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The Timeless Litigator

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The Timeless Litigator The Timeless Litigator by Jerold S. Solovy and Robert L. Hyman In the early 1990s, a young sportswriter interviewed Stan How about the greatest tenor? Pavarotti? Caruso? Lanza? "The Man" Musial. What about the greatest architect? Skidmore? Wright? I.M. "Stan," began the reporter, "a lot has been said about Pei? The greatest physician? Salk? DeBaky? today's pitching versus the pitching in the '40s and '50s Step right up and offer your nominations. In almost any when you were an active player. What do you think? How field of endeavor, the choices are abundant. Lots of individ­ would you do against today's pitching?" uals could legitimately be nominated as the "greatest"-and Stan thought a moment and replied, "I have to be honest we find them throughout the century. with you. I probably couldn't bat much better than .200." Now name the greatest trial lawyer of the century. Start "Two-hundred!?" The reporter was incredulous. "Stan, with the candidates who are still practicing. Okay, that you were an all-star in every one of your 22 years in the would be .... Major Leagues. You hit 475 homers. You had more than Johnnie Cochran? Roy Black? Mike Tigar? F. Lee Bailey? 3,600 hits. Your lifetime batting average was .331. You won Gerry Spence? They are all good lawyers, to be sure. Suc­ seven National League batting titles. Do you really think you cessful lawyers, without doubt. Well known, without ques­ could bat only .200 against today's pitching?" tion. Maybe even great. But the "greatest of the century"? "Son, you gotta remember," the Man replied, "I'm over 70 Not a chance. That title is reserved for someone else. now." Is there any question that the greatest litigator of our cen­ Forget about Y2K. You and your computers will survive tury-of any century-was Clarence Darrow? Can you even it. It is the nostalgia bug that may do us all in. As we think of another legitimate nomination? Could you, someone approach the end of a century and a millennium, we are who spends her life in the courts observing other lawyers, going to need rearview mirrors on our reading glasses to deal seriously nominate anyone else? with all the times we will be asked to look back. In sports, Sure, you have seen some really good trial lawyers. You politics, theater, art-in every aspect of life-someone will have seen lawyers with great skills. You have seen lawyers ask whether things were better in the old days. As trial who were involved in great cases. You have seen all these lawyers, we are not immune. things-but rarely at the same time and even more rarely Quick-name the greatest baseball player of the century. over and over again. Did you say Babe Ruth? Probably. But if you are reading this Darrow was unique. He was a great lawyer. He had great in St. Louis, you may have said Musial or even McGwire. skills. And he had great cases-over and over again. And some may argue for Gehrig or Williams or Aaron or During the past hundred years, the press has dubbed at Mays or Rose or Cobb or DiMaggio or Griffey-any one of least a dozen cases "The Trial of the Century." Earlier this them comes to mind as a possible candidate. year, MSNBC asked the public to cast votes. There are a full Now name the greatest basketball player. Recent history score of legitimate contenders for the "greatest trial" title: suggests that there is Jordan and there is everyone else. But 1901 Leon Czolgosz (murder; the President fans of Chamberlain or Russell or Cousy or Bird or Magic McKinley assassination) might give you an argument. 1906 Harry Thaw (murder; starlet Evelyn Nesbitt's Who was the greatest boxer? Ali? He was "The Greatest," husband, charged with killing her lover, but then he named himself. What about Dempsey or Louis or architect Sanford White) Marciano? The greatest golfer? Nicklaus? Palmer? Jones? Woods? 1907 Big Bill Haywood (murder; union leader Hockey player? Gretzky? Orr? Howe? charged with bombing death of Idaho Gov­ ernor) Jerold S. Solovy and Robert L. Byman are partners in the Chicago law 1911 The Triangle Shirtwaist Trial (manslaughter; firm of Jenner & Block. sweatshop fire resulting in death of 146 people) LITIGATION Falll999 12 Volume 26 Number I 1911 The McNamara Brothers Trial (arson, murder; On December 30, 1905, a bomb blast killed Stuenenberg. union leaders charged with bombing deaths) Two days later, the police arrested Harry Orchard, who 1921 Sacco & Vanzetti (murder; defendants promptly confessed to setting the bomb-under direct unpopular anarchists) instructions, he claimed, from Haywood. Many credited Darrow's brilliant closing argument for Haywood's acquit­ 1921 Fatty Arbuckle (manslaughter; popular actor tal; others assigned the judge's unexpectedly favorable charged with rape/manslaughter in alleged instructions. No matter. Darrow either persuaded the jury to drunken attack) acquit, or he persuaded the judge to give good instructions. 1924 Leopold & Loeb (murder; "thrill" crime) A home run. Darrow is batting 1.000. 1925 The Scopes "Monkey" Trial (teaching evolu­ tion in violation of state law) *** Leopold and Loeb were brilliant. They were rich. They 1931 The Scottsboro Boys (rape; nine black men were lovers. But they were bored. At the age of 18, Loeb was accused of raping two white women) the youngest person ever to have graduated from the Uni­ 1934 The Gloria Vanderbilt Custody Trial versity of Michigan and was a post-graduate student at the 1935 Bruno Hauptmann (murder/kidnapping; The University of Chicago. Leopold, 19, was in law school at the Lindbergh Baby) same university. They were, they reasoned, so smart and so 1946 The Nuremberg Trials privileged that ordinary laws did not apply to them. 1951 The Rosenbergs (espionage; theft of atomic To prove the proposition, they conspired to commit the secrets) perfect murder. They chose as their victim and coldly mur­ 1954/1966 Sam Sheppard (murder; inspiration for The dered Loeb's 14-year old cousin, Bobby Franks. But Fugitive) Leopold was not as smart as he thought; he left a pair of 1969 The "Chicago Seven" (incitement to riot; glasses with Franks's body. The two soon confessed. anti-war protests) The defendants-rich, arrogant, Jewish, gay-were not exactly sympathetic characters. The only question appeared Charles Manson (murder; Helter-Skelter) 1970 to be how quickly the gallows could be built. But for a fee of 1992 The Rodney King Beating Trial (assault; $100,000 (more than a million in today's dollars), Darrow set videotaped police misconduct) out to save them. And save them he did. First, he withdrew 1995 O.J. Simpson (murder; you know ...) the not guilty pleas, taking the case from the jury; then he got 1999 The Clinton Impeachment Trial (felony stu­ right to the point and asked the judge for leave to offer evi­ pidity) dence of mitigation. With a battery of expert psychiatric tes- For those that occurred in our lifetimes, we can name most of the lead lawyers because the trials were so highly publi­ cized. You probably remember David Kendall, Johnnie Cochran, Marsha Clark, Vincent Bugliosi, William Kunstler, and F. Lee Bailey. But how about the lawyers in those other famous cases? Do the names Delphin Delmas, Fred Moore, or Gavin McNab come trippingly to the tongue? Probably not. And generations of lawyers yet unborn will probably not recognize the names of Kendall or Cochran 50 years from now. But one name will be remembered--Clarence Darrow. It is a staggering feat that of these 20 "Trials of the Cen­ tury" only two lawyers appeared in more than one of the cases. F. Lee Bailey was Sam Sheppard's lawyer in the 1966 trial that acquitted the "Fugitive" doctor; and Bailey played an important-albeit supporting-role in the O.J. Simpson defense. But Clarence Darrow was lead counsel in an amaz­ ing four (or maybe six, depending upon how you count) tri­ als of the century. No other lawyer has ever been so centrally involved in so many compelling cases. And so we ask the young sports­ writer's question: "How would Darrow fare in today's jus­ tice system?" First, take a look at Darrow's batting average in trials of the century. Big Bill Haywood was an executive of the Western Feder­ ation of Miners and was one of the labor movement's recog­ nized radicals; he publicly advocated violence in the cause of workers' rights. In the early years of the century, the Gover­ nor of Idaho, Frank Stuenenberg, called in Federal troops, suspended the writ of habeas corpus, and used heavy­ handed, and perhaps illegal, tactics to crush the union and its strike attempts. Haywood vowed vengeance. LITIGATION Falll99913 Volume 26 Number 1 timony and a two-day summation, Darrow literally saved his as in six years or in 6,000,000 years or in clients' necks. His clients pled guilty-score that as an out, 600,000,000 years. I do not think it important but give Darrow a sacrifice. Not an official time at bat, Dar­ whether we believe one or the other. row's average still stands at 1.000. Q. Do you think those were literal days? *** A. My impression is they were periods, but I would not Before OJ. and Monica, not many would have gone fur- attempt to argue as against anybody who wanted to ther than the Scopes "Monkey" Trial as their pick for the trial believe in literal days. of century. It had it all. The two most famous orators of the Darrow lost.
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