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Washington Lawyer

Legal Spectator: Conversations in the John Marshall Park

From Washington Lawyer, October 2009

By Jacob A. Stein

Legal Spectator

Here I sit, on a pleasant fall afternoon, on a bench in the John Marshall Memorial Park, located on the west side of the E. Barrett Prettyman United States Courthouse. I recall the day the park opened in 1983, when Marshall’s oversized statue was unveiled. The fourth chief justice of the U.S. Supreme Court, with a look of serene self-confidence, is comfortably seated in his chair.

President John Adams, in 1800, nominated Marshall to be chief justice. There is no record of any senatorial inquiry conducted concerning his qualifications, as there would be today. If there were such an inquiry, he would have had a problem. His adversaries would get him to concede that his only formal legal education was a few lectures at the College of William and Mary.

His proponents would counter by pointing out that he was a man of the world, with much broader experience than good grades. He had seen life behind the curtain.

He was a courageous soldier in the Revolutionary War. Thereafter, on his own, he had built up a rewarding law practice. As a member of Congress, he played a dominant role. He then served as President Adams’ Secretary of State.

Donald G. Morgan, a student of Marshall’s career, gives us this comment:

To a great degree, the measure of Marshall’s influence…was in his qualities of character and personal leadership. The eminence acquired by the Supreme Court during that period and the strength imparted to the Constitution are less the work of Marshall the convinced Federalist than of Marshall the man. Here was a statesman, not a zealot; an empiricist, not a dogmatist; a leader, not a tyrant.

During his term as chief justice, the Court decided more than 1,000 cases. Marshall put pen to paper, writing the opinions in 519 cases, opinions that defined the powers of the Court. What has followed is commentary.

As I look around today, I see the trees in the park, which were striplings in 1983, have grown to be broad-branched shade trees. The park has become a place where a lawyer can take a seat and reflect on what just happened in the courthouse. It is a place where a lawyer can compose him- or herself after the strange experience of having an opponent’s incoherent argument find favor with the motions court judge.

This afternoon I sit on the bench where Leonard Boudin and I sat in 1985, having just wound up our case. We must now get another case. We spoke of the time in New York when Leonard was instructing me on how to set up a chess board. A young man walked into Leonard’s office and said that the person whose name was in the newspapers the past week was in the outer office.

“Leonard, I heard you say the other day that the case was a loser. Where should I send him?”

Leonard said: “Where should you send him? Young man, this is what is called new business. I’ve been thinking about that case, and I have some ideas. Don’t let him get away. Send him right in.”

Another memory about Leonard: In the park, there are two statuary chess players, both watching the board. One is holding the queen in his hand. He has the expression of a winner. The other player has a sad look on his face. Leonard explained to me why the latter is the loser.

Getting a new case can save the life of a lawyer. Elmer Rice, the playwright (and also a lawyer), put together in one of his plays a scene in which a lawyer is in his office, head on his desk, his mind filled with professional and personal problems. He sees no way out. The only comforting thought he has is that his office is 30 stories high.

He walks over to the window. He opens the window and looks down. He decides he must end it all. He starts to climb out the window. The phone rings. He pauses. The phone keeps ringing. Who could it be? He leaves the window and answers the phone. The person calling must see a lawyer right away. The lawyer hears a few facts. A new case. He says to himself, “It’s chilly in here, I’d better go and close the window.”

I see across the way another bench where Jim Scullen and I sat, anguished at what the jury is going to do with our personal injury case. Our client turned down what we thought was a reasonable offer. The jury has been out for two days. It had just sent in a note requesting Judge Pratt to read to the jury the transcript of the testimony of a witness. Judge Pratt denied the request, telling the jurors they must use their own recollection of the testimony. But what was most important is that Jim said the jurors looked at our client when they entered the courtroom. Jim said this was always a good sign.

Jim had an interesting career. He was raised in Paterson, New Jersey, during the depths of the Depression. Through a friend he got a job as a policeman here in Washington. He found out there was corruption in the police department. Jim was courageous, just like Chief Judge Marshall. Risking his own life, he assisted the U.S. attorney’s investigation. He went to law school at night. When he was admitted to the bar, he opened an office specializing in whatever came through the door. There is nothing like spending two years as a policeman to understand the way the law really works. In time his practice grew. Off and on he took special assignments for the Central Intelligence Agency.

By the way, Jim happened to be right about the jury.

Jacob A. Stein, a partner at Stein, Mitchell & Muse LLP, can be reached by e-mail at jstein@steinmitchell.com.