, 169 

World Affairs Council, 178 

World War II, experiences in, 44-65 



Zirpoli, Alfonso, 206, 208 
Zobel, Rya, 269-270, 280 



Carole E. Hicke 



B.A. , University of Iowa; economics 

M.A., San Francisco State University; U.S. history with emphasis on the 
American West; thesis: "James Rolph, Mayor of San Francisco." 

Interviewer/editor/writer, 1978-present , for business and law firm 
histories, specializing in oral history techniques. Independently 
employed . 

Interviewer-editor, Regional Oral History Office, University of California, 
Berkeley, 1985 to present, specializing in California legal, political, and 
business histories. 

Editor (1980-1985) newsletters of two professional historical associations: 
Western Association of Women Historians and Coordinating Committee for 
Women in the Historical Profession. 

Visiting lecturer, San Francisco State University in U.S. history, history 
of California, history of Hawaii, legal oral history. 



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