Reflections of a Boston Lawyer

I looked into a house I once lived in . . .

2011-11-14T23:02:00.002-05:00

Alone in my house this evening, listening to a Joni Mitchell album, I'm taken back to other times in other houses in my past. I remember staying at a friend's house in Ohio through one of our breaks my senior year in college. It was winter, and the old wooden house was cold. It was the year of Paul Simon's "Still Crazy After All These Years," which we listened to repeatedly and which seemed to set the mood for the place. I remember a photograph of my friend Tom and me enjoying our birthday dinner in that kitchen in late November with our dates. Tom and I were born one year and one day apart, and the woman who was then his date later became his wife. I lived in that house for only a few weeks, but some of the memories remain.

There was the house I lived in during law school. It was half of a duplex, and the landlady lived on the other side. Our half had six bedrooms, and six of us lived there. I had a room on the top floor with a slanted ceiling and a heating vent cut through the floor. That house was cold too. We tried to save money by keeping the thermostat set at about 62 degrees, colder than I liked it but the collective will of our group. I spent less time at that house than my housemates did, but I remember it well, set at the bottom of the hill, a long climb up the gorge path to the law school each day. One of the guys died quite a few years ago; I never learned the cause.

For two years after law school I lived in an apartment on Beacon Hill, near the bottom of Mt. Vernon Street. The floors were slanty and the walls and ceiling needed paint. The kitchen could barely fit three people standing, but it worked for me. I remember sitting at my desk on summer nights with the window open. I could hear the clip clop of a horse carrying a mounted policeman. Man and beast patrolled the streets late at night, always at the same time - I think it was 11:00 p.m. I'd listen to music then too, read books and write letters, and when there was a Red Sox game on, I'd watch t.v. This is where I lived when I met my wife, and I remember her dismay the first time she visited and she saw that all I had in my refrigerator were a couple of beers and a bottle of ketchup. Even thirty years after I moved out of that little place, our shared experience gives it special meaning.

And of course there was the house I grew up in. A small ranch house with three bedrooms on what once had been a quiet street but which became busier over time. My parents raised my sisters and me in that house, and it had many good memories, mostly of our aunts and uncles and cousins who would often stop by, unannounced, and who were always welcomed with an offer of a cup of coffee and food to go with it. I used to help my dad maintain the house and paint the trim. I helped him rake the leaves in the fall, and shovel the snow in the cold Rochester winters. Dad took good care of that house for many years. It seemed wrong that he wasn't there when I visited my Mom a few months after he died. It was his house, no one else's, and we all seemed like squatters then. It felt even more wrong a few years later when Mom no longer could live there on her own, and my sister had to sell it to a stranger.

That may have been the first time I really understood that we don't own our homes, or anything else for that matter. We just borrow them for a time and then move on. The experiences, the relationships, the memories, they are the only things we can call our own. And with that as prelude, I give you young Jackson Browne. http://www.youtube.com/watch?v=NNW9q6tk43c

It Gets Better

2011-02-05T07:27:00.000-05:00

As if timed to coincide with my last post, this story about my fellow College of Wooster alumn and Trustee, Chief Judge Sol Oliver, far outdoes mine. From humble beginnings to the pinnacle of his profession, Sol is a good man for whom I have the utmost respect and admiration. Be sure to read the text and watch the video.
http://www.wkyc.com/news/local/story.aspx?storyid=173328&catid=3

The Letter

2011-02-02T08:16:00.001-05:00

When I was in college, like many students, I spent much time pondering my career choices. It was the 1970s, and many of us felt pulled by the opposing forces of the idealism of the 1960s and the growing materialism of the current decade. My own thought processes about my vocation seemed to parallel the changing times. I entered college expecting to find some kind of career that would allow me to help people in need of some kind of help, and I left four years later to pursue a career in law.

A number of personal developments during those four years contributed to my decision to become a lawyer, but none more than a short, handwritten letter from one of my uncles back home. His name was Angelo, but everyone knew him as "Ace." Like all of the children of my immigrant grandparents, Uncle Ace was a child of the depression. Growing up in the 1920s and 1930s, he and his brothers enlisted in the U.S. military and were stationed overseas during World War II. After returning home and needing to make a living, Uncle Ace came to own a service station in the Central Park area of Rochester, New York, in what my parents, aunts and uncles would forever refer to as "the old neighborhood." He was handsome and popular in his day, and always reminded me in looks and personality of Dean Martin. He seemed well connected and well liked in Rochester, enjoyed life, and was especially good at one of Rochester's then-popular activities, bowling. In fact, he wore a ring that bore the number "298," memorializing a near perfect game he once bowled. (His brother, Carm, once bowled a perfect 300.)

I grew especially close to Uncle Ace in the 1970s until his death from cancer in 1980. When I was still in high school, he suffered a severe heart attack, forcing him to retire and sell his business. He had another, worse heart attack when I was in college, and every time I was home from school, my mother would remind me to visit him. It became something of a routine; some Friday nights during summer break, I would come home from work, shower, have an early dinner, and then go visit my uncle. His daughter and young grandson were living with him and my aunt at the time, and I tended to arrive when The Muppet Show was on. So there we would be in his small living room, watching the Muppets and enjoying each other's company. He and I would also sneak off to the driving range, where he would coach me on my golf swing and occasionally swing the club himself against his doctor's orders.

During the fall semester of my junior year, at a time when I was very focused on discerning my vocation, Uncle Ace sent me a letter. It was the only letter he would ever send me. The letter was handwritten, in neat script, on a small sheet of stationery. In it, he urged me to choose law school. The letter was one of several influences on my decision to go to law school, and I kept it because of its message and its sentimental value. Until yesterday, I hadn't seen the letter for years, and I wondered what became of it. Yesterday, I found it by chance in a box in my attic. Here is some of what he said:

Hello Don:

The world has always had problems, and our society has always had wrongs.

I respect your beliefs and your intentions to try to improve the existing conditions - but unless you yourself are a respected individual - your efforts will be of no avail.

Go to law school - become well known - then you will be heard. . . .

As a lawyer, you can earn enough from your paying clients to represent your non able to pay clients. You will become greatly respected and will accumulate a great following - then when you speak - you will be heard.

A simple message, delivered clearly, from a man who understood something about how the world worked. I did not become a lawyer with the expectation that I would someday "be heard." Instead, what I took away from the letter was that lawyers can help those in need as much as, and in some ways more than, people in other professions.

My uncle's message remains true today. As a bar association president, I am constantly inspired by the many dedicated lawyers who devote countless hours helping the "non able to pay" clients. I also am somewhat daunted by the opportunities I have to "be heard," and the challenge of making the most of those opportunities. Law is a great profession, and will remain so as long as there are lawyers who see it not only as an opportunity to do well, but also as an opportunity to do good. Although I have made some effort these past few months to inform college students of the difficulties that face many law school graduates in a difficult job market, I would never want to discourage anyone from going to law school who shares the vision of making a positive difference in the world. The profession, and our society, needs them.

My uncle passed away in 1980. I last saw him as I was about to embark on a six-week trip to Europe with a law school friend after each of us had completed judicial clerkships and before we were to begin work at our law firms. Uncle Ace was in the late stages of cancer. He had lost so much strength that I had to help him sit up in bed and lie down again. I knew it was the last time I would see him, and I believe he knew it too. He probably had hoped I would return to Rochester to practice law, but I chose to stay in Boston. The letter remains in my home, a worthy reminder of the power of a few, heartfelt words to shape a person's life.

Top Ten Wishes for 2011

2010-12-31T08:42:00.002-05:00

Seeing all the lists of top ten events of 2010 makes me want to come up with a forward-looking list of wishes for 2011. The risk of creating such a list is not just that it will not come true, but that it will include wishes that have no realistic possibility of coming true. While my reach may exceed my grasp, I am nevertheless going to limit the list to matters within some reasonable realm of the possible. I therefore won't include wishes for world peace, an end to terrorism, or that North Korea will become a beneficent state, even though I would love to see all those things come to pass. Also, some items on the list will focus on matters that are (or, in my opinion, should be) important to lawyers and others in Boston and Massachusetts. I have limited the list to matters of public policy, and have not included many things I might wish for in areas such as technological advancements or artistic or athletic achievements. Finally, as with any top ten list, there is a risk of omission, but I have done my best to include what seems most important at this writing.

With those limitations, here are some possibilities I hope for in the new year.

1. That we will make real progress in taming unemployment, and that many of the millions of Americans who have been displaced from their jobs in the last two years will be able to re-enter the workforce in meaningful ways.

2. That we will see a rebirth of bipartisanship in government, with our leaders working together to find common ground for the benefit of all Americans.

3. That American forces will finally leave Iraq and begin withdrawing from Afghanistan, safely and with the honor and appreciation that they deserve.

4. That we Americans will renew our commitment to equality for all, regardless of race, ethnicity, religion, gender, sexual orientation, or social and financial status.

5. That we will find the resources and the commitment to adequately fund our courts and the organizations that provide legal services to the poor.

6. That the women and men in Massachusetts who work in probation and parole will do an effective job of keeping out of jail those who do not belong there, and of keeping in jail those who do belong there, and that we will not lose sight of the importance and the difficulty of each function.

7. That we will do a better job of matching the over-supply of lawyers with the heightened need for legal services for the poor and middle class.

8. That our government will more effectively regulate industry without overreaching or stifling innovation and competition.

9. That we will make strides in protecting privacy in the face of technological forces that threaten to obliterate it.

10. That we will find the resources to support our schools and to keep our children safe in underprivileged communities.

And allow me to add an 11th wish to you who read this for a happy and prosperous New Year. May we all find the strength, courage, vision and goodwill to meet the challenges and to celebrate the successes that lie ahead.

On Loyalty

2010-10-03T09:42:00.000-04:00

This week, a candidate for Massachusetts Lieutenant Governor bolted the Independent ticket and endorsed the Republican candidate for Governor. His act of public betrayal has been met with disgust among some voters, and could backfire for the Republican campaign. We will have a better idea after the election next month whether this unusual defection will help propel the Republican ticket to victory or will contribute to its defeat.

The danger of such acts is that they create perceptions that bring into stark contrast two very different traits: gamesmanship and loyalty. We abhor gamesmanship, which I define as the attempt to outsmart and outmaneuver an opponent with tactics that contravene shared values of fair play and good sportsmanship. In contrast, we cherish loyalty as fundamental to good citizenship and to our humanity. While gamesmanship, when successful, may be rewarded by temporary strategic gain, it often sacrifices trust, and can interfere with the game player's credibility and future relationships. Loyalty, on the other hand, displays character, builds trust, and strengthens relationships.

In literature, few characters are despised more than those who are disloyal. From the Christian tradition, the word "Judas" has become a noun, and the Biblical figure of Judas represents the archetype of something horribly repugnant. Those who are disloyal to country are branded "traitors," and the most egregious acts of treason are punishable by death. Disloyalty is vice at its most extreme.

Of course, there are limits to loyalty, as it is only worthwhile when it is deserved. Blind loyalty to an evil ruler, for example, is no virtue. But loyalty to family, friends, co-workers, clients, and, yes, running mates, ordinarily requires no compromise of our values, and is itself a value to which we should aspire.

We should not vilify the Massachusetts politician, nor elevate his defection beyond what it is -- simply one of many interesting developments in a traditional political contest. No doubt there are elements to the story to which we who only read about it in the newspapers are not privy, and that may put the defector's actions in a more favorable light. But this most recent example of a highly public act of disloyalty brings to light a core value that we human beings share, and on which it would be useful to reflect.

Eight Simple Words

2010-09-12T08:48:00.000-04:00

During my junior year in high school, I sat in the back of our auditorium listening to our drama teacher, Ruth Bair, attempt to persuade a large group of students to try out for the school play. With me, at least, she was successful. I auditioned for a part in Archibald MacLeish's "JB," a modern day drama based on the Book of Job. All I garnered that time was a walk-on part; better roles awaited me my senior year. But Mrs. Bair's little speech was enough to get me in the game. And the experience of performing in the school plays was the highlight of my high school years.

What she said that I remember is this: "If you don't extend yourself, you haven't lived." Some memory of biology class made me think that this was both literally and figuratively true, though I'm not sure about the literal part, and it's only the figurative that matters to me. But through the years and decades that followed, whenever I was unsure about participating in a new adventure, it was Ruth Bair's voice that egged me on. I can't begin to measure the difference those eight simple words have made in my life. I have repeated her advice to my children, and to captive audiences of new lawyers at their swearing-in ceremonies.

We hear other voices all the time, voices that make us question whether extending ourselves is such a good idea. Seth Godin, in his book "Linchpin," talks about the lizard brain within us, aka "the resistance." It is the instinctive voice of self-preservation that warns us not to venture out, but rather to stay still and quiet in the safety of our dens, with our heads down. Godin's message: quiet the lizard brain and become a leader. In other words: extend ourselves.

By not extending ourselves, we deprive ourselves of new experiences, and narrow our perspectives. The other night, I listened to an "On Point" broadcast in which host Tom Ashbrook interviewed physicist Leonard Mlodinow, the co-author of Steven Hawking's new book, "The Grand Design." As much as Ashbrook and Mlodinow tried to dumb the interview down for us non-scientists in the audience, it remained barely comprehensible, requiring some prior knowledge of quantum physics and string theory, for example. Mlodinow talked about the number of additional dimensions that physicists and mathematicians believe exist beyond the three that we know. He also asked the audience to imagine a two-dimensional universe, and the perspective of a bacterium crawling along it. The bacterium, presumably also of two dimensions, would not know anything beyond that limited universe, and could not imagine a third dimension in the universe that we know.

And so it is in life. If we do not extend ourselves, we limit our ability to perceive and understand the world outside our narrow vision. When I let Ruth Bair's words encourage me to try scuba diving during the Caribbean vacations my wife and I took before we had children, I was opened to an undersea world that was more beautiful and diverse than anything I had previously imagined. When I allowed the mantra to push me to become active in the Boston Bar Association early in my career, I was opened to a legal profession that was much broader and more diverse than anything I had known stuck within the confines of my law firm. When I extended my activities to service on non-profit boards outside of my profession, I made connections with new friends and role models who help to shape who I am and with whom I try to give back to the world in whatever modest ways I can. Maybe, out of ignorance, I would not have regretted spending these years keeping my head down, doing my work, and avoiding the time commitments that come from new endeavors and volunteer opportunities. But now, with the knowledge of what I would have been missing, I remain grateful to Ruth Bair, and continue the effort to quiet the lizard brain within.

The Law Firm Paradigm

2010-09-06T12:22:00.004-04:00

A friend sent me this article written by a former colleague. Although its criticisms paint with a broad brush, it nevertheless contains the most concise and cogent survey of the landscape and call for change that I've seen to date. I highly recommend it.

On Vilification

2010-08-22T11:43:00.005-04:00

Remember Vincent Foster, the Clinton confidant who committed suicide after a series of Wall Street Journal editorials criticized his role in the administration? In a torn-up suicide note, he famously lamented that, in Washington, "ruining people is considered sport."

The Obama presidential candidacy elevated the sport of vilification to new heights. Opponents branded Obama with all sorts of labels - socialist, communist, fascist, Nazi, Muslim - in an effort to end his Presidential aspirations. They were, of course, unsuccessful. (By the way, I include "Muslim" in this list as an example of opposition efforts to damage Obama, even though it is wrongheaded to consider the word derogatory.)

The sport of vilification has one goal - taking down an opponent. It does so by obscuring truth and promoting false and often scandalous information. Unlike most sports, it has no rules. And, as the Vincent Foster case so vividly demonstrates, it can be extremely, and is inherently, destructive.

Unfortunately, vilification is a sport that won't go away. With the 24/7 media blitz that now prevails, there is no escaping it. Television personalities, particularly on Fox and MSNBC, play at it full time. In the guise of news reporting and editorializing, they attack those political leaders with whom they are not aligned, offering insults, sarcasm, and often, downright lies, to a public that for the most part knows what it wants to believe and tunes into the station that offers it to them. And, for the media outlets and personalities that engage in it, it is a highly profitable business.

Many of the lies are so ludicrous, or so easily contradicted by file footage of previous statements by the same pundits who broadcast them, that they are almost amusing. Jon Stewart and his team on "The Daily Show" do an outstanding job of matching the current attacks with the prior commentary and exposing the lies for what they are. While some may criticize Stewart for leaning left, he can be, and often is, as critical of Democrats and liberal shock jocks as he is of those on the right. Unfortunately, the people who could most learn from Stewart's political comedy are least likely to watch it.

But most of the time, there is nothing funny about the hateful, false information that dominates the airwaves. This week I tuned into a radio sports show that too often strays from the sports news that it is good at and instead spends time advancing a right-wing political agenda. The hosts were criticizing the efforts to build a mosque near Ground Zero. They were not content to limit their focus on the most difficult issue of how the location of the mosque might affect those people who lost loved ones in the 9/11 attacks. Rather, they attacked Islam, suggesting that the Muslim world wants to destroy America, and that the building of the mosque represents part of their plan to do so. It was shameless vilification of an entire culture of faith, shared by more than a billion people, which even President Bush described as a religion of peace. It is not the first incident of hate-mongering that the talk show hosts have engaged in, but it did mark the last time I will tune in to their program (which I only did when I wanted to hear the latest sports news).

In our era of extreme partisan politics, it is refreshing from time to time to see the press correct the extremists. I saw an example this morning that prompted this post. By way of background, last night my wife and I hosted a dinner with a few of our friends whose political affiliations are different from our own. Two of the guests began talking about how Obama has a socialist agenda, the goal of which is to have the government take over private business. I made it clear that I did not agree with such accusations, and pointed out that many people on the left view Obama as a centrist who is too willing to compromise with his political opponents. Sure, Obama envisions a bigger role for government than his immediate predecessor and his opponents, and yes, some of his policies raise legitimate concerns for taxpayers and business interests. But pushing through an agenda of stronger government regulation does not make him a socialist (especially, some would say, now that we've seen what a period of very little regulation hath wrought). Because we are all friends and did not want to let politics get in the way of a pleasant evening, we dropped the discussion.

This morning I felt vindicated when I saw this piece on The Economist's website. It says that, in light of the U.S. Government's decision to sell its interest in General Motors, Obama is owed an apology by those who call him a socialist and contend that he is trying to bring private enterprise under government control. It's not the first time in recent days that the Economist, which can hardly be accused of liberal partisanship, has injected a voice of reason into a heated and ill-motivated debate (the other I have in mind is the debate over the mosque), and I applaud it for doing so. We need more voices in the media and elsewhere who seek to bring truth to light, fairly and without regard to who will be hurt in the process. We have no need of conservative or liberal television, radio and internet personalities who seek to profit by engaging in the sport of ruining people, by deluding the public into believing false information, and by advancing a political agenda built on a foundation of lies. And we as a people need to make a greater effort of separating fact from fiction, and exercising discernment in our political discourse.

August

2010-08-01T08:55:00.000-04:00

August has arrived. If summer is measured as the span of time between the 4th of July and Labor Day holidays, we are, more or less, at the mid-point. It also marks a divide of sorts. August is the month of the legislative recess, both in state legislatures (my home state of Massachusetts being one such state) and in Congress. It is the month when baseball teams still in contention begin their final runs, and the first month when there can be no more "non-waiver" trades. Football teams in training camps soon will begin exhibition play. Colleges and universities prepare for the return of their students to campus. The heat of summer slowly begins its transformation to the cool of fall, summer golfers take their last swings, and vacationers take their final forays to the beach. And new lawyers take a deep breath as they put the bar exam into their rearview mirrors and look ahead to new jobs and the uncertainty of a wobbly job market.

In the past two days I have read reports of major law firms that are increasing the size of next year's summer programs. While that is good news for many students entering their second year of law school, it does nothing to help last year's graduates, this year's graduates, or next year's graduates who are entering the profession at a difficult and probably transformational time. Even the classes who will benefit from more summer jobs will be fewer than before, as the growing summer programs will still be a fraction of the size of programs past. And, as always, there is no guarantee that all, or even most, of the students in the firms' summer programs will be offered jobs that they can start when they graduate.

How changes in the legal profession are affecting new lawyers is an issue that deserves study. It is a complex issue, driven in large part by market forces beyond the profession's control, and calling into question the sustainability of the influx each year of thousands of graduating college students into the nations' law schools. It also is an issue of values, utilization and professional development, as we need to continue to find ways to train and deploy new lawyers on whom our society and our system of justice will in future depend. And, at least to some extent, it is an issue of matching unmet demand with abundant supply. We seem to have more unemployed and underutilized lawyers than at any time in recent memory, while at the same time the unmet need for legal services for the poor and middle class is dramatically on the rise. This disconnect between demand and supply is made all the greater as our legal services agencies face budget cuts and revenue shortfalls that have forced them to lay off significant numbers of their own lawyers. (I haven't even begun to touch on the funding crisis in the courts, which further exacerbates the problems of access to justice.)

Whether these issues are structural or merely cyclical has yet to be seen. What can safely be said is that the experience of new lawyers today is far different from what it was 30, 20 or even 5 years ago. While a great deal of attention has rightfully been placed on new ways of providing and pricing legal services to corporate clients, and that area deserves continued focus, we also need to look at how the changes in our business and professional models are affecting the opportunities and development of new lawyers. There needs to be a conversation among lawyers in law firms, corporations, law schools and legal services organizations to better understand the problems and to see if they have solutions that reach deeper than simply waiting for an economic turnaround. In a very real sense, the future of our profession, and of our legal system, may depend on it.

The End of an Era

2010-07-22T08:02:00.000-04:00

Massachusetts Chief Justice Margaret Marshall's unexpected announcement yesterday that she will retire within the next three months, four years earlier than state law requires, stunned many of us in the legal community. For many years, the Chief Justice has worked steadfastly as a devoted public servant and as the chief executive officer of the state's judicial branch. Although the public knows her primarily for some of her high profile and controversial decisions, behind the scenes she has been a strong, good-willed and effective manager, laboring tirelessly to improve the delivery of justice and the accessibility of our courts to the sea of humanity that walks through their doors on a daily basis. When I have time, I hope to post a lengthier blog in tribute to the tremendous work the Chief Justice has done over the years. For now, though, here is a link to a rare television interview she gave to New England Cable News after her announcement yesterday, and here is a link to today's article in the Boston Globe. While Massachusetts has many highly qualified judges and lawyers who can occupy the seat that Chief Justice Marshall will be vacating, her departure will leave a void in leadership that will not easily be filled.

Class Actions Make Strange Bedfellows

2010-07-20T22:25:00.038-04:00

I have often said that class actions make strange bedfellows. I had my first personal experience of this phenomenon 11 years ago, when I appeared at a six-day, evidentiary fairness hearing involving a proposed limited fund class settlement (months before the Supreme Court decided Ortiz v. Fibreboard). I was there on behalf of a group of defendants to present objections to the settlement that would have allowed a co-defendant to avoid any third-party contribution claims. One group of plaintiffs' lawyers also objected to the settlement negotiated by a different plaintiff group, and led the charge throughout the hearings. Although I cross-examined one witness, I mostly watched the evidence come in and saved my piece for closing argument. The hearing had not gone very well for either group of plaintiffs, but it seemed likely that the judge would approve the settlement that was being proposed. After the evidence was in, the court heard oral argument, and I argued last. My clients happened to have a very strong case for opposing the settlement, and my argument went well. When I was done, the court adjourned, and I stepped out of the courtroom into the corridor, only to be greeted by some jubilant, back-slapping lawyers from the plaintiff objector group. They pulled me into their circle as if I had just hit the game winning home run for their baseball team, smiling, shaking my hand, and thanking me profusely. I thought I had stepped into another dimension, or was having a bizarre dream, but I enjoyed the moment and accepted the accolades from my new friends, and ultimately the settlement that we all had objected to was disapproved.

I was reminded of the "strange bedfellows" paradigm today when I re-read the Supreme Court's March 31st decision in Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co. In that case, a five-justice majority held that a claim under New York state law that could not be brought as a class action in a New York state court could be maintained as a class action in federal court. Justice Scalia, who authored the majority opinion, found that New York's class action statute, which precludes the maintenance of a class action for statutory penalties, conflicts with the requirements of Federal Rule of Civil Procedure 23 for the maintenance of a class action, and that the federal procedural rule trumps the state law. Justice Ginsburg authored a dissenting opinion joined by three other Justices, in which she concluded that the federal rule does not conflict with the state law because the two provisions address different issues. Citing the legislative history for the state enactment, Justice Ginsburg found that the New York legislature's intent in enacting the limitation on class actions was to avoid severely magnifying defendants' exposure and creating a risk of annihilating damages in cases in which penalties had been established for individual claims. Justice Scalia was not convinced by the legislative history, and concluded, in any event, that the text of the statute controls. Justice Ginsburg also pointed out the irony that the case was in federal court, and was therefore able to proceed as a class action under the majority's ruling, only because of the expansion of diversity jurisdiction under the Class Action Fairness Act, an Act that Congress intended "to check what it considered to be the overreadiness of some state courts to certify class actions."

Now here is where the "strange bedfellows" part comes in. The two parts of Justice Scalia's opinion that became the decision of the Court were joined by Chief Justice Roberts and Justices Stevens, Thomas and Sotomayor. (Justice Stevens also authored a separate concurring opinion.) Justice Ginsburg's dissent was joined by Justices Kennedy, Breyer and Alito. This is not your ordinary Supreme Court split, as Justices Stevens and Sotomayor lined up with three conservative Justices, and Justice Alito lined up with two liberal Justices and Justice Kennedy. In addition, three conservatives voted against the enforcement of a state law and for the maintenance of a class action, and three liberals voted to enforce the state law and against the maintenance of a class action.

This is just one of many reasons I love what I do as a class action defense lawyer. Just when I think I've seen it all, something new happens to amaze. The last chapter on this issue might not be written, as the make-up of the Court is about to change, but for now Shady Grove stands as further evidence of the shifting alliances that can form in the wonderful world of class actions.

The Price of Excellence

2010-07-11T09:12:00.000-04:00

Complex litigation is not what it used to be. There was a time when it consisted mostly of working with rooms filled with file cabinets which in turn were filled with paper documents, marking our places with paper clips before post-its were invented, using hard cover reporters to conduct legal research, and drafting briefs and preparing witness examinations with legal pads, pen and ink. We were hired because of reputations for excellence, and cost was at best a secondary consideration. Not only were we paid for all of our time and expenses, without discounts, but if we got a great result in a particularly important case, we might even get a premium above our hourly rates. While the hours were long, those of us who strive for excellence were in perfect heaven.

How things have changed. The raw materials of litigation are now electronic and data-driven. Teams of contract attorneys or paralegals are hired to pour over thousands upon thousands of emails and other electronic documents looking for relevant information and screening for privilege. There is more to review because more is generated in this information age. Pleadings, correspondence and key documents reside now on hard drives and intranets, available to the attorney at the touch of a few key strokes. We write and communicate with each other on our computers. And cost is always an object. The lead attorneys on a case spend a much greater proportion of their time estimating the cost of the various tasks of litigation, justifying each task, reviewing budgetary progress and, in some cases, trying to understand and explain to clients why the actual time and expense incurred has exceeded the estimate. Those of us in charge of a case are as much business managers now as we are lawyers.

I find no joy, and much annoyance, in these administrative efforts. In the course of working to win a case for a client, managing a litigation budget is at best a necessary evil and an unwelcome distraction. I go through the process because I must, and because I recognize that my competitive concept of winning (e.g., winning a trial or appeal, prevailing on a dispositive motion) is and must be secondary to the client's business objectives (i.e., obtaining a result, through litigation or settlement, that has substantially more business value than the legal expense and internal resources incurred in obtaining it).

The most overall satisfaction I obtain as a litigator is, of course, in helping clients achieve their goals. But I derive the most day-to-day enjoyment from the job well done - the expert deposition where I was better prepared than the opposing expert, the hearing in which I had command of the facts and the law and was able to make a better reasoned presentation to the judge than my opponent. The quality of the effort - whether it is the written brief, the cross-examination, or the oral argument - sometimes matters more to me than being paid for achieving it. I'm the same way when I write a blog post (though I spend much less time on it than on my real work), and I can see in myself the compulsion to quality that my father had in his very different line of work (and that my daughter also seems to have inherited). But I also care about my reputation. When I appear in court, my primary goal is to do an excellent job for my client, but I also recognize other audiences - the judge, the other lawyers in the courtroom, even the opposing side - whom I want to perceive me as a lawyer with high standards, who can be counted on to make a strong presentation based on good reasoning, honesty and diligent preparation (all of which redounds to the benefit of the client I am representing in that case and other clients I will be representing in other matters). Although I recognize these qualities in myself, I do not pretend that they are unique or even unusual; most of the litigators I have had the privilege of working with, and many whom I have litigated against, have the same compulsion for excellence. The lawyer's goal of performing at a high level of quality is a very real and relatively common trait that tends to get lost in the legal industry's focus on more quantifiable concepts like profits per partner.

The question for all of us similarly motivated attorneys is how do we reconcile our passion for producing consistently excellent work with the client's business objectives of balancing value received with value spent? I once thought that in most large and complex cases, this would not be an issue - the value of winning would so obviously and significantly exceed the cost of doing so that clients would understand the reasonableness of unleashing the attorneys to do their best work. While this remains true in some bet the company, high stakes cases, it is the increasingly rare exception, and never the rule. Yes, clients tend to hire the lawyers who are the best and most experienced in the type of litigation that they face. And yes, clients expect and deserve the best work from those lawyers. The good lawyer's drive to excellence, and the client's business objectives, are always to a great extent aligned. But they are not perfectly aligned, and lawyers and clients must continuously search for ways to improve the alignment between their sometimes conflicting interests. (I have not included here the very important interest of lawyers in law firms for monetary gain, which clients often perceive as the principal driver in lawyers' efforts. While for many attorneys and law firms profits can, unfortunately, be more important than the drive for excellence, this article is meant to address a different issue, one that may be more real than recognized.)

There is no simple solution to this problem, and I do not claim to have solved it, but a few thoughts come to mind as I continue to wrestle with it. First, the problem can only be addressed by altering the traditional way that clients pay for legal services. As long as lawyers bill by the hour, there will be tension in finding the optimal level of work to satisfy the client's need for value while also allowing lawyers to do their jobs well. Alternative billing and thoughtful project management will be key. Second, lawyers can't find this balance themselves. We need to rely on trained professionals to assist us in pricing and managing projects, and who can free us from the administrative tasks that detract from our ability to do the work the clients have hired us to do. Third, short-term profits must take a back seat to long-term investments of time and resources in our law practices meant to enhance quality and affordability. And finally, lawyers need to be thinking and talking about these issues, and not hiding their heads in the sand, hoping the problem will go away and wondering why their business is dropping off. As one author might say, the cheese has moved (or, perhaps more accurately, is moving), and we must now move to find it.

After the 4th

2010-07-05T09:27:00.000-04:00

If anyone out there hasn't seen the film "The Graduate" and still intends to (is that even possible?), I am giving you a spoiler alert, so stop reading. For the rest of you, please read on.

At the end of the film, Dustin Hoffman's and Katharine Ross's characters triumphantly run away from the wedding her parents had planned for her to a man she did not love, only to end up on a bus with the most uncertain, dazed and confused looks on their faces. To my mind, the change in their expressions as the bus pulls away has always connoted the growing realization that, while they may have struck a blow for their independence from the overbearing generation that came before them, they had no idea where they were going to go, what they were going to do, or why they were going to do it. You could almost read their thoughts: "Oh my God, what have I done, and what in the world am I going to do now?" (Forgive me reader for that clumsy prose. I need to work on my interior monologues.)

As I sit in the quiet of my home on a warm and sunny 5th of July, enjoying peace, security, and the freedom of expression, I wonder whether any of the Founding Fathers had the same thought. Now that the historical record has been written, we know that their great gamble was not only a success, but one of the most significant successes in human history. (I dislike hyperbole, but I don't think that last sentence is hyperbolic.) At the time, though, victory was far from assured, and they could not know how their rebellion would end. Britain could well have come out victorious, and the Declaration's signers could well have been hanged separately. It's not hard to imagine that some of the signers experienced a similar, overwhelming sense of an uncertain future that seemed to cloud the visages of the characters in The Graduate's final moments. "Oh my God, what have we done, and what in the world are we going to do now?"

What they did was nothing less than found a nation. What they wrote was one of the most powerful statements of the natural right to human liberty ever conceived. What they would do was secure the new nation's independence, and invent a constitutional form of government the likes of which the world had never known, and which would remain a beacon of liberty to the world for centuries to come.

Their work was not perfect, and with regard to the abomination of slavery, was horribly flawed. But the words of the Declaration, and the structure of the Constitution, would lay the groundwork for the abolition of slavery nearly nine decades later, for the passage of the Civil Rights Act a century after that, and for the continued, if non-linear, evolution of a society that is more and more free for more and more people. The progress from 1776 to the 1860s to the 1960s and beyond has been shamefully and inexcusably slow, but it has been progress nonetheless, and it all began on the 4th of July.

So, how best to honor and continue the work of our nation's founders? How about this for starters: By never taking our freedom for granted; by never letting down our guard in the preservation of liberty for all of our people; by working tirelessly to make this a freer and more just society; and by supporting the causes of human rights and human liberty for the citizens of all nations, not just our own. I have been privileged to know and work with amazing men and women in my profession who have devoted countless hours of their own time volunteering to support the many causes of liberty - from those who have given pro bono representation to Guantanamo detainees, to those who represent the poor in eviction proceedings in the Boston Housing Court, to those who file amicus briefs in support of First Amendment principles, to those who are finding ways to ensure that our military personnel and veterans and their families have access to the legal services that they uniquely need and deserve. These shining examples of public service represent a large number of men and women in our country who press on in the vital cause of individual liberty enshrined in our founding documents. Now that the fireworks are over, I want to thank them for doing their part to make America the great nation that it is, not only for what they have accomplished, but for what they will accomplish, and for the next generation of leaders whom they will inspire to carry on the work that lies ahead.

Of Challenge and Opportunity

2010-06-26T08:01:00.000-04:00

For years, lawyers and clients talked about alternatives to traditional hourly billing arrangements, yet little changed. The financial crisis increased pressure on corporate legal departments to reduce the legal spend, and has led some of them to push for new ways of pricing legal services. The mantra for this new mindset is "value," and the platform for many "value" adherents is the Association of Corporate Counsel. The goal of the ACC Value Challenge is to better align the interests of lawyer and client, and better ensure that each partner to the lawyer-client relationship is sharing both in the benefit and in the risks of their work together. Some lawyers and law firms are rising to the challenge by restructuring the ways they deliver and price their services, and some are not. Some clients are pressing for new practices, while others are more comfortable with the old way of doing things.

Some outside counsel are fearful of the types of structural changes that are beginning to take hold, while others embrace them. It's hard to know for sure whether the push for new models for legal services is a passing fad or a structural change. It may be that both on the client side and on the lawyer side there will always be a mixed result: some will change their way of doing business, while others will not. What I think all will agree on is that, for now at least, and probably for the foreseeable future, many clients will keep a closer eye on the legal spend, and will expect more information and flexibility from their lawyers and law firms. Those who respond to the need, and who seek solutions for their clients, will thrive, while those who can't get past doing business as usual will find it increasingly difficult to weather economic storms.

Although this is a challenging time, it is also exciting. Seeking better ways to align lawyer and client interests is eminently rational, and indeed is necessary to preserving the trust that is the foundation for the attorney-client relationship. It also may be liberating for law firms and their partners. Once structures, systems, and staff are put in place to ensure the delivery of value, lawyers may find that they have more time to be lawyers. Which, of course, is what they are being paid for in the first place.

Of course, change does not come easy. If not done right, it can have serious collateral consequences, not the least of which may fall on the newest members of our profession. The challenges facing the new generation of lawyers will be the subject of future posts.

Of Lawyers, Money and Happiness

2010-06-13T14:48:00.000-04:00

It is quite an event when the person responsible for our nation's, and much of the world's, money supply tells us that money isn't everything. Ben Bernanke did just that in his commencement address on May 8th to the University of South Carolina class of 2010. How does such a speech go so unnoticed?

The idea that money can't buy happiness is not new, of course. As a die-hard Beatles fan in my formative years, I memorized the lyrics to "Can't Buy Me Love" (and just about every other Beatles song before "I Am the Walrus"). Ironically, Hollywood film makers have made fortunes building movies around this theme. And how many times have we misquoted the Biblical phrase, "money is the root of all evil." The full phrase in English is: "The love of money is the root of all evil," a condemnation of greed, not wealth. Haven't we seen that admonition play out repeatedly in our time, from Milken to Madoff, from organized crime to criminally negligent corporations?

There are many reasons people decide to become lawyers. In the '60s and early '70s, plenty of young people influenced by the anti-war movement and the social revolution went to law school because they wanted to make a difference in the world. Even today, the profession attracts people who want to use their degrees to serve the poor. Most people who choose a legal career are motivated by a desire to make a good living in a challenging, respectable and interesting profession. Some even hope to strike it rich.

All of these goals are more difficult to achieve today. Funding for legal services for the poor has been dramatically reduced by state budget cuts and diminishing IOLTA revenues (interest earned on lawyers' escrow accounts and used to help fund legal service organizations). As a result, there are fewer legal services jobs available. Corporations have smaller legal budgets and are being more careful how they spend them, which has sent seismic jolts in major law firms, resulting in large numbers of layoffs and placing severe strain on lawyers' compensation. While a small percentage of lawyers will still get rich, even the size of this elite group is likely to diminish. Perhaps the greatest challenge facing our profession today is redefining the career path for recent law school graduates who are most vulnerable and most affected by these changes. This latter issue is one I hope to better understand as a soon-to-be Bar President, and that I will likely write about in future posts.

For now, however, the burning question is this: Will all these changes cause lawyers and law firms to re-calibrate their priorities? Much of our profession is captive to the metrics of "The American Lawyer" magazine, which places a great deal of emphasis on revenues per lawyer, profits per partner, and most recently, average compensation for all partners (equity and non-equity combined). Many lawyers measure their own success by where they stand in these rankings. But if Bernanke and the social scientists he relies on are right, while these standards may serve as useful measures of lawyers' economic success, they may bear little correlation to the ultimate goal of personal happiness and career satisfaction. And while it is reasonable for all of us to strive in our careers for financial success and security, we would do well to recognize that there is more to being a lawyer than billing hours and collecting money, and more to achieving happiness than amassing wealth.

Where can we find the non-monetary rewards of life? There is no one-size-fits-all solution; we each have to answer that question for ourselves. Perhaps the most universal answer is to surround ourselves in the love of family and friends, and to make time for the hobbies and pursuits we each enjoy. Beyond that, there is the rewarding experience of serving others in pro bono settings, the camaraderie and important activities of the organized bar and other worthy organizations, and the satisfaction of devoting oneself to the highest standards of excellence in the quality of one's work and the provision of service to one's clients. Such pursuits can truly be liberating, freeing us from the tyranny of the billable hour and the profit-above-all-else mentality, and awakening us to a world of previously unimagined possibility.

Justice Souter and the Constitution

2010-06-08T07:13:00.002-04:00

Thanks to Linda Greenhouse's column in the New York Times, I was alerted to the address Justice Souter delivered at Harvard's commencement. This is a must read that provides as clear a window to the most important issues at stake in our constitutional form of government as any I know.

My Thai Tie

2010-05-23T14:06:00.001-04:00

In my closet hangs a reddish-orange silk tie of excellent quality that subtly bears the logo of The Lawyers Council of Thailand. The tie was presented to me by a delegation of The Lawyers Council in the fall of 2005. I was asked by the American Bar Association to speak to the group about American class action practice, which they were studying to help develop Thailand's own class action rules. I was advised shortly before I made the trip to Washington that it is a Thai custom on such occasions to exchange gifts. I quickly managed to pull together some small gift items from my law firm (a notepad and a baseball cap bearing my firm's name), and received the tie from the head of the Thai delegation after I delivered my remarks.

The ABA had also arranged for the lawyers to get a tour of the Supreme Court and a meeting with the Clerk of the Court. They invited me to join them, which I gladly did. Although I was already admitted to the Supreme Court bar, this was my first actual visit to the Court, and it was a privilege to participate in the VIP treatment the ABA and the Court extended to the Thai lawyers. The meeting with the Clerk took place in a reception hall in the Court building, and the Clerk spoke to us about some of the history of the Court, explaining some of the unique attributes of American jurisprudence to the foreign delegation. I left that day feeling fortunate to have witnessed a meaningful cultural exchange with persons responsible for helping to shape the law in their own country half a world away.

I was startled then, a few months later, to learn of the coup that had overthrown the prime minister of Thailand. I frankly didn't know what to make of the situation; did a military dictatorship usurp the office of a democratically elected leader, or did the military rescue the country from a leader who through fraud and corruption had stolen the election? I am embarrassed to admit that, because I did not reach out to the lawyers I had met to learn more about the situation, I still don't know the answer to that question.

In recent weeks, our headlines have been filled with reports of the violence in Thailand as the military has, for now at least, managed to put down a civilian uprising. The recent news has caused me to reflect on the significance of the lawyers' visit to this country five years ago. They caught a glimpse, although no doubt a fleeting one, of our system of laws, which at least since the American Civil War has managed to keep our nation together without any threat of a military dictatorship and without any realistic threat of a populist revolt. Of course, we have had our share of violent protests, and of violent reaction to peaceful protest, and came frighteningly close to a constitutional crisis during the Watergate fiasco. And we have had more than our share of national tragedy through political assassinations, as well as political controversy over the legitimacy of the results of some of our elections. But through it all, our constitution and laws have guided us through peaceful transitions of power that have pretty well reflected the will of a majority of our citizenry, while protecting the rights of the minority with fair, though far from perfect, success.

The political unrest in Thailand has reminded me of the graciousness and earnestness of the lawyers I met in Washington, and I hope to reconnect with them to learn more about what is happening in their country, particularly as it pertains to the rule of law. Perhaps their legal system has remained intact through their political travails, and perhaps it functions as well as ours in resolving disputes, protecting rights and liberties, and promoting the rule of law. For now, at least, I plan to wear the tie again as a reminder of an enjoyable day with respected guests, and in gratitude for the good fortune of living in a stable country where our leaders are elected to office peaceably, without military intervention.

Teaism 2

2010-05-12T00:13:00.000-04:00

I swore I'd stop writing so many politically charged posts, and then I read this column by Michael Kinsley in The Atlantic Monthly. Since it touched so closely on the theme of my last post, I thought I had to share it. Now, I hope, I will move back to law-related topics and away from politics. At least, that's the goal.

Teaism

2010-05-10T20:22:00.005-04:00

I have been reading about the Tea Party Movement, and trying to understand the principles of the extreme right. The problem is, I find it difficult to identify any unifying principles underlying extreme right-wing positions. They say they oppose big government spending, yet they have supported the largest buildup in military spending in our history, a buildup that is responsible more than any bank bailouts for record national debt. They want the government not to interfere with their lives, yet they support anti-libertarian legislation like the Arizona immigration law. They want the federal courts to enforce their right to bear arms, but they want the same courts to deny a woman's right not to bear children. They say they are pro-life, but support the death penalty. They complain that our judiciary is anti-majoritarian, yet seek to impose a minority agenda on national policy.

I am not criticizing all of these positions, and indeed I respect several of them. But I suspect that the contradictions in the so-called conservative philosophies of today's right-wing movements reveal that these movements are not conservative at all. That is, they do not rely on any coherent theory of the role of government, but are based instead on a laundry list of objectives they want government to serve. When the objectives are best served by a strong central government, they promote it, and when they are best served by weak government, they promote that.

One of the problems with this unprincipled approach is that more mainstream conservatives who recognize it find it difficult to support. The more vocal these extremist movements become, the more difficult the choice presented to Republican politicians. They either must go along with the vocal minority, thereby risking alienation of more centrist swing voters, or choose not to go along, thereby losing much of their "conservative" base. Witness John McCain, who proclaimed himself a maverick when he thought it would help him win a national election, and now says he never was a maverick when his Senate seat is challenged by persons further to his right.

The Tea Party Movement and other right-wing initiatives are succeeding in moving the Republican Party further to the right. While doing so may bring about some short-term gains, it likely will diminish the party's effectiveness long-term and relegate it to a fringe that will not be able to attract critical independent voters in national elections. And while all the shouting is going on, no one on the right seems to recognize that our supposedly liberal President is working very hard at governing from the middle, an approach that, in the long run, can only strengthen the Democratic Party. Maybe what we are witnessing is an overall rightward shift in both parties, one that favors the party that, by shifting right, will wind up closer to the middle. And the best long-run strategy for Republican leaders may be to swim against the rising tide before it is too late.

President Obama's University of Michigan Speech

2010-05-02T09:41:00.001-04:00

If you follow my blog, you may suspect (correctly) that I have been too busy to keep it up the way I would like. Sometimes, however, others say all that needs to be said, as is the case with President Obama and the speech he delivered at the University of Michigan commencement ceremonies yesterday. So, rather than bore you with my own feeble attempts to pontificate or entertain, I am posting a link to the President's address, which really says it all. I will make every effort to write again very soon for my readers (who bear a resemblance to the Marines, in that you are not only proud, but also few). P.S. - Please excuse the transcription's misspelling of "genteel." I'm sure the President did not mean it the way it came out.

A Call To Conscience

2010-04-25T10:12:00.000-04:00

To what standard do we hold our elected officials? Is it to hold the party line? To push back on the opposition party at every turn? To travel in packs and never show the slightest sign of breaking ranks? To follow party leaders without any independent thought? To let the public opinion polls decide how they vote on every issue?

Our government has important work to do. It is responsible for trying to solve our biggest problems, like climate change, unemployment, and abuses of the financial system that have led, and could lead again, to economic catastrophe. Whether the solutions favor a hands-off approach or a strong governmental hand through regulation, we send our elected representatives to Washington with the expectation that they will find and implement the solutions that best protect us, the people whom they serve.

In this extreme partisan era, the gap between the vision and the reality should disturb us. It should bother us when Harry Reid puts immigration ahead of a bipartisan climate change bill, allegedly because he sees an opportunity to attract votes in his close race for reelection. It should bother us when Republican Lindsey Graham withdraws his support of the climate change bill that he reportedly has worked on for months with Democratic Senator John Kerry and independent Joe Lieberman, apparently in reaction to Reid's sudden shift. If the reports of these events are accurate, they are just the most recent examples of how politicians shamelessly hold the interests of Americans hostage to their own self-interests and partisan politics.

On the other side of the spectrum are people like Bart Stupak, Democratic Representative from Michigan,who acted on principle in the healthcare debate, drew the ire of his anti-abortion supporters for doing so, and then announced his resignation from Congress. Equally noteworthy is Republican Senator Bob Corker of Tennessee, who reportedly has begun to break ranks from his party in recognition that Senator Dodd's proposed financial reform bill is not a bailout, as Republican propagandists would have us believe. Whatever one believes about the positions these congressmen have taken, they stand out because unlike so much else that takes place in Washington, they appear to be acts of conscience, marked more by the desire to speak the truth and do what is right than by the all-powerful instincts for self-promotion and self-preservation.

It is time to hold our elected officials to this higher standard. We should elect people of conscience, who will consistently place America's interests ahead of their own, and who will exercise considered judgment and work together, collaboratively, towards the betterment of our society and the people who inhabit it. Whether such a standard will lead to decisions characterized as conservative or liberal is beside the point. What matters is that the people who make them make them honestly, intelligently and for the right reasons, and not to advance a personal or collective agenda that subordinates what is right for what is politically expedient.

If voters do not demand more, they will not receive it. It's as simple as that.

The American People

2010-04-11T20:55:00.001-04:00

Today I read yet another account of a politician telling me what the American people want or, in this case, don't want. The "don't want" du jour is a Supreme Court justice who believes that the Constitution is subject to judicial interpretation. A couple of weeks ago, the American people did not want health care reform. Last year, they didn't want a public option. I'm sure if I had time to research the issue, I could come up with a long list of public programs and policies that the American people don't want, and maybe even some that they do want. And this I know, for politicians tell me so.

In fairness, Senator Jeff Sessions of Alabama worded his diatribe about constitutional interpretation, quoted in the Huffington Post, more carefully than I have presented it here. In fact, the exact quote is:

"If we have a nominee that evidences a philosophy of judges know best, that they can amend the Constitution by saying it has evolved, and effectuate agendas, then we're going to have a big fight about that because the American people don't want that," Sessions said.

Put this way, it's hard to disagree. But I don't think anyone who subscribes to the belief that it is the province of the judiciary to interpret the Constitution, embedded in our jurisprudence for more than 200 years (thanks to a little decision rendered by Chief Justice John Marshall in 1803 known as "Marbury v. Madison"), would put it this way. Sessions was demonizing a legitimate philosophy of judicial interpretation by characterizing it in the most extreme and unacceptable terms, and then telling us what few would argue with: that we, or at least most of us, don't want judges who would manipulate the Constitution in order to advance a political agenda.

But more troubling than his assault on mainstream judicial philosophy is Sessions' presumptuousness in speaking for the American people. On what authority does he base his conclusions about what the American people think? And who are these American people for whom he presumes to speak? Are they only members of the political right wing? Do they include both Rush Limbaugh's listeners and Al Franken's supporters? Do they include women? Do they include blacks and hispanics? Do they include Catholics and Jews, Hindus and Muslims? Do they include gays and lesbians? Do they include legal immigrants? Do they include both rich and poor, the powerful and the oppressed, the healthy and the sick, the sheltered and the homeless? Somehow I suspect that Sessions' "America" is smaller and more monolithic than mine, although I am certainly willing to give him the benefit of the doubt. But still, I want to know who these American people are that he is referring to before I'm willing to accept that he knows what they want. And then I want to know how he knows it.

I don't mean to pick only on the Senator from Alabama. He is simply the latest example in a string of examples of politicians from both parties purporting to divine the will of the American people. John Boehner did it with healthcare reform. I even recall cringing recently when either President Obama or Vice President Biden let the phrase "the American people don't want . . . " slip into a television interview. (I'm sorry, I don't recall the specifics, I just remember my disappointment.) What they are really saying is not that the American people want or don't want the thing that is being discussed, whatever it happens to be at the time. What they are saying is "I don't want it, my party doesn't want it, anyone who is right thinking doesn't want it, and anyone who wants it isn't a true American and doesn't count anyway." And even more invidiously, they are saying "you had better agree with me or you are not fit to be counted among your countrymen." (I use the word "countrymen" here as inclusive of women, and because I can't think of a synonym that has the same poetic ring to it.) In the end, the phrase not only misleads the listener, but worse, is offensive and exclusionary.

So here is my plea to our leaders in government and those who would join them. Please don't tell me what "the American people" want or don't want. If you do, you had better be prepared to define your terms, and to back up your statement with evidence.

Wouldn't it be nice if the media started challenging politicians who so cavalierly throw this phrase around, and began holding them to this higher standard?

On Uncivil Discourse

2010-03-27T17:03:00.005-04:00

The level of uncivility in the political rhetoric today is reaching frightening proportions. Today's Boston Globe includes a timely column by Derrick Jackson, urging Republicans "to find someone with courage to disarm the rhetoric, before someone reloads for real." Peggy Noonan writes in an excellent column in today's Wall Street Journal that leaders of both parties need to get everyone to "lower the temperature," before something bad happens. They are both right.

As an experienced litigator, I know how difficult it can be to rein in uncivility once it takes hold. We fight hard both in and out of court because we believe in our clients' causes and want to win. All too often, vigorous advocacy crosses the line and becomes personal attack. Bar associations have adopted aspirational codes of civility to help prevent inappropriate behavior between opposing counsel. In one of my cases a few years ago, a Magistrate Judge admonished counsel to "rise above" the strong feelings on each side that had resulted in occasional outbursts and fits of rage. (He held those more senior lawyers among us out to the younger team members as examples of lawyers who did not engage in uncivil conduct because years of experience had "beaten [us] down," a characterization I didn't like but have not forgotten.)

In litigation, uncivility among counsel disserves their clients' interests. While some clients want to know that their lawyers are vigorously championing their causes, savvy clients know that it only wastes time, costs them money, and makes their cases more difficult to manage. I recently had the opportunity to serve as Special Master in a hotly contested business litigation matter. My job was to serve in the role of a judge on a number of pretrial disputes concerning the discovery process. The counsel on the case were excellent lawyers, hard working, highly skilled, very smart, and worthy advocates. Occasionally, however, a counsel's argument during a hearing would become overly heated and ad hominem, and I would have to "lower the temperature," to use Noonan's phrase. Serving as Special Master allowed me to see things from a judge's perspective, and it couldn't have been clearer that a lawyer who crosses that line between zealous advocacy and personal attack loses credibility. The louder an argument becomes, the less effective it is.

The same can be true in the realm of politics. Patrick Kennedy's recent tirade about the absence of the press from hearings about America's involvement in foreign wars exemplifies the ineffectiveness of emotional debate. Shouts across the aisle may rally troops on either extreme, but they hardly promote good government, and only obscure the real truths behind pending legislation or national policy. The "great silent majority" conjured up by Richard Nixon to support his presidential policies may have been a creature of his self-serving imagination, but who doesn't believe today that there is a vast political center, and that it is disaffected by the rants and raves of fringe elements in either party? At a time when the issues our nation faces are both serious and complex, what we need is rational debate, not childish name calling. But in too many circles, the emotions just get hotter, and the rhetoric fans the flames of possible violence and unrest.

We say that we are one nation, indivisible. All of us - left, right and center - need to recognize that national unity, indeed nationhood itself, is a greater priority than any single issue or group of issues on which the political parties or some elements within them may disagree, no matter how strong and sincerely held those disagreements are. We need to solve our problems in a bipartisan way, calmly, logically, democratically, and civilly, and put aside the rhetoric, ignorance and anger that serves only to divide our country and cloud our judgment. We need to "rise above" the unseemly threats and calls to action, and understand that in a democracy, we ordinarily have to accept the rule of the majority when we find ourselves on the other side.

Jackson and Noonan are right. Our political leaders must stop adding to the problem, and begin calming people down. Now. There is no time to lose.

The Ghost of Joe McCarthy

2010-03-14T22:40:00.004-04:00

Much has already been written, mostly disapprovingly, about a group calling itself “Keep America Safe,” that has demanded the identification of Department of Justice lawyers who once represented Guantanamo detainees. By calling these lawyers “the Al-Qaeda 7,” this group has not very subtly implied that they are traitors in our midst. And, by demanding that the lawyers be outed, this right-wing group would appear bent on damaging, if not destroying, the lawyers’ careers.

Almost 50 years ago, an extremist Senator from Wisconsin sought to advance his own interests by inflicting similar harm on the career of a young Boston lawyer who had traveled to Washington with the Boston legal team retained to represent the Army, headed by legendary attorney Joseph Welch. The young lawyer, Fred Fisher, whom I was privileged to know much later in his career, had been a member of the National Lawyers’ Guild while a student at Harvard Law School. Although Fisher was a good young man with a promising legal career, every bit the capitalist and a patriot, Welch understood that his brief membership in the Guild made him vulnerable to attack as a communist symphathizer, and immediately sent him back to Boston for his own sake and for the sake of the battle that lay ahead.

After some days or weeks of televised Congressional hearings, McCarthy sought to strike back at Welch, who had been scoring points against McCarthy, by accusing Welch of having a communist symphathizer on his team. Welch famously retorted: “Until this moment, Senator, I think I have never really gauged your cruelty or your recklessness.” He embarked on a sterling defense of the young Fisher, and the tide of public opinion turned against McCarthy. Ultimately, the nation saw McCarthy for what he was: a shameless and misguided ideologue who would ruin the lives of as many good people as it took to satisfy his own boundless and relentless ambition.

Now, well into a new century, McCarthy has a natural heir. Keep America Safe hopes to do to these good lawyers what McCarthy tried to do to Fisher and managed to do to countless innocent people during the heyday of the Red Scare of the late 1940s and early 1950s. The lawyers I know who represented Guantanamo detainees did so at great personal sacrifice. They are lawyers in large private law firms who devoted countless pro bono hours to the representation, with the support of their law firms (including the same firm Joe Welch belonged to and where I began my legal career) and with the respect and admiration of their peers in the legal community. They do not sympathize with terrorists any more than Fred Fisher sympathized with communists. To the contrary, they are patriots in the best sense, citizens who, unlike our nation's enemies, believe in the rule of law and constitutional government. They believe that no person should be incarcerated indefinitely without legal representation and an opportunity to confront the evidence against him. They have worked tirelessly to preserve the free society that radical extremists hope to destroy.

These lawyers, far from being enemies of the American people, are the guardians of our liberties. They embody the principle so aptly dramatized in Robert Bolt’s play “A Man For All Seasons," in which Sir Thomas More explains to his impetuous future son-in-law, Roper, that once a group sanctions the breaking of laws to serve what it views to be an overarching principle, there is nothing to prevent the breaking down of the entire system of laws that protect us all from rank despotism. As someone who works with many good lawyers from every segment of the legal community, I can say with confidence that these men and women represent the best among us. We should all sleep better at night knowing that they, and others like them, have been and remain vigilant in the securing of the liberty that the framers of our Constitution sought to secure as our heritage. I know I do.

Government in the Balance

2010-02-21T16:57:00.002-05:00

The big question family and friends ask when you decide to become a lawyer (at least, it was when I started on this journey) is whether you could represent someone you know to be guilty. A related question many law students face (or did when I was in school) is whether they want to work in big law firms and represent corporations (guilty or not). These questions, of course, are naively simplistic, and at some point early in one's career, one learns that there is much more complexity, and many more public and private interests at stake, than the questions suggest. One's answers to the questions evolve over time, adding layers of nuance that take into account some of this complexity as it becomes appreciated through experience.

One of the early versions of my answer I learned from my law school professors. It had to with the adversarial system of justice. The concept is that every citizen is entitled to representation. Moreover, ours is a system of truth-seeking and conflict resolution that depends on the battle between adversaries. The attorney for each is duty-bound to represent his or her client vigorously, presenting the client's affirmative case and the rebuttal to the opponent's' case as strongly as possible within the constraints of the law and legal ethics. From the thrust and parry of dueling counsel, truth, or at least some acceptable approximation of it, will prevail. And this adversarial conflict, bound as it is by strict rules and overseen by a power-wielding authority figure (i.e., a judge), substitutes for the lawless and potentially violent means of resolving differences that would prevail if our judicial system did not exist. I still believe in this system as the best means of resolving disputes; and, indeed, it is the source of my livelihood.

It would be a mistake to think that the adversarial system that works so well in our courts can work equally well in other branches of government. And yet lately it seems we are witnessing a resurgence of adversarial posturing in Congress. The adversaries, of course, are the representatives and senators of the two political parties. They seem at times, and especially now, much less interested in governing than they are in fighting, much less willing to compromise than to win at all costs. It is as if they were elected to represent their political parties rather than the American people. The news publications and talk shows are awash with concern about the extreme partisanship that has overcome the business of making laws to protect the American people and promote the public good. It is the reason Evan Bayh gave for not running for re-election, as so well articulated in an op-ed piece he published in today's New York Times.

Congress always has been, always will be, and always should be a forum for vigorous debate. But that debate must serve the greater interest of good government, not the unseemly goal of advancing a political agenda. In the courtroom, there is a judge to enforce the rules of conduct, and both a judge and jury to decide the outcome of a case. The only judge and jury in Congress is the judge and jury of public opinion, ultimately expressed each election day in the voting booth. Those of us who find partisan bickering abhorrent need to let our voices be heard, and send a message to those in Congress that it is time they work together, collaboratively if not always in agreement, to solve the grave problems we face as a nation. And that those elected representatives who will not reach across the aisle and get to work on an agenda for all Americans need not reapply when their terms expire.

Professional Jealousy

2010-02-13T08:59:00.007-05:00

I've often wondered what inspired Van Morrison to write the song, "Professional Jealousy." Had he encountered another musician who was jealous of his talents? Was he envious of someone else? The latter is hard to imagine. I consider Van Morrison to be one of the most talented musicians in rock, have many of his albums, have been blown away by his powerful voice in concert, and developed my first rule of radio listening several decades ago because of him: "Thou shalt not change the station when they're playing a Van Morrison song." I still think "Hard Nose the Highway" is one of the most underrated albums of all time.

Unfortunately, professional jealousy is a real, and very destructive, force in law firm practice. We work in a highly competitive profession. We compete with hundreds and even thousands of lawyers in other law firms. We also, all too often, compete with our colleagues in our own firms. We succeed or fail by the extent to which we stay busy and, at the partner level, generate business. Many of us want to be the first person called upon to handle the new case that is brought in, and want to be the leader of the team in the eyes of the client. With all the pressures to stay ahead of the pack, some of us succumb to jealous outbursts or defensive mechanisms when one of our colleagues gets more attention or becomes more important to a particular matter. During the course of my career at different law firms, I have seen partners physically push themselves in front of me when dropping into clients' offices to make it clear that they are the top dog; limit my role in their clients' cases, or limit my contact with their clients, when I was doing a better job or receiving more attention than they were; and become downright nasty to me after learning that a client wanted me to take the lead in a case and have them play a more limited role. (I did not ask to be positioned ahead of my colleagues in these situations, and much prefer to work with my colleagues as equally important members of a team dedicated to achieving the client's goals).

I learned long ago not to say or do things to provoke the jealousy of my peers. When I was a second year law student, interviewing for summer jobs with law firms, the offers seemed easy to come by, probably because I was fortunate enough to squeak onto Law Review. One of my classmates overheard me talking with a friend about the early success we both were experiencing, and he lashed out because his experience was quite different. I felt terrible, and from that moment have tried to be more circumspect when talking with others about my occasional successes. (I should add that I have had my share of setbacks in my career, and am constantly in the company of lawyers whose talents and accomplishments I very much admire.)

Lawyers who aspire to serving their clients well need to eschew professional jealousy and other forms of egocentric behavior. There is nothing to be gained by it, and much to lose. Law firms must work hard to promote cultures of collaboration, and to control competition among their lawyers.

It is not easy. We are competitive by nature, and we work in a competitive society and in hierarchical organizations that reward relative success. Indeed, internal competition, to a degree, can make us better. (I think of the way Lennon and McCartney wrote better and better songs by continuously trying to outdo one another.) There is a place for competition within a law firm, and it can help us all to be more successful. But when the positive results of competition transform into the destructive forces of jealousy and self-promotion, we harm our law firms, hurt each other, make ourselves unhappy, and perform a disservice to our clients. As Van says, "The only requirement is to know what is needed/In doing the best you know how, deliver on time." Lawyers who understand this philosophy, and put it into practice, have a far better chance of attaining success and personal satisfaction in their professional lives than those who allow self-concern overwhelm their service mentality.

The Modern Art of Lawyering

2010-02-02T21:28:00.006-05:00

When I moved to Boston to begin a judicial clerkship, Jimmy Carter was still President. A little over a year later, when I entered private practice, Reagan defeated Carter's bid for reelection, and the world seemed destined to change. As a law clerk, I got to watch some great lawyers try cases. As a young lawyer in private practice, I was privileged to learn from some of the titans of the Boston bar. Back then, it was all about the lawyering. The billing seemed incidental, at least to a young lawyer like me, and clients were only beginning to expect to receive more information about their legal expenses than the one-line bills that began and ended: "For legal services rendered . . . ."

Today a good lawyer is expected to be a good manager as well. Not only must we possess superlative skills in the courtroom, but we must know how to staff a case, how to prepare a budget estimate, and how to make sure that the actual cost is more or less in line with the budgeted expense. The skills required for these tasks are increasingly refined, to the point where the lawyer who does not pay close attention to the metrics of the practice risks alienating her clients. Some lawyers study the disciplines devoted to such practices, such as "lean six sigma," while others of us just apply common sense and basic spreadsheet skills in an effort to meet our clients' expectations. And some make no focused effort at all.

The point is, it is not enough just to be a good lawyer any more, or even to attempt to be a good manager, without close attention to every element of the cost (or, perhaps more accurately, the price) of the services being billed to the client. It's not just about discounting hourly rates, but has more to do with how a team is assembled, how tasks are assigned to the team members, how duplication of effort is avoided, and how the legal expense is being monitored.

It's also about communication. At the most basic level, lawyers are duty-bound to communicate with their clients. (I once heard a law student ask a lawyer who had been criticized for not communicating a settlement offer to his clients how he could explain this apparent lapse. He responded that his clients were always foremost in his mind. Unless he was telepathic, this answer was entirely unsatisfactory.) At a more pragmatic level, the attorney-client relationship, like any relationship, is built on trust, and trust depends on honest communication.

The practice of law in today's complex world, then, is multi-disciplinary. It requires developing sound legal skills, effective management skills, and strong interpersonal skills. Only the first of these sets of skills is taught in law school. Lawyers must continuously challenge themselves to master the others.

The Drive to Quality

2010-01-09T09:01:00.001-05:00

My father was expert at things mechanical. He could build a road, fix a car, maintain a house, and do them all well. He had a reputation in his field for high quality work, because he had high standards and a great work ethic. He would never dream of cutting corners or performing a second rate job. And if he encountered unexpected difficulties in a project, he would keep at it until it was done right, no matter how long it took.

My father owned his own business. He was paid not by the hour, but by the job. He paid his employees by the hour, and the more time he and his workers put into a project, the less he made. Within the constraints of the deadlines for delivering a finished product, he always, always, made sure that enough time was put into a project to do the job right.

Clients of large law firms expect and deserve the same attention to quality that drove people like my father. A lawyer delivers quality when the lawyer returns a client's phone calls and emails promptly, listens to and tries to address the client's concerns and achieve the client's objectives, takes care in thinking through and understanding the legal, business and sometimes personal issues pertinent to the matter at hand, develops effective and often creative ways to solve a client's problems, ensures that all lawyers and staff working on a matter perform at a high level, and does all of this within the constraints of the time table and budgetary concerns imposed by the client or by the exigencies of the case.

The best lawyers understand and are motivated by this attention to quality. Many lawyers, however, are not. As with any other business where large sums of money are at stake, lawyers often are tempted to compromise quality for profit. Some lawyers care more about their current year billings and collections than they do about building a reputation for excellence and cost-effective delivery of legal services. Some are more interested in self-promotion than in advancing their clients' goals. And some lawyers simply lack whatever internal fire it is that drives the best to push themselves and their colleagues to the highest levels.

In a good economy, it is easy for lawyers to become complacent, though complacency is never acceptable. In a bad economy, complacency is folly. Every lawyer who wants to succeed in this profession should resolve not so much to bill a lot of hours for the sake of the law firm's short term profitability, but to demand of themselves and of those who work for them the excellence that achieves results and builds long term relationships and reputations.

Perspective and The Year Ahead

2010-01-02T09:05:00.004-05:00

At the end of 2009, I took my family on a quick trip to New York City, in large measure to celebrate my daughter's birthday and treat her to a broadway show. We packed a lot into a two-day trip, including a visit to the International Center of Photography and a tour of the United Nations. The ICP included a photographic exhibit of people in different walks of life in Shanghai, as well as a fascinating video montage (four simultaneous projections on four walls of a room) of life in Mumbai. What was striking about these and other exhibits was the abject poverty of some of the subjects, many of whom seemed to go about their daily routines unfazed by the difficulties they faced, often surrounded by family or friends. While it is impossible to truly know what the people in the pictures were like, or to fully appreciate their circumstances, the exhibits were a reminder that what is "normal" is relative, and of the endurance and triumph of the human spirit in the most challenging of settings.

The UN tour, although less artistic, was just as eye-opening. The tour emphasizes the UN's work on such important issues as sheltering political refugees, combatting malaria and eliminating land mines. I found the desperate circumstances of the refugees particularly moving and disturbing, and was grateful that there are organizations devoted to caring for the world's outcasts. I came away wanting to learn more about the UN and the efficacy of its programs to feed and shelter the poor, to educate children, and to protect the vulnerable.

We all have opportunities to better the lives of those less fortunate than ourselves. My opportunities in the immediate future will primarily involve working with an excellent volunteer organization of lawyers in Boston whose mission includes access to justice and outreach to the community. While much of my time and energy is devoted to servicing clients and providing for my family, I also look forward to making 2010 a year of continuing to support organizations that make a difference in the lives of others. From working with hundreds of professionals who volunteer their time to such organizations, as well as many dedicated staff members, I have learned that there is no shortage of good people who want to make the world a better place, and who are prepared to devote their own time, resources and talents to doing so. I am blessed to have the opportunity of continuing to work with them in the year ahead.

Basketball Lessons

2009-12-26T15:12:00.003-05:00

When I moved to Boston after graduating law school in 1979, I knew very little about basketball. For me, at the time, the only sport worth watching was baseball, and I quickly became a fan of the Boston Red Sox. It wasn't long, however, before I started to take notice of the Bird-era Celtics teams. My first real exposure to the Celtics came in June of 1981. I worked near City Hall Plaza, and decided to wander out to see the Celtics Championship celebration on the steps of City Hall. The Plaza was packed with fans going wild as the Celtics players arrived at City Hall. One of the fans held a placard commenting on the dietary habits of Moses Malone, who had made disparaging remarks about the Celtics at the beginning of the Finals. Larry Bird, seeing the sign, voiced agreement with the comments, the crowd cheered, and I had a new sports hero. (I was still young enough to consider sports stars heroes in 1981).

The next season I had the opportunity to buy into a share of season tickets with some of the lawyers I worked with. I decided to do it, and haven't looked back since. (Despite some pretty awful Celtics teams after the Bird era, I now have my own half-season tickets and am not ready to let go yet.) During the old Boston Garden era, our seats were in the upper rows of the balcony, about as far away from the action as you could get. But the team was so exciting in those years that it almost didn't matter where your seats were. My wife and I went to several games each year, and had the good fortune of being there for Game 7 of the 1984 Finals. (The game was played on our second wedding anniversary; my wife was, and still is, a very good sport. I took her to dinner in the North End before the game, and we had a table near Bill Walton, who was not yet a member of the Celtics, but who must have been thinking about it at the time.) We also were at the game later in the decade, when Bird stole the inbound pass from Isiah Thomas in the final five seconds of the game, and handed it off to Dennis Johnson, who scored the winning basket. I thought, and I supposed everyone around me thought, that the game was over when Detroit had possession and the lead with five seconds left in the game. I guess no one bothered to tell Bird or DJ. It was the most amazing play I've ever seen in decades of watching live NBA and MBL games. I was even more amazed when Bird explained afterwards that once he stole the ball, he started counting down from five and dished to DJ when he got to three. Talk about presence of mind.

What I found most interesting in those years was watching the team turn on the gas at will when needed to get ahead of their opponents. And Bird was always amazing. He always gave 100%, never let down, and pushed himself and his team past the point of exhaustion whenever necessary. He was positively Churchillian. (Never give up, never surrender!)

Watching the Bird-era Celtics was inspiring for a young litigator. I worked a lot of late nights and weekends in those days, and if I got tired or wanted to quit for the day, I'd think about how a champion does not let up, but is able to summon his last ounce of energy to make that final play or, in my case, to read just one more decision or document that would give me the extra edge to win in court the next day. This sounds corny, but Bird really did inspire me to push myself in my own professional pursuits.

And now I'm finding inspiration in basketball again, this time in the pages of Bill Simmons' "The Book of Basketball." In the first chapter of the book, he talks about what makes a winning team. He writes:

Those teams were loaded with talented players, yes, but that's not the only reason they won. They won because they liked each other, knew their roles, ignored statistics, and valued winning over everything else. They won because their best players sacrificed to make everyone else happy. They won as long as everyone remained on the same page. By that same token, they lost if any of those three factors weren't in place.

"The Book of Basketball," p. 40.

Can't this lesson of success in basketball apply to any organization? Doesn't the success of any enterprise, whether it's a for-profit business or a nonprofit institution, depend at least in part on the same team ethic and selflessness that characterizes a championship basketball team? Aren't these rhetorical questions? They are, because the answer is obvious. And this lesson taken from the basketball court applies to any law firm worth its salt. The more the individual lawyers within a firm learn to like each other and subdue their own, personal, selfish ambitions for the good of the organization and its members, the more that organization will succeed, to the benefit of all of its constituencies (clients, partners, associates, and staff). Subordination of individual agendas for the greater good is the hallmark of champions. It's a slam dunk.

And, as long as I can draw life lessons from basketball, I suppose I can continue to justify the outrageous cost of the season tickets. Which I mention in case my wife is reading.

Christmas Values

2009-12-24T08:40:00.001-05:00

Like everything in this world, I suppose, Christmas has many meanings. The meaning it has to any given person depends a great deal on who the person is, in what tradition the person was raised, in what culture the person now lives, and in what stage of life the person finds himself or herself. Christmas means something different to a child than to an adult, to a Christian than to a non-Christian, to a Christian who takes the story of Jesus' birth literally than to one who interprets it metaphorically, and perhaps to an American than to a person from another country.

My own beliefs surrounding the Christmas story have evolved as the rest of my beliefs and understandings have changed throughout my life. But some things have not changed. They are the constants underneath the story, the universal values that hold true in any culture, in any religion, and in any era, regardless of what one thinks about Jesus and Christianity. These values play out in many arenas, and are celebrated in the many books, films, songs, artworks and traditions of this time of year, both religious and secular. Their simplicity is revealed in the mono-syllabic words that represent them, words like hope, peace, joy and love.

To my friends of many traditions, to those who celebrate belief or non-belief, I wish for you the many blessings of these, our shared values, now and throughout the year ahead.

John Adams' Descendants

2009-12-06T08:21:00.000-05:00

As an officer of the Boston Bar Association, this week I had the profound privilege of addressing the newest members of the Massachusetts Bar as they took their oaths to defend the Massachusetts and United States Constitutions and to observe the high standards of ethics and professionalism expected of Massachusetts lawyers. The ceremonies take place several times in the span of one week, twice a year, at Faneuil Hall, perhaps the most historic building in the City of Boston. (The Great Hall, where the ceremony takes place, is pictured here.) The ceremony is entertaining and informative (thanks to the outstanding work of Supreme Judicial Court Clerk Maura Doyle), and inspirational (thanks both to Clerk Doyle and to the inspired remarks and calls to public service of the various Justices of the Supreme Judicial Court who take turns presiding over the Court session). This year the occasion has been a little bittersweet, as many of the new lawyers either have been unable to find jobs or have had their jobs deferred well into 2010. But all of the new lawyers should feel proud of their accomplishments and hopeful for better times ahead. This year was also special for another reason, described in the following, closing passage from my remarks:

Finally, I want you to know that you are being admitted to the bar on a significant anniversary, though one that has gone largely unnoticed. According to biographer David McCullough, John Adams was admitted to the Massachusetts bar on November 6, 1759. This year marks the 250^th anniversary of the bar admission of our second president. Adams not only had a major role in securing our nation’s independence, but also in writing the Massachusetts constitution, which became a model for the United States Constitution. The Boston Bar Association also claims him as one of our own founders and past presidents. By our admission to the Massachusetts bar, we are all, in a very real way, Adams’ descendants. None of us are likely to achieve anything close to Adams’ accomplishments in our lifetimes. But all of us, like Adams, can aspire to put our talents to use not only for our private gain, but also for the public good.

Thanksgiving Again

2009-11-26T16:45:00.000-05:00

This editorial from today's New York Times says it all. A toast not only "for the steady currents, flowing out of the past, that have brought us to this table," but also to the unexpected, "for all the ways that life interrupts and renews itself without warning." How drab our collective lives would be without this Thanksgiving Day. Best wishes to all.

http://www.nytimes.com/2009/11/26/opinion/26thur1.html

Professional Thanksgiving

2009-11-24T22:18:00.000-05:00

As the holiday approaches, it is customary to pause and reflect on those things for which we are thankful. Many of our causes for giving thanks are personal, but we should not overlook the blessings of our professional lives. As the legal profession, like so many others, struggles through difficult times, and as the burden of those times falls heavily and unfairly on many talented and dedicated lawyers, it becomes more difficult to see reasons to be thankful. When the stresses and strains of modern law practice start to wear on me, I find it helpful to think of a balance sheet, that lists both assets and liabilities, and to use this time to focus only on the assets side, knowing full well that I spend more than enough time the rest of the year focused on the liabilities. And I find it helpful to think beyond my personal situation, to the lives and works of others. So, here is a partial list of those things for which I am thankful today.

I am thankful for the many brilliant people I have had the privilege of associating with in various work settings for 30 years of practice, and most thankful for the friends and colleagues with whom I work today.

I am thankful for the clients who entrust me with their important matters, and for my partners and referral sources who entrust their clients to me.

I am thankful for the mentors who have taught me, and for the young lawyers whom I have the opportunity to teach.

I am thankful for the support staff who keep my law firm going, and without whom we would surely be at sea.

I am thankful for the people I have come to know through professional associations, and especially for the staff, leaders and countless volunteers of the Boston Bar Association, who work tirelessly and effectively, day in and day out, for the betterment of our profession, its struggling members, and our society.

I am thankful for the lawyers who have left behind or foregone lucrative private practices to work in public service, and especially for those in the judiciary who work without adequate support to uphold the tradition of justice on which our democracy, our freedom, and our economy depend.

I am thankful for the legal services attorneys and pro bono volunteers who devote their time and talents to those in need, especially now when the need is great and the support is strained.

I am thankful for my family, who put up with the long hours and the frequent travel that come with the territory of the practice of law.

Finally, I am thankful that there is cause for hope that our profession will pull out of the current malaise as the economy recovers and as we learn to adapt to new challenges and what may be a new paradigm.

We belong to a great and noble profession, populated with extraordinary people. While many have found it hard to stay busy, some have lost their jobs, and some have had their jobs deferred, there still is work to be done, there still are opportunities to serve, there still are fellow professionals who care, and there no doubt are better days ahead. For that, at least, we can give thanks.

Access to Healthcare

2009-11-17T06:41:00.000-05:00

I don't pretend to be an expert on the current healthcare debate, nor have I had the time to follow it as closely as some. I have read a few articles, listened to a few speeches, and engaged in a few conversations, usually with people who are no greater experts than I am. I understand that critics think the healthcare reform law will cost to much, while supporters say that if it's not passed we will end up spending more. I have cringed at the shouting at town meetings by people who react emotionally rather than rationally to the issues, and who would be well advised to listen rather than speak.

But for me, putting aside the details and complexities that the policy makers and Congress have to grapple with, it comes down to this. I had my annual physical yesterday. It went well, with no surprises. I left with the peace of mind of knowing that there is a primary care physician I am able to see every year, or more often if necessary, who has ready access to my medical history (most of which he has recorded), and who can refer me if necessary to medical specialists throughout his organization. I can do this because I have health insurance. My family has access to, and uses, the same level of care, also because we have insurance. This care is vitally important to us. It could mean the difference between life and death, or between a healthy life and a life marked by illness. There is nothing more important than good health, yet we often take this easy access to healthcare for granted. As I paused yesterday to reflect on it, I realized what a tremendous privilege it is. Given its critical, life-or-death importance, shouldn't it be available to everyone, regardless of ability to pay? In my own humble opinion, the question answers itself.

Words and Music

2009-11-08T20:49:00.000-05:00

I'm going to break from the focus on law, and turn briefly to the arts. This weekend brought me back in touch with some songs, and one poem, whose sheer lyricism caught me by surprise. It started Friday night at the TD Garden, before the Celtics game, at the singing of "The Star Spangled Banner." I've heard the song a million times, but this time I shut out the distractions and listened closely to the lyrics, trying to envision what Francis Scott Key witnessed during the British attack on Fort McHenry that inspired the poem. You would think I'd be inured to the familiar lyrics sung at every major sporting event, but I'm not too embarrassed to say I got a little choked up as I let my imagination carry me to that monumental Maryland night. (The game was entertaining too, although my team lost to the very talented Phoenix Suns.)

Then, last night, my wife and I went to see Maureen McGovern's one-woman show at the Huntington Theatre, "The Long and Winding Road." During the autobiographical production, Ms. McGovern covered a couple dozen songs from the 1960s and later, including some of my favorites from my formative years. Once again, I concentrated on the lyrics of songs I know pretty much by heart, like Dylan's "The Times They Are A-Changin'," Paul Simon's "America," Laura Nyro's "And When I Die," and James Taylor's "Shed a Little Light." I was disappointed that her selection from the Beatles was "Rocky Raccoon" (such a dumb song that I will not link to it here), and that she chose the Blood, Sweat and Tears arrangement of "And When I Die," but again, the lyrics of some of these songs grabbed me despite their familiarity. Does anyone write lyrics like that any more?

And finally today, listening to an NPR interview of theologian Karen Armstrong, I heard a partial recitation of T.S. Eliot's "Ash Wednesday." I studied Eliot in college and have re-read some of his works, including this one, many times. Still, I was struck by the power of his poetry, capturing an existential struggle with faith. Sheer brilliance.

Does any of this relate to law? Well, maybe in this sense: If you want to be a good legal writer, take in the works of great lyricists and poets. It's all about rhythm, structure, economy of words, and meaning.

Legal Services: A Problem of Distribution

2009-11-07T08:13:00.000-05:00

Critics of plans to create the first public law school in Massachusetts argue that there are already too many lawyers. This argument finds support in the current contraction in the legal industry, in which law firms are laying off lawyers, cutting back on hiring, and reducing salaries and bonuses in record numbers.

David Yas, Publisher and Editor-in-Chief of Massachusetts Lawyers Weekly, counters that, although there may be too many lawyers seeking jobs in private law firms, there is a scarcity of community lawyers and lawyers in public service jobs. A public law school, he argues, would allow students from economically depressed communities who cannot afford private law school tuitions, and who may be more motivated to represent those most in need of access to justice, to become lawyers. Instead of an over-supply of lawyers, Yas suggests, there is a shortage, at least when it comes to serving the needs of people who live in such communities and the poor.

I don't know whether having a public law school in Massachusetts would accomplish Yas's goals, but he is certainly correct about the unmet needs. To some extent, those needs are always there. There are always tenants in need of representation in eviction proceedings, battered spouses in need of counsel to help them obtain restraining orders, parents in need of representation in child custody proceedings, and homeowners in need of lawyers in foreclosure cases. In economic downturns like the current one, the needs grow exponentially. At the same time, legal services organizations whose missions are to meet those needs are forced to lay off staff attorneys for lack of funding. Just as the demand for legal services spikes, the supply of legal services attorneys shrinks. This inability to meet the enormous demand for legal services is occurring even as there are record numbers of lawyers without jobs.

The crisis in legal services in Massachusetts, and across the country, is largely the result of a severe decline in IOLTA funding. IOLTA accounts are accounts of client money held in trust by their law firms. The interest generated in these accounts is distributed to organizations that provide legal services to persons otherwise unable to afford representation. Because the slowdown in the economy has resulted in less principle in these accounts (fewer deals equals less money being held in trust), and because interest rates are depressed, the resources generated by IOLTA accounts are only a small fraction of what they once were. As a result, there has been, and likely will continue to be, enormous strain on the legal services organizations that rely on IOLTA funding to pay the lawyers who work tirelessly at low salaries to represent the poor.

The result resembles the truism often recited about world hunger: that there is enough food in the world to eliminate hunger, but starvation persists because of problems in getting the food distributed to those places where it is most needed. Yas argues that the problem we face is not that we have too many lawyers, but that we have too many lawyers trained in expensive private law schools, geared towards finding jobs in large law firms, and graduating with a debt burden that requires them to seek out the highest possible salaries. The problem also is that there are not enough alternative legal education and career paths available for those who might be inclined to follow them.

There is no easy fix for this crisis, which is more complex than presented here. At an absolute minimum, our state legislatures need to continue to appropriate sufficient funding to our courts and to legal services budgets to avoid making a very bad situation worse. But more must be done. Yas asks: "Is it, perhaps, time to try something different?" Government officials, public service organizations, law firms, lawyers in private practice, and corporate counsel should work together with the courts and with national, state and local bar associations to search for creative and effective solutions to this intractable problem. And in Massachusetts, a public law school, with reduced tuition, graduating more students from local communities who would come out of law school with lower debt burdens and, therefore, more salary flexibility, just might be a worthwhile component of a more global solution.

The More Things Change . . .

2009-11-01T07:19:00.000-05:00

The first time I learned the phrase, "the more things change, the more they stay the same," I was a teenager reading an article in "Circus" magazine, a periodical devoted to the music scene of the late '60s and early '70s. (The article included the French version of the phrase, but I won't embarrass myself by trying to set that out here.) I don't remember the point of the article today, but that phrase and one other stuck with me. The other, which sometimes applies to the way I approach blogging, is "How do I know what I'm thinking until I see what I say?" Wisdom for the ages.

A year ago at this time, America voted for change, and change was badly needed. We were stuck in two wars, the economy was in shambles, and we were as divided politically and culturally as we have ever been since the 1860s. Although some progress has been made under the current Administration, our basic condition has not changed. We remain in Iraq and Afghanistan, our economy, although no longer in free fall, remains on shaky ground, and the voices of extremists who seek to divide us have only gotten louder. More fundamentally, 21st century America is no less vulnerable to the human condition than any other nation now or throughout history. Some will crave power and resort to violence to attain it. Some will crave wealth and resort to deception to attain it. And some, thankfully, will take a stand against war, combat injustice, and promote healing within our society. Some things change, yet everything stays the same.

Although far less significant, the push for change in the legal marketplace displays the same paradox of change accompanied by sameness. When I entered private practice in 1980, and for a few years thereafter, law firms customarily sent bills to clients that were one short paragraph long, and began "For legal services rendered . . . ." Although the bills were based on the billable hour, firms did not provide, and clients did not demand, an itemization of the time. There was an unspoken trust between lawyer and client that said that itemization was unnecessary, and requesting it would be undignified.

Over time, as legal services became more expensive and the legal marketplace became more competitive, clients began demanding that law firms provide a breakdown of the time for which they were being billed. Itemized billing empowered clients to monitor their law firms and to reject charges that they believed to be unnecessary or excessive. The practice of itemized, hourly billing also gave rise to such methods of cost control as client audits of legal bills, and corporate billing policies that identified approved and unapproved categories of charges.

Despite the transparency of itemized billing, there has always been the potential for abuse. Billing by the hour creates a financial incentive for lawyers to put more time into a case than is necessary or, at times, than the case is worth, to prolong a matter unnecessarily, and to continually increase hourly rates. Although one hopes that most lawyers record their time honestly and strive to align their incentives with their clients' goals (the best way to develop a favorable reputation and attract and retain business), some no doubt do not. And the potential misalignment between the lawyers' interests and the clients' interests has the unfortunate consequence of breeding mistrust, the greatest threat to the attorney-client relationship.

This problem of mistrust, combined with the increased costs of legal services, has given rise to a call to replace hourly billing with alternative fee arrangements. Many clients and law firms have experimented with alternative fees for years, with mixed success. In my experience, many clients have preferred to stay with hourly billing because it is easy to administer, and incentivizes lawyers to devote time to the clients' matters while enabling clients to monitor and question the time spent by each biller. Maybe some clients are loyal to the billable hour simply because it's the devil they know.

The question today is whether the billable hour will survive the pressure within corporate law departments to reduce legal spend. Some corporate counsel, faced with the need to reduce legal expense, are now renewing the cry for alternative billing arrangements, and the cry is getting louder. The Association of Corporate Counsel is promoting "The Value Challenge," which seeks to move law firms away from hourly billing to flat fees and variations on flat fees. These corporate counsel feel more empowered than ever in this economic climate to demand reform from their legal service providers, and some see the current efforts as a revolution in the legal business model.

The swinging of the pendulum away from law firm adherence to billable hours and towards client insistence for alternative fee arrangements, while perhaps resulting in some reduction of legal costs, does not change the fundamental issues driving the economic relationship between attorney and client. Both hourly billing and alternative fee arrangements are subject to abuse, by private lawyers seeking to maximize their profits and by corporate counsel seeking to minimize their expenditures. While hourly billing creates incentives that are not fully aligned with client goals, so do flat fee arrangements, which can reward firms that pay less attention to client matters or that downstream work to the least experienced lawyers. Although one would hope that the interests of attorney and client are always more or less aligned, it is unrealistic to expect complete alignment. No matter how legal services are priced, the underlying tensions that provide support for movements like The Value Challenge will be with us always.

Amid the hue and cry for change in the pricing model, some things truly do stay the same. Of the constants underlying the attorney-client relationship under any economic model, perhaps the most important is that the relationship between attorney and client is fundamentally a relationship of trust. While this may sound naive, I truly believe that if the trust is there, the economics will work themselves out. A corollary to this principle is that trust is not a given, but must constantly be earned and re-earned throughout the relationship. That means that lawyers must, as closely as possible, align their interests with their clients' interests, and align their performance with their clients' expectations. Lawyers who do not take the time to understand their clients' goals and expectations, or who overcharge for their services in order to maximize their short-term profits, will have difficulty surviving the new world order, and shouldn't survive it.

Clients also need to understand that trust works both ways. Just as the lawyer must earn the trust of the client, so must the client earn the trust of the lawyer. If a corporate client abuses its power by making the representation economically unviable for the law firm, the law firm may ultimately choose to walk away from the relationship. The client may then have to start from scratch in building a relationship of trust and familiarity with a new law firm, which requires an investment of time and a certain amount of risk. Attorney and client must both treat each other fairly to strike the optimal balance that will serve all parties well.

In the final analysis, it is the client's money that is being spent, and the client is entitled to direct how much is spent and in what manner. If the client wants a flat fee, the attorney will have to, and should want to, deliver. Clients are right to demand value in their legal services, and few lawyers would disagree. The demand for value is nothing new. The ways that lawyers bill may change, but the rewards of building relationships of trust, thankfully, remain the same.

Value and Values

2009-10-24T07:19:00.000-04:00

The legal profession is going through dramatic change. What no one knows right now is whether the change is lasting or fleeting, and just how far reaching it will be, but there is no denying that it is occurring. Law firms are laying off lawyers and staff in record numbers across the country. More law school graduates cannot find jobs, or are told they must wait months or even years before reporting for work. Corporate clients' legal budgets are squeezed, prompting more of them to demand "value" and to request alternative billing arrangements. State courts are also squeezed, having to lay off personnel, close courthouses and function without law clerks. Organizations that provide legal services to the poor have lost funding, forcing them also to lay off legal and non-legal staff, just as the need for legal services has grown. More litigants are appearing in court pro se, which also places a greater strain on the court system.

In these difficult times, lawyers cannot take anything for granted. We turn to "marketing" and social media in an effort to expand our practices, and network at every opportunity. But the transformation that is taking place requires a more radical approach than simply "getting out there" more. It requires reflection on some basic questions and focus on some of the fundamentals of what we do. Here are a few of the questions lawyers should be asking themselves as they try to survive and thrive in these challenging times:

1. Am I providing maximum value to my clients?

2. Am I prepared to share in the risks of bad outcomes (and will my clients share in the rewards of success)?

3. How do my clients define "success" in the matters for which they engage me?

4. Do I understand my clients' business?

5. How can I enhance the level of service I provide to my clients?

6. Am I doing enough to hone my skills and stay current in my field?

7. Am I, or is my firm, meeting my clients' expectations in the areas of diversity, community service and pro bono? Am I demanding these commitments of myself, regardless of my clients' expectations, simply because they are the right things to do?

8. Are my marketing efforts only trumpeting my abilities and experience, or are they also providing valuable information to my clients and contacts?

The common thread in these questions is that they focus not on me, the service provider, but on the needs of the client and of others. Most clients don't care if you're on Twitter or LinkedIn, if you've written articles in your area, speak at seminars, or chair committees in bar associations. Those types of efforts certainly do have value, can enhance a lawyer's profile and can help lawyers establish relationships that may lead to business development and likely will lead to more career satisfaction. But what clients want most is to know that you are both equipped to help them and dedicated to doing so. As I said in an earlier post, quoting a highly successful businessman, "It's the client, stupid." If we train ourselves to focus every day on how we can better serve our clients, our communities and our profession, and concern ourselves less with empty self-promotion, we stand a good chance of coming out of the current downturn stronger than we went in.

Archdale

2009-10-16T06:42:00.000-04:00

It is mid-October, and that means that it's time for the Head of the Charles Regatta in Boston, that great crew race on the Charles River. Thirteen years ago this weekend, the Regatta was cancelled (I think for the first time ever) because of extremely heavy rainfall. The rainfall overwhelmed Boston's high-level sewer system, causing raw sewage to gush out of manholes and flood the basements and backyards of a low-lying area in Roslindale, Massachusetts, damaging real estate and destroying many people's personal belongings.

The affected residents in the Archdale Road neighborhood of Roslindale contacted the Massachusetts Environmental Justice Network, which put them in touch with a sole practitioner/environmental lawyer named Jamy Buchanan. Jamy approached an environmental lawyer in my firm for help in resolving the residents' claims against the the two agencies responsible for the sewer system, and that lawyer put her in touch with me. Because the neighborhood was a low-income area, Jamy and my firm agreed to represent the Archdale residents on a pro bono basis.

It turned out to be a long but rewarding commitment. Within two or three years, the agencies made improvements to the sewerage system that reduced the risk of further overflows. However, they were initially unwilling to pay for our clients' losses, citing the "discretionary function" and "act of God" doctrines that they believed immunized them from liability. In 1999, we filed suit on behalf of approximately 200 individuals who lost property and money as a result of the floods. After years of discovery, motion practice and mediation, the agencies agreed to settle. I appreciated the way the agencies handled the case - initially taking significant measures to protect the neighborhood from a recurrence, while appropriately asserting their important defenses, and ultimately compensating the residents for their losses.

Every year at this time I think about the great work that Jamy and the lawyers and paralegals on my team performed in handling this important pro bono case, and about the good people of Roslindale who found justice at long last. As we enter another rainy October weekend, I take some comfort in knowing that there has not been another flood like this since 1996, and that the improvements to the system should keep the residents safe from it happening again. Although our litigation team received no financial reward for all the time and effort we put into the case, I think the others feel as I do that it was one of the most rewarding experiences of our careers.

A Grievous Loss

2009-10-14T06:49:00.000-04:00

When I first came to Boston in 1979, I stayed with my friends Gregg and Terri at the Brookhaus in Brookline Village while I looked for an apartment. Gregg was a good friend from high school (and earlier). We shared a love of music (the folk/rock variety), and were in math and other classes together throughout our school years. When I was in law school, Gregg was in graduate school at Buffalo State University, studying statistics, but he transferred to Harvard when his adviser left Buffalo to join the Harvard faculty. Gregg's adviser was Stephen Lagakos.

A few short years later, while at Hale and Dorr, I was assigned to work with Jerry Facher on the case about a leukemia cluster in Woburn, Massachusetts later made famous in the book and movie, "A Civil Action." Although initially I worked on all aspects of the case, about a year before the trial I was asked to take responsibility for preparing the defense to the medical causation claims in the case. The principal issue was whether the chlorinated hydrocarbons found in the City of Woburn water supply in concentrations of parts per billion were capable of causing leukemia. Every medical and scientific expert I interviewed as a potential expert witness, from several major universities and medical schools, told me that there was no scientific evidence to support such a causal connection.

There was, however, an epidemiological study published by the Harvard School of Public Health, that suggested a link between the exposures in Woburn and the leukemias found there. One of its principal authors was Stephen Lagakos.

It struck me as quite a coincidence that the principal support for the case against my client was a study authored by my friend's adviser. Because I was assigned to focus on the medical issues in the case, I took depositions of many of the plaintiffs' medical experts and third parties who supported the claim that the chemicals caused the leukemias. I honestly don't remember whether I deposed Dr. Lagakos, but if I didn't, I at least would have helped Facher prepare for his deposition. I do recall deposing plaintiffs' expert epidemiologists, and traveling to Atlanta to depose representatives of the CDC who had conducted a follow up study.

All of this is a long-winded way of saying how saddened I was to learn that Dr. Lagakos was tragically killed in a car accident, along with his wife and mother, the other day. By all accounts, including my friend Gregg's, Lagakos was a very good man and a very good teacher. Despite finding ourselves on opposite sides of a medical mystery more than 20 years ago, I have no doubt that Harvard and the scientific community have suffered a grievous and irreparable loss. I am equally sure that he leaves behind him thousands of friends, colleagues and students whose lives were made better by their association with him.

The Best Kind of Marketing

2009-10-04T22:06:00.000-04:00

When I was a second year student on Law Review, one of the third year editors told me that the reward for doing good work was more work. Because we were performing a volunteer service, without compensation, the comment was meant to be ironic, as the "more work" more closely resembled punishment than reward.

Of course, in the real world of law practice, where lawyers usually are paid for their services, getting "more work" is the goal, and many turn to marketing as the means to achieve it. Law firms today employ professional marketing staff, some lawyers participate in marketing committees, and some lawyers and firms hire outside marketing consultants. Legal marketing seminars abound, and the twitterverse and blogosphere are awash with legal marketing advice. (I suppose this entry may even fall into that category.)

With so much time and attention being paid to marketing, it may be too easy to forget the wisdom of my senior editor's comment that more work is the reward for good work. While marketing is a necessary component of much legal practice today (some might say a necessary evil), it is at best the third step of a multi-step process. The first two steps are developing a quality "product," (i.e., high quality legal skills), and providing quality service. In the category of product development, lawyers need to set the bar high for excellence, demand only the highest quality work from themselves and their colleagues, and continuously hone their skills. In many cases, this also means developing one or more areas of specialized expertise, and pursuing the goal of being the best in those fields. In the category of client service, lawyers need to be highly responsive and accessible to clients, to listen to their clients' concerns, and to strive to meet their clients' legitimate expectations.

My wife and I recently attended the memorial service for the founder of a very successful company. The program for the service included copies of the late founder's quotes. Two seemingly conflicting quotes were set out side by side. One read: "It's the product, stupid." The other read: "It's the customer, stupid." Both are right. All the marketing and salesmanship in the world will do no good if the legal skills and customer service are not first rate. Excellence in these areas is what our clients expect from us, and we should strive to deliver no less. And when we consistently meet that expectation, the marketing begins to take care of itself.

Redemption

2009-09-19T21:01:00.000-04:00

One of my favorite films is "Nobody's Fool." It is based very closely on a novel by Richard Russo, and stars Paul Newman, Jessica Tandy, Bruce Willis, and Melanie Griffith. The main character, played by Newman, is an old, washed out, loser of a never-has-been named "Sully." He is divorced, broke, gimpy, and haunted by the memory of an abusive father.

The film is not your typical box office hit. There is no action to speak of, no special effects, no killer soundtrack. What there is is redemption, and a change in audience perception. For by the time you get to the end of the film, you realize that this old man who never graduated from college, never held a steady job, failed at fatherhood and failed at marriage, has, in quiet, subtle, yet very deliberate ways, healed the broken lives of those around him, and found salvation in the process. His satisfaction in making a difference in people's lives, without any need for thanks or recognition, is what impressed me so much about Sully. He is an unlikely hero, and a hero who is happy also to be unsung.

This week we saw a play that was also about a man who had an abusive father. He also found a form of redemption at the end, but he was not redeemed by his own actions as much as by the grace of those who loved him. That play was "Fences," by the late playwright August Wilson. The Huntington Theatre in Boston put on an excellent production of the play, directed by Kenny Leon. It takes place in the late 1950s, in Pittsburgh. The main character, Troy, is a 53 year old African American who drives a rubbish truck and who is bitter because he had the talent to be a great major league baseball player before Jackie Robinson broke the color barrier. His baseball career was played entirely in the Negro League, and he therefore never achieved the fame or recognition that a career in the major leagues could have offered. Troy marries a wonderful woman named Rose, and together they have a son, Cory. Unlike Sully, Troy is never able to overcome the burden of his past or the bitterness it brought him. Still, when all is said and done, the love of Troy's family shines through.

I think about Sully a lot. In a way, he is my hero; the humble servant who betters the lives of others with no thought of reward for himself. The others whom he helps are also family, or persons so close to him that they may as well be family, and he would be perfectly content to remain invisible as he works his magic with them. Troy is a little harder to admire, although if you look closely enough, you can find redemptive qualities in him. He loves his family, after all, but he bears the scars of a horrible childhood, and as a result, his ability to give love is seriously flawed. In a way, his experience is the opposite of Sully's, for while Sully finds ways to bring healing to his loved ones, Troy's family finds a way to redeem him.

If there is a lesson here, I guess it is that we need and depend on those closest to us, and that no one is without hope. As we were leaving the theatre after "Fences," we had a brief conversation outside with a stranger who also was leaving the play. I told him that I liked the way it was so redemptive at the end. From time to time, we all need a little redemption in our lives. And maybe those of us who are blessed to receive it can find ways to bless others in its giving as well.

September 12th Revisited

2009-09-14T21:12:00.001-04:00

Reflecting further on my last post, I realize it suffers from incompleteness. While I and others may have experienced a renewed sense of unity and grace in the weeks and months following the horrific events of 9/11, I would be remiss to ignore the dark undercurrent to the national character that still haunts us. I refer to the demon of racism. For while many of us came together in a spirit of patriotism and humanitarianism in the wake of our collective tragedy, there certainly were others who began profiling those among us who were visibly different, particularly persons of middle eastern origin. I did not intend to wear glasses of such a rosy hue to forget my fellow American citizens and foreign nationals who fell victim then, and fall victim now, to racial stereotyping. Yet I look forward to the day, as a great man once said, when all people are judged not by the color of their skin, but by the content of their character; when profiling, stereotyping and persecuting fellow human beings based on their country of origin, their race, or whatever else makes them "different," will be relegated to a shameful but remote chapter of our distant past.

Remembering September 12th

2009-09-12T07:20:00.001-04:00

We all remember where we were when we heard about the September 11th attacks. I was in heavy traffic on the Massachusetts turnpike, heading into Boston. My wife called to tell me that she was watching t.v. and they reported that a plane hit one of the twin towers. I envisioned a small plane, maybe with just a pilot and no passengers, and assumed that the collision was an accident. As she continued to describe the television coverage, she saw a second plane hit the other tower. It was immediately obvious that it was a terrorist attack.

I made my way into the office and found our lawyers and staff in a conference room watching the t.v. news. Many were visibly frightened, and all were struggling to make sense of the morning events. We were in one of downtown Boston's taller buildings, and I tried to reassure myself and those around me that our building, tall though it was, was an unlikely target for terrorists. From many of our conference rooms and offices we could see Logan Airport, from which two of the planes had taken off. The airport was shut down now, an eerily quiet scene of an unfathomable crime.

The firm sent us home, and it was a long, slow ride in traffic to the suburb where I live. The usually aggressive Boston driving had given way to acts of kindness: drivers graciously let each other into traffic rather than cut each other off. When I got to my suburb, I stopped for gas. As I got out of the car, I was struck by the extraordinary weather that morning - the blue sky, the sunshine, the perfect temperature - and I wondered what it must be like that moment in downtown Manhattan. The foreign worker who pumped my gas commented gleefully that America had this coming. If I were a violent person, I would have slugged him. Instead, I simply gave him a look of disgust, told him he was wrong and drove away.

After I got home I watched the news all day and into the evening; the awful scenes of people running in panic, of victims leaping from the towers to certain death, of the towers falling. Late that night my then-11-year-old son walked in on me watching CNN just as they showed people jumping from one of the towers. I didn't want him to see it. (Just a couple of years earlier, he and I had walked atop the World Trade Center, an experience that had filled him with boundless joy.) A few minutes later we heard a loud thunderclap, and he broke down crying in his mother's arms. I wondered if our children would be scarred for life, if the attacks would change their worldview the way that JFK's assassination had changed ours.

Although we remember the horrific events of September 11th, we too easily forget the signs of hope that followed. There was, for some months after the event, a communal sense of service and love for our country. For that brief period, people changed. We were kinder to each other. We took less for granted. We helped and supported each other. We slowed down, as air traffic was grounded, and we all stayed in our places for a week or more under an abnormally quiet sky. Volunteer workers gathered in New York to dig our nation out of the rubble and giant holes now renamed "ground zero." We staged concerts to raise money for the victims. Some of us Red Sox fans rooted for the Yankees, and my firm's Boston office reached out to our New York office to offer whatever comfort and support we were able to give.

And we were prouder than ever to be Americans. The people of the world showed compassion for us in a way that hadn't happened since JFK was killed. We rallied around the flag and our President. We were not Republicans and Democrats; we were Americans, bound together with a common, tragic experience, with some degree of fear, and with tremendous displays of courage.

I hope and pray that the cowardly acts of terror that struck us that day will never be repeated, not on our soil, and not on the soil of any other nation. And yet I also long for the sense of brotherhood and sisterhood that united us in tragedy's wake. It is heartening to know that the American spirit not only survives, but indeed triumphs over a national catastrophe. But it is hard to see that spirit of patriotic and humanitarian unity today, eight years after the events. The extreme partisanship that has infected our country overshadows that unity. The resort to name calling on the airwaves (e.g., "socialist") may have roots not only in political differences, but in racism. The shout of "You lie!" in the House chamber by a South Carolina Congressman during a Presidential address would not have been tolerated at any other time in our history, and certainly not in the immediate aftermath of September 11th. We can debate when we began our return into the partisan abyss (my best guess - when we launched the war in Iraq), but there can be little doubt that we are there.

So it comes to this. Can we regain our unity in times of relative peace and security, or does it take an attack from a common enemy to unite us? Are we a nation hopelessly divided along lines of party and ideology, or are we one nation, indivisible? The answer seemed clear on September 12th. Today, it is hard to hear over the shouting.

Greatness

2009-09-05T22:16:00.000-04:00

Characters in Shakespeare's "Twelfth Night" play a vicious trick on poor Malvolio. They forge a letter, which they pretend to be from Olivia, the mourning sister, in which "she" confesses her secret love for him. The cleverly drafted letter causes Malvolio to behave in strange ways that lead those not in on the joke to believe that he has gone mad. The letter also contains a famous line, understood as serious by persons not familiar with the plot (and, of course, by Malvolio), though intended by the pranksters to be part of the devastating practical joke. The line: "Some are born great, some achieve greatness, and some have greatness thrust upon them." (Modern audiences may miss the sexual innuendo that Shakespeare intended in the last of the three clauses.)

The world has recently lost some "great" people. None of them was born great (though one was born into a "great" family), and none had greatness thrust upon them. Rather, they all achieved greatness through their own efforts and perseverance. Greatness, in its true sense, comes only from personal achievement. That achievement can take many forms, including artistic achievement (Michael Jackson), political accomplishments (Ted Kennedy), and business success (Richard Egan), to name just a few. But greatness also has another dimension: the greatness achieved through compassion, humility, and love. It is clear from the public tributes to these men that, while great accomplishments placed them on the world stage, in the final analysis it was the selfless acts, the kindnesses to others, the commitment to charitable causes, and the joy of life that were most admired, and that are most likely to be missed. The good news is that these are qualities within every person's grasp -- those who are rich and those who are poor, the talented and the not-so-talented, the strong and the weak, the successful and the unsuccessful. And if humility, selflessness and kindness are true measures of greatness, are they not qualities to which we each should aspire?

He Was a Friend of Mine

2009-08-29T02:27:00.000-04:00

From the time I was six years old, I admired the Kennedy family. I knew nothing about politics as a child, but the First Family was not just about politics. The charm and mystique of Camelot inspired even young children like me, who could identify more with Caroline than with her famous father. It was often a lighthearted admiration. My family owned a record album of a comedian who impersonated the President, and I would listen to it on our stereo and memorized some of the funny bits. I also remember the Cuban missile crisis. Though I was not quite eight years old when it happened, I watched the President address the American people on television, observed my parents' nervous concern, and went to bed at night wondering if I would wake up in the morning. I'm sure I was much older, probably in college, when I finally understood that Jack and Bobby Kennedy's wisdom, their courage in rejecting the unsound advice they were receiving from their top military advisors, and their superb diplomacy, saved the world from nuclear war.

My most vivid memories, sadly, are of JFK's assassination. I was in my 4th grade classroom when the Principal announced over the P.A. system that President Kennedy had been shot and that we were being sent home. The buses took us home early, my mother had to go to the store, and it was there that we learned that the President had died. It happened days before my ninth birthday, and that week we were glued to our black and white television set, watching every detail of the coverage of the funeral: the horse-drawn hearse, the flag-covered casket lying in state in the Capitol Rotunda, the grieving widow holding the hands of her daughter and little John-John, the 21-gun salute, the eternal flame at Arlington National Cemetery, and that awful footage, shown over and over and over again, of Jack Ruby shooting Lee Harvey Oswald at point blank range as Oswald walked in the custody of Texas sheriffs.

Five years later, on an early June morning, I went across the street to wait for the school bus. I was 13, and just completing eighth grade. My older sister was also at the bus stop, and said "Did you hear Kennedy was shot?" I thought it was some kind of bad joke. Of course I had heard, he was shot five years earlier in Dallas. "No," she said, "Bobby Kennedy." I was stunned. Like many people my age, I was inspired by Bobby. Although my political sensibilities were still in their formative years, I saw Bobby Kennedy as a budding hero, as someone who deeply cared about the underprivileged, about right and wrong, about justice, and most of all, about peace. I couldn't believe that this inspirational family could be stung again by an assassin's bullet. I couldn't fathom the evil that would do this, and the depth of the loss our country had sustained.

Ted Kennedy lived in his brothers' shadows, shadows of what had been and, more importantly, of what might have been. No one at the time viewed the youngest of the Kennedy brothers as possessing the strength, charisma or vision of his older brothers. Yet all of us felt deeply for him as he delivered the eulogy at Bobby's funeral, a eulogy that he struggled to get through. We could only imagine the pain he felt at the sudden and tragic loss of yet another brother, whom he loved.

For me, Ted Kennedy has always just been there. I moved to Massachusetts in 1979 and he has always been my Senator. In my first year here, when I served as a law clerk to a federal district judge in Boston, I quickly came to understand Ted's importance in the area of judicial appointments. A vacancy had opened in the United States Court of Appeals for the First Circuit, and my judge was being considered as a strong candidate to fill it. The judge had accomplished a great deal for the underprivileged, especially the mentally retarded, and was also a vigilant defender of constitutional rights. However, he was a Republican and a Nixon appointee, and he did not get the nod. Harvard Law Professor Stephen Breyer, now a Supreme Court Justice, did. I learned then what I have since always known to be true: that the road to the federal judiciary in Massachusetts, like so many other roads here, went through Ted Kennedy's office.

I have seen Senator Kennedy speak a few times, and while he was not always as eloquent as his brothers, he never failed to inspire. As many have said during this sad week, he eventually proved to be among the most effective legislators in our nation's history. One of the speakers at the Friday night service said that John Kennedy inspired America, Bobby Kennedy challenged America, and Ted Kennedy changed America. While he has always been a controversial figure, in part because of the unwillingness of many on the right to forgive his inexplicable behavior on a single night forty years ago, he has done a great deal of good for this country over the years, and many of his political enemies were his personal friends. Over time, he emerged from his brothers' shadows, and made his own indelible mark on our nation, and on the many, many lives he has touched.

I will continue to reflect on Senator Kennedy's life, his accomplishments, his compassion, his good humor, his passion for justice, his love for family and friends, and his benevolence. I hope to learn from all those good qualities that made him both so popular among those who knew him and so successful in helping others and effecting change. But most of all, I will miss him. As the Byrds sang after the world lost JFK:

"Though I never met him, I knew him just the same.

He was a friend of mine."