Washington Lawyer

Legends in the Law: Daniel M. Gribbon

(Appeared in Bar Report, October/November 1998)

Daniel M. Gribbon has practiced law for more than 50 years with the law firm of Covington & Burling where he is senior counsel. Upon receiving a J.D. from Harvard Law School in 1941, he clerked for one year with Judge Learned Hand before serving in the Navy during World War II where he worked with the Joint Chiefs of Staff. He has served as chair of the Board on Professional Responsibility in the District of Columbia, chair of the Advisory Committee on Procedures for the Court of Appeals for the D.C. Circuit, and is president of the Historical Society of the D.C. Circuit.

Bar Report: You were born in Youngstown, Ohio in 1917. What was it like growing up as the son of a small-town banker during the Depression?
Daniel M. Gribbon: The Depression had a significant effect on our lives even though we were not poor. We lived comfortably. But like most bankers my father had a lot of trouble in the 1930s. The bank for which he had worked for many years closed its doors in the early thirties. Life was much simpler then. Radio was a big event because we had no television. Youngstown was not a big city, but on one side of us there was Cleveland and on the other side was Pittsburgh, so we were not completely isolated.

BR: When you were still quite young, the Ku Klux Klan burned a cross in a park in your neighborhood. Did you understand what was happening?
DMG: Oh yes. The Ku Klux Klan was well advertised and well known. I cannot say I expected them to burn a cross anywhere close to where we were, but it was not all that surprising. My grandfather kept a little book full of names of all the Ku Klux Klan members in the area and whenever one ran for office he would inform all his friends and urge them to vote against the Ku Klux Klan member. The Klan is known more for its hatred toward blacks, but this was a Klan antipathy toward the Jews and Catholics in our neighborhood. I remember everyone came out of their homes that night to see what had happened. It was a big blaze and quite scary.

BR: Who or what influenced you to pursue a law career?
DMG: My mother. She insisted that I take up a profession and because I showed little aptitude in the sciences or mathematics, law seemed the best avenue. I had majored in history and English at Case Western Reserve University. I lacked patience for teaching and in order to follow my mother’s insistence on having a profession, I decided it had to be law.

BR: You entered Harvard University in 1938. What was your experience like there?
DMG: For most of the first year I was apprehensive that I was not going to be able to deal with matters as effectively as my classmates, most of whom had come from eastern universities and eastern prep schools. But after the first grades came out and I had done well, my apprehension was eased. I continued to work hard and had very little social life. I lived in a dormitory called Perkins Hall near the law school. It was very pleasant, but Harvard was hard work and very competitive at that time. I imagine it still is. In the second year, I was working as case editor on the Law Review. That was just about a full-time occupation with very little opportunity for studies, never mind anything else. It was grueling work. I spent all kinds of hours working in the Law Review office and was never home before 11 or 12 o’clock at night. I wonder now if it was all worthwhile.

BR: How did you come to clerk for Judge Learned Hand after law school?
DMG: I actually went to work for him before graduation. Sometime in May of 1941 Judge Hand’s clerk entered the military. At that time judges on the court of appeals had only one clerk, so Judge Hand was in desperate need of help. It was nearing the end of the term and all his cases were building up. I was selected by the dean of Harvard’s law school, and at Judge Hand’s request I went to work for him as soon as possible.

I did not apply for the position and never saw the judge in advance. At that time the procedure for selecting law clerks was rather different than today. The dean simply called me in to his office one day and in so many words asked, "Would you like to clerk for Judge Learned Hand?" I said, "yes." And that was it. I was very lucky.

BR: What was it like working with Judge Hand?
DMG: It was a wonderful experience because he was an unusual man. In general clerking for the court of appeals is not as interesting as the Supreme Court nor as helpful as the district court where you see many different matters at various stages of development. The intellectual work as a clerk on the court of appeals is essentially more of what you had in law school. All the real lawmaking has been done. But working for an individual like Judge Learned Hand was a great experience in all respects.

The best part of working for him was that he asked me to live with him for the summer while his wife stayed in their summer home in Vermont. He would join her on weekends. (Also living with us was Judge Albert Coxe.) Judge Hand lived on East 65th Street which was quite a distance from the courthouse at Foley Square. I enjoyed mostly walking with him to work every morning. He would talk about world events including the war which had already begun in Europe and was coming closer to us. He had interesting observations about everything. All I did was ask questions rather than engage in dialogue with him. He never talked about cases.

BR: What do you think you learned from him?
DMG: That’s a very difficult question. I’m not sure you can, in my experience, ever say you learned any particular thing from a specific event. I think learning is progressive and you learn from an accumulation of experiences. I suppose one important thing I got from him was seeing how he attempted to be impartial. He recognized that he had a bias like everybody else. He always struggled to get rid of it and handle each matter objectively in accordance with the law. He gave a number of speeches on how he struggled to remove his bias. He may not have always succeeded but he tried very hard.

BR: Do you remember any particular cases you worked on with him?
DMG: I remember he loved the patent cases. He used to get the invention involved in the case, take it apart and put it together again. He enjoyed seeing how the apparatus worked. Patent lawyers have told me that Judge Hand made a greater contribution to patent law than any other judge. He also enjoyed the admiralty cases. He loved to get models of ships and recreate the circumstances of a collision. He loved the sea and the nautical language.

I remember that his opinions, particularly compared with the opinions from the courts of appeals today, were brief. He decided the case before him in as few words as possible. We would discuss the case fully and once he had written his opinion he would ask me to read and give comments. Initially I might point out that a passage was perhaps a little obscure and that people might not understand it. But such comments never made an impression on him. He never inserted the changes I suggested and never explained why. I soon learned it was pointless to make those types of comments. Unfortunately, my year with Learned Hand was cut short because of World War II.

BR: You entered the Navy in 1941. Was that prompted by the attack on Pearl Harbor?
DMG: Yes. Until Pearl Harbor few people in this country really thought we would get into the war. Our sympathies were with the allies but it was considered a European war. However the attack on Pearl Harbor, and then Germany declaring war on us, changed things entirely. At that time it was perfectly clear that a young person such as myself would have to serve in the military. I preferred the Navy because it was a little cleaner. My thoughts then were if I had to suffer and die I would rather do it on a ship than in the mud. I was rejected initially because early in the war the services were insisting on rigorous compliance with physical requirements. My eyes were not that bad but not good enough to qualify. Later on the services were less demanding and opened up the program to allow civilians to enter directly as officers. I applied and was admitted.

BR: What did you do when you served on the Joint War Plans Committee?
DMG: That was a committee for all Joint Chiefs of Staff along with the British chiefs, which together formed a number of subcommittees that covered various things such as war plans and intelligence. My job, in part, was to do military research of a fairly elementary nature. I did not have the background to understand military maneuvers. The biggest part of the job, however, was to write up reports on what the committee members had discussed and decided. The reports were then forwarded to the military leaders who would make decisions based on the accumulated information. It really was not all that fascinating, but on the flip side, I was not on the front lines and heard no shots fired in anger.

BR: In that position did you get any information or clue as to the plans to use the nuclear bomb on Japan?
DMG: No. That was a well-kept secret. There was no reason for me to know. The joint chiefs were consulted of course, but for the most part it was a political decision. Although President Truman did heavily depend on what his military personnel advised. The clear consensus among the military leaders was that this would end the war with much less loss of life than if we continued with the invasion of the Japanese homeland, which was to be the next move.

I don’t remember anybody, including myself, having any concerns about the morality or propriety of dropping those bombs on Hiroshima and Nagasaki. I am mystified by people who now dispute whether it should have been done. At that time we had lost an awful lot of men to the war and we were planning two invasions of the Japanese islands: one in Kyushi and the other in Tokyo Bay. The best estimates were that the loss of life from those invasions would be much worse than we had experienced to date. I felt that war is war, and the best course was to get it over with as quickly as we could with the fewest fatalities and injuries.

BR: How did you get the job with Covington & Burling?
DMG: When I was preparing to graduate from law school and considering my future plans, I decided I wanted to pursue federal law and deal with the impact of the government on people. Therefore I was not particularly interested in New York firms, despite the fact that they were very good firms. In fact I worked one summer with Sullivan & Cromwell, one of the best New York firms. My interest in federal law meant I should come to Washington, D.C., and Covington & Burling was the leading firm in Washington. I was invited to come down here for an interview around Christmas of 1940. I was impressed by the people at the firm and by what I learned about the law it was doing, so I agreed to join the firm when I graduated. However the opportunity to clerk with Judge Hand intervened and then of course there was the war. When the war was drawing to a close Mr. Burling called me to say the offer was still open and asked when I could start.

BR: What was it like at the firm in those early years?
DMG: I gave a talk to the paralegals recently and I told them that in the late 1940s and early 1950s the work the young lawyers did was very much like the work the paralegals do today. It’s not exactly the same, but close. A good deal of my work was on antitrust cases and involved a lot of documentary research, depositions, and long drawn out cases.

BR: In 1969 Covington became the first law firm to assign two attorneys on a full-time basis to the Neighborhood Legal Services Program (NLSP). What was your involvement with that?
DMG: We have a five-person management committee that makes most of the decisions for the firm. I was on the committee at the time and the head of the legal services program asked for help above and beyond the pro bono work that was already taking place. The federal government funding for NLSP had just begun. Also there was a Baltimore law firm that had received a lot of publicity for setting up a neighborhood storefront office in the poor section of Baltimore. We considered doing something similar but determined that a more effective way to help meet the need for legal assistance to the underprivileged was to bolster the Neighborhood Legal Services Program. We sent two lawyers and two secretaries to work in the NLSP offices on a rotating six-month basis. We thought having a presence in their facilities would be better than setting up a separate office because we would be seen as part of the organization and have the additional advantage of giving our lawyers some hands on experience. That program has continued and we now send a full complement of three attorneys, three secretaries, and three paralegals.

BR: What was your first experience like arguing before the Supreme Court?
DMG: I was not a youth and had done a number of cases in the court of appeals and in district court, but your first Supreme Court case always makes you apprehensive. This case, Grunenthal v. Long Island Railroad, had been argued in the lower courts by other attorneys. Covington represented the Pennsylvania Railroad and the Long Island Railroad, which was a subsidiary of the Pennsylvania Railroad in Supreme Court matters. Hugh Cox, one of my seniors at Covington and an excellent attorney, did most of the work for the Pennsylvania Railroad. He asked me if I wanted to argue the case in the Supreme Court. The case involved an injured railroad worker who had asked for $100,000 in compensation. The jury found the railroad liable, which it always did in those federal employee liability cases, and granted damages of $300,000. The district court refused to grant a new trial. However, the Court of Appeals reversed, saying the district court had abused its discretion in failing to recognize the gross impropriety of the damages. The case was of interest because it raised the question of whether the court of appeals could review a district court’s refusal to set aside a verdict as being excessive—whether such action would be consistent with common law. That interesting question was never resolved because the Supreme Court decided that the district court had exercised its discretion properly and reinstated its decision. It was not a sweeping victory.

I had been involved in a number of Supreme Court cases before that as a number two attorney, so I was familiar with the Court’s practice. But there’s no substitute for that first experience arguing a case before the Supreme Court as the lead attorney. I have not been to the Supreme Court for a couple of years but I’m sure if I were asked today I would still be nervous.

You have nine people before you, each with his or her own agenda, peppering you with questions. Most of the questions are directed not so much at the advocate arguing the case, but at one of the other justices. It is a little difficult to know how to handle that situation without alienating one or the other, or perhaps both, justices. I think the tendency for justices to fire questions aimed at their colleagues has grown in recent years. At one time justices were satisfied to let the advocate argue the case. After all, that was the lawyer’s chance to plead the case. Now, many justices are much more interested in trying to make points with the other justices.

BR: Do you think that exchange is a good thing?
DMG: It is hard to tell. I think most of the justices would feel it helps them decide a case, and ultimately that is what they are trying to do. Although it is a little disquieting to the advocate. But the idea is not to make the advocate happy—it is to decide the case.

BR: Tell me about your representing the Dupont Company in resisting the ban on leaded gasoline.
DMG: That was an interesting case even though I lost. Three companies at that time made tetraethyl lead, which had the amazing property of stopping the knock in gasoline engines. It was invented in 1923 or 1924 and widely used since that time. But in the early 1970s people became concerned about the dangers of lead exposure, especially in children. Most of the problems came from lead in paint but someone fastened on to the idea that it could come from the exhaust of a car. Plus it was a lot easier to ban the use of lead in gasoline than it was to ban the use of lead in paint. Once the paint was on a house people could not be forced to repaint their houses with lead-free paint. So when the use of lead in gasoline was banned it put those companies that made tetraethyl lead out of business. Ethyl and Dupont, the principal producers, challenged the ban in the court of appeals. A panel of the court found that the evidence did not support the government’s ban of lead in gasoline. The court of appeals then sat on the case en banc, which they do not do very often, and overturned the district court’s decision by a five-to-four vote. The critical vote was cast by Judge Bazelon who did not sit on either the panel argument or the argument en banc. That loss was a blow after the initial victory.

An amusing incident during this case was when Judge MacKinnon asked the government lawyer what effect lead had on the body because the judge said he had worked in a lead factory many years ago. The government lawyer gave a brief explanation but then expounded on it during his rebuttal, talking in great detail about the terrible effects lead had on the nervous system. Halfway through, Judge Robb told the lawyer he better stop because he was making Judge MacKinnon feel very bad.

BR: What would you say was the most significant case you have had?
DMG: As far as general importance—political and social—it would be the Dupont-General Motors case. I spent a lot of time on it as the number two lawyer for Dupont. In that case the Supreme Court concluded that Dupont’s ownership of twenty-five percent of General Motors’ stock, which it had acquired in 1917 and 1918, violated Section 7 of the Clayton Act because it created the probability of a restraint of trade in Dupont’s sales to General Motors. After a long trial the district court had found that the stock holding had created no such restraint of trade and that there was no probability of any such restraint in the future.

In terms of legal precedent the most significant case was probably The Upjohn Company v. United States in 1981, which involved the scope of a corporation’s attorney-client privilege. In deciding the case unanimously, the court breathed new life into the privilege. Judges had been suspicious of attorney-client privilege, but the Supreme Court said with much enthusiasm that it was essential to the effective administration of justice. That opinion has been at the forefront recently in the struggle between the White House and the independent counsel to establish whether the privilege extends to the Secret Service, the president’s lawyers, and others. I argued the Upjohn case the day after President Reagan took office.

Another case of significance, and this one I lost, was Penn Central Transportation Company v. New York City, which shed a new light on the principle of "takings." A government taking of property under the Fifth and Fourteenth amendments requires just compensation. The Supreme Court in this case held that despite the City of New York having prevented Penn Central from using the Grand Central Terminal for its own purposes, such action did not constitute a "taking" that required compensation. The Court said that the City of New York did not take all of the terminal property and Penn Central’s investment expectations were not injured because it could continue to make some money and was entitled to no compensation.

An interesting aspect of that case was that Jackie Kennedy Onassis, who had publicly favored the city, marched into the spectator section of the Court with an entourage just before the argument started. She caused quite a stir and was probably the strongest argument presented in favor of the city. All that I was able to salvage was a dissent of three justices: Chief Justice Berger and Justices Stevens and Rehnquist. It may be wishful thinking on my part, but it seems the law on takings in the intervening years has moved closer to their view. That’s what you tend to say when you lose a case.

BR: Tell me about your involvement with the Board on Professional Responsibility in the District of Columbia?
DMG: I had been a member and my name was put forth as a candidate for the position of chair. Jerry Reilly, the chief judge of the D.C. Court of Appeals, called me up and announced that I was going to be appointed to head the board. I was quite surprised and asked him what I was supposed to do as chair. He said, "you’ll find out."

The job was quite interesting. It exposed me to an area of practice, or malpractice, that I had previously had little to do with. Among other things we had several interesting cases involving lawyers that participated in one way or another in the Watergate matter.

BR: When did you get involved with the Historical Society of the D.C. Circuit?
DMG: It was founded in 1991 and I got involved right from the start when then Judge Ruth Bader Ginsburg asked me to help out. We have commissioned a history spanning 200 years of the D.C. federal courts, which is about ready for publication. In addition, we have prepared about 35 oral histories of judges and practitioners that will be of great value to historians and the bar. They are in the court’s library.

BR: Your oldest daughter, Diana, is a judge of the Court of Appeals for the Fourth Circuit. Did you influence her to pursue law?
DMG: She claims I influenced her. I didn’t do so intentionally though I did not discourage her. I certainly did not push her as my mother did with me. Our other daughter, Deborah, I am afraid, I unintentionally influenced against the law. She and her mother got pretty fed up with Diana, her husband Fred Motz (also a judge) and me talking shop all the time. She went into the art business. She is the deputy director of the J. Paul Getty Art Museum in Santa Monica, California.

BR: What are your thoughts on the legal profession today and the changes you have seen over the years?
DMG: As you grow old everything seems to deteriorate. It is never as good as you remember it, but usually that is because you tend to remember only the good things. I am not one who feels the profession is going to hell in a hand basket. I think the young people coming out of law school are smarter and I am certain they have much more self assurance than my generation. The quality of lawyers has not deteriorated, and indeed, may well have improved.

The law, however, has become merely one aspect of business conduct or human conduct rather than a controlling structure of society. In my recollection of the early days when big companies asked for legal advice and a lawyer gave it to them, they followed it. There was no consulting with public relations, advertising, or accounting departments. Today corporations and many individuals look upon the law as something to consider, but not as something to adhere to, which is unfortunate.

Another change is the public attention given to such matters as how much money a lawyer is making or not making, and who is moving from one firm to another firm. There is much more information of that kind in the media, which has led to an unfortunate competition in the profession. Lawyers are no longer satisfied with what they have because they are worried about what someone else is getting. It was better when lawyers were ignorant of other people’s personal business and were more focused on doing their own job and not distracted by competition. And that leads to another significant change: there is no such thing as firm loyalty anymore. In my day if you made a decision to go with a firm, that was it. There had to be something very catastrophic to happen for you to consider going off to another firm. But not anymore. Having stayed with Covington & Burling since I started in 1945, I have been quite happy with my experience. I cannot think of anything else I would have enjoyed more.