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Washington Lawyer

Legal Spectator: There Were Giants in the Land

From Washington Lawyer, May 2003

By Jacob A. Stein

spectatorThe narrator in the novel I am reading commences this way: “Stupidity is not my strong suit.” These words immediately brought to mind Frederick Bernays Wiener (1906–1996) and Judge Gerhard Gesell (1910–1993).

I start with Fritz Wiener. I recall seeing him at Connecticut and L in front of the Stoneleigh Court Building (no longer there), a beautiful antique apartment house converted to an office building. Although I did not know who Fritz was, I knew he must be somebody. He wore a cowboy hat that conflicted with his otherwise conservative dress and sported mustachios approaching the style of Oliver Wendell Holmes Jr.

Sometime later I was introduced to him by a friend with whom I was taking a walk along Connecticut Avenue. “There is Fritz. I want to say hello to the Colonel.” We approached Fritz and my friend introduced me. Pleasant words were exchanged. We resumed our walk. I asked who Fritz Wiener was. “Fritz is the leader of the appellate bar. He was in the solicitor general’s office. He also is the authority on military law.”

Months later I called Fritz to ask him to take the appeal of a criminal case. Fritz suggested I come by his Stoneleigh Court office to discuss the case. Fritz had a working fireplace, large library rooms, and comfortable leather chairs. He lit up a cigar and analyzed the facts five different ways, reciting as he went along the relevant precedents.

Fritz was a grandnephew of Sigmund Freud. He graduated cum laude from Brown University and magna cum laude from Harvard Law School. He was assistant to the solicitor general from 1945 to 1948, when he entered private practice.

Fritz described in his book Effective Advocacy his favorite case, Reid v. Covert, 354 U.S. 1 (1957). In that case the Supreme Court first ruled against Fritz. Fritz moved for reconsideration. Granted. Yes, granted. He reargued the case. The Supreme Court reversed itself.

Fritz, in 1972, had a victory before the Supreme Court in a case involving the rights of a private club. He was then retained to file the petition for certiorari in another case with similar issues. He had every reason to believe the petition would be granted. It was denied. The only justice who voted to grant certiorari was a justice for whom Fritz had a minimum of high regard.

Fritz took this very hard. He said that things had reached the point where it was time to call it quits. Doris and he had decided to say goodbye to the law practice and settle in Phoenix, Arizona. Perhaps the cowboy hat he wore was a clue to his desire to wind up way out west.

Fritz’s friends convened a going-away party at the Army Navy Club. In attendance to wish Fritz and Doris goodbye was a group of well-wishers that included solicitor’s office veterans, judges, and lawyers. The evening came off very well, with Fritz’s friends telling stories of Fritz’s star performances before the Supreme Court. There were descriptions of Fritz in his swallowtail coat, the only remaining private practitioner who dressed with such formality.

A friend recalled that in one of his appearances Justice Frankfurter commented to Fritz, “You are speaking of the conduct of the prosecutor. Let me say that when I was a prosecutor in the Southern District of New York we would not think of doing such a thing that you describe.” Fritz’s reply: “Justice Frankfurter, there were giants in the land in those days.”

Another friend recalled Fritz’s definition of a perfectionist. He is a person (Fritz) who takes infinite pains himself and gives infinite pain to others.

Now Judge Gesell. His father was a distinguished child development specialist connected with the Yale faculty. Judge Gesell was Yale 1932 and Yale 1935. He commenced his legal career as adviser to the Securities and Exchange Commission (SEC) chairman, William O. Douglas. In 1941 he joined Covington & Burling’s trial section, specializing in antitrust and major corporate litigation. He had served on a number of presidential appointment committees, including the chairmanship of the President’s Committee on Equal Opportunity in the Armed Forces, 1962–64. In 1967 he joined the United States District Court for the District of Columbia.

Judge Gesell was of medium height, portly, with a florid face topped by a full head of white hair. He had a dramatic, authoritative-speaking voice. He could be irreverent. He could be gruff. He could be friendly. He could be contrarian. He could be all four within five minutes. His grasp of the facts and what the law should be was intuitive and instant. As a trial progressed he knew where the lawyers would go if he let them. He curbed them by saying, “Sir, some lawyers—of course you are not one of them—might be tempted to ask questions that would be out of place in a case like this. I know you will not do that.”

Judge Gesell, decisive by nature, recalled an SEC commissioner who could not make up his mind about anything. “If I met him on a staircase, I could not tell whether he was going up or coming down.”

He took few things under advisement. Whenever the issue was close, he used oral argument to decide which lawyer was in the right. He listened first to the lawyer requesting a ruling. When that lawyer began to falter, Judge Gesell stopped him right there and asked the other lawyer to comment on what was just said. A few minutes of this give-and-take and Judge Gesell had what he needed to decide the case.

He believed that practicing law involved going to court and speaking up. He would not let his court become a document warehouse.

When Judge Gesell had before him a lawyer handicapped by unashamed ignorance, the judge rose to the acme of judicial distinction. He demonstrated the ability to look a lawyer straight in the eyes for two hours and not hear a damned word he said.

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