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Washington Lawyer

Legal Spectator: Jim Bierbower

From Washington Lawyer, April 2005

By Jacob A. Stein

spectator

There was a D.C. Bar tradition under which the president of the Bar, when a lawyer died, announced in open court the death, requesting that it be noted in the day’s record of proceedings. It is a tradition no longer followed. Perhaps because the Bar is not as close as it used to be, or simply because times have changed.

I was in court 20 years ago when Jim Bierbower, following the tradition, announced a death. On February 5 Jim died.

Jim, a Nebraskan, attended the University of Nebraska. Right after Pearl Harbor he joined the Marines. He had a distinguished war record as a Marine fighter pilot, earning, among other decorations, the Naval Air Medal. When the war was over he got his law degree from Georgetown University and then joined the CIA’s general counsel’s office. After that Covington & Burling. Although he enjoyed the work at both places, he wanted to try a general practice specializing in whatever turned up. That is what he did and it all went well. In any one month his clients might include the president of a large corporation and a government official charged with (as Jim put it) driving under the influence of a lobbyist’s cocktail party.

Jim liked everything about the law practice. He liked meeting clients, rich or poor. He liked Bar activities, even those that were as boring as ever struck off by the mind of man. He liked reading the minutes of the last meeting. It was he who noted that there was a spelling mistake on page 4 and a date wrong on page 10. He liked teaching trial practice at the Georgetown Law School.

Most of all he liked lawyers. He liked to talk to lawyers and to joke with them. His sense of humor was on display when President Nixon nominated G. Harold Carswell to serve as a justice of the Supreme Court. Roman Hruska, a senator from Nebraska, made a public statement defending Carswell. “Even if he is mediocre,” said Hruska, “there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?” Jim, ever faithful to his home state senator, amused himself and others by making a comical speech in support of mediocrity.

Many lawyers become cynical about the practice of law. They don’t like its unpredictability, its competition for clients, and the fact that a throw of the dice rather than the merits of the case often determines who wins or loses.

Jim never fell victim to such cynicism. He endorsed the declaration against cynicism made by Piero Calamandrei, who practiced law in the 1930s in the Italian courts:

Who was it that invented that cowardly and temporizing proverb, Habent sua sidera lites? Though couched in decorous Latin it says in effect that justice is a game of chance, never to be taken seriously. Surely the expression was coined by some legal hireling without scruples or passion, hoping in some way to excuse his own incompetence to overcome his remorse, and to lessen his toil. But you, young lawyer, cast aside this epigram of resignation, this enervating drug; burn the page where it is written, and when you take a case that seems just, work fervently with the conviction that by faith in justice you will succeed in changing the course of the stars, regardless of the astrologers.

Jim could have been the senator from Nebraska. He was handsome, he spoke well, he was indefatigable. He was honorable. He was interested in public service. I know he thought about it. But he knew if he were to run, he would have to give up his law practice, and that he would not do. And most importantly, his wife, Ellen, would have none of it.

His distinguishing characteristic was his unstudied composure. He told me when I questioned him about it that he only recalls losing his temper once. When he was young his father, who ran a small-town newspaper, set up a page of type and handed it to Jim, who dropped it. Type everywhere. His father lost his temper and Jim lost his.

I have been thinking about whether Jim’s years of combat service played a part in the way he enjoyed life without taking the petty miseries of human existence too tragically. I called Bob Muse Sr., who was in Jim’s squadron in the South Pacific, to discuss this. Bob said that Jim was, by nature, generally optimistic. He had what you might call a midwestern outlook with strong feelings of patriotism. Bob did think that day-to-day exposure to fear and danger, if it does not burn you up, proportionates things. I spoke with Dwight Murray about this. He said he thought his own exposure to danger (and being lucky enough to survive it) levels things out.

These discussions brought to my mind Franklin D. Roosevelt’s 1933 inaugural speech. The only thing we have to fear is fear itself. What does that really mean? Does it mean that a failure to act, to do something needed to protect yourself or others, is blocked by an irrational fear disproportionate to the danger?

Winston Churchill described one of his World War I friends in language that could well apply to Jim Bierbower:

During these vicissitudes he was always the same. In the best of fortunes or the worst, in the most dangerous and hopeless position or on the crest of the wave, he was always the same tough, cheery gentleman and sportsman. He had always the same welcome for a friend, be he highly or lowly placed, and the same keen, practical, resolute outlook on facts however they might be marshalled.

Jacob A. Stein can be reached by e-mail at jstein@steinmitchell.com.