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Washington Lawyer

Legal Spectator: Rated D

From Washington Lawyer, November 2004

By Jacob A. Stein

spectator The TV talk shows include in the studio setting a backdrop of bookshelves to give a literary tone. When the talk show people bark at one another, I distract myself by trying to identify the law books posing on the shelves. I can easily recognize old volumes of Martindale-Hubbell by their heavyweight size and their distinctive buckram binding.

Martindale-Hubbell lists and rates lawyers with peer review grades of legal competence running from an A grade, which means the lawyer’s peers rate his or her legal ability very high to preeminent. The B and C grades are a step down from the A.

I have my own rating system and list. I use a D rating. It does not rate competence. It stands for “Different and Perhaps Unique.”

On my list is someone I shall call Thomas Gray because his story reminds me of Gray’s “Elegy Written in a Country Church-Yard.” I met him when he was a casualty insurance adjuster. He was miscast in that role. He wanted to be like the adjuster in the TV ads: the man with the kindly manner, the sympathetic approach, and the fat checkbook. Despite the criticism of his superiors, he dealt compassionately with claimants who were surprised to learn they actually were in good hands.

While working as an adjuster he attended night law school. He was admitted to the bar and he rented office space and went solo. He received some work defending small property damage and personal injury cases. He could not get used to the fact that the law in the courts was different from the law in the law books. Witnesses did not show up on time. His clients wanted to win and they did not care how they won. Juries were unpredictable, and cases were continued despite the fact that all his people were ready to go. He found that his law practice did not satisfy his desire to be as helpful to people as he was when he had the insurance company’s checkbook.

He came by my office in the mornings with a paper cup of coffee and a cigarette in one hand and a cup of coffee for me in the other. We discussed cases, his and mine, books, other lawyers, judges, and what life was all about. A pleasant way to start the day.

One morning he showed me an invitation he received to meet with his friends from his World War II air corps unit in Munich, Germany. He wanted to attend, but he did not have the money to make the trip. He had a good war. As far as he knew, he had not killed anybody and he had helped a few people along the way. It was his great adventure. The reunion would be his once-in-a-lifetime event.

Then, just like in the movies, a relative died and left him $7,500. He was happy to learn that he had not used up life’s ration of future possibilities. He showed me faded pictures of the people he was to meet again including the woman he had known in Berlin that he wished he had married. Off he went.

The reunion turned out to be good and bad. It was good in that it returned him to the happiest time of his life. It was bad because it caused him to reflect on how drab his life was now as compared to his air corps days. The month and a half he was away from his office concluded whatever practice he had. He decided to close his office. Within three weeks I received word he had died.

There are other lawyers on my list. One who stands out is Dorsey K. Offutt. It would take another 50 pages to describe him. Someday I may give it a try. But for now, just a sample. Here is how we met. Right after I was admitted to the bar I thought it would be a good idea to watch a trial in the United States District Court. Offutt represented the defendant. He seemed unsure of himself. At times he appeared inept.

Offutt noticed me and asked whether I had a connection with the case on trial. I told him I was just a spectator. A few days later he asked if I would serve a subpoena for him. Although I had never seen a subpoena, I said yes. He said the subpoena was to be served on a police officer and it was best to serve him in the evening. I was to call Offutt after I served the subpoena.

That evening I went to the first precinct and handed the subpoena to the officer.

I called Offutt at his home and told him what I did. Offutt got very excited. He kept asking whether I personally gave the subpoena to the officer. I kept on saying I did. I learned later that it is not easy to make personal service on a police officer. I had beginner’s luck.

After that Offutt gave me other assignments and a room in his office.

Offutt seemed to attract strange people as clients. These included personal injury plaintiffs who wrote out every medical complaint on small pieces of paper and sent each paper to Offutt. Years later I learned that this was a disease that had a name. I was told by Dr. Harold Stevens, a neurologist, that it was le malade au petit papier, the madness of the small papers. Dr. Stevens, when he spoke, pointed to his own desk covered with papers. He said it was time for him to throw out all but the very few he really needed. “As between the danger of having papers control me or me controlling the papers, I want to be in control.”

One who remains active in the adversarial system becomes suspicious of his adversary. Those who stay too long with the system often develop forensic paranoia. Offutt was aware of this and he adopted a friendly, disarming cordiality. Beneath this cordiality was a firm belief in the common law principle that any witness who had an interest in the outcome of the case would not and could not tell the truth.

I worked with Offutt for a year and a half. He was always in court and he rarely lost a case. I wish I had the space to tell you how he did it.

Jacob A. Stein can be reached by e-mail at [email protected].