The D.C. Bar will be closed for the holidays December 24–January 1
 

Washington Lawyer

Legal Spectator: Judge James W. Morris, Joseph Epstein, and Perhaps Harrison Tweed

From Washington Lawyer, December 2007

By Jacob A. Stein

Legal Spectator

Why go to law school? For some (the would-be writers, the would-be actors, the would-be politicians, the would-be prosecutors, the would-be Gregory Pecks as Atticus Finch), for them the law degree is a ticket in a lottery. Years ago the ticket was cheap and the chances of getting a winning ticket to success in the law were pretty good. But what is success in the law?

Those of us admitted to the bar in 1948 received the answer when we were addressed by Judge James W. Morris (1890-1960) of the United States District Court. He said that if we wanted to become a lawyer in order to make a lot of money, we made a mistake. The law practice is not a big-money game. Then he said something that seemed strange at the time, strange because it was said by a federal judge and strange because it took me a long time to appreciate it. He said that he considered himself a success because he had got himself in a position where he could remedy injustice. He added that he could not do it too often and it must be done anonymously. He said you don’t have to be a federal judge to remedy injustice. The opportunity is there for those with eyes to see.

I later learned that Judge Morris, before sentencing a criminal defendant, held a chambers meeting a week before sentencing with defense counsel and the prosecutor. The meeting was candid and informal, without the rigidities and formality of the courtroom. Judge Morris asked questions about the case, the probation report, and whether there was a way to save somebody who might be worth saving. Perhaps he used the conference to scout out and remedy an injustice.

Time has brought big changes in the law practice. Many law students graduate with a debt to repay, and the way to repay it is to connect with a big firm with big clients in big trouble. This provides little opportunity to find success as Judge Morris defined it. But I have found that if one stays with the practice, the opportunity will be there in the persons of an individual who life has misused and who needs help.

These thoughts came to mind as I read Joseph Epstein’s essay entitled “Why I Am Not a Lawyer,” which is included in his new book, In a Cardboard Belt! Essays Personal, Literary, and Savage (Houghton Mifflin Company, 2007). Although he quotes this statement of Harrison Tweed’s:

I have a high opinion of lawyers. With all their faults, they stack up well against those in every other occupation or profession. They are better to work with or play with or fight with or drink with than most other varieties of mankind.

He says the lawyers he has known do not conform to the lawyers Harrison Tweed described.

My experience confirms what Harrison Tweed said. Looking back, most of my friends have been lawyers, people I would not have known had I not been a lawyer. They had and have a better sense of right and wrong than members of the other professions. They do not take themselves seriously. Most have gossip to add to their conversation. Most have seen life in the round and in many shades of gray.

Epstein criticizes the self-promotion of lawyers, the boasting about themselves in advertisements, mailings, and appearances on TV. Well, this boasting is not taken seriously by the lawyers who do the boasting. Nor by their friends. The allegations that they are the best, that they have been carefully selected as leaders of the bar, that they win all their cases, the lawyers themselves know that it is all about as accurate as a beer ad. The lawyer ads are there because those that run the ads have convinced the lawyers that they must advertise or lose out in the marketplace.

Mr. Epstein considers what might have happened to his career if he had been a lawyer instead of a writer.

Had I become a lawyer, would I, I wonder, have stayed with it? Would I, now in my sixties, have felt mine a satisfying career or a mistaken one? As a lawyer, would I have had the character, which is to say the moral stamina, to practice law with the probity the profession has always required and without which it is no more than a used-car dealership without the burden of inventory? I like to think so, though I don’t honestly know. Better, perhaps, that I became instead the writer that I am. It’s a much easier job to be an investigator or critic of morality, which is what a writer does, than a lawyer, someone called upon to practice morality, relentlessly and at the highest level, day after day.

Mr. Epstein would have been a success as a lawyer. He would have used his writing skill for the benefit of his clients. That skill has been described by those in the know as flexible, persuasive, varied, warm, tolerant, and he speaks about matters which have occurred to us but remain unspoken. (Joe, how is that for an ad?)
He would have had the reality of winning and losing. He would have met the real-life rogues, the betrayers and the betrayed, those with immunity and those seeking immunity, the victims, the parties to the bitter divorce, the Ponzis, the very people writers write about. He might even have become a judge in Chicago (he lives in Evanston, Illinois) and find himself in a Scott Turow novel.

Mr. Epstein would have had the pleasure of friendships among lawyers rather than the friendships of those in the writing profession, about whom the British author Samuel Johnson said: “The reciprocal civility of authors is one of the most risible scenes in the farce of life.”

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