by Scott Turow
Far more disturbing was the identity of the judges. An authentic summary-judgment motion is a trial-level procedure, argued to a single judge. But the more judges, the sharper the questioning, and for that reason the Methods arguments were conducted before a court of two, a teaching fellow and a member of BSA. In all other regards, we'd be observing courtroom formalities, calling the judges "Your Honor," and being addressed as "Counsel." Because of that, I'd assumed the judges would be people whom we didn't know well; that would make all the pretending easier. As I expected, the chief judge was a Methods teacher from another section, somebody named Quin-ley whom I'd never laid eyes on. But there'd been a mix-up in the BSA office and the student judge was Peter Geocaris. When I saw him, my heart sank. I knew how seriously Peter, with all his standard-of-excellence ideas, would take this business. I hated the notion of disappointing him.
We all filed into the room together. Quinley and Peter sat behind the professor's podium. Willie and I, Jody and Jim took the first row of desks, the two sides being separated by the aisle. Annette sat in back.
Willie got to his feet and commenced the argument with the traditional opening line, "May it please the court." That was probably the last correct thing either of us said. Willie made it plain how little interest he had in being here. He spoke rapidly and his tone was casual, even flip. He seemed to give the back of his hand to the judges' questions. "That's what you think, Judge," he told Quinley at one point. He turned aside one of Peter's inquiries, saying, "Maybe that's so, but I don't want to talk about it."
When he sat down, it was apparent that Quinley was displeased. Nor did Peter look happy. And I only made things worse. Oral advocacy, this process of arguing aloud to a court, is one of the most highly respected elements of the lawyer's craft. The great oral advocates--Daniel Webster, John W. Davis--are legends in the legal world. To be an advocate of that quality, it is usually said that two things are required. First, you must be extraordinarily well-spoken and quick-witted. The judge is liable to interrupt with questions regarding any aspect of the case, no matter how trivial, which seems to him a hindrance in accepting your argument or dismissing your opponent's. You have to be ready to address any point. And to do that, a second thing is needed: You must be consummately prepared, acquainted with the minutest details of the case.
I was not ready in that way. I'd glossed the sheaf of cases we'd been given when I'd picked out the series of slick quotations I'd stuck into my brief. I'd figured that no more would be necessary--I'd just stand up there and mumble for a while. When, a minute or two after I'd started, Quinley and Peter began to drill me with sharp questions about cases I could barely recall, I knew I was in deep. I resorted to any device to get through the fifteen minutes. I haggled the smallest points. I tried to make every question semantic. I even smiled warmly at Peter now and then, trying, I guess, to remind him that we were students, allies, friends, which was a quiet but unscrupulous breach of the formalities we were supposedly observing.
The Jack Katz case ultimately turned on a typically slender legal question. In order to fire Katz, could Elliot Grueman, the raincoat-factory owner, merely claim to have been personally dissatisfied with Katz's performance, or did he have to offer reasons which a reasonable person would regard as valid? Representing Grueman, Willie and I were arguing that the law required no more than Elliot's subjective dissatisfaction. There was a lot of material in the cases which supported that position, but I had missed most of it, and Quinley, for at least ten minutes, tried gently to lead me onto that track. By then, however, I had assumed a battlefront mentality and just fought back blindly. Thus, for half the time I was on my feet, I was fiercely trying to punch holes in my own best arguments. Near the end, Quinley gave up hope.
"Counsel," he said, "we seem to be going in circles." "Indeed we do, your honor," I answered, and soon after that I sat down. I caught Peter's eyes for a second. He looked incredulous and somewhat pained.
In a real courtroom, the judge might have ruled against us then, but here Jim and Jody were required to speak and in turn they got to their feet. Jody was the M. D. in the section, a tall, handsome, genial woman. Jim was a Chinese scholar from Cornell. They had been fine people to work against. Many of the opponent pairs had actually become quite heated with each other. Stephen and Kyle, for instance, had ended up on opposite sides and Kyle was still loudly complaining about Stephen's negotiating tactics. But with Jim and Jody there had been no strain, no sense that they were out for any kind of ruthless victory. They'd merely done a good job, written a thorough brief, and come ready for the argument. Watching them, I realized suddenly how reasonably the whole project could have been handled. I was not surprised when, in the moment after they'd finished, Quinley announced they had won. It was one of the few out-and-out victories I heard of during those weeks.
"I'd like to comment on the argument," Quinley said soberly before he let us go. He was a gentle, patient teacher and he mentioned no names, but it was obvious how angered he'd been by Willie's performance and mine. Some of the counsel, he said, didn't seem to care what they were saying. Some of the counsel had been too argumentative to listen to questions. Some of the counsel had slumped, had gestured too much, hadn't bothered to button their sports coats, had looked almost insolent.
Outside in the lobby, we had a piece of a coffee cake which Jody had baked. We all talked about how nice it was to be done with the work of Legal Methods. All that was left of the course now was the mock trial of the Katz suit, which we were not required to attend.
I congratulated Jim and Jody again; then Annette and I went home. I had two quick drinks, unusual for me, and waited for the alcohol to work. Now and then, as I sat bleakly in the kitchen, Annette would pat me on the shoulder and say in a hoarse, ironical voice that she still loved me. I did not laugh much.
I see now that during that period last fall, I was learning all about disgrace. I was suffering a broad variety of shames and embarrassments--over failure, at feeling a child, over losing control. Kyle, at one point, said that much of the section's anger with Perini earlier that day arose from a shamed sense of having continually submitted to things we did not admire.
In looking back at all those shamed feelings, I see much of the pain as crazy and exaggerated and unnecessary. But I think even now I would feel a little of what hit me after that argument. I had finally realized that there had been a worthwhile job to do and that I had done it badly. I had mocked what I should have cared about, and in the process I had strained a friendship, even embarrassed my wife a bit. I felt like the bottom of somebody's shoe. And there was no way out. No professors to blame, no institutions. This time I'd been the entire source of my own humiliation and there was nothing to do but drink, and wait until I could forget it.
On Thursday, the movement to rebuke Perini began to divide. In the half hour between Torts and Civil Procedure, Kyle read the letter he and Wade and Lindsey had written overnight, and it was apparent at once that much of the support for the protest had dissolved. Only sixty or seventy persons stayed to listen and many of them quibbled with the letter's language.
In twenty-four hours, tempers had cooled. Many people were ready now to heed what Ned Cauley had said--that a single misstep by a great teacher should be forgiven--or to honor Mooney's request that he be allowed to deal with the matter himself. In addition, a number of people had become frightened. Rumors--probably baseless ones--were now circulating that Perini had instructed his student research assistants to make it clear that he would retaliate for any gestures on our parts which he found embarrassing. Once more people feared that their grades would suffer, or that Perini would somehow take out his anger in class in the long period between now and June.
Many of the Guild members who continued to favor the letter spoke out angrily. They disparaged their classmates' courage and moral sense. There were a few hot-tempered speeches, a little name-calling. Finally, Kyle cut off the argument by saying that those who wanted to sign the letter could do so
. He was the first, writing his name on the sheet with a dramatic flourish.
Watching, again from the back, I was not sure what to do. Gina came up to me.
"Are you going to sign?" she asked. She looked troubled.
"I don't know," I said, "I don't know." I was in the grip of more of that painful confusion. Perini was a great teacher, I thought, and God only knew, I had learned for myself the previous afternoon the value of being prepared. I could see why Perini had impressed its importance on his students.
But still, it seemed to me that he had been rude and unfair, that he had been cruel. In considering excuses and counterweights I thought I might be doing what Nader had described the other night: hesitating where months ago common sense would have made things clear. Something ugly had happened the day before and there was nothing wrong in trying to make certain that it did not happen again. I just wanted to speak my mind. I dismissed the rumors of retaliation. If they proved to be true, that would in itself justify protest.
I walked to the front and read the letter once. It was really a moderate document. It praised Perini's teaching; it acknowledged the value of preparing for class. Its only critical note was struck in one carefully worded paragraph, in which the hope was expressed that in the event of a similar occurrence Perini's response would be more restrained. I put my name on it.
In the end, there were only 29 of us, in a section of 140, who signed the letter. Aubrey and Terry did. Stephen and Gina did not. I understood everybody's point of view. I still feel I did the thing which was right for me.
The signing of the letter was hardly the end of what was quickly becoming known to everyone as "the Incident." Organized rebellion by a first-year section was virtually unheard of at Harvard Law School, and word of the letter had passed quickly. By Monday Kyle had led a number of the Guild members in formation of an organization called Section 100, whose purpose was to spread the protest throughout the first-year class. They had decided to direct to all as a mimeographed statement in which they would describe their dissatisfactions with their entire experience at HLS and ask those who felt as they did to join in a mass meeting where some collective action could be planned.
Kyle had urged me to become part of Section 100. I looked in on one or two of their meetings but I was reluctant to get caught up in something in which Kyle was so prominent a force. There was a wonderful, attractive energy to Kyle, and he was highly intelligent; but I knew the kind of unyielding seriousness with which he regarded himself. All his class notes, for example, were inscribed in leather-bound notebooks purchased at the Law Coop for four bucks apiece. No one ever dared to kid him about his ostentation: There was little doubt that he considered his remarks on the law well worth preservation. In study group, he liked to have silence while he more or less lectured on the topic at hand. Early in the year he had admitted that he hoped to become a law professor, and I suspected that he saw himself right here, on the faculty at HLS. It was a high ambition. He would need to make straight As, Law Review, and a deep impression on his teachers, but Kyle had already left behind a string of achievements. He had been summa cum laude at Harvard, and in his junior year he had established some kind of college-wide note-taking service which was still operating. The service, as I heard it, had made Kyle a campus celebrity and also a great deal of money. On rainy days, he arrived at school in a taxi. Now that Kyle had emerged as an activist, I was not sure where that combination of self-seriousness and raw ambition would lead. I admired him for taking a stand, but I preferred to move aside.
Perini, for his part, seemed to be trying to put the whole thing behind us. When we faced him on Monday for the first time since the Incident, the class was more tense than we'd been since the opening day. There was a lot of nervous gossip and I stole a glance at Mooney, who wore his usual implacable expression but who looked pale. The room fell silent as soon as Perini appeared.
"I was out of town over the weekend," Perini said as he set his books on the podium, "and I have to admit that I nearly came to class unprepared."
It was as close as the man could come to an apology. The members of the section laughed and applauded. A great swell of relief passed back through the room. My classmates were delighted to be on good terms again with their stern Uncle Rudolph and class proceeded as normal, Perini commanding the room with wit and show and verbal force. He left Mooney alone.
Kyle and the Guild members, however, were not mollified. They felt Perini owed the section a genuine apology, and they also had complaints that went beyond any one episode. On Thursday, Section 100's statement to the first-year class appeared in our mailboxes in the basement of Langdell.
"What is happening to us at Harvard Law School?" the statement demanded in its opening line. It mentioned no professors by name, but it contained complaints about the irrelevance of our Criminal Law class, the intimidation we all felt in Contracts, the model of the lawyer's role taught in Legal Methods. I was told that a paragraph indirectly criticizing Nicky Morris's condescension had been omitted on a close vote. The statement asked all who felt similar reservations about what had gone on in their sections to join for a meeting the following Wednesday.
On the same day that Section 100's statement appeared, a new alarm spread through Section 2. But it had nothing to do with "Incidents" or protest. Nicky Morris had announced that the following morning he was going to give us an exam.
"It will not count," Nicky said, with his hands raised to hush the tumult which followed his announcement. "It will have nothing to do with your final grade. I will mark these tests, but I just want to give you some experience in taking exams and I'd like to check on how much of what I've been saying has been getting across. You can take the test anonymously or you can just skip it. It's your choice. I'd advise you to take it. But, please, don't study for it longer than an hour or two."
Aside from the purposes he mentioned, I think Nicky also wanted to provide us with some of the feedback and reassurance which we'd needed for weeks. But coming when it did, his announcement fed into the mood of stress and competition created by the Methods arguments. Nicky had said it would be a real exam question, given under authentic conditions, and for that reason most people figured the test and its results would be an indubitable indication of future standing. Many in the section lapsed at once back into the kind of panic which had prevailed for the past weeks.
Stephen grabbed me immediately after class. He was obviously in a heat.
"We'll meet, right? The group? Talk about Procedure?"
Here we were again, back at the familiar emotional crossing between panic or withdrawal. Terry had already chosen the latter course. He sat behind me in Procedure and when I had asked him if he'd take the test, he shook his head.
"No way," he said, "I'm not working myself up for nothing. Man, I don't put my bucks down when they're just joggin' around the track. I'm not taking any tests when I'm not all prepared."
I was looking for some more moderate response. I told Stephen I wanted to write the exam but that I saw no need for a study-group cram session. I reminded him that Morris had said only an hour's preparation would be needed.
"Don't be naive," Stephen told me. "Everybody's crawling the walls already. They'll study all night. We've got to get together just to have a chance."
Aubrey, even Kyle busy with Section 100, agreed. So the four of us met late that afternoon. I was not happy to be there and after an hour I left. I studied my Procedure notes briefly at home, then put them away. Moderation, I told myself. Moderation. I was still collected when I arrived at school on Friday morning. Near my locker, a group of men and women from my section were quizzing each other on Procedure. It was obvious that as Stephen had predicted, they'd studied hard. They were glib about cases I couldn't even recall. I tried to ignore them and hustled away.
In Langdell, in my mail slot, I found a copy of our motion brief. It was the one Peter Geocaris had been given at the argument to read and comment on. I hadn't spoken with Peter about the argume
nt. He'd had to leave for a class as soon as we finished, and I'd avoided him since. But to the brief Peter had appended a long personal note.
"Your brief was not as bad as your argument," Peter wrote, "but I would be lying if I told you to be proud of either of them.
I have seen worse briefs and heard worse arguments, but I know what you are capable of. Frankly, I expected a lot more."
The note was blunt and I was not prepared to deal again with the way I'd felt last week. My first reaction was anger. I threw the brief on the floor. I think I may have kicked it. All that snotty excellence crap, I thought. Then I counseled myself: Whose fault, really? Who are you angry at? I recovered the brief, removed Peter's note, and left the paper for Willie. Suddenly dreary again, I headed back to the hallway, where I ran into Stephen.
"Have you heard?" he asked me.
"Heard what?"
"You won't believe it." He took me with him to his locker and removed a copy of one of the morning papers. He opened it to an inside page. There was a small, single-column article. The headline read "Harvard Law Students Protest" and in four or five inches of type the Incident and the birth of Section 100 were described. Perini's name was mentioned a number of times, but the only direct criticism of him was contained in the article's conclusion--a verbatim quote of the one critical paragraph from the letter which Perini had been sent by the twenty-nine of us from the class. I was mortified.
"Why would they print that?" I asked Stephen. "Where'd they get the letter?"
"Maybe they think we're going to sit in," Stephen said. He explained that a man in the section lived with a woman who was a reporter. She'd seen Section 100's statement and had followed things from there. According to rumor, she'd called Wade Strunk, who had provided her with all the information, including the quote from the letter we had sent Perini. That was the part which bothered me. I had signed that letter and I felt responsible for what happened with it. I'd thought it was a private matter. I never intended the letter to become an element in any sort of public humiliation for Perini.
