Transcription of Stephen Schwartz for the show Viewpoint, #96
Dr. Lisa: Today I’m sitting with a man who is no stranger to the microphone. This is Stephen Schwartz of Schwartz and Schwartz, a local attorney who also happens to do broadcast work, actually, in the area of sports and is an umpire and has so many different talents, but it’s somebody that I’ve known for many years through my son, Campbell, who played sports with his son, Andrew. It’s a pleasure to have you here today.
Stephen S.: Thank you kindly. Real pleasure to be here, Lisa.
Dr. Lisa: We’re going to talk about the lawyer thing which is really important and we’re going to talk about some more serious subjects, but why is it that you like sports so much that you would dedicate your time to being a local announcer and an umpire for little league baseball?
Stephen S.: Well, I think it’s how I grew up. We grew up as huge Red Sox fans in Portland which was really troubling. Of course my children think that the Red Sox are just always champions because especially my youngest, two championships within his 16 years. My father lived and died a whole life without ever seeing the Red Sox win a championship, which was the case with most people in New England of that generation. Having three boys didn’t hurt things. My wife, Suzy, who is also an attorney was a professional ballet dancer in New York City and had danced at the Joffrey School for several years. That may be in fact where my kids get their athletic prowess, frankly; but having three boys, things changed a little bit in terms of our interests and scope and it kind of gravitated towards sports and athletics, as well as music for my kids.
I just think that that was the natural extension. I started coaching little league. They used to make us umpire, the coaches, and I liked it so I kept it up and that was my one tie to baseball after my kids all went to the dark side and started playing lacrosse, which all three of them do. Then, we would go to all of their games anyway and you know well what this is like traveling to all of their games. At Portland High they needed somebody to film the games for the coaches and for TV 3, WPPS TV 3 which is Portland Public Schools has a station that Time Warner gives them. As a result of that they broadcast the games, so I said I’ll do it.
Then I actually saw another young man from Deering High School, a student doing some games and he was in front of the camera, and he was doing some announcing. I said “You know, I think I can do that.” so I started to announce games. We started during the playoffs run when Portland High went to the State Championship. They played in Falmouth versus Bangor and I really bitten by the bug, so since that time I’ve been broadcasting all sports. Ones where I have a dog in the fight, where my kids are playing, and now I do other things. I’ve done basketball playoffs including the State Championship two years ago for Deering High, and I was also, I should say, among my two majors in college I was a broadcasting major. I did the news for a local station up there and I think it was just a natural progression and I think it’s really my mid-life crisis. My mid-life crisis is umpiring and broadcasting.
Dr. Lisa: Well you know it’s not the worst mid-life crisis to have given all the possibilities. I think that’s all right.
Stephen S: Fair.
Dr. Lisa: It strikes me that no matter whether you’re doing work as an umpire or work as a broadcaster or work as an attorney, part of what you need to do is be an observer of life. You have to be paying attention and in some cases you need to be making judgments, but in other cases you just need to be open to what’s going on around you. Is this something that started when you were younger, this sort of keen observational sense and need?
Stephen S: You know perhaps. I must say that when I was growing up and I went to Deering High School, Lincoln Junior and then Deering. I don’t believe that I was necessarily the best student but there were certain classes in which I did quite well, such as speech class for example, or making speeches or running for office at the school and things like that. I think that’s where it probably all started and then I think that it was actually a piece of advice that I received much later on when I was a practicing lawyer and an assistant DA in York County and my boss was Mary Tousignant, who was the DA.
I was trying my first felony trial. It was a jury waived trial. I was a prosecutor and I was asking her a question while a witness was talking, and she just kind of looked at me and gave me this stern look and said “Listen!” I’ll really never forget that. It didn’t matter what I needed to talk about or think about, she said you must listen to what the witnesses are saying. We talked about that, and that was a great piece of advice for me.
The fact is that I think as an attorney or when you’re on the field or anything else you have to listen. I have often commented that, and I kind of feel this way in a trial although things are much more intense when you have one and you’re in [a hearing 00:08:43] and people’s sometimes lives are at stake and their livelihood and things like that. On the baseball field especially, I feel like you can tune everything out and just concentrate. You got to know the rules and you get to watch parts of the game. If you’re doing well as an umpire, you’re missing a lot of the game. You might see a great home run, but if you’re on the bases you better be checking to make sure the people are tagging the bases, so you don’t get to see it go over the fence unless you’re behind the plate.
There’s that, and I do think that of course you do have to perceive all that is around you as an attorney. It’s extremely important.
Dr. Lisa: It’s the ability to look at things more globally, but also more specifically which comes in both as an attorney, as an umpire, as an announcer as well.
Stephen S: Well it’s really very true. In fact, I’m preparing right now for a case that’s likely to be going to trial on a criminal matter and I have really needed to spend some time with the police report reading every single word, really delving into the specifics of it instead of the generalities that we deal with when we go to court on discussion days and things like that. Really getting into the minutiae of the facts of the case and I have engaged my own investigator to do an investigation. To go behind what the witnesses seem to be saying, the police witnesses and other witnesses, and so you have to be very detail oriented and you do have to look at the specific even though you have a broader view.
Dr. Lisa: As a teacher of physicians, I have sent medical students into a room and had them come back with a story that a patient has given, and I’ve gone into the room with them and the story shifts slightly. I’ve noticed that there’s a big difference between what one person sees and hears and perceives and what another person sees and perceives. How do you deal with that as a part of the practice of law?
Stephen S: Well, you know I think that jurors are smarter than perhaps in years past and more educated. I think judges are as well. I don’t think that eyewitness testimony in and of itself is … I think it is sometimes enough to convict, and sometimes that’s all there is in a criminal matter or in an accident case or something like that. I think the people realize that eyewitness testimony is to be scrutinized.
That if people, if we had five people in this room right now and we had them take a look at me and then had them turn around and asked them what color is tie. We would get all kinds of responses from people wanting to please us and say something, from people that think it happens to be a grey and black tie, but it is two-tone black, to who knows what, to I thought I saw maroon there. I think that people are wise to that, and they’re educated to that and they’re educated to that because of things like the Innocence Project and because there is a concept in criminal law called actual innocence. It’s a concept that we don’t have to prove and by any means. We have to raise reasonable doubt sufficient that at least one juror on a jury of 12 in State Court will have that doubt.
I just think that eyewitness testimony is just one facet of all different types of testimony and you’re right, histories change when people are talking and people have motivations. “My Cousin Vinny” was a great movie and it really showed how eyewitness testimony really can be flawed, and the woman hadn’t been wearing her glasses when she saw what she thought she saw, and her timing was off. You have to do that. When you have an eyewitness you have to look behind that.
There are experts that you can engage if your clients have the resources that will be glad to talk to a jury about eyewitness testimony and its faults. People are educated to that. Even by watching “CSI” they know that there needs be, or they believe that there needs to be something more. That there should be a science to it. That’s why if you have DNA evidence for example, it’s largely, not completely, but largely irrefutable.
Dr. Lisa: What kind of motivations could people have in seeing or hearing something and sort of changing it to what they believe it to be?
Stephen S: Well, you know it could be an unconscious motivation. It could be a desire to please. It may not be anything nefarious, but it depends. You are allowed, the rules of evidence allow you to look into the bias of witnesses and some may have bias.
Dr. Lisa: What happens when you have a variety of different people and everybody says something slightly different and you don’t have any DNA evidence and you’re working on trying to either defend or convict somebody? How do you deal with that?
Stephen S: Well if you have a variety of people with a variety of different opinions or views of the facts then it seems to me that you likely have reasonable doubt.
Dr. Lisa: That would mean?
Stephen S: It would mean an acquittal in a criminal case. It would mean … if you have a duty to prove your case beyond a reasonable doubt it could be difficult. If you’re in a civil matter in the civil arena where the standards are either by a preponderance of the evidence or by clear and convincing evidence, which is the step in between that and reasonable doubt and preponderance. Then you may have some people that question, some jurors that question, or fact finders that question what is right and whether or not the matter has been sufficiently proven.
Dr. Lisa: Is this the reason that we have tried to the extent that we have tried to allow people to have the benefit of the doubt. To give them, to read them their Miranda rights, to make it possible for them to try to prove their case because there is this possibility of reasonable doubt?
Stephen S: I want to understand your question. Why do we have things like Miranda rights and things like that?
Dr. Lisa: Yeah.
Stephen S: I mean, we have them because the United States Constitution demands it and the United States Supreme Court has said this is what it means to have a fifth amendment right to remain silent. That is not just a right that sits in the abstract, that’s a real palpable right that all of us have, and people need to be told about that right is what that case stands for Miranda vs. Arizona stands for. There are other rights such as the sixth amendment right to council which is a part of that as well. You have the right to counsel and that’s a right that people are told about, usually fairly early on in the proceedings.
Does it mean that on occasion you’re not going to get the information that you need in law enforcement? Maybe. Does it mean that somebody is not going to be badgered because they’re thinking about it and they’re saying “You know I think I want to have a lawyer.”? That may be also true. However, the constitutional rights that we enjoy are not for the benefit of the government. They’re for the benefit of individuals.
Dr. Lisa: Is that because in the past people weren’t given the benefit of rights and were sometimes unjustly jailed?
Stephen S: Unjustly jailed or I mean the classic example is beaten with a rubber hose. You certainly hope that that doesn’t happen in this day and age, but it did happen. I think that that was one of the wrongs that the Supreme Court sought to correct, and furthermore our founders sought to correct the injustices that they saw with respect to the justice system in Britain.
Dr. Lisa: It’s interesting to me as somebody who has heard a lot of patient stories and has heard a lot of … I’m a family doctor, so I’ll bring a family in and the father will have one thing that they say and the mother will have one thing that she says and everybody has a different perception of the reality, but they also have different needs that they need to fulfill.
Say it’s a child that they think might be abusing drugs. It may be something that the father needs to have go a certain way because of something that has to do with him.
Stephen S: I almost can understand what you’re getting at. We pride ourselves in my office, and it was something that my father did and I try to do, I’ve been doing this now going on my 28th year, representing the whole person. What that means is … and it is mostly in a criminal matter. It’s not exclusively though because if we have a client who has been involved in a serious accident and needs medical treatment and their bills paid, we help them through that too.
We don’t just say “You just work on getting better and we won’t do anything for several years and then we’ll get a pot of gold at the end of rainbow.” That’s not how that works. It’s compensation based on injuries, but we try as best we can to marshal the medical treatment and the help with that if we can, and counsel because as our diploma says we are attorneys and counselors at law.
In a criminal matter when somebody comes into my office and especially the younger they are the more the supplies, but it could be anybody. Our goal is to try to help people to not recidivate and not just to take the one case and put it through the system unless that’s what our client’s desire is. Of course when you represent young people, families come into the room. We’ll excuse them at times when the attorney-client privilege needs to be intact and we don’t want to lose that. Otherwise if somebody wants their friend or family in the room to talk about the case generally or where we’re going to head with it, then that’s fine.
What we tell our clients especially our juvenile clients, and we actually have a written fee agreement that says this that they sign. They don’t have capacity to contract, but they sign it and the guarantor. Whoever is paying our fee signs it, and we have a paragraph that makes it very clear that regardless of who is paying the freight, that’s not the person that calls the shots. With our advice, our clients make decisions and we actually put in there even if the decision made by our client is then contravention to what the guarantor wants to happen.
I think that’s an added comfort level. I can tell you that … so we’ll meet with the whole family. We’ll come up with a game plan. Whoever our client wants in the room, the family wants in the room, and some will say “Well we want these very strict bail conditions.” I’ll say “Well, you know I want to talk with you about that. I think we can do things and see if our client is willing to do these voluntarily. Counseling or evaluations and things, but I’d rather not make it subject to a bail condition because I’m representing your son in this case and if your son violates the bail condition, your son’s going to go to Long Creek or maybe to the County Jail for a while.”
That’s problematic, so my job is to mitigate those damages as well as to see to it that somebody can be helped. If that was the nature of your question in terms of involving family and that sort of thing, then that’s what we try to do. I always tell my clients “You know when you leave this room you can pick up the phone and call me and we can have a private conversation.” That has happened to me on more than one occasion. I’d have a client say “I know you’re representing me” for example, “for this theft case that I have. My parents don’t know I have another theft case pending. Can you help me with that?”
I’ll usually say “Yes, but I won’t be able to necessarily send mail to your house and we’ll have to talk about that, but of course I can help you with that.” That’s happened to me before.
Dr. Lisa: What type of legacy would you like to leave for your sons? I mean obviously you still have many years of practice ahead of you, but you, I’m sure, are thinking about the legacy that your father left you. You have three sons and what would you like them to know and to learn from you?
Stephen S: Well, I do think that having a work ethic is important. Having a strong work ethic to I’m able to do things like broadcast because I’ll go to the office and maybe stay there until 11 p.m. many nights or work from home or something like that. I think that’s important. My kids, in my opinion, have much more varied interests than I did at their age. They have many more things at their fingertips, much more information of course at their fingertips than I ever had. I’m not sure that I can leave a legacy for my kids as much as learn from them. They’re musicians. They are decent athletes. They’re decent students and I think all at a much younger age than … They were good students and musicians than I was. I was in a band in law school and we played in a few venues, not very much. Just for the fun of it. Although my friends who were musicians are really good, I was actually the singer who played a little guitar.
I think the legacy that I’d like to leave is the word perseverance. I remember in seventh grade I got like a two and when four was the best, on perseverance. My father sat me down and explained to me what perseverance means and how to keep going at something. That was when my grades, at that particular time, were pretty good but perseverance was an issue. I think that would be a good legacy to leave, to persevere and to keep going for it.
Dr. Lisa: I appreciate your coming in and talking to us today and I think there are many parallels between medicine and law, so it’s been interesting for me to hear some of the things that you’ve dealt with with your clients and to think about how those types of have impacted me and how I’ve dealt with my patients, so really appreciate your coming in and talking about all of this with me.
We’ve been talking to Stephen Schwartz of Schwartz and Schwartz here in Portland.
Stephen S: Thank you kindly. It was a pleasure to be here.