Hold That Tiger
By Jacob A. Stein

If you wish to play a fascinating game while practicing law, I recommend procrastination. You can play it right in your office. It is like golf. You play against yourself. At the end of each day, you post your score.

The toreador plays his game by the horns of the bull, the lawyer plays his game by rushing to one of 55 deadlines in the Federal Rules. When he misses, his claim is dismissed.

Experienced players look for diversionary activities, distractions, things we make believe are important when we are hiding out. I recommend the Wall Street Journal, New York Times, e-mail; watching YouTube, FOX News; listening to an iPod; or indulging an obsession or compulsion to find something that has, for the moment, been misplaced. Once it can’t be found, it is exactly the thing that must be found.

After some years of practice, a lawyer with any talent can tell, just by looking at the envelopes that come in the mail, the ones that contain bad news for the client (and maybe for the lawyer). The tipoff is the return name and address in the upper left-hand corner of the envelope. Why open it? Why take on another worry? Let it wait until tomorrow. Leave it unopened.

The envelope knows how to fight. It keeps reappearing on the desk. It begins to wink at the lawyer. It knows it has got the goods on him. It knows he feels guilty. Each day that goes by makes the letter stronger as the lawyer, the opponent, gets weaker.

Now let me bring on stage one of the champions in the game of procrastination who lost the big match. You will find his story at In the Matter of Ralph J. Baker, 80 L. Ed. 1412 (Appendix 4).

The Supreme Court of the United States required Ralph J. Baker of Cambridge, Massachusetts, a member of the Bar of the Supreme Court of the United States, to show cause why he should not be disbarred from further practice because of conduct unbecoming a member of the Bar of the Court. This terse order was followed by another, entered at Appendix 7, October Term 1935, dated January 13, 1936, and found at 80 L. Ed. 1413, which said that the Clerk of the Supreme Court reported the failure of Ralph J. Baker to deposit a check of the clerk for $15.45 issued to Baker on November 10, 1934, as counsel for petitioner in the case of Central Iron and Steel Co. v. United States.

The order notes that Baker failed to respond to four letters about the check sent by the clerk under dates of February 1, 1935, February 28, 1935, April 6, 1935, and November 2, 1935. The order goes on to say that in response to the rule to show cause, Baker apologized for his neglect and deposited the $15.45 check. Therefore, Baker was only reprimanded for “unjustified failure in a duty owed by him as a member of the Bar of this Court to respond to communications addressed to him by the Clerk of this Court pertaining to the business of the Court.”

How is it that Ralph J. Baker failed to open his mail and thus brought on this trouble? I discussed the Baker case with Frederick Bernays “Fritz” Wiener, an authority on Supreme Court procedures and practice. Fritz told me that before the Supreme Court’s adoption of the appendix system in the late 1960s, the record was printed under the supervision of the clerk. The clerk estimated the cost of printing and requested counsel for the petitioner to advance the cost. If the clerk underestimated, then counsel was billed the necessary balance; if the clerk overestimated, he remitted the overage to counsel. Baker overpaid.

Pursuant to the Court’s practice, the clerk sent Baker a check for overpayment. At the time the remittance went forward, Baker was a professor at Harvard Law School, devoting himself to pure law. He was enjoying his escape from such mundane interests as the practice of law, which had been his occupation at the time he became involved with the Clerk of the Supreme Court. Baker, so it is told, upon receiving the letter from the clerk with the check enclosed, was not up to opening it. Instead, he used the envelope as a bookmark.

When he received the next letter from the clerk on February 28, 1935, urging that the check theretofore sent Baker be deposited so that the clerk’s bank account could be balanced, Baker, as before, used this letter as a bookmark. Two more reminders were mailed to Baker. These also went unopened and used as bookmarks.

At this juncture the clerk, Elmore Cropley, counseled with the chief justice. The rule to show cause followed. When the news reached Harvard, there was an initial period of embarrassment, and then Professor Baker acted with dispatch. He pressed into service a platoon of students in need of employment who searched the books on the extensive shelves of the Harvard Law School Library each looking for the four bookmarks.

To everyone’s surprise, all four letters were found. The check was deposited, and Baker submitted his fulsome and abject apology and received only the reprimand set forth in Appendix 7. He failed with honor.

Let’s get back to that unopened envelope. You take it to a room with no distractions. You open it. You toss the envelope in the trash basket. Your confidence returns. You read the letter. It is a request from your opponent that he needs more time to answer the interrogatories. The envelope accepts defeat. It was not the feared tiger in the envelope. This time, it’s only a tiger’s skin.

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