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Washington Lawyer

Authenticity, the Humanitarian, and the Aequanimitas

From Washington Lawyer, October 2010

By Jacob A. Stein

spectatorA lawyer offering a document into evidence must authenticate the document. Let us say it is a letter. He must prove that the letter is what it appears to be. Fed. R. Evid. 901.

Here is the way he does it. He puts on the witness stand the person who wrote the letter. The witness takes the oath and says he is the person who wrote the letter and the signature is genuine. The judge declares the letter authenticated and receives it into evidence.

But what about the lawyer who called the witness to the stand? Is the lawyer authentic under Rule 901 of the Federal Rules of Evidence, or is he a bundle of contrivances? His clothes, the way he speaks, his mannerisms.

I would like to answer it this way: I have known lawyers who play the part, within limits, in the best interests of the client. It seems to me this is a type of authenticity.

Let me illustrate it by a friend I have in mind. Once he was into a case, he was in it day and night. He was not in it for the money. He did not bill by the hour. He dedicated himself to the client.

I worked with him on a few cases. To be authentic about it, I was not up to his level. More to the point, I was fearful that if I put everything into the case, as he did, and I lost, I may not have the courage to go through it all again in another case.

Despite my friend’s devotion to each client’s case, he still had a wonderful sense of humor about the things that go on in a trial. As Al got older, he decided he was not up to it anymore and he retired. Al, you retired too soon.

I will speak of another lawyer who became a popular figure at the Bar. He became well-known because of his skills in jury trials. Fame never changed him. He remained authentic. He died at the peak of his career.

I will leave, for the moment, the legal profession and authenticity and go to another friend of mine, Bud Gusack, a physician, who died last month. His death is what has focused me on authenticity.

Bud was born and raised here in Washington. After high school, he went by scholarship all the way through to his medical degree at Johns Hopkins University. After medical school, he served as an Army flight surgeon during World War II in the South Pacific, going out on many flights with the airmen.

When the war ended, he came back here and opened a general practice. His practice was unusual. He chose to follow the course recommended by Sir William Osler (1849–1919), another Johns Hopkins graduate. Dr. Osler was a great doctor and a great teacher. He also was described as a humanist (I will come back to that). He was the author of The Principles and Practice of Medicine, for many years the leading authority on medical practice.

Bud adopted a number of Dr. Osler’s maxims. Here are a few:

  • Medicine is a science of uncertainty and an art of probability. (Something like practicing law.)
  • No human being is constituted to know the truth, the whole truth, and nothing but the truth; and even the best of men must be content with fragments, with partial glimpses, never the full fruition.
  • The desire to take medicine is perhaps the greatest feature which distinguishes man from animals.
  • The good physician treats the disease; the great physician treats the patient who has the disease.
  • The greater the ignorance, the greater the dogmatism.

Bud told me that in the course of a week, he confessed to himself that he had violated all Dr. Osler’s maxims.

Dr. Osler told his students that taking the history from the patient was the key to the art of diagnosis. Bud took this as his motto. He wanted to hear everything the patient had to say, without interruption. Some years ago his physician friends got together and gave him what they called the highest award in the practice of medicine, that is, Bud never yawned while taking a history.

Bud’s practice was made up mostly of doctors who had great respect for his diagnosis and treatment skills. The way he practiced, spending hours and hours with a patient, was not economically rewarding. His reward was what he learned about people.

As I have already said, Dr. Osler was described as a humanist. I heard that word again when I spoke to Bud’s friends. I had heard the word, of course, but I have never seen it defined. I found this definition:

A humanist must cultivate his own self, watch over his inner light, labor for self-perfection, preserve his authenticity, and thus hold the disturbing, polluting, and contaminating influences of the outside world at bay; …

Those few words can be applied to the law practice, perhaps more aptly than they apply to the practice of medicine. We certainly need to hold the outside world at bay. We see more of the contaminating influences than a doctor does. The doctor can write a prescription; we cannot. When we take a history, we become impatient. The client keeps repeating himself. He has all sorts of documents, scraps of paper, and old envelopes. He wants to get even. He is in the right, and the others are in the wrong. Humanitarians never interrupt.

Dr. Osler, in addressing the graduating class of medical students at the University of Pennsylvania in May of 1889, told the class that a good physician must have Aequanimitas, Latin for imperturbability, composure, “coolness and presence of mind under all circumstances, calmness amid the storm, clearness of judgment in moments of grave peril.” Some have this divine gift; in others, it must be obtained by discipline. My friend Bud had that divine gift.

Reach Jacob A. Stein at jstein@steinmitchell.com.