One L (16 page)

11/1/75 (Saturday)

November arrives with drizzle and depression. Lord, but I feel bum. It seems as if I'm living in a tunnel. It's dark when I get up; it's dark when I go home. I keep moving straight ahead but there's no sign of light.

At home, things are in a trough. Annette's patience with the law school wife bit appears to have worn thin and we are bickering often. For A., I guess it is hard not to feel cheated. She's been dragged across the country and stuck in an exhausting job, while I am treated to the glories of Harvard Law. It does not help that in the little time we get together, I am frequently too preoccupied to be fully attentive. And since we are in a new place there is not an established circle of friends who might bolster her spirits. The law school has not provided a community with which we're eager to get involved. It's not a social place. On the weekends we're all just as happy not to see each other. And with good reason. On the few evenings we've had law school friends here, as we did last night, the conversation has centered obsessively on HLS.

For Annette, there is no easy solution, and she's often left frustrated and alone. During the daytime on weekends she has taken to heading off for outings in the city by herself—to museums, to exhibits, on shopping expeditions. But there are instants when it is plain that she is bitter at how unavailable I am. Last week she told me that I am more intimate with the law than with her, a not-so-subtle reference to the fact that we have been getting together in the bedroom infrequently. (From the drift of conversations around school, I take it that that problem is not unique to us.) All of it leaves me feeling toweringly guilty at moments, and also helpless, since I cannot make the law school and its demands dissolve.

The wearying routine continues there, the work load, the confusion, the relentless, small-minded concentration required to learn the law. And the worst week yet is coming. Legal Methods has hit full tilt, with motions for summary judgment, reports on negotiating sessions, and a research project all due sometime in the next few weeks for each group in the section. In our group the brief must be handed in on Monday and we'll have oral argument Wednesday. I've spent much of the weekend with my partner, Willie Hewitt. In addition, the two semester courses, Torts and Criminal Law, are beginning to move at a panic rate now that we're into the second half of the term—sixty-page to eighty-page assignments each week—and the pace is picking up in Procedure as well.

The work cannot be done thoroughly or precisely. I'll have to give up briefing for the week and I'm not sure I can get through it all anyway. And I'm not sure how much I care. Nearly everybody feels almost as bad as me. Too much pressure and no sleep. Three hours. Four. A lot of all-nighters. And the air in the place almost seems to smell of the very effluvium of people's bad feelings about themselves and the rigors of what they're going through. Heavy times.

The gray season is upon us.

 

It was a year of frequent ups and downs, but in those first two weeks of November, I touched bottom. Things for me were never worse. Thank God.

The Legal Methods assignments had worked the section into a general frenzy that would not be duplicated until exams. It was a surprising development since many of my classmates had seemed bored by Legal Methods through much of the term. In my group, Chris Henley taught well and the skills in which he has instructed us were obviously fundamental. One week we had seen a videotape of a classmate (Aubrey, in fact, who was strikingly good) conducting a fictionalized client interview. We'd learned something about taking depositions—a form of pretrial testimony—and how to draft interrogatories (the written questions and answers exchanged by parties to a lawsuit). Just the week earlier we'd been assigned to run through a mock negotiating session, attempting to settle the Katz case.

I'd found much of the work worthwhile, but most of the 1Ls seemed to feel that Methods required an unfair sacrifice of time that could have been put into the larger courses. Being graded, they were regarded as more important.

Yet the brief-writing assignment—which would be the end of the Methods course—had cut through that disinterest. Most everyone had thrown themselves into the project furiously. A brief is a lawyer's written argument to a judge. In it he cites and describes previously decided cases which he believes support his position on a point. At the same time he tries to “distinguish” the cases his opponent will rely on, attempting to show why those decisions are inapplicable to the situation at hand. In Methods we had been given all the cases we would work from, but people were reading through the opinions again and again, searching out the smallest points. And although we'd been told to use no other cases, many of the women and men in the section had gone to the library to consult outside sources, like the legal encyclopedias. People were proud of how hard they were working. I remember the day in the library that Aubrey and his partner, Phil Pollack, displayed to me the nearly forty pages they'd written for a brief that was supposed to run ten pages at most.

At the time, I couldn't understand why everyone was going to such extremes. The only person I heard make a half-credible excuse was Ilene Trevka, a witty, outgoing woman from the section. One day during those weeks we got into the elevator in Langdell together on our way to the fourth-floor library. Ilene canted back against the wall and made one of the familiar complaints about how little she'd slept in the last week while she was working on her brief.

“Why are you taking this thing so seriously?” I asked her as I had many others.

“Because I couldn't stand to lose and then have to listen to our opponent gloat.” Then she smiled. “We're arguing against Harry Hochschild,” she told me.

But in most other cases, I saw the fury generated by the Method's project as more of the success/achievement/competition hysteria. People just wanted to beat each other. In retrospect, though, I recognize that the summary judgment motion satisfied impulses that had been frustrated all term. A job well done would let students feel that they were actually on the way to being able to handle lawyer's work—it would prove they were learning something. Even more significant, I think, was the fact that the briefs and the arguments could answer some of that longing for evaluation and provide a sense of relative standing. A motion for summary judgment is an attempt to have a decision rendered on a lawsuit without a trial. The judge examines the briefs and the attached affidavits, listens to argument, and decides whether the law and the facts of the case favor one side so heavily that a trial would be a worthless exercise. If the court decides in favor of the party moving for summary judgment, he wins the suit; a decision against the movant means there will be a trial.

In the
Katz
case, both sides were moving for summary judgment. Although the odds were that neither motion would be granted, the issues in the case were delicate enough that a particularly persuasive brief and argument might allow one side to win. The prospect of real victory, clean and conclusive, seemed to tantalize many of my classmates. It would be an authoritative way to prove a superior gift for the law. Toward that end, they labored tirelessly. But I, in the face of all this competitive heat, chose withdrawal. I was feeling too glum for a total effort. I told myself the brief was unimportant. Although we would have an oral argument—a kind of spoken defense in which you repeat the brief's main points and answer any of the judge's questions about them—I assured myself that I had always been pretty good at slinging it when on my feet. I encouraged Willie to take it easy and I hardly had to repeat the suggestion. In my section, there was a handful of people—five of them, ten at the most—who had come to Harvard Law School wanting no more than the degree. They had no desire even to stand equal to their classmates. Willie was one of those persons, and he was virtually immune to competitive pressures. He had, for instance, told me that we would have to tailor our work around his Thursday evening drunk and his Friday morning hangover.

Willie and I promised that we'd spend no more than ten to twelve hours each on the brief. I gave it Friday night and most of Saturday. Willie did the same. That was probably a third of the time the majority of our classmates had spent, and the brief showed it. It opened (as I later recognized) by quoting our opponent's most persuasive case and claiming it as our own—a gruesome error—and went downhill from there. Handing the brief in to Henley on Monday, I felt a little uncomfortable, but I suppressed my worries. I figured I'd made off like a bandit.

Having taken the brief so lightly, I should have had far more time on my hands. But I'd elected the previous week to do a voluntary library research project which Henley had given us in Methods. The assignment involved searching out the statute and case law on a complicated tort problem, and the task had occupied twenty-five or thirty hours. Only a few people in my group chose to do the assignment. I had done it because I knew I was going to back off from the brief and, already guilty, I did not want to feel lazy or unoccupied while everybody else was working so hard. In that, I succeeded. I was now as pressed as anybody in the section, a hundred pages behind in Torts and falling off the pace in each of the other courses.

That work load did not, however, keep me from going to see Ralph Nader when he came to speak at the law school on Tuesday night. Annette did not feel well, so I toted my Torts book along and went by myself.

I am a Nader admirer. I take him for a zealot, but I also think he is a person of uncommon imagination, somebody who sees beyond the flak and baloney most of us buy in thinking about social institutions. The institutions Nader was going to speak about that evening were Harvard Law School and legal education in general. Nader is an HLS grad, but he is hardly an enamored alumnus. In a biography, he's quoted as describing the law school as a place where students were “taught the freedom to roam in their cages.” In my funk, I was eager to hear his criticisms. I was ready to believe that there was more causing my bleak feelings than my own neuroses.

Nader gave a great speech. He spoke for well over an hour, without a note. He leaned on the podium, but he talked with a preacher's fervor—a lean, dark man, somewhat better-looking than he is on TV.

“Legal education,” Nader said, “assumes its chief purpose to be the development within a refined ethical framework of the analytical and empirical skills necessary to further justice.” But Harvard, he claimed, and most other law schools, largely failed in those aims because they limited the uses for which those skills were cultivated.

He talked about the style of close analysis we were being urged to make a part of our mental reflexes. As Gina had pointed out to me, he reminded us of the habitual wariness and hesitancy that comes from that kind of thinking, and asked if we were becoming cut off from our common sense and our basic intuitions of justice.

He talked about the shortcomings of the case study method. He asked us
whose
law those cases taught. Who else but the well-to-do could afford the huge legal fees of prosecuting an appeal, of bringing a case to the stage where it was likely to be reprinted in our casebooks? There were wrongs, he said—violations of law, legal problems throughout the society—which were never the subject of courtroom battles and case reports. “How many sharecroppers,” he asked, “do you think sue Minute Maid?”

He talked about the model of a lawyer's work that the steady stream of appellate cases suggests. Weren't we really training to be lawyers who only interview clients and write briefs and argue before courts—the kind of lawyers Legal Methods was teaching us to be? Where were we shown images of lawyers as organizers, determined advocates, rather than the disinterested hired hands of whoever could throw the price? Did we honestly believe, as was sometimes suggested, that the most intriguing legal problems were those presented in cases? Was it really more absorbing to fuss over the details of some company's tax shelters than to face (as our education so seldom asked us to do) the gravest legal problems confronting the society—corporate and government corruption, the bilking of consumers, the dilemma of bringing adequate legal services to the poor?

“Ask yourself,” Nader said near the end, “shouldn't the best, the brightest, the people who think of themselves as more self-confident, better qualified—shouldn't they be the ones to take on those impossible problems? You don't have to lend your power to those huge drug companies that don't care about the public they deal with or to the big law firms that defend them. They can get other people to do that. If you say, ‘I will be a narrow professional, finding pleasure where I can,' then you are demeaning yourself.”

I left Nader's speech feeling high. There were some weaknesses, as usual, to what he had said. I wasn't sure I'd favor an education as acutely political as the one he'd advocated. But on many points he'd been convincing and he left me feeling better than I had for a while that I was becoming an attorney.

Yet as I drove home that evening, full of hot purpose and temporarily out of my depression, I was not sure where those feelings could rightly be aimed. My enemy, in this form, was a collection of attitudes, nothing tangible. There was no obvious place to apply pressure for change.

I did not know that within twenty-four hours such a prominent target would emerge.

 

On Wednesday morning, Annette did not feel any better. She had one of the viruses she was perpetually catching from the children, and she was far too hoarse to teach. Her plans were to rest in the morning, and then, if she felt better, to join me at school. She wanted to take advantage of her day out to see the professors I'd talked so much about, Perini and Zechman, and to watch the oral argument I'd give at two.

When she arrived at noon, the whole section was in unusually good humor. We'd just had the most engaging criminal class of the term. Some student criticism had reached Mann and he now seemed to be making an earnest effort to invigorate the course. He'd set aside statute reading and we were studying Criminal Procedure, far livelier material, which centers on a long line of controversial U.S. Supreme Court cases, like the
Miranda
and
Escobedo
decisions, that deal with the rights of the accused. Today Mann had asked a local policeman to visit the class to demonstrate the stop-and-frisk procedure approved by the Warren court in
Terry
v.
Ohio
. The cop frisked a student volunteer, Charley Maier, whom Mann had set up in advance with a concealed cap gun. When the cop did a light pat-down of Maier's clothes and missed the gun, Charley had pulled it from his pocket and pointed it straight at the policeman. There was a lot of giggling, but the cop had the last laugh. He backed Charley up against the wall and demonstrated the frisk he used on “smart guys.” It included a quick poke between the legs to make sure there was nothing else Charley had concealed.