by Scott Turow
"Why are you taking this thing so seriously?" I asked her as I had many others.
"Because I couldn't stand to lose and then have to listen to our opponent gloat." Then she smiled. "We're arguing against Harry Hochschild," she told me.
But in most other cases, I saw the fury generated by the methods project as more of the success/achievement/competition hysteria. People just wanted to beat each other. In retrospect, though, I recognize that the summary-judgment motion satisfied impulses that had been frustrated all term. A job well done would let students feel that they were actually on the way to being able to handle lawyer's work--it would prove they were learning something. Even more significant, I think, was the fact that the briefs and the arguments could answer some of that longing for evaluation and provide a sense of relative standing. A motion for summary judgment is an attempt to have a decision rendered on a lawsuit without a trial. The judge examines the briefs and the attached affidavits, listens to argument, and decides whether the law and the facts of the case favor one side so heavily that a trial would be a worthless exercise. If the court decides in favor of the party moving for summary judgment, he wins the suit; a decision against the movant means there will be a trial.
In the Katz case, both sides were moving for summary judgment. Although the odds were that neither motion would be granted, the issues in the case were delicate enough that a particularly persuasive brief and argument might allow one side to win. The prospect of real victory, clean and conclusive, seemed to tantalize many of my classmates. It would be an authoritative way to prove a superior gift for the law. Toward that end, they labored tirelessly. But I, in the face of all this competitive heat, chose withdrawal. I was feeling too glum for a total effort. I told myself the brief was unimportant. Although we would have an oral argument--a kind of spoken defense in which you repeat the brief's main points and answer any of the judge's questions about them--I assured myself that I had always been pretty good at slinging it when on my feet. I encouraged Willie to take it easy and I hardly had to repeat the suggestion. In my section, there was a handful of people--five of them, ten at the most--who had come to Harvard Law School wanting no more than the degree. They had no desire even to stand equal to their classmates. Willie was one of those persons, and he was virtually immune to competitive pressures. He had, for instance, told me that we would have to tailor our work around his Thursday-evening drunk and his Friday-morning hangover. .
Willie and I promised that we'd spend no more than ten to twelve hours each on the brief. I gave it Friday night and most of Saturday. Willie did the same. That was probably a third of the time the majority of our classmates had spent, and the brief showed it. It opened (as I later recognized) by quoting our opponent's most persuasive case and claiming it as our own--a gruesome error--and went downhill from there. Handing the brief in to Henley on Monday, I felt a little uncomfortable, but I suppressed my worries. I figured I'd made off like a bandit.
Having taken the brief so lightly, I should have had far more time on my hands. But I'd elected the previous week to do a voluntary library research project which Henley had given us in Methods. The assignment involved searching out the statute and case law on a complicated tort problem, and the task had occupied twenty-five or thirty hours. Only a few people in my group chose to do the assignment. I had done it because I knew I was going to back off from the brief and, already guilty, I did not want to feel lazy or unoccupied while everybody else was working so hard. In that, I succeeded. I was now as pressed as anybody in the section, a hundred pages behind in Torts and falling off the pace in each of the other courses.
That work load did not, however, keep me from going to see Ralph Nader when he came to speak at the law school on Tuesday night. Annette did not feel well, so I toted my Torts book along and went by myself.
I am a Nader admirer. I take him for a zealot, but I also think he is a person of uncommon imagination, somebody who sees beyond the flak and baloney most of us buy in thinking about social institutions. The institutions Nader was going to speak about that evening were Harvard Law School and legal education in general. Nader is an HLS grad, but he is hardly an enamored alumnus. In a biography, he's quoted as describing the law school as a place where students were "taught the freedom to roam in their cages." In my funk, I was eager to hear his criticisms. I was ready to believe that there was more causing my bleak feelings than my own neuroses.
Nader gave a great speech. He spoke for well over an hour, without a note. He leaned on the podium, but he talked with a preacher's fervor--a lean, dark man, somewhat better-looking than he is on TV.
"Legal education," Nader said, "assumes its chief purpose to be the development within a refined ethical framework of the analytical and empirical skills necessary to further justice." But Harvard, he claimed, and most other law schools largely failed in those aims because they limited the uses for which those skills were cultivated.
He talked about the style of close analysis we were being urged to make a part of our mental reflexes. As Gina had pointed out to me, he reminded us of the habitual wariness and hesitancy that comes from that kind of thinking, and asked if we were becoming cut off from our common sense and our basic intuitions of justice.
He talked about the shortcomings of the case-study method. He asked us whose law those cases taught. Who else but the well-to-do could afford the huge legal fees of prosecuting an appeal, of bringing a case to the stage where it was likely to be reprinted in our casebooks? There were wrongs, he said--violations of law, legal problems throughout the society--which were never the subject of courtroom battles and case reports. "How many share-croppers," he asked, "do you think sue Minute Maid?"
He talked about the model of a lawyer's work that the steady stream of appellate cases suggests. Weren't we really training to be lawyers who only interview clients and write briefs and argue before courts--the kind of lawyers Legal Methods was teaching us to be? Where were we shown images of lawyers as organizers, determined advocates, rather than the disinterested hired hands of whoever could throw the price? Did we honestly believe, as was sometimes suggested, that the most intriguing legal problems were those presented in cases? Was it really more absorbing to fuss over the details of some company's tax shelters than to face (as our education so seldom asked us to do) the gravest legal problems confronting the society--corporate and government corruption, the bilking of consumers, the dilemma of bringing adequate legal services to the poor?
"Ask yourself," Nader said near the end, "shouldn't the best, the brightest, the people who think of themselves as more self-confident, better qualified--shouldn't they be the ones to take on those impossible problems? You don't have to lend your power to those huge drug companies that don't care about the public they deal with or to the big law firms that defend them. They can get other people to do that. If you say, 'I will be a narrow professional, finding pleasure where I can,' then you are demeaning yourself."
I left Nader's speech feeling high. There were some weaknesses, as usual, to what he had said. I wasn't sure I'd favor an education as acutely political as the one he'd advocated. But on many points he'd been convincing and he left me feeling better than I had for a while that I was becoming an attorney.
Yet as I drove home that evening, full of hot purpose and temporarily out of my depression, I was not sure where those feelings could rightly be aimed. My enemy, in this form, was a collection of attitudes, nothing tangible. There was no obvious place to apply pressure for change.
I did not know that within twenty-four hours such a prominent target would emerge.
On Wednesday morning, Annette did not feel any better. She had one of the viruses she was perpetually catching from the children, and she was far too hoarse to teach. Her plans were to rest in the morning, and then, if she felt better, to join me at school. She wanted to take advantage of her day out to see the professors I'd talked so much about, Perini and Zechman, and to watch the oral argument I'd give at two.
&n
bsp; When she arrived at noon, the whole section was in unusually good humor. We'd just had the most engaging criminal class of the term. Some student criticism had reached Mann and he now seemed to be making an earnest effort to invigorate the course. He'd set aside statute reading and we were studying Criminal Procedure, far livelier material, which centers on a long line of controversial U. S. Supreme Court cases, like the Miranda and Escobedo decisions, that deal with the rights of the accused. Today Mann had asked a local policeman to visit the class to demonstrate the stop-and-frisk procedure approved by the Warren court in Terry v. Ohio. The cop frisked a student volunteer, Charley Maier, whom Mann had set up in advance with a concealed cap gun. When the cop did a light pat-down of Maier's clothes and missed the gun, Charley had pulled it from his pocket and pointed it straight at the policeman. There was a lot of giggling, but the cop had the last laugh. He backed Charley up against the wall and demonstrated the frisk he used on "smart guys." It included a quick poke between the legs to make sure there was nothing else Charley had concealed.
The episode was carried off with a lot of hamming and joviality on all sides, and the discussion afterwards, trying to reconcile court decisions and the realities of police conduct, had been pragmatic but searching. When we came into Contracts, everyone was quite chipper, perhaps with the sense of better things ahead. I introduced Annette to a number of people whom she hadn't met yet--Gina and Kyle and Karen Sondergard--and together we steered her to a seat on the back benches, suggesting a number of half-obscene responses in case Perini called on her or commented on her presence.
When class started, it was apparent th-at Perini did not share our high mood. Attendance had been lagging throughout the period while the Methods briefs were being written. Now, with oral arguments at hand, attendance had dropped substantially. Many people were preparing for the argument even more doggedly than for the brief. Perhaps a quarter of the seats were empty and Perini had stared for a long time at the sparsely occupied tiers before beginning.
Perini's normal pattern was to treat a single case each day. I don't know whether it was his upset over attendance or just the nature of the material that caused Perini to press so far ahead in that session. Whatever the reason, by forty minutes into the period he had finished two cases, and there was a lot of uneasy shifting about among the students as Perini headed back to the seating chart. My guess was that a number of people had not read the last of the prescribed three cases very carefully. Yesterday, I had read nothing at all; but I took the precaution of leaving Perini a note. "Overburdened," it read. "Barely breathing. Unprepared." Some of the men and women in the section would not hand Perini, a note except in the event of typhoon or leukemia. At HLS exams are graded anonymously, with a private identifying number affixed to the test instead of the name. The registrar matches numbers and grades with names, and professors often never know who got what. But many of my classmates, overawed by Perini, were convinced he filed our notes and would find some way to use them to detract from our marks. I didn't believe Perini would go that far.
"Mr. Mooney!" Perini cried out. He was still calling our names in that sharply rising, stabbing voice every time a student was selected for the case.
Mooney was a long, thin, mild man, extremely quiet and barely expressive. He glanced up with his usual serious look, but when he spoke my heart turned solid.
"I am sorry, sir," Mooney said, "I'm not prepared."
Perini froze over the seating chart, stock-still, one elbow hooked in the air as he held his pencil. His jaw rotated once or twice before he spoke.
"You mean, you didn't think we'd get that far," he said. He was looking up at Mooney with horrible hatred in his face and his voice was icy with contempt. This was betrayal. That was it. Mooney had betrayed him.
Mooney tried once, weakly, to explain. "I have this oral argument today in Legal Methods. I--"
"There are other people in this room who have an argument today, aren't there? Do I have a note from you? The rules of the road were laid down on the first day, Mr. Mooney. If there is any excuse, I want a note about it." Perini stepped away from the podium for an instant, his face still wrought with anger. I'd heard that this had happened once several years before and that Perini had stood over the student and made him read the case right there, answering questions line by line as he went through it, a torture of exposure which had lasted nearly forty minutes. But Perini seemed to have no punishment as immediate in mind for Mooney.
He touched the podium.
"I hope you are very well prepared on Monday, Mr. Mooney." Again that voice and look, brewed hatred. What would he do to Mooney on Monday? Something unpleasant. Something terrible. Right now Perini looked mad enough for murder. And Mooney would have to carry that worry for the next five days.
The class sat stunned, absolutely still. Perini leaned over the seating chart and made a furious mark on it; then he called on the man who sat on Mooney's left. Calling on the person beside an unprepared student is a familiar device, used by law professors to increase the pressure on those who fail to respond. Mann, despite the gentleness of his rhetoric on the first day, often did the same thing. Pass, and you served up the head of your nearest classmate, thus adding peer contempt to your disgrace. It was the Socratic classroom's answer to the thumbscrew.
The man, Zimmerman, started slowly, softly--breathless, like the rest of us.
"What did he say?" a few people murmured.
"Nothing worth listening to," Perini snapped. Then he went back to the seating chart and, while Zimmerman recited, made a ceremony of marking off the absences around the room.
When the hour had expired, Perini packed the seating chart beneath his arm. He glared about.
"I had hoped to get further," he said, "but the level of preparation was so poor." Then he stalked out, awkward in his fury.
Slowly, quietly, we followed him from the classroom. I didn't know what to think. Annette and I walked down the corridor toward Torts with Greg Dawson beside us--the man who sat next to me in class. I introduced him to Annette.
"How did you feel about that?" I asked.
He shrugged. "I thought Perini lost his cool."
"Did it bother you?"
"Not really," he said. "Mooney knew what would be coming if he got caught."
"You're used to it," I said, smiling, "you just got out of the marines." But the incident did not sit right with me as humor. I knew what I thought now. "It was wrong," I said suddenly, "really wrong. A teacher shouldn't treat a student that way. Not in front of a hundred and forty people. Not anywhere."
I was not the only one disturbed. In the minute before Torts began, Lindsey Steiner got to her feet. She is a thin, dark woman in her mid-twenties, one of the people most active in the Guild and the Women's Law Association.
"I hope anyone who was upset by what happened in Contracts will stay around for a few minutes after class so we can have some kind of discussion," she said.
When Torts was over and Zechman gone, Kyle--from my study group--and Wade Strunk joined Lindsey at the front of the room. Well over three quarters of the men and women in the section had remained. Most were angry. As they spoke up, people said repeatedly that they didn't like being treated as children, that they had had it with subscribing to Perini's terror and his iron rules. There was broad agreement that some kind of protest should be made.
A few students stuck up for Perini. Ned Cauley said it was a single error on the part of a great teacher and that it should be overlooked. A number of people said it was a matter between Mooney and Perini. Mooney himself was of that opinion.
"I'd prefer if nobody did anything," he said several times. "I made a mistake. I'll settle it with the man myself."
But most of the people present would not be dissuaded. Kyle said that it was a matter which touched all of us. We were all threatened with similar treatment.
For a while those present debated an appropriate response. Someone suggested we boycott class on Monday. Somebody else said
that we should all turn in notes saying we were unprepared. Finally, it was agreed that a letter of protest would be written. Kyle and Lindsey and Wade and anyone else who was interested would join in writing it, and it would be presented to the section for approval the following day.
Before the meeting broke, I slipped out with Annette. My oral argument would begin in a few minutes and we headed toward Pound, where it was to be held. I was quiet, thinking about the entire incident, including my classmates' reaction. We had watched the meeting from the back of the room. I was still not sure how caught up with all of it I should get.
Annette suddenly spoke up. "You know, it wasn't that bad," she said, "Perini was rude and he shouldn't have talked to Mooney that way. But it wasn't so awful."
I was surprised at her. "Babe," I said, "did you see the hatred when he looked at that kid?"
"But you've been saying all year how terrible he is. That's all I hear every night--Perini's so tough. Perini's so mean. And now you're having mass meetings."
I thought for a second about what Annette had said. Maybe she was right. I could see how the whole episode might appear trifling to an outside observer. But there was so much wrapped up in it: the pressures, and the uncertainty, and the personal humblings, and the rules of the road--all the crap we had put up with. It was a frightening prospect to joust with Perini, but we were ready to fight back now and it seemed important not to let that moment pass.
"I'm not sure you can understand, babe," I told her. She agreed. She agreed that was quite possible.
The oral argument was a disaster.
I saw the moment we arrived outside the classroom in Pound where we'd argue that Willie and I were in trouble. Our opponents, Jim DeMarco and Jody May, had shown up in their best, he in an expensive three-piece suit, Jody wearing a smart tailored outfit. Willie and I were in old sports coats.
