February 12, 2012

Thurgood Marshall and the value of moot court

Recently I was reminiscing about a day long ago when I met briefly with one of our country’s most admired and iconic men – Supreme Court Justice Thurgood Marshall – and what I learned from him about the value of moot court in preparation for trial. I had shared my recollections in a speech I presented at a ceremony of the American College of Trial Lawyers but I think the values of the lesson are worth sharing here as well.

I was an 18-year-old college student when I had the opportunity to meet with Justice Marshall, who was then Solicitor General of the United States. I had been writing a thesis about him for a college class and thought it might be interesting to meet him in person. I called and explained myself to his secretary who laughed at my apparent naiveté but remarkably arranged the meeting. Once I was at his office, Justice Marshall made me feel comfortable and at ease almost instantly. He had a great buoyant laugh and a wonderful, slightly baudy sense of humor. Once we got down to business, I questioned him about Brown v. Board of Education.

This is what he told me: In preparing for oral argument in the Brown case, he had conducted a moot court session at Howard University Law School. Shortly thereafter he was scheduled to begin oral arguments before the United States Supreme Court. As a young college student, I wasn’t familiar with the expression “moot court,” so he explained to me that moot court was the term used to describe a simulated argument for practice. With moot court, he elucidated, “You can iron out the wrinkles of your argument and observe the reaction of your listeners for purposes of strengthening your case.”

Justice Marshall went on to explain that the moot court session for the Brown case seemed to go on forever, with law students – in their roles as mock judges -- peppering him with an endless stream of questions. At around midnight, one particular student asked him a question he simply could not answer: “By this time I was shocked and also weary,” he said. “It was after midnight, but, young fella, the duty of a lawyer is to push forward. And so we did, and we worked out an answer.”

At this point in the story, Justice Marshall paused briefly, but then continued: “Then the day of the hearing, damned if one of the Justices didn’t ask the same question. I just looked at the Justice; put my hand on my chin, looked down and gathered my thoughts, and pow – right in the kisser -- nailed the question.”

This remarkable meeting confirmed my desire to become a trial lawyer. More than forty years later, I often think about my brief time spent with Justice Marshall and the stories he took the time to share with a young college boy who simply had the audacity to call him up and ask for an interview. I also think often about the value of moot court and what our country might be like today had not this great man also seen its value.

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December 9, 2011

Memories of a great Baltimore lawyer

Several weeks ago, the Bar Association of Baltimore City honored me with the Charles H. Dorsey, Jr. Mentor Award. While it is gratifying to be honored by friends and colleagues, what made this award even more special was that I knew Mr. Dorsey well and respected him deeply. As long-time Executive Director of Maryland’s Legal Aid Bureau, Mr. Dorsey was a champion of the poor and underprivileged. He was also a patient and dedicated mentor to young lawyers trying to give back to society. I was just a law student in the early 1970s when I clerked for him and the Maryland Legal Aid Bureau. Yet the lessons I learned during that time still impact me more than 40 years later.

I remember Mr. Dorsey’s words when I spoke with him after a particularly unpleasant encounter at the clerk’s office of the circuit court. I had gone to court to file some papers and the clerk was blatantly discourteous. It was clear she viewed work for the Legal Aid Bureau as somehow of less merit than other cases filed there. The encounter had left me both disheartened and frustrated. Yet Mr. Dorsey took the high road, as he always did.

“It is our job by the strength of words and persuasion to change this attitude, which is not just in Baltimore but in many jurisdictions in the United States – and even within the legal profession,” he said. “The best way to help change people’s minds about the importance and value in what we do is by our actions in becoming involved with those who need our legal assistance and are too poor to afford a lawyer.”

Mr. Dorsey’s words carried me through many other unpleasant encounters, and I still believe there is no higher service we can perform as lawyers than to support the Legal Aid Bureau and its goal of ensuring that even the poor and infirm have equal access to the legal system.

I also try to heed Mr. Dorsey’s example of mentoring young lawyers striving to be outstanding attorneys and community leaders. A few straightforward suggestions to that end:

· Find a mentor -- not just inside your office but also outside;
· Give your best to every assignment, no matter how small or seemingly inconsequential;
· Learn from your mistakes;
· Tailor your work or your legal arguments to your particular audience, noting carefully what resonates and what does not;
· Become involved in your local and state bar associations, as well as in your community and in the issues that matter most to you; and
· Exhibit civility, professionalism and high ethical standards in everything you do.

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November 22, 2010

Access to Justice Initiatives: Steps in the Right Direction

All Americans have the right to an attorney when charged with a crime. But what about the right to an attorney when confronted with complex legal issues that are civil in nature, a situation more and more families face in these turbulent economic times? Last Friday, the Department of Justice addressed this very real concern. According to the Legal Times, the DOJ announced three initiatives to give American military veterans, lower-income families, and those facing foreclosure on their homes better access to legal advice and representation. This is welcome news to those of us who believe all Americans should have access to legal counsel and advice, regardless of their ability to pay.

The announcement was made by Laurence Tribe, the highly regarded Harvard Law professor who has led the DOJ’s “Access to Justice Initiative” since February, but who is stepping down next month to return to his Harvard post. According to Tribe, the initiatives include a toll-free number to an ABA referral service to help resolve the most complex complaints about wages and benefits, such as workers being denied family medical leave or overtime pay. In most instances, these private-sector attorneys will work on contingency-fee bases. A second initiative involves an interactive web site that, among other things, connects veterans and their families with lawyers near them to help with the litany of legal issues veterans face, including foreclosure, consumer fraud and employment issues. The final initiative focuses in promoting foreclosure mediation programs to keep struggling families from losing their homes.

As Tribe said at his news conference, he knows these steps aren’t going to transform the national landscape. While that may be true, the longest journey begins with a small step forward.

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August 25, 2010

Lawyers: Read up on your Shakespeare

Thanks to the oft-cited and oft-interpreted “Kill all the lawyers” line from Shakespeare’s Henry VI Part 2, many have debated Shakespeare’s feelings about attorneys. And scholars have long deliberated Shakespeare’s familiarity with the laws of his day. Yet no one doubts the Bard’s grasp of human nature.

In a clever article entitled, “What Can Lawyers Learn from ‘Othello,’” Texas attorney Michael Maslanka focuses on this particular Shakespearean tragedy to offer trial lawyers what he calls a “cautionary tale” about the pitfalls of human behavior that often play out among attorneys, clients and witnesses. Among other pointers, Maslanka warns lawyers not to accept everything a client says as true and to beware of agendas that might not be what they seem. Wise advise.

The article also underscores the villain Iago’s skill in playing to his audience, suggesting that lawyers can learn from his tactics: “Iago-like lawyers probe others for core ethical beliefs,” writes Maslanka, “and then adroitly flip the switches to trigger action in conformity therewith.”

Indeed, when you argue a case, your audience – whether judge, jury or arbitrator -- ultimately decides whether your client wins or loses. It is a mistake to think of your audience as a passive receptacle for your line of reasoning. Rather, think of your audience as an active participant who may interpret things differently from the way you intend. For example, you may think of “home” as a quiet cottage with a white picket fence. Your audience may think of “home” as a cramped city apartment. Don’t let yourself forget that we all come to the courtroom with different perspectives and it is your audience’s perspective that ultimately counts.

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May 21, 2008

Congratulations to JoAnne A. Epps

I was pleased to learn that JoAnne A. Epps was selected to be the new Dean of Temple University Beasley School of Law. Dean Epps is the co-author, with me and Ron Waicukauski, of The Winning Argument, a readable guide to persuasion technique, published by the Litigation Section of the ABA. She's an outstanding attorney and will surely make an outstanding dean. Congratulations, JoAnne!

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