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Washington Lawyer

Legal Spectator: What to Do While Waiting

From Washington Lawyer, November 2008

By Jacob A. Stein

spectator To get his name on the title page of a useful law book has always been recognized as one of the few legitimate methods of publicity open to an aspiring member of the Bar.
                           —Lord McMillan

When I commenced practicing law, I often found myself with a lot of time on my hands. I used some of that time to read books about law and lawyers. One of the books I read was Lloyd Paul Stryker’s The Art of Advocacy (1954). I was pleased to read that Stryker, a leader of the New York bar, occasionally had time on his hands while waiting for his next case. He said he used that time to write books. One is a biography of President Andrew Johnson titled A Study in Courage. Another is called For the Defense, Thomas Erskine, a biography on the distinguished British barrister.

I took Mr. Stryker’s advice and decided to write a book. However, my book was not to be a lawyer’s biography; I was not up to that. I was going to write about tort law in the District of Columbia.

When a case did come my way, for instance, one involving a slip and fall in a grocery store, there was no book that identified the case law by the facts rather than the general subjects of “negligence” and “contributory negligence.” To compile such a book, I read every decided District of Columbia tort case and reclassified each under a common sense category.

It took me two years to read all the appellate cases, make notes on three-by-five cards, and transfer this information into book form.

What did I learn from reading all those cases? Well, I learned that, to get a verdict, a customer in a grocery store who slips and falls on a stray green bean and suffers a broken leg must prove that the grocery store had noticed the vegetable on the floor in sufficient time to clean it up.

I learned that in a collision at an intersection, the plaintiff had to have looked in all directions at the same time or he was contributorily negligent.

I learned that an act of God does not apply as a defense where there is an element of human participation. A defense involving an act of God comes with a presumption that God is not too interested in District of Columbia tort litigation.

My book was titled District of Columbia Tort Casefinder. The “Preface,” written long ago, takes into account the significance of precedent. Here it is:

About the time of the American Revolution, Samuel Johnson, the English lexicographer, was having a conversation with a lawyer friend. Notes on the conversation were taken down by Johnson’s shadow, Boswell, and later transcribed into Boswell’s journals. Johnson passed the comment that when there were few precedents, there was an emphasis on the ability to reason logically, but with the increase of precedents (keep in mind this is about 1776), the skill of a lawyer depended less on his ability to reason and more on his ability to cite a controlling precedent. If that was true when Johnson said it, what is the situation today?

There are two factors which tend to eliminate the part played by legal reasoning and forensics in the present-day trial. First, there is the backlog of cases. Judges just do not have time to hear learned counsel spin out their views as to why a proposition should prevail. Secondly, there are now so many decided cases that there is a precedent available for almost any situation. Finding the precedent is, of course, the difficulty.

Most of the colloquy between court and counsel terminates with the judge saying, “Do you have a local case on that point?” If you do, fine; if you don’t, you may reason like Cicero, but you will not prevail over your opponent who, in a whisper, gives the controlling authority from the Court of Appeals.

It is the purpose of this book to give you immediate access to the rulings in the field of torts by the Court of Appeals for the District of Columbia, as concisely and accurately as possible. This book should be particularly valuable when a crisis in the courtroom is announced by the judge, “Do you have a case on that point?”

To get the greatest benefit from this book, you should become familiar with its list of topics. The main categories are found under common sense headings, i.e., the factual situations. For instance, if you have a “fall” case, you look under FALLS. If you have a case where someone is struck by a hockey puck, you look under HOCKEY.

There was not a large market for the book. However, plaintiff lawyers and insurance defense lawyers bought copies to carry in their briefcases. What was most pleasing to me, however, was that trial judges also kept the book handy.

I often received emergency calls from friends who were at the courthouse during a recess and requesting a citation right away.

I donated a copy to the library of the Bar Association, which previously was located in the courthouse. The librarian would call me from time to time to tell me his copy had been stolen and ask if I would bring down another.

The book remained in print with yearly supplements until LexisNexis and Westlaw made it obsolete. Nevertheless, I still get an occasional call asking for “that book, you know, that casefinder book.”

Sorry, it is out of print.

Reach Jacob A. Stein at [email protected].