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Washington Lawyer

Legal Spectator: The Big Case

From Washington Lawyer, February 2007

By Jacob A. Stein

Legal Spectator

All legal reputation has in it an element of luck. Lawyers who have won some fame and fortune and yet are modest know that without the exceptional case or client, or some rare political opportunity, hard work and competence may lead not to failure but to a limbo where financial ease and public esteem are ever just beyond reach.

These words appear in George Martin’s recent and excellent biography of Charles C. Burlingham (1858–1959). C. C. Burlingham’s big case goes back a long way. He defended the White Star Line, the owner of the Titanic, against the claims connected with the 1912 disaster. More about C. C. Burlingham later.

A few words here about the big case that brings fame and fortune. It is what every overly ambitious lawyer dreams about. Will the next phone call be my big case? Will the next office walk-in be the case that brings fame and fortune?

Arthur Garfield Hays (1881–1954), a colorful and prominent New York lawyer of years ago, describes in his autobiography, City Lawyer, how he got his big case. He says an out-of-town lawyer happened by his office one day to talk about a will case. Hays, at the time, was in a hurry. He turned the matter over to an office associate. A few days later Hays asked the associate about the will case. The associate said it turned out to be one of those cases involving an odd woman who claimed to have an interest in a big estate, in this case the Wendel estate. The associate followed it up with these words:

“I went over the matter with Shaw [the out-of-town lawyer] and had him read some of our cases. I showed him that it was almost impossible to break a will in New York State.”

Hays, sensing there may be something there, said, “I hope you didn’t entirely discourage him.”

The associate, somewhat surprised, said to Hays, “Surely you’re not interested.”

Hays said he was very interested. There was a story in the papers that morning about the Wendel estate, an estate worth hundreds of millions in New York real estate. Hays was upset that the associate did not get the hotel address where the out-of-town lawyer was staying. He was concerned that the lawyer may be out consulting others who were not so sure about New York law. He put in phone calls and finally caught up with the lawyer. They met. Hays was retained.

The case turned out to be the Wendel will case, which had 1,100 claimants and involved 250 lawyers. It went on for years. There were odd coincidences, lying witnesses, perjury prosecutions, handwriting experts, factual disputes, missing heirs, and complicated legal issues. When it was all said and done, Hays walked away with the biggest fee of his career.

Hays said that getting and winning the big case is not lottery-ticket good luck. It is the luck of those who prepared themselves to grasp it. It is seeing something others do not see. It is a mind that distinguishes real gold from fool’s gold.

As I write, I know there is a lot of fool’s gold wandering around from law firm to law firm with stories that hold out the promise of a big return. These wanderers want to trap a lawyer into signing on to a case that takes up the lawyer’s time and money and ends up with nothing but embarrassment. Nevertheless one of these wanderers may be another Wendel will case.

Two lawyers I have known, after getting and winning the big case, quit the law practice for good. They decided they disliked the needless contentions of the trial practice. They had had enough. Joe McMenaman retired to Florida and bought a boat. The other, Fred Mack, bought a farm. They never looked back.

Now a return to C. C. Burlingham, often referred to as CCB. After his big case he chose to remain active in his law practice. In addition, he decided to use his fame and fortune to develop a companion career. He wanted to do some good.

CCB did not seek the type of power that would require others to do his bidding. He never sought or held public office. He was aware that those who did have political power needed ideas and advice to sustain them. Those who offer the ideas and advice gain influence. CCB wanted that influence in order to implement his do-good plan. He achieved it by his persistence, by his knowledge of the issues, by his energy in pursuit of his objectives, and by the force of his unique character. He established himself as the reliable source when politicians needed recommendations for merit appointments to the bench. In that role CCB helped the careers of Learned Hand, Benjamin Cardozo, and many others.

The judges whose careers CCB advanced understood that CCB was watching them. He reserved the right to pass on to each of his judges any worthwhile criticism that came his way concerning the judge’s conduct. George Martin’s book tells us that CCB was not shy about exercising his right. One such judge did not welcome CCB’s criticism.

CCB liked to write letters rather than speak by telephone. His letters appear in the papers of the presidents commencing with Woodrow Wilson and continuing through Franklin D. Roosevelt. These letters show that he not only had success with judicial appointments, but also played a significant part in the election of Fiorello LaGuardia as mayor of New York and the mayor’s fight against Tammany Hall corruption.

In the latter stages of his career the New York press published stories about CCB as a man of influence for the common good, uncontaminated by any desire for personal gain. He was labeled New York’s First Citizen.

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