Clark Memorandum: Spring 1991 J

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Spring 1991 Clark Memorandum: Spring 1991 J. Reuben Clark Law Society

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I I

I; 0 N '1' E N T S SPRING 1991

2 H Reese Hansen lumor in Law Teaching Dean ames D, Gordon I11

Scott W Cameron Jalues 10 Editor Clder Dallin H Oaks Charles D Cranney Associate Editor Hmv to Win Friends and lnfluence Republicans: 16 The Remarkable Campaig'n of Bill Orton Linda A Sullivan Charles D Cranney Ar t Director 24 John Snyder Keeping the Weightier Matters uf the Law Photogiayher Elder Marlin I<. jensen

Jonathan Skousen Christiunity and the Mud Dog Litigator 30 ThY TYP% David G Campbell Joyce Janetski Assistant Copy Editor Memoranda 36

Thomas M Cutler Mike Bothwell Editoi ial Assistants

SPRING 1991

The Clark Memorundurn is published by the J Reuben Clark Law Society and the J Reuben Claik Law School, Brigham Young University.

Cover Painting of J Reuben Clark, Jr , by Alvin Gittins, 1922-1981

.....

JAMES D. GORDON 1111

NCE AT A CHURCH MLETING delightfully amusing, but also because they reveal Elder B.H Roberts spoke for nearly an hour, leaving Kimball’s genuine humanity in a colorful and memorable J Golden Kimball only five minutes Elder IGmbalI arose way. They teach us that although he was a church leader, he and said, “B.H. Roberts is the president of the Seventy was very much like the rest of us, He too struggled with and has taken all the time Someday he will be dead, and weaknesses and frustrations. Despite his apparent imperfec-

I will be president. Then I will take all the time ” Then he tions, the Lord obviously loved and approved of J Golden sat down.2 Kirnball enough to use him in remarkable ways. If that was J Golden Kimball stories like this one play a valuable role true of J. Golden KimbaI1, the stories tell us, perhaps there is in LDS culture Elder Kimball’s use of wit in serious settings hope for us as well. created incongruities that were somehow both starthng and Like religion (although not nearly as important), the refreshing The stories persist not only because they are study of law is a serious enterprise It is difficult, frustrating,

Professor of Law, J Reuben Clark Law School I have not shown Jeffiey R Holland, Gregory Husisian, Jay Eeno, Michael W McConnell, this article to the Dean He would have urged me not to publish it, and Douglas H hiker, Bud Scruggs, Barry G Silberman, Steven Douglas I’m already in trouble with him He says that I never listen to him (or Smith, John S Tanner, Mark Twain, Gerald R Williams, and others something like that--1 don’t remember) Apologies and thanks to Dave T Madsen, Defender of the Faith: The B H Roberts Story 350 Rarry, Gyles Brandreth, Johnny Carson, Redd Foxx, Bruce C Hafen, (1980)

PORTRAIT ADAPTATION BY WILSON ONG CLARK MEMORANDUM

and often intimidating. It constantly reminds us of our own Humor can relieve some of these tensions It reminds inadequacies There is exhilaration in discovering new ways students not to take everything (including themselves) so of thinking,3 in learning about the world,4 and in feeling our seriously, and to find more enjoyment in what they are understanding and abilities grow However, there are also doing The ability to laugh at oneself and to find absurdities uncertainty, uncase, and even fear Law school has been in everyday life can help a person cope with stressful situa- compared5 to one of those movies in which somebody wear- tions and difficult challenges Psychologists say that laughter ing a hockey mask terrorizes people at a makes people feel better both physically summer camp and slowly and carefully .. and psychologically l5 slashes them all to pieces Except it’s Several years ago Norman Cousins, an worse, because the professors don’t wear editor of the Saturday Review, wrote a hockey masks, and you have to look now famous account of how he contrac- directly at their faces SCHOOL ted an incurable and life-threatening disease of the body’s connective tissues, HAS BEEN COMPARED which he believed was precipitated by adrenal exhaustion In his article, ost students initially find TO ONE OF THOSE Anatomy .f an Illness (as Perceived by the Socratic method in- the Patient),’6 Cousins recounted how timidating, if not potentially humiliat- MOVIES IN WHICH he decided to introduce more hope, faith, ing6 Students struggle as they learn and laughter into his life. His theory was about stare decisis,’ and leg- SOMEEODY WEARING that laughtcr and other positive emotions islation ’ They somctimes fccl that their could affcct his body chemistry for the professors are being condescending” or A HOCKEY MASK better. He obtained films of classic are out to get them I’ The competitive- Candid Camera television shows and had ness of law school and the fear of failureI2 TERRORIZES PEOPLE a nurse read to him out of a trove of can create debilitating anxieties Students humor books He discovered that the arc sometimes terrificd by thc possibility AT A SUMMER CAMP laughter sessions enabled him to get a of getting poor gradcs,13 and whcn final few hours of sleep without pain The examsI4 approach they can feel about as AND SLOWLY AND nurses took sedimentation-rate rcad- happy as a nine-lived cat run over by an ings (blood tests indicating infection eighteen wheeler These things explain CAREFULLYSLASHES levels) just beforc as well as several why law school has been compared to a hours after the laughtcr episodes Each besieged city: everybody outside wants in, THEM ALL TO PIECES. time, there was a drop of at lcast five and everybody inside wants out points Cousins wrote, “I was greatly EXCEPT IT’S WORSE’

Straight thinking is generally preferred, 8Which is important because, in the law, based on the assumption that we live in a Eucli- BECAUSE THE anything that has been done before may legally dean universe Cf Village of Euclid v Ambler be done again J Swift, Gulliver’s Travels 242 Realty Co , ,272 U S 365 (1926) (implicitly PROFESSORS DON’T (J Ross ed 19th printing 1964) assuming that every point on the surface of a ’Congress’s Gramm-Rudman deficit-reduc- sphere is unique) But cf Tribe, The Curvature of tion law has been desciibed as a law saying, “Stop WEAR HOCXEY MASKS, Constitzitzonul Space: What Laivyers Can Learn me before I kill again ” from Modem Physics, 103 Harv L Rev 1 (1989) lo “Condescending” means when you talk I have always enjoyed learning about the AND YOU HAVE TO down to people world When I was 18, I told my father that I ‘I This view may seem palanoid Howevei, wanted to join the Navy so I could see strange just because you’re paranoid doesn’t mean that LOOK DIRECTLY AT lands and meet strange people My father replied, people are not out to get you Also, some forms of “You want to meet strange people? Go to St mental illness are not so bad For example,

Louis Meet your mother’s people ” THEIR FACES. schizophrenia beats dining alone By me The passive voice is a remarkable I2 My first-semester grades were four F’s and device for avoiding responsibility Cf President a D The dean called me into his office and said, Richard Nixon’s announcement during the “Kid, you’ve got to stop spending all your time on

Watergate investigation that “justice would be one subject ” pursued fairly, fully, and impartially, no matter l3 It is alleged that law school grades have no I_ - who is involved ’I Bowers, Using and Misusing the Passive Voice, Califor- piedictive ability on success in law practice Psychics have no predictive nia Lawyer 63, 64 (Sept 1984) Unfortunately for him, people did pui- ability, either If they do, why do you never see a headline that says sue it, and he was the one involved “Psychic Wins Lottery”? ‘The Socratic method is the reason that law school is the only place l4 Law schools give only one exam at the end of the semester, the where YOU LEARN TO HATE YOUR OWN NAME 1 FINAL EXAM OF TIIE LIVING DEAD

Latin, fur “We stand by uur past mistakes ” Seventy percent of all I5Talan, Laughing on the Outside: Sick Ilumor May Be a Way We legal reasoning is the logical fallacy of appeal to authority The other Release Our Tensions, Deseret News Magazine, May 4, 1986, at 8 forty percent is simply mathematical error l6 Saturday Review, May 28, 1977, at 4

4 C L A R K ILI E MO R A N D U M

elated by the discovery that there is a physiologic basis for with a student “Look,” said the student, pointing at the the ancient theory that laughter is good mcdicine ”17 ground, “a five-dollar bill ” “It can’t be,” responded the pro- Although laughter was not the only treatment used, it fessor “If it were there, somebody would have picked it up was a major part of the therapy Eventually the connective by One could add, “Economics is a closed system; tissues stopped deteriorating and began regenerating, and internally it is perfectly logical, operating according to a con- Cousins recovered Onc endocrinologist was convinced that sistent set of principles. Unfortunately, the same could be creativity produces brain impulses that stimulate the pitu- said of psychosis ”25 itary gland, triggering effects on the whole endocrine sys- On the other hand, this example raises an objection to tem.18 Humor’s beneficial effects on a person’s emotional and the use of humor:26humor can present unfair and distorted physical health” can improve his or her ability to meet chal- pictures 27 However, reasonable listeners realize that a lenges and perform in stressful situations humorous obscrvation is not intended to be taken completely at face value Tcmporarily blowing things out of proportion sometimes helps us focus” on a particular aspect of a problem, much like looking at one area of a painting with a umor can also improve the students’ receptivity magnifying glass temporarily exaggerates that area and dis- in the classroom While humor helps studcnts to torts the painting as a whole Similarly sometimes we are so feel more at ease, it also encourages them to listen more busy scrutinizing details that we need to put the whole closely so that they don’t miss the fun Students are likely to painting in a broader perspective; humor can help us step be more alert if they enjoy what they are doing, and humor back and question the work’s overall importance can make dry material more palatable A study“ at Stanford Humor also serves other analytical functions, It permits University has found that laughter causes significant people to roam more freely, to be iconoclastic without being increases in catecholamines, the so-called alertness hormones threatening, to express frustration, and to speak their mind that include adrenaline 21 Humor’s effect on alertness has without having to resolve all of their feelings on a subject been widely recognized When President Francis Lyman com- Humor can also remind us that the contradictions, contrast- plained about J Golden Kimball’s style of speaking, Elder ing viewpoints, and subtle ironies in a particular problem Kimball answered, “Well, you see, Brother Lyman, you talk might not be ultimately resolvable, and that it is permissible to send them to slccp and I have to talk to wake them up for the world to be that way It is not completely surprising Humor can also help us to look at situations in new ways, that researchers have found a connection between a wcll- break free of ordinary thinking, and challenge conventional developed sense of humor and problem solving2’ Each wisdom For cxample, humor has long been an effective tool might cause the other: creative thinking can produce humor, of social and political comrncntators 23 Writers such as Jon- and humor can help people to think morc crcativcly athan Swift, Mark Twain, H L Mencken, Art Buchwald, and Dave Barry have used satire to help us take critical and fresh looks at ourselves and our society Their message would probably fall on deaf ears if they simply said, “Listen up, I f course, humor can stop people from thinking, think such-and-such-a-thing is dumb ” Instead, they 0too It can be derisive, mocking,- or dismissive It delightfully show us the sillier side of things can be used to reinforce our own views by belittling the For instance, although economic analysis is a powerful views of others, to exalt ourselves by tearing others down tool for evaluating legal rules, it does have critics The allega- The people in the great and spacious building in Lehij; tion that some economic analysis rests on unrealistic dream werc “in the attitude of mocking and pointing their assumptions is a standard one, almost perfunctorily made fingers” at others 30 Their scoffing and scorn caused some Howevcr, the lesson is more memorable if illustrated with a people to feel ashamed 31 The great and spacious building story: An economics professor was walking across campus “stood as it were in the air, high above the earth,”32making

” Id at 48 “distorted” is much like calling winters in northern Alaska “cool ” ld at 51 Recently the Enquirer published a diet that is supposed to raise one’s Scientists have shown that a laugh a day is worth a pound of fiber IQ This was pretty brave of the tabloid, since it iisked losing most 2o The study compiled lots of data “Data” is a Latin word meaning of its readership However, the Enquirer doesn’t know the meaning of

“the pluial of anecdote ” the word “fear” It doesn’t know the meaning of a lot of othei words, 2’ Id either ‘‘ C Richards, J Golden Kimball 97-98 (1966) Cf the Hubble telescope, which cost a billion and a half dollars to 23 See Note Humor, Defamation and Intentional InfZiction of Emo- build and send into orbit, but which, because of a design flaw, makes tional Distress: The Potential Predicament foi Private Figure Plainti;tfs, everything look hzzy However, perhaps there is no design flaw at all 31 Wm 8r Mary L Rev 701, 723 (1990) Perhaps the universe really is fuzzy. 24 J Jones & W Wilson, An Incomplete Education 125 (1987) 29 Machan, What’s Black and BLue and Floats in the Monongahela 25 Id at 124 River?, Forbes, Nov. 2, 1987, at 216 ’‘ 1 will explain the objection to you slowly, because that’s the way 30 1 Ne 8:27 people always explain things to me 31 1 Ne 8:28, 33 27 Cf The National Enyuiler Calling the Enqui7er’s articles 32 1 Ne 8:26

5 CLARK MEMORANDUM

it a particularly fitting image of human pride 33 Its inevitable humor can open minds, rather than close them In some fall was, said Nephi, “exceeding great ”34 While many cases, when a frontal assault would fail, humor can cause a human activities can foster pride, humor can present special person to open his mind voluntarily so he can come out and dangers, It must therefore be used carefully and sensitively, enjoy the sunshine with others. In a sermon that J Golden and we should frequently examine both the purposes of our Kimball desired to be read at his own funeral, he asked what humor and its effects on ourselves and those around us. Like his general influence among his people was, and whether he many other tools, it can be used in the service of both good had a special attraction for narrow42and intolerant people.43 and bad causes Golden understood that most minds cannot be won by force, but instead must be gently led Humor can help people become more open to change. While it may not be completely possible (or even desir- umor in the classroom must be used gently and able) to analyze something as spontaneous as a laugh, H responsibly, not in ways that inflict emotional I believe that it is possible to identify some benefits of injury or damage reputation^.^' Professor King~field’s~~appropriate humor in the classroom Humor allows a demeaning humor was designed to get a laugh at the expense professor to reveal his or her humanity to the students, of some poor victim in the class 37 His use of humor was self- which can improve teacher-student relations. It helps reduce ish38and callous; humor must be used more lovingly, with a tension and stress that can interfere with learning. It delicate touch Jokes based on racial or sexual stereotypes are improves the students‘ receptivity and increases their alert- also inappropriate; they injure people and relationships, rein- ness in class. In addition, as a form of provocative (and occa- force uncharitable attitudes, and promote bigotry Similarly, sionally even outrageous) discourse, it can stimulate vulgarity debases both the speaker and the listeners Before thinking in an imaginative and creative way All of these using humor, we must consider whether it will offend rea- things make learning more enjoyable and can enhance the sonably sensitive people To mix a couple of metaphors, learning process offensive humor can find us skating on hot water, and that’s when the sacred cows come home to roost with a ven- geanceS3’Like other aspects of human relations, the bound- ary between appropriate and inappropriate humor is not n some Hebrew schools a special ceremony occurs on always easy to discern;40 one person’s good-natured humor I the first day of class. The teacher places a drop of can be another person’s offense. honey on the cover of a book and gives the book to the stu- While using humor in the classroom does present dent, who licks the honey off The symbolic message is that increased risks, I believc that this problem, like Wagner’s learning is sweet Like anything that produces significant music, is not as bad as it sounds 41 The teacher can help con- personal growth, legal education has both bitter and sweet trol it by laughing at himself, by making it clear that he is elements I believe that a little humor in the classroom, and only joking, by trying to avoid injuring people, and by pre- occasionally even a lot, can help law students savor the senting contrasting points of view Used appropriately, sweetness a little more

33 1 Ne I1:36 38 Some people don’t appear to care about self-interest Joe Louis

34 Id said, ”I don’t like money actually, but it quiets my nerves ” 35 Cf slander ruining a law professorb reputation, which can usually 39 Cf Sherbert v Verner, 374 U S 398, 413 (1963) (Stewart, J , con- be pursued in small claims court curring) (“This case presents a double-barreled dilemma, which in all 36 The Payer Chase is as accurate a depiction of law school as Perry candor I think the court’s opinion has not succeeded in papering over”) Mason is of law practice I used to watch Perry Mason, but the ending 40 However, “I know it when I see it” Justice Potter Stewart once was always predictable Mason would be brilliantly cross-examining a joked that he thought that these words would be chiseled on his grave- witness, and somebody in the courtroom would jump up and blurt out stone Cf the words on a hypochondriac’s gravestone: I told you I was sick that he or she was actually the guilty party. I could never figure out why 41 Cf bagpipe music, which is Studies have shown that it is virtually the murderers always attended the trial. Why weren’t they halfway to impossible to distinguish the music of a world-class bagpipe band from Kio de Janeiro? the sound made by 300 cats and a blowtorch Hear also Yoko Ono’s The long-running Perry Mason series left a generation of Americans music (The Bluebook apparently left this signal out It also left out believing that most criminal defendants are innocent, that district attor- some other very useful signals, such as read and weep and try to distin- neys are whining incompetents, and that lawyers and private investiga- guish this one For contrary authority, it omitted disregard, ignore also, tors have shoulders the size of sides of beef It also left them believing and for a really bizarre view, see ) that layering is an exciting lifestyle, since Mason never answered inter- 42 Some people are so narrowminded they can see through a keyhole rogatories, supervised document productions, sat through endless depo- with both eyes Cf: my upper body, which is also too narrow. I once went sitions, or even spent much time at his desk Fortunately, these to a gym to lift weights, but the laughter made it difficult to concen- misconceptions were corrected by the cinkma virite‘ of L A Law. trate One weightlifter called me a wimp, which made me angrier than I 37 This can make students want to drop out, which would cause their have ever been in my entire life I was so angry that I almost said some- student loans to become due The government has proposed withhold- thing I have concluded that the reason weightlifters wear those big ing wages to recover student loan payments Under this program, for leather belts is that, basically, they’re invertebrates example, if you graduate with a Ph D in renaissance literature, every 43 C Richards, supnote 22, at 136 What does this say about those week the government can withhold some of the tips you earn as a waiter of us who like him?

6 CLARK MEMORANDUM

7 CLARK MEMORANDUM

PROFESSOR GORDON

8 C L A R K bl EM 0 RAN D U Ibl

the past three years is almost unbelievable,” says Gordon feels his humor allows him a voice of rea- H. Reese Hansen, dean of the Law School. son outside traditional methods He stands ready to Some of Gordon’s writings are designed as straight jab inferior legal scholarship. humor, typified by his “How Not to Succeed in Law “It’s proper to use humor in analyzing certain legal School,” a gentle poke at the pretensions and realities cases,” he explains. “This year I satirized two opinions of attending law school. The article is scheduled for by the Supreme Court Often the court opinions are inclusion in the Yale Law]ournaE this spring. excellent, but when they are shoddy-especially when Yet more often Gordon’s humor is found in serious I care about the issues-I consider them to be fair legal documents where the humor is placed in the game for humor ” abundant footnotes. But he does not consider his students that way. “I In his “Dialogue About the Doctrine of Considera- never want to inflict emotional injury on any student, tion,” published by Cornell, for instance, he uses his and when I wonder if I have offended someone, I seek first footnote as an acknowledgment, apology, and him or her out to make sure that everything is all thank-you to all those who provided inspiration for his right humor ‘A teacher needs to be careful and calculate the Having given credit-or blame-where due, Gor- risks of humor,” he adds. “In the class, I tell my stu- don then uses a free rein ranging from satire and irony dents I only tease those I love, and the result is an

to whimsy and deliberate incongruity. environment that works well 99 times out of 100 ” No law subject seems too sacred or too corny. In At least one of his students appreciates the humor comparing the legal term “consideration” with Elvis but esteems the teaching even more highly. Presley, he writes in one footnote, “Consideration is to “To tht :xtent that his humor keeps one inter- contract law as Elvis is to rock-and- ested, it’s helpful,” says first-year stu- roll: the King. Revisionists, however, dent John Rooker “He is funny both have questioned Elvis’s greatness. with planned and spontaneous They have wrestled with one disturb- humor. It’s never disruptive and it is ing issue: if Elvis is so great, how come enjoyable. But independent of the he’s buried in his own backyard-like humor is his great teaching. I would a hamster? They address the question sit in any of his classes and want to be openly, knowing that it is Iegally there He can reduce complex issues

impossible to slander a dead hamster ” so students can relate, and his enthu- When the legal concept at issue is siasm shows his commitment to “invalid consideration,” Gordon lets teaching. He exceeds my expectations the reader know the contradictory and is an outstanding professor.” nature of the term in a footnote that Gordon’s use of humor both in

reads, “ ‘Invalid consideration’ is an oxymoron, like class and in writing emerges from a lifelong interest legal ethics, marital bliss, military intelligence, civil in humor. He collects humor books and maintains a war, postal service, scholar athlete, Amtrak schedule, card file on the subject. His parents, Doug and Jean interesting professor and Justice (insert the name of Gordon, are both public school teachers who, he says,

your least favorite Supreme Court justice hcre) ” have provided him with “good role models for delight- Rather than using humor for mere humor’s sake, ful teaching.” he sees his embellished footnotes as a way to get his He begins his classes with a topical Johnny legal opinions advanced Carson-like monologue designed to encourage the “The humor frees me from convention and pro- students not only to be in class on time but also to vides me with a new means of expression,” he says, begin listening from the moment they enter class. “With humor as an outlet, I’ve found a way to get my He continues using humor during the lecture and articles read. For example, some professors at other explains its purpose by saying, “If humor is an active law schools have made copies of the articles for their part of the class, students will want to pay attention. It students I have found more freedom to write about also shows my humanity to them, which can improve issues important to me if I augment them with teacher-student relations.

humor ” “Of course, helping students gain a clearer under- Even when a manuscript is rejected, Gordon is standing of the law and its processes is the primary likely to receive some interesting attention, such as purpose of the class. The humor is secondary to that offered for his “How Not To Succeed in Law that-if you make humor the primary point, then it’s School” text from the University of Chicago Law just entertainment, nothing more.” Review. The letter read, in part, “We have worked long But whether he’s teaching law or writing about it, and hard to establish a grim and humorless reputa- James Gordon’s humor does sweeten the experience.

tion, and wc are not about to let you threaten it ” -Charlene Winters

9 ELDER DALblW M OARS

The Quorum of the Twelve

......

eome ideas and facts are more important than others Perhaps it would be correct to measure the impor-

tance of ideas or facts in terms of their pervasiveness or breadth In other words, the more

THIS ADDRESS

things an idea or a fact can influence, the more important it is For example, we could liken

WAS GIVEN AT THE

one idea or fact to a rock flying through the air Within its own trajectory and within the area

J REUBEN CLARK

of its own small diameter, a flying rock can have quite an impact But outside its own trajec-

LAW SCHOOL ALUMNI

tory and diameter, a flying rock usually has no impact at all In contrast, a wind, or even a

ASSOCIATION 1990 BANQUET,

gentle breeze, across a 50- or 100-mile front can be felt by many. It will turn windmills,

OCTOBER 26,1990

move sailboats, and dry hay for millions Applying that illustration to the world of ideas

lllustration by and facts, I call attention to the contrast between the legal rule specifying the time for filing a

Brian Kershisnik notice of appeal and the gospel truth describing the eternal identity and nature of men and

CLARK MEMORANDUM

women. Usually, the gospel truth is most distinctive characteristic of a pro- obtained “a hope in Christ,” we will more important because its impact is fession. The idea that the members of a obtain richcs (through an endeavor broader, its influence is more pervasive profession are guided in thc perfor- that involves more than merely obtain- Of course, if you do not understand mance of their professional services by ing essential food and lodging for our- that you have to file a notice of appcal principles higher than personal advan- selves and our families), if we seek within x number of days, and you fail tage is not always attained in practice. them And, if we have obtained “a true to do so and your client loses the Still, it is an ideal sought by most and hope in Christ” we will seek them “for

opportunity for an appeal, you will be attained by many mcrnbers of the legal the intent to do good ” in about the same position as a person profession I quote a second scriptural princi- who has been hit by a rock To this per- What are those higher principles? ple, which appears in two books in the son the idea that he can be hit by a They include the lawyer’s obligation to New Testament, in the Book of Mor- rock is pretty important But across a the Constitution and laws, to the mon, and in the Doctrine and Cove- broad front and in the long view of courts, and to society They also nants In Matthew it reads: “But seek human concerns, ncither a flying rock include obligations of fidelity, integrity, ye first the kingdom of God, and his nor a rule about the time for filing a trustworthiness, and truthfulness righteousness; and all these things notice of appcal is very important The higher principles of a profes- shall be added unto you” (Matt 633) Of infinitely greater importance, sion aIso include the obligation of ser- We usually read this commandment bccause of its pervasive influence vice Service includes the full perfor- as sequential We shouldfirst seek the across a broad front, is the idea that all mance of a responsibility rather than kingdom of God and his righteousness, men and womcn are children of God the mere sale of time or effort, without and after that, all the other things will When we arc convinced of that gospel commitment to the outcome or the be added unto us I wonder whcthcr truth, it can and should influence our welfare of the person bcing served. we shouldn’t rcad this grcat scripture attitudes about ourselves and our atti- That is a simple idea, but its applica- as a commandment of priority rather tudes and actions toward others The tion is difficult The idea of service in a than sequence-in other words, what- importance of that idea cannot be profession is important because its suc- ever the sequence of our activities, put overemphasized cessful application has an enormous the kingdom of God first. That inter- Although not all the ideas I will impact on an entire profession- pretation ties into other conccpts and address are of a dimension to aEect all indeed, on an entire society coven ants mankind, all of them are at least large In my judgment, the reason the I should add that commitments of enough to make their influence felt legal profession is in disrepute with priority are a great deal more pervasive throughout the legal profession. some citizens is that many mcrnbers of and therefore a great deal more influ- the legal profession do not measure up ential than commitments of sequence hat is a profession? While I was to their professional obligations Thc For example, if you interpret the Mat- serving on the Utah Supreme only reason the profession survives is thew 6:33 commandment as simply a Court, I spoke about the idea of a pro- that so many members understand the sequential Commandment, some may fession in welcoming addresses to obligations of professionalism and discount its effect as vague or unrealis- newly admitted members of the bar in practice them with distinction tic Must I do my home teaching or my October 1981 and April 1984. I The idea of obligations higher than visiting teaching before I report to my described the five characteristics of a mere personal advantage ties into place of labor? Must I finish a22 my profession: (1) a substantial period of two familiar scriptural principles. Church assignments before I do any of formal education to become familiar The Book of Mormon prophet Jacob my professional or community work? with a distinct body of thcoretical taught : However, if we interpret this as a com- knowledge; (2) formal rcquirernents mandment of priority, putting the for admission; (3) personal and confi- Rut before ye seek for riches, seek ye commandments and values of the dential relations with the individuals for the kingdom of God kingdom of God first in all aspects of and groups being served; (4) some type And after ye have obtained a hope in life, regardless of the sequence in of legal monopoly, with self-regulation Christ ye shall obtain riches, if ye seek which they occur, the meaning of this by authorities within the profession; them; and ye will seek themfor the intent commandment is clear and pervasive. and (5) the idea that in the perfor- to do good-to clothe the naked, and to mance of’ their services, the members feed the hungry, and to liberate the cap- suggest that the commandment of’ a profession are guided by prin- tive, and administer relief to the sick and 0to seek first the kingdom of God ciples higher than mere financial the aflicted [Jacob 2:18-191 has the same relationship to our per- remuneration sonal life as the idea of principles This fifth characteristic-guidance Note that this scriptural principle is higher than personal advantage has to by principlcs higher than personal a teaching of sequence. Before we our professional life As one illustration advantage-is the important idea I “seek for riches,” we should seek for of the role of higher principles in the wish to elaborate This is perhaps the the kingdom of God After we have legal profession, I would like to suggest

12 CI ARK MEMORANDUM

that in your professional activities you CREATIVITY education, and medical care; and serv- pursue satisfaction as well as remu- Craftsmanship becomes creativity whcn ing my church and its members in the neration Remuneration will come As it is illuminated by originality, such as activities of my faith Do not impov- an old lawyer told me once, “Working by new applications, new combina- erish your professional and personal for compensation is one of the grandest tions, or new ideas, There are many life by limiting your professional activ- traditions of the Bar.” opportunities for creativity in the legal ities to those that are remuneratcd Fortunately, the practice of law profession For example, we all have a In the perspective of our religious offers ample opportunities for satisfac- scnsc of rightncss, fitness, or justice faith, satisfaction and success in profes- tion, as well as remuneration If you For most of us, that sense is rooted in sional or personal lives should not be pursue one to thc cxclusion of the religious faith, as well as professional measured on the scale of worldly other, you will starve either your body tradition As commonly applicd, rules values, such as money, power, position, or your spirit You can and should have of law do not always producc a result and worldly acclaim Cream riscs to both; but do not expect your satisfac- that squares with those ideals The the top, but so does scum Don’t allow tion to equal your rcmuneration in a outcome may fit thc lcgal rule but not your elevation on the ladder of given task ‘l’hc two are almost certain our sense of rightncss, fitness, or jus- success-as defined by these deceptive to bc out of balance My greatest satis- tice The task of finding, creating, or valucs- to trick you into thinking you factions in the legal profession came applying rules to harmonize with that can look down on anyone Don’t set from factors that had no direct relation sense, and then creating sound and your affeclions on thc transitory values to rcrnuncration These factors are workable precedents for the future, is a and trcasurcs of this world to the point craftsmanship, creativity, and service high order of creativity for lawyers, leg- that you cease to pursue things of real islators, and judges Many other exam- and lasting value Don’t Ict these fun- CRAFTSMANSHIP ples could be cited Find your own damental truths fade into the back- Craftsmanship is the diligent and effec- Few satisfactions can compare with the ground as you progress in the tive application of one’s talents in the joys of creativity, and there are many profession of the law best traditions of the profession such opportunities in the profession of Along with concerns about profes- Speaking to his Harvard classmates in the law sionalism, I urge you to consider 1913, Justice Oliver Wcndcll Holmes, another powerful idea While you are Jr , gave this memorable description of SERVICE busy practicing law, don’t forgct that craftsmanship in describing what hc Service consists of working with a the law cannot solvc all problcms called “thc bcst service that we can do motive highcr than self-interest Such Don’t burdcn the lcgal system with for our countiy and for ourselves”: work can hc rcniuncrated oi unie- problems that are beyond its ability muncratcd, but, as 1 have indicated, to solve, Lawyers and litigants who To see so far as one ma): and to feel the the satisfactions of service are seldom impose on the legal system to resolve great forces that are behind evev detail in balance with remuneration. The differences and injustices the law can- . . , ; to hammer out as compact and solid rewards of satisfaction may even be not resolve lay burdens on our courts a piece of work as one can, to t9 to make invcrscly proportional to, or at least that threaten to disable them from per- it first rate, and to leave it unadvertised reduccd by, remuneration forming the vital ta which they Some of my most satisfying service are suited This over law and the If you have any feeling for the grcat in the profession was unremunerated: traditions and exemplars of your pro- representing indigent clients; serving my fession, I can promise that if you “hammer out as compact and solid a piece of [legal] work” as you can, you will realize great personal satisfaction from the craftsmanship of the law. CLARK MEMORANDUM

is at least partly stimulated by a spirit honesty and integrity. Though taught steel doors; nor the eEeCtrica1 and mechani- of self-interest and divisiveness. That this principle from my youth, I first cal contrivances The real strength of that same spirit prompted what a Florida became aware of its fundamental institution rested in the honesty- the lawyer friend of mine called “The importance to all society during my lzbsolute integrity-of its clerks. Young Lawyer’s Prayer”: “Lord, foment undergraduate studies at BYU. A wise That afternoon 1 was talking about strife among thy people, that thy hum- teacher had us read a small book by a the matter with a business man We were ble servant may survive ” noted financier and thinker, Roger discussing securities, earnings and cap- Babson I kept that book and I have it italization He seemed greatly troubled by 1982 issue of the American Bar today complete with the pencil and the mass offigures bejiore him. 1 said to AssoeiationJournal briefed a good crayon scribbles added by one of our him: “Instead of pawing over these earn- illustration of the misuse of law. Disap- children over 35 years ago ings and striving to select yourself the saf- pointed parents and fans went to court I quote the words that were so est bod, you will do better to go to a to challenge a Georgia referee’s assess- influential on me as a college student reliable banker or bond house and leave ment of a penalty for roughing the almost 40 years ago: the decision with him ’’ kicker in a high school football game “why,” he said, “I couldn’t do that.” After concluding that it had jurisdic- While on a recent visit to Chicago, I “Mr. Jones,’’ I went on, “tell me the tion, the trial court found that all was taken by the president of one of the truth! After you buy a bond or a stock administrative remedies had been ex- largest banks to see his nmsafety-deposit certijicate, do you ever tak the trouhle to hausted, that the plaintiffs had a prop- vaults. He described these-as bank pres- see if it is signed and countersigned property right in the game’s being played idents will -as the largest and most mar- erly? Moreover, if you find it signed, is according to the rules, and that the ref- velous vaults in the city He explicated on there any way by which you may know eree’s erroneous decision violated equal the heavy steel doors and the various elec- whether the signature is genuine or protection and deprived them of prop- trical and mechanical contrivances which forged?” erty without due process. The court protect the stocks and bonds deposited in “No,” he said, “there isn’t 1 am abso- then entered an order requiring that the institution lutely dependent on the integrity of the the two teams meet on the football While at the bank a person came in to bankers from whom I buy the securities ” field (on a date the court specified) to rent a box He made the arrangements for And when you think of it, there is complete the game. The court further the box and a box was handed to him. In redly m value in all the pieces of paper ordered that the contestants it he deposited some stock and bonds which one so cartfully locks up in these which he took from his pockt Then the safety-deposit boxes There is no value at resume play at the Lithia Springs %yard clerk who has charge of the vaults went to all in the bankbook which we so carefilly line with the ball being in possession of a rack on the wall and took out a kyand cherish. There is no value at all in those R L Osborne High School and that it be gave it to the man who had rented the deeds and mortgages upon which we first down and ten yards to go for a first box The man then put the box into one depend so completely. The value rests, down and that the clock be set at seven of the little steel compartments, shut the first, in the integrity of the lawyers, minutes one second to play and that the door, and turned the key. He then went clerks, and stenographers who draw up quarter be designated as the fourth quar- away feeling perfectly secure on account the papers; secondly, in the integrity of tel: [68A.B.A.J. 85 (1982)] of those steel doors and various mechani- the oficers who sign the documents; cal and electrical contrivances existing to thirdly, in the integrity ofthe courts and Happily, the Georgia Supreme protect his wealth judges which would enable us to enforce Court reversed that decision, holding 1 did not wish to give hirn a sleepless our claims; and finally, in the integrity of unanimously that the “decisions of night, so 1 said nothing; but 1 couldn’t the community which would determine football referees . do not present help thinking how easy it would have whether or not the orders of the court will judicial controversies” (Georgia High been for that poorly-paid, humpbacked be executed School Association u Wa&ll, Ga , 285 clerk to make a duplicate of that kq These things which we look upon as of S.E.2d 7, 9 [198l]). before he delivered it to the renter of that great value- the stocks, bonds, bank- This outcome reminds me of one of box. With such a duplicate, the clerk books, deeds, mortgages, insurance poli- my favorite aphorisms Remember it could have made that man penniless cies, etc , are merely nothing Whilefifty- when a client seeks your assistance to within a fm minutes after he had lqft the one percent of the people have their eyes use the law to solve problems it is not building The great steel door and the on the goal of Integrity, our investments fit to solve: “If a thing is not worth electrical and mechanical contrivances are secure; but with fifty-one percent of doing, it is not worth doing well.” would have been absolutely valueless them headed in the wrong direction, our I close with one more important Of course, the point I am making is investments are valueless So the first idea, one which reaches beyond the that the real security which that great findamental of prosperity is integrity legal profession. It is fundamental to bank in Chicago had to offer its clientele Without it there is no civilization, there is all persons, to all organizations, to all lay not in the massive stone columns in no peace, there is no security, there is no human activity It is the importance of front of its structure; nor in the heavy safety Mind you also that this applies just

14 CLARK MEMORANDUM

as much to the man who is working for case’ in this part of Asia.” or as professionals should be more wages as to the capitalist and every owner “Why did this happen to our coun- interested in than the moral tone, the of PPerQ try?” he asks It was not that the Fili- integrity, that prevails in the United Integrity, hawevel; is uety much pino work ethic was flawed or that the States of America. In case you doubt broader than the above illustration would Filipino is lazy. Neither of those causes that, I will give you a few indices of indicate Integrity applies to many more exists. I quote his assessment: where we are going in this country in things than to money. Integrity requires terms of these fundamentals. Not long the seeking aftel; as well as the dispensing Our experience in the bureau [the ago, Harper’s published a scorecard on oj truth. It was this desire for truth Economic Intelligence and Investiga- the top discipline problems in public which founded our educational institution Bureau] suggests that one of the schools in 1940 and in 1982 The tions, our sciences, and our arts All the clues lies in graft and corruption that has results were derived from contempor- great professions,from medicine to engi- become endemic and systemic in our soci- ary surveys. In 1940 the list was: neering, rest upon this spirit of integrity ety and culture. This social cancer has Only as they so rest, can they prosper or reached such magnitudes and proportions Talking, chewing gum, making noise, men survive. that 1 am persuaded to conclude it is a running in the halls, getting out ofturn Integrity is the mother .f knowledge major cause of our present economic in line, wearing improper clothing, not The desire for truth is the basis of all problems putting paper in the wastebaskets learning, the value of all experience, and the reasonfor all study and investigation He then reviews figures on smug- Forty-two years later the list was: Without integrity as a basis, our entire gling and tax evasion as examples He educational system would fall to the observes that the smuggling that goes Rape, robbery assault, burglary, arson, ground; all newspapers and magazines on in the Philippines is not smuggling bombings, murder, suicide, absenteeism, would become sources of great danger and under dark of night or to hidden ports vandalism, extortion, drug abuse, alcohol the publication of book would have to be Ninety-five percent of the smuggling in abuse, gang wagare, pregnancy, abortion, suppressed Our whole civilization rests the Philippines is because of a bribe venereal disease upon the assumption that people are hon- given in the public place where goods -Harper’s, March, 1985 est With this confidence shaken, the come into the country. Smuggling structure falls. And it should fall, for depends on bribery of public officers by began these remarks by pointing unless the truth be taught, the nation regular importers 0out that some ideas are more would be much better off without its General Almonte continues: important than others The gospel schools, newspapers, books, and profes- incorporates the most important ideas sions Better have no gun at all, than one The fault lies not only in our chosen in time and in all eternity Its com- aimed at yourseEf The cornerstone of leaders and our technocrats but, more sig- mandments, its covenants, and its prosperity is the stone of Integrity. [Roger nifcantlr, in all of us We either partici- teachings were established and shared W Babson, Fundamentals of Prosperity pated in graft and corruption or for years by God our Heavenly Father, the Cre- (New York: Fleming H. Revel1 Co., allowed our political and business leaders ator of us all. He desires that we be 1920), pp. 13-18] to do so It is a cancer that has meta- happy in this life and exalted in the life stasized the body politic. I believe ours is to come. There are many things in this I think that little chapter is one of a case of failure of will or moral life that are not wrong They can make the great statements written in the weakness. us happy or comfortable, but they have English language in the last century It no power to save us in eternity is surprising how many people don’t The General concludes with this The most important idea for any of believe it. How do I know they don’t paragraph: us is that this life, with all its advan- believe it? Because of the way they tages and disadvantages, is only tempo- behave, the arguments they make, the Toward this end, what this nation rary. It is part of a larger whole, Our things they favor, the things they do needs is another revolution, and this reuo- challenge is to develop the perspectives not do that they should do, and the lution must necessarily be a moral one. It to realize and the strength to act upon things they do that they should not do is through this moral revolution that the the realization that the really impor- A contemporary illustration of Bab- nation can hope to wield people power tant achievements of this life are those son’s premise is worthy of note I read once more against the enemy. And that that carry enduring, favorable conse- in the Manila Bulletin (Sunday, May 1, enemy is ourselves quences for the eternities to come. 1988) the text of a speech that Briga- I hope that great idea, which has dier General Jose T Almonte gave to That is a sobering Contemporary the pervasive impact of a solar wind, is his fellow citizens at the Asian Insti- demonstration of Babson’s proposition firmly entrenched in the consciousness tute of Management He analyzed the that integrity is the foundation of and behavior of the alumni of the causes of the Philippine economy hav- prosperity. Brigham Young University J Reuben ing become what he called “the ‘basket There is nothing that we as citizens Clark Law School.

15 I I WAS REMARKABLE. Democrat Bill Orton, 58 percent, versus Republican Karl Snow, 37 percent Bill Orton didn’t just

YLe PemarLabL Campaign win the congressional election; he won it by one of the largest margins of any non-

incumbent contest in the U.S -and it was in Utah’s Third Congressional District, considered by experts the most rock-solid

Republican region anywhere But it is even more remarkable that BYU Law School graduate Orton ran for public office at

of Orton all Just 10 months earlier the thought hadn’t crossed his mind, ever Most

Democrats in the political arena hadn’t even heard of him After the election everyone was asking, “Who is this guy? Where

did he come from?” In answering those questions, one will find an uncommon story, a story of a uniquely prepared individual

by CLarLd a.Cranney who offers a cadre of talents to the 102nd U S Congress At the age of 16,

Orton was a studious high school senior in Ogden, Utah, when the Internal Revenue Service opened up a large service center

PHOTOGRAPHY BY JOHN SNYDER

CLARK M Ehl OR AN D U M

there. There weren’t enough people to Lake City and at Merritt & Tenney in glibly remarking that the United States staff it, and so managers recruited at Atlanta He also served as in-house needed elected officials with a broader the local high schools for four-hour counsel for a privately held forest- vision, those who could see “more than evening shifts Enter Bill Orton. products company and taught tax sem- just the tip of the iceberg ” His experience with the IRS con- inars across the nation His clients fter the conference several people, vinced him that he really wanted to be were from all areas of the United A many of whom had been to Or- a tax attorney After serving a mission States-“from Anchorage to Miami and ton’s seminars before, cornered him. for the Church in Oregon, he finished from New York to Honolulu,” he says. They said, in essence, “We’ve been list- his undergraduate studies at Brigham His love for the law seems only ex- ening to you for years You understand Young University in 1973 in anthropol- ceeded by his love of teaching the law what’s going on You certainly have the ogy and archaeology-the whole time And he is a good teacher-as the more knowledge and the ability You could working for the IRS. than 15,000 tax professionals who have do something about it.” “I didn’t have a lot of money saved now taken courses from him will attest He retorted, “I am I go back fre- up to go to law school right after grad- In 1986 he served as an adjunct pro- quently and talk to Congress members uation,” said Orton, “so I moved to fessor at the J Reuben Clark Law and their staff and try to educate them Oregon and worked with the and show them some solu- Internal Revenue Service. I tions to the problems ” planned on going to night law Then this group dropped school at Lewis and Clark ” the question, “Yes, but why With training, traveling, don’t you run for office?” and working, Orton never Orton scoffed “You must made it into night school be kidding! No way in the After a four-year IRS stint in world! You have to give up Oregon, the time of decision your private life. You have to came take a cut in pay. Nobody likes “I had a nice house, a lit- you Everybody’s always yell- tle sailboat (I lived on a lake), ing at you You can’t satisfy and an airplane and was fly- anybody You’ve got to run ing all over the place,” he for election every two years I said “I realized that at 27 can’t think of any reason I’d years old I had peaked out at BILL ORTON NEAR HIS HOME AT SUNDANCE. want to run for Congress ” the Internal Revenue Scr- After the Conference, Or- vice I’d have to stay at my ton stayed in Hawaii for a level for another 30 years be- couple of weeks Trying to re- fore I could even think of re- lax, he lay on the beach and tiring. That didn’t strike me went hiking through the rain as very fun, so 1 quit and came to the School, teaching seminars on real es- forests, but that conversation kept BYU Law School in 1977.” Most would tate tax planning and the 1986 Tax Act haunting him consider Orton’s law school cxperience Not a stranger to Washington, D C , “The whole time I kept thinking atypical: he has worked with congressional staff that maybe I had some sort of obliga- “Law school was purely pleasurable. members of the House Ways and Means tion to give back to the system, an

I loved every minute of it. Thc first and Senate Finance Committees On obligation to serve the public ” year in law school I didn’t even check the American Bar Association, he Returning to his home above Sun- to see what my grades were I knew served on tax policy subcommittees dance in Provo Canyon, Orton noticed what I’d be doing when I graduated, that evaluated legislation before Con- the paper listed several people who had and I didn’t care about grades as long gress Many of his clients also come announced candidacy for the Third as I was passing ” from Washington, D.C. Congressional District He hadn’t real- ith a clear vision of his law future, So at the beginning of 1990 Bill ized that Congressman Howard W he took every law class offered in Orton was going along at a fast clip. He Nielson was retiring. (When Nielson tax and business. While still in school loved his work. He was paid well He had first run for office, Orton contrib- he started a business in Oregon that was satisfied. And he had no intention uted to his campaign.) provided tax and business law educa- of running for any political office. He knew former Utah Governor tional materials In February 1990 he was in Hawaii Scott Matheson and lone Utah Demo- Graduating in the top third of his teaching a tax conference He men- crat Congressman Wayne Owens class in 1980, his practice burgeoned, tioned the problems with tax legisla- (whom he took a legislative processes and he soon became of counsel at Par- tion and the savings and loan debacle it class from at the Law School in 1978), ker, McKeown, and McConkie in Salt helped create during the last decade, so he went to Salt Lake City to talk

18 CLARK MEMORANDUM

AFTER ANNOUNCING HIS CANDIDACY, BILL ORTON SOON DEVELOPED AN EFFECTIVE CAMPAIGN.

about campaign prospects sire to go back and really get involved. appointment with these political “They were both extremely suppor- Yet I would want someone with knowl- groups, Orton would go into the cities tive and said, in essence, ‘If you can edge and experience 1 would want a few hours earlier and visit im- find reasons to run for office other someone who was mainstream on the promptu with business owners. These than winning, then we encourage you issues-morally, legally, ethically I businessmen would tell him their to do it, but you need to know that you would want someone who didn’t en- problems, how they felt about the fed- probably don’t have any chance at all of gage in double-talk-just being honest eral government, what they thought winning because of your district’s polit- with the people.” the government should be doing or not ical make-up ’ ” The problem with many politicians, doing. Then he would meet with the Orton’s parents and friends were Orton mused, is that if you ask them a commissions and councils, talking shocked he was considering a congres- question, at the end of the answer all about their communities. After the sional campaign His mother’s first re- you’ve heard is your question repeated meetings he’d proselyte, walking up action was, “I don’t like politicians ’’ back to you. “One thing I admired and down the streets, knocking on “I’m not a politician,” Orton re- about Ronald Reagan (though I often doors and talking to peoplc joined, “but somebody’s got to do it” disagreed with him) was that he would “Most every group, when I finished After gathering information from just flat out tell you yes or no He was with them, were warm and friendly, those in the political arena and mem- straightforward, and people love that, telling me, ‘Yes, you understand these bers of his family, Orton went back to even if they disagree with you ” problems We need people like you in

Sundance to think: o Bill Orton decided to go for it, Congress.’ ” “I live in this district I know the S determined to be forthright and During the campaign Orton went people here. I know their concerns be- to work hard. After announcing his through the district more than 10 cause the same issues concern me. If I candidacy, a successful pattern soon times doing all the grass-roots cam- were to choose someone to be my rep- developed paigning that he could He knew he resentative in government, what would He called chambers of commerce, couldn’t raise much money for adver- I want? I’d want someone young county commissions, and city councils tising and marketing. (He only spent enough, excited enough, with fire in in the Communities of Price, Moab, about a third of what his Republican the belly about the process, and the de- Payson, and others. Before a scheduled opponent spent.) Most of the financial

19 CLARK MEMORANDUM

load was shouldered by Orton himself, Snow and pushing his face in the mud. spending thousands of his own money I’ve refused every opportunity to run a “I went to some political action dirty campaign I’ve not done it. I don’t committees for money and support want to go to Congress that way If the Many of them didn’t even wait until I public wants a dirty campaign, then was out of the office to laugh They’d they don’t want me If I have to aban- open the almanac of American politics don my personal values to win, then I and read the first line that says my dis- don’t want to be a congressman.” trict was the most Republican district Since the early summer, local polls in the United States. I tried to explain had shown Orton gradually catching that it’s one of the most conservative up with the Republican contenders, fi- districts. Until now the Republicans nally surpassing John Harmer right before the Republican primary in September In the same poll, Orton was still trailing Karl Snow by a substantial 27 percentage points (Snow-53 percent, Orton -2 5 percent). When John Harmer lost the Republican primary, some of his distraught de- votees continued the bar- rage against Karl Snow that had been all-too prevalent in the primary campaign “Republicans for Bill Or- ton” T-shirts started pop- ping up everywhere Still, Ortonk gradual rise in the polls didn’t seem to dampen the confidence of ORTON CELEBRATES HIS are the only ones that have put up con- some Republican strategists in Utah’s servative candidates. But I am conser- third congressional district They VICTORY WITH HIS MOM AND vative,” he said. “The people will vote seemed to have read the almanac of

for me ” American politics, too A Democrat DAD WHEN ORTON’S MOTHER rton’s campaign was unwittingly couldn’t possibly win in this congres- 0 aided by the in-house bickering sional district FIRST HEARD HER SON and fighting among his Republican op- Orton was frustrated when his ponents that started even before the Republican opponent refused several WAS THINKING OF RUNNING Republican convention and didn’t end debates and didn’t show up at the until weeks after the November KBYU television debate KBYU aired FOR CONGRESS, SHE SAID, election the one-sided debate anyway, and it Early on Orton went to the press. was rebroadcast later. “1 DON’T LIKE POLITICIANS” “Look, the public deserves someone “I think that kind of arrogance who cares more about the problems turned people off,” said Orton. “The NOW THERE’S AT LEAST facing us in the future than the prob- people got tired of the sniping, and lems facing their opponents from the they got tired of someone who really ONE THAT SHE LIKES past I simply won’t get involved in that wouldn’t be straightforward and debate I will not comment on it. I will not use the issues.” it in an election. I won’t debate it in a On October 7 the local newspaper debate. I will deal with issues only.” poll showed Karl Snow increasing his Later, when Karl Snow became the lead to 28 percent. “Our small internal Republicank choice of candidate, polls showed that I was still gradu- Orton commented to a local news- ally gaining,” said Orton He noted paper, “I decided I would not go to that the October poll gave Karl Snow Congress walking over the back of Karl some needed momentum to go to

20 CLARK MEMORANDUM

Washington, D.C, and “come home ;overnment is the Utah State Tax Com- “would have been even further ahead with a suitcase full of money” that he mission. They completely ignore the without it ” And it left a bitter taste in couldn’t get before. ules. They completely ignore the facts.” the mouths of the entire Third Con- “There was no way in the world I It’s true that Bill Orton, in the pub- gressional District. was that far behind Karl Snow. Never. lic view, stayed above the foofaraw, un- ith two days to go a now infamous Up until then I had had a lot of faith ding to capitalize on trivial, unclear W full-page ad appeared in the Utah and trust in Dan Jones [the local polls- dlegations against his opponent. But CountyJournal. The ad showed a Karl ter] This time he was cooking the when attacked personally, on ground- Snow family portrait with the caption books,” a feisty Orton said “If he less allegations, his attackers had better “Karl Snow and his family.” Next to wants to justify his polls, I’d love to see learn to duck. that picture was one of Orton, all his data-what districts they were Perhaps what frustrated Orton the alone, with the caption “Bill Orton testing ” most were the continual sorties against and his family” The ad continued: uring the final weeks the Republi- his marital status. The voters were an- “Some candidates want you to believe D can strategists (not so much Karl noyed, too. that their personal values don t [sic] Snow as everybody around him) and The exploit-Bill-Orton’s-marital- matter. Most issues facing the United others engaged in an acrid attack status strategy backfired His oppo- States Congress seriously affect our against Orton, with even public offi- nent, Karl Snow, seemed to focus more families. Values do matter! Vote cials getting involved in questionable 3n his own marital status (married Republican ” And then, in smaller type

“exposes ” For example, the Utah State with children) in some of the debates at the bottom: “Paid for by the Utah Tax Commission decided to disclose but was often heard joking, tongue in Republican Party.” a six-year “dispute” they had had cheek, about Orton’s bachelorhood The ad proved to be an affront to with Orton about paying a tax on his Others were more vocal and much the voters and was unapproved by Karl Mercedes-Benz. more malicious. Snow (though it seemed to follow the “When I discovered last May that Four days before the election, Karl general strategy mentioned earlier). this problem had not been resolved, I Snow’s financial chairman, a former Republican campaign specialists began went to the tax commission and said, Law School compatriot with Orton, in- playing the equivalent of “who stole ‘Look, I don’t want this to become a political issue I thought it had been resolved. What do we need to do to gct it resolved?’ They told me in order to ORTON RECEIVES A get it back into the appeal process I needed to write a check for x amount CONGRATULATORY of dollars and a letter requesting an appeal I wrote the letter, made out the CALL FROM check, gave it to them, and thought it was back in the appeal process ” HIS SISTER. One week before the election the Utah State Tax Commission publicly disclosed an “inaccurate description of what was taking place,” according to Orton sisted on being quoted in the paper the cookie from the cookie jar?” trying “It was outrageous, absolutely out- verbatim as saying that because of to find out who had placed the ad rageous! When a branch of the state Orton’s age (42) and his never being Prominent elected Republicans were government gets involved to destroy a married, “Bill Orton is not fit for life, quick to criticize. “I was totally of- federal campaign, that smacks of a much less Congress ” fended by the ad,” Senator Orrin Watergate-type action. If I were the “I’m very disappointed in him,” said Hatch said later. “I’ve seen a lot of stu- governor, I would dismiss every one of Orton “I liked him in law school. pid things in politics, but this ad was them for that action alone I think it is Those are the kinds of things in a cam- the stupidest thing I’ve ever seen.” a breach of their public obligation ” paign that hurt-when people you Orton considered the ad a favorable But he doesn’t feel that was the only know make uncalled for comments like sign. “The first time I felt that I was problem with the tax commission. that It’s discouraging, politically, to see going to win was when I opened up the “I’ve worked with state tax commis- that there are people around who will Utah County Journal on Sunday before sions in half the states of this country do absolutely anything [to get their the election and saw the ad against me and for the IRS in nearly all the dis- candidates in office] I won’t do that ” on the back page.” He felt that the tricts in this country. The worst gov- Orton insists, though, that the neg- Republicans must have been desperate ernment entity I have ever had to work ative campaigning against either candi- to run such an ad. with in any state or federal branch of date didn’t really help him. He felt he The Dan Jones’ poll showed that

21 C LAR K M E M 0 R A N 0 U M

JOINING SEVERAL UTAH POLITICIANS, CONGRESSMAN ORTON VISITS THE BYU MARRIOTT CENTER DURING RONALD REAGAN’S ADDRESS THERE

Orton was 14 points behind Snow Many press reports that came after transition. “There is no money for “The polling we were doing in-house the Tuesday election concentrated on staff, phones, office space, or mail Af- showed me way ahead,” said Orton “I comments from dyed-in-the-wool po- ter the election I got hundreds of let- thought, ‘How on earth can our poll- litical party bureaucrats. Some talked ters from the constituency,” said Or- ing show us at 68 percent and Dan of trying to “convert” Orton to the one ton “There was no budget for it until Jones has me 14 points behind?’ Some- and only true party. Others felt the lanuary 3. It all camc out of my thing was wrong.” Again win thwarted Republican redistricting pocket-secretarial work, staff people, The last days proved to be the plans for Utah. computer equipment, mail, stationery.” grand crescendo to Bill Orton’s cam- But Bill Orton’s victory was mostly Then there was the December ori- paign. He went to shopping malls, ar- a triumph of the people, not of either entation for the new members, where ranged honk-and-waves on the road, political party It was an indication that the Democrats and Republicans elec- and went everywhere he could to find a a common man with “fire in the belly” ted their leadcrs and looked at goals for crowd. and a dream for his district had a the next session of Congress-talking “On elcction day, 90 percent of the chancc of winning over an entrenched about issues likely to come up and bills people I shook hands with knew me political bureaucracy. It meant that the that might get passed. They said, ‘Bill Orton! I just went and people deemed vision more important “When we were introducing our- voted for you! Hey, you’re going to than momentum. It showed the re- selves as freshmen congressmen, tell- make it ’ I thought if half of the people silience of the American system- ing people our background, I was who told me they voted for me were something many of Orton’s constitu- happy to tell them that I graduated actually telling the truth, I’ve got a ents now have renewed faith in. from the BYU Law School,” said Or- chance of winning he two months after the election ton “I’m proud to have gone to BYU “On election night I thought that it T proved to be as hectic for Orton as and graduated from the BYU Law would be close, that I had a chance of the campaign School I can wear it as a badge of winning When I heard thc results of First, setting up the office as a honor.” David Magleby’s exit poll, it blew my newly elected congressman can be The LDS connection provided socks off. I had no idea that I was that quite a chore From election until some association for Orton during the far ahead ” swearing in, there is no funding for the orientation. “There are three of us in

22 CLARK MEMORANDUM

the House who are LDS that werc elec- iim three assignments: small business, with one person, myself, and then work ted this session: myself, Dick Swett breign relations, and banking jutward So I’m not discouraged by it; from New Hampshire, and John Doo- The House increased the size of the I’m not frightened by it or worried that little from California We are friends Small Business Committee by one so 1’11 go back there and get bogged down and were spending time doing things .hat Orton could serve on it When ind not be able to get anything done. together Other members of Congress isked why he wanted to serve on that [’m excited that we can get a lot done ” would look at us and say, ‘Wait a min- :ommittee, his answer shows a sincere hough he is encouraged by his ute, we’ve got two Democrats and a lesire to represent his constituency T success, Orton has had to pay a Republican over here. What’s happen- well “Most of the businesses in my xrsonal price, giving up much of his ing?’ I don’t think anyone quite put to- listrict are small businesses,” he said. :herished private life.

gether the Church connection ” ‘There are many regulations and tax “Personally and socially I’m a pri- Then for another week the fresh- ssucs where we’re not helping small rate, quiet, and shy person,” mused men traveled to Harvard, where the iusiness.” 3rton. “The absolute worst thing Kennedy School of Politics put on an Perhaps one of the most difficult lbout winning this election is that now issues seminar Orton recalled, “They iecisions Orton has had to face so far werybody knows me Everybody recog- brought in the brightest and best vvas the congressional vote on the Pcr- nizes me. I go to a gas station or groc- minds in the country and the world to iian Gulf War Though some may dis- ery store and everyone turns and looks talk to us about the various issues of 2gree with his decision to support the They come up to me and want auto- drug abuse, education, the homeless, ?resident in war after all diplomatic so- pphs I don’t mind that people come macroeconomics, and the federal re- lutions had failed, none could say he up and talk to me about issues because serve It was a tremendous oppor- hadn’t given all sides the most serious I’ve placed myself in that responsibility tunity” For example, “We sat down zonsideration He held meetings with to be their representative in Washing- one evening at the home of John Ken- his constituency, where the divisive- ton. What bothers me is sceing myself neth Galbraith and talked about eco- ness of opinion was so evident He in the newspaper and on tclevision. So nomic issues with him.” called President Rex E Lee and other I have a real stress between my private hile all the staff selection, orienta- BYU Law School profcssors to check life and the public life that I have W tion, and constituent correspon- constitutionality issues The somber placed myself in.” dence was taking place, Orton only had mood of the Congress that day caused Though it’s a little early to see past two months to wind up his law practice, the members to lay aside thc usual par- Bill Orton’s congressional stay (and, if transferring his clients and finishing tisan politics. Then he, with the other his popularity continues, he will be scheduled seminars The law prohibits elccted officials, made what he called a there for some time), he has at least him from these fiduciary activities “very pcrsonal” decision one idea: while serving in the U.S. Congress If Orton continues his energetic “When I leave Congress, I’d very After being sworn in, each congress- concentration on impending legisla- much like to talk to the BYU Law man is allotted nearly $1/2 million per tion, no doubt his constituency will School and have a more direct teaching year to run two offices-one in the dis- feel their congressman always gives it relationship with them I love teaching trict and one in Washington The max- his best shot law” imum staff that can be hired is 18 full- After the election, some started Meanwhilc, Orton will be doing time and four part-time. Given some fretting that Orton would soon turn what just a year ago he thought was a of the substantial wages needed for into another politician practicing poli- most absurd notion competent help in Washington, D.C., tics as usual-unable to move or It’s true, as he predicted, that he has Orton feels the budget is “very aus- change anything. All indications are to given up his private life, has taken a cut tere,” yet he feels committed to provide the contrary in pay, and has been battered by var- all the services possible given his “I’ve told all my friends that if they ious opponents. And in two years he’ll rcsources see me changing and becoming a have to go through another election- With his background in tax law, Or- Washington, D C , politician, they and perhaps another two years after ton feels he belongs on the Housc should hit me over the head with a that-all with much personal pain Ways and Means Committee, one of two-by-four and tell me about it Then But Bill Orton didn’t run for Congress the most difficult committees to get I’ll leave public office and go back into for personal aggrandizement or for on. Since it was already filled before the private community.” some sort of sclf-fulfillment He simply the election, he quickly vied for other When asked if one man can make a felt a strong obligation to serve committee assignments, hoping to get difference, he said, ‘Although I can’t After his first remarkable and sur- on the Ways and Means after the next walk in there tomorrow with 15 bills prising campaign of winning friends, election. Whilc most members of Con- and get them passed the next week, I there is now great hope that Congress- gress fill two committee assignments, a can start building a coalition of col- man Orton will have an equally re- handful serve on three committees. In- leagues who understand the problems markable and surprising impact in dicative his energy, his colleagues gave But the only way to do it is to start Washington

23 ELDER MARLIN K JENSEN First Quorum .f the Seventy

am both grateful and anxious about being here this

evening. Grateful-because to be in the company

of good people is one of life’s greatest blessings.

L Anxious-because I recognize in this exceptional faculty and student body qualities of intellect and spirituality that are remarkable. Thus, my desire to say something of worth is great. I must observe that I am well acquainted with Bruce Hafen, your former dean, having once served briefly but joyfully as his junior missionary companion in

Germany. His influence on my life has been significant and much appreciated.

Your current dean, Reese Hansen, and I

ILLUSTRATIONS BY HALEY MEYER

CLARK MEMORANDUM

were fraternity brothers at Utah State of unconsciousness.” I feel a deep today We do not need to search end- University for one year in the early yearning tonight for the Spirit of the lessly for our self-worth-we brought 1960s. Maybe the only truly honest Lord, because, in Nephi’s words “when it with us thing to say about our association of a man speaketh by the power of the Notwithstanding the beauty and that brief period is that he was proba- Holy Ghost, the power of the Holy simplicity of the Gospel plan given us bly about as surprised by my call as a Ghost carrieth it unto the hearts of the by God, it is not always easy to follow General Authority as I was by his as children of men” (2 Nephi 33:l). Though we know our origin and poten- dean of the Law School! Lest you mis- hat I wish to share with you tial destiny, we can easily lose our way interpret this, I hasten to say that it is may seem prosaic and ordi- and wander aimlessly for years, even difficult for two 18-year-olds to look 30 w nary. You may even feel that for a lifetime, trying to get “someplace” years downstream and have even the you already know it. If so, you may and become “somebody.” The danger slightest idea of what the future may want to ponder this insight contained of this may be even greater for lawyers hold Certainly, he is today a man of in some intriguing lines by T.S. Eliot: than for most great capacity, spirituality, and good “We shall not cease from explora- How well I remember those early

otwithstanding the beauty and simplicity of the Gospel

plan given us by God, it is not always easy to follow.

Though we know our origin and potential destiny, we can eas-

ily lose our way and wander aimlessly for years, even for a life-

time, trying to get “someplace” and become “somebody” The

danger of this may be even greater for lawyers than for most.

sense. If you had been in his home ear- tion And the end of all our exploring months as a first-year law student. My lier tonight where we have been, and will be to arrive where we started and head was full of rules of law, cases, pro- felt of the Spirit there, you would real- know the place for the first time” cedures, and an increasing awareness ize that you have much more to learn T S Eliot’s words, if I understand them of a new world made up of “issues.” I from Reese and Kathryn Hansen than corrcctly, need not describe the condi- even recall once responding to my rules of law. They are fine people. To tion in which we find ourselves. As wife’s cheery “Good morning, Dear,” work with them and associate with Latter-day Saints, we shouldn’t have with “That’s not the issue.’’ I’m certain them daily will be one of your great to arise every morning and ask our- I reached the peak of my intellectual blessings in life selves the existential questions over powers by the end of that first year. If I Because of the significance of this and over again We know-on the had been unleashed on the legal com- occasion for me, I have done some- strength of modern prophets, the munity then, I’m certain no problem thing I do not ordinarily do-I have scriptures and our own spiritual would have gone unsolved. I hope it’s a reduced my remarks to writing. This is impressions- that God lives, that Hc healthy commentary on my personal in sharp contrast to my usual speaking is our Father, that He is interested in development to admit that I have style, something my supportive wife us, and that His gospel has been become a little less knowlcdgable and a has occasionally described as “stream restored and is here on this earth little more tentative every year since

26 CLARK MEMORANDUM

that first one. faith, and view this mortal body raised school, we gratefully accepted their Because one result of a legal educa- in immortality, and this corruption offer and the car was delivered. tion is to make one more questioning, raised in incorruption, to stand before Though mechanically sound, it really more analytical, perhaps even more God to be judged according to the wasn’t an attractive means of transpor- critical, it is important that Latter-day deeds which have been done in the tation and our older children did not Saint lawyers keep certain eternal mortal body?” (Alma 5:15) drive it if any other vehicle was avail- truths firmly in mind This may be the This ability to see so clearly the able They gave it the nickname “Black Gospel equivalent of indulging in some eternal nature of life and the gospel is, Bullet,” and it was reported to us that spiritual “presumptions ” As you know, I think, a distinguishing characteristic it was always parked in the outermost this is a helpful device employed by the of a seer. It may even be one reason recesses of the high school parking lot. law that allows inference of a fact on King Limhi remarked that “a seer is Even the younger children were appar- proof of circumstance that usually or greater than a prophet” (Mosiah 8:15). ently embarassed by the Black Bullet necessarily attends such a fact Ammon explained that “a seer can because when I would drive them to he “presumption” of which I know of things which are past, and also elementary school in it, they would say, wish to speak tonight is of the of things which are to come” (Mosiah “Dad, don’t stop, just slow down and T everlasting nature of life and the 8:17). This may also be the reason the we’ll just jump out ” gospel Some interesting words appear redemption of the dead is so often on My wife and I had never really dis- in scripture concerning this idea: the minds of the prophets near the end cussed our feelings about the car until Words such as everlasting, eternal, for- of their lives Joseph Smith, for exam- one evening when we had had dinner ever, and from everlasting to everlasting ple, wrote in 1842, Doctrine and Cove- together at a nice restaurant We were There are also statements about the nants 128, that: “I now resume the just leaving and about ready to get into Lord’s course being one eternal round. subject of the baptism for the dead, as the “Bullet” when we spotted a promi- I am certain that there is nothing you that subject seems to occupy my mind nent couple approaching us from could do for your happiness, now or and press itself upon my feelings the across the parking lot. In that moment,

hereafter, any more important than to strongest ” It was toward the end of his my wife’s feelings concerning the car cling tightly to this truth and to keep it life that Joseph E Smith had his great surfaced rapidly, and she asked, ever present in your minds vision of the redemption of the dead, “Should we just walk past the Bullet as The scriptures are full of commen- which is recorded in Doctrine and though we don’t own it?” Not being tary Concerning this matter Often the Covenants 138 Can it be that as their nearly so proud, I replied, “No, let’s prophets stress its importance by lives drew to a close, these great seers just get in and hope they don’t scc us!” directing our minds back toward our were worried about those in their past As we settled into our seats, the couple origin with God, and by asking us to who were also shortly to be in their stopped along side the car and wc reflect ahead on our possible future present? exchanged pleasantries While the hus- with Him Abraham, for instancc, This sweeping and eternal view of band and I talked, I noticed his wife’s refers to our beginnings as our “first life, which the prophets clearly possess, eyes roaming over the Black Bullet’s estate,” and teaches that “They who must be grasped and retained by each peeling vinyl and missing hubcaps keep their first estate shall be added of us Almost everything of worth in They walked on into the restaurant, upon; and they who keep not their first life, I think, follows this realization- and I strained mightily to read their estate shall not have glory in the same honesty, empathy, the setting of proper lips in the rear view mirror If I rcad kingdom with those who keep their priorities, balance, consistency, even correctly, I believe the wife said to her first estate” (Abraham 3:26) To me, the will and strength to change our husband, “Can you believe that car the “keeping our first estate” may well lives and to endure to the end. Jensens are driving?” All the way mean keeping our spiritual perspective A practical illustration of the value home, my wife and I had one of those about the everlasting nature of life and of getting firmly in mind that life and conversations that married couples the gospel. Retaining such a frame of the gospel are everlasting can be found should have with greater frequency reference can have significant eternal in our view here on earth of property Our conclusion: In the eternal scope of consequences and other material things We have had things, in the lives of two parents and Alma is an example of a prophet an interesting experience concerning eight children who believe that the who asks us to look ahead and to visu- this matter in our own family in recent Gospel and life are everlasting, the car alize our future with God to remind us years being driven at any given moment in that there is life after life. (By the way everal Christmases ago, my par- time has absolutely nothing to do with visualization is presently a popular psy- ents asked if we would like to anything of lasting value. chological device and my only regret i: S receive a gift of a 1978 Malibu Shortly after that experience, I that it is more frequently used tc automobile that had been driven only came upon a passage in the Doctrine improve one’s free-throw shooting than 35,000 grandmotherly miles Since we and Covenants which further encour- one’s Christian behavior ) Alma asks us had several teenage drivers and lived a aged our resolve to always have a Black “Do you look forward with an eye ol considerable distance from the high Bullet of some type in our lives and to CLARK MEMORANDUM

ensure that our children enjoy that made the earth? Do I not hold the des- more clearly other important issues of privilege also. In Doctrine and Cove- tinies of all the armies of the nations of life For example, we struggle often nants 117:4, the Lord poses an interest- the earth?” Isn’t that an interesting with the challenge of striking an appro- ing question. I do not know much passage for those who are in Saudi priate balance among family, church, about the background of this scripture, Arabia tonight? Verse seven continues, and professional responsibilities With but believe it has to do with that early “Therefore, will I not make solitary the duration of eternity in mind, the period in the history of our Church places to bud and to blossom and to wise teaching in Ecclesiastes becomes when the Latter-day Saints were mov- bring forth in abundance? saith the much more meaningful: “To every- ing frequently I have sometimes Lord ” Verse eight is the clincher: “Is thing there is a season, and a time to thought about the possibility that if there not room enough on the moun- every purpose under the heaven; . A one were a sharp real estate agent one tains of Adam-ondi-Ahman and on the time to get, and a time to losc; a time might have preceeded the Saints to a plains of Olaha Shinehah, or the land to keep, and a time to cast away” (Eccl new arca by a fcw months, bought where Adam dwelt, that 3:1, 6). King Benjamin’s ageless counsel

faster than he has strength” (Mosiah 4:27) We can come to learn not only what we should do at any given moment of our lives and in what order and priority, but equally important what not to do. We will come to know, as Elder Boyd K Packer has so forcefully stated, section is directed in part at least to the (emphasis added). that “The choice of life is not between land agents of the time, to whom in Lawyers, like many others, can eas- fame and obscurity, nor is the choice verse four the Lord says, “Let them ily lose sight of the everlastingness of between wealth and poverty The repent of all their sins and of their cov- life and spend too much time and choice is between good and evil, and etous desires.” And then he poses this energy coveting that which is but the that is a very different matter indeed” interesting question: “For what is drop, and thereby neglect the more (Ensign, Nov. 1980, 21).

property unto me? saith the Lord ” weighty matters These, the Savior I met a couple recently who exem- He then answers his question in taught, are justice (can you imagine a plify the life of pace and balance that verse six: “Have I not the fowls of lawyer neglecting that), love, and mercy. the gospel, I think, prescribes I meet heaven, the fish of the sea, and the With the concept of eternity firmly such individuals frequently Almost all beasts of the mountains. Have I not fixed in our minds, we can also see of them are unremarkable except for

28 CLARK MEMORANDUM

~~ their quiet goodness and the inner We are not left alone in all this, some of us ncver get around to it We calm and happiness they seem to radi- brothers and sisters, with merely our are always in the contemplation of it. ate These two are in their early 70s “presumptions” to guide us. The Emerson said, “We never live, wc are and have just been called to preside prophet Nephi promised: “For behold, always in the expectation of living ” over the operation of a regional family again I say unto you, that if ye will And so it is. We like to know about history center They have raised a solid enter in by the way and receive the things, we like to read about them, to family and own a well-kept, if modest, Holy Ghost, it will show unto you all analyze them, to study them, and espe- home The husband was known, before things that you should do” (2 Nephi cially as lawyers, to talk about them. his retirement as a dependable and 32:s; italics added) Jacob said it just as But we never get around to really prac- capable employee at a government plainly, and maybc even more beau- ticing them. installation They have no great net tifully: “For the Spirit speaketh the What is it then that our knowledge worth but possess properties sufficient truth and lieth not Wherefore, it should lead us to do? Simply this: for their needs. They have raised a gar- speaketh of things as they really are, Be good den each year, made many of their own and of things as they really will be; Love your spouse and family home and car repairs, and somehow whcrcfore, these things are manifested Study the scriptures arranged things so that their children unto us plainly, for the salvation of our Say your prayers had the opportunity of perspiring souls” (Jacob 4:13) I cherish that Seek the Spirit while engaging in activities other than phrase, “things as thcy really are, and Receive the ordinances just jogging or tennis (Notice, by the things as they really will be” It is for Kccp the covenants way, how I carefully avoided the use of me an expression of ultimate reality Serve your fellow men the word sweat, which was mentioned and can only be fully appreciated when When you have done these by the Lord to Adam, but is now quite we keep the everlasting nature of life things-which are clearly the weightier unacceptable in most social circles.) and the Gospel fully in mind It’s also matters of the law-you will surely not During all their lives, this couple’s similar to Joseph Smith’s definition of have “left the others undone ” You will love for one another and their family truth, which is a “knowledge of things also be as concerned about the pro has been nourished and deepened as they are, as they were, and as they bono as about the billable categories of They have carcfully provided their are to come” (D&C 93:24) I feel that your time sheets You will probably children and themselves with good “these things” can and must be known find that synthesizing is more enjoy- friends, good books, good music, and now and that despite TS Eliot’s view, able and productive than analyzing good convcrsations Life has not spared expressed earlier, we who have the And you may also discover that a fair them challenges or trials, but with Gospel need not explore endlessly for compromise is often more satisfying their view of eternity, so far they’ve had this much-needed knowledge about than a hard won victory More impor- what it takes. Service has been impor- life. tantly, you will cnjoy a fullncss of being tant to them, some in the community, Finally, the challenge for us all, and with those you love, forever and ever some in the Church. He has been a maybe especially for lawyers, is to apply Of this I testify, expressing gratitude to bishop, she has been a teacher and what we know to what we do But him who made eternal life possible. leader in the auxiliaries of the Church Most recently they have served a mission together, spent some years as tem- ple ordinance workers, and are now becoming more seriously involved in family history They are actively involved with their children and grandchildren. There is nothing noticeably hectic or stressful about their existence, though one docs sense a definite feeling of constancy and even of mild urgency, particularly in matters apply what we know to what we do. But concerning their family and the gospel When I come to know people such as these, I feel inspired and I realize some of us never get around to it. We are that President Snow’s catchy couplet is not just good verse, but is a description of reality: ‘Xs man now is, God once was As God now is, man may be” always in the contemplation of it. (Biographyand Family Record of Lorenzo Snow, 46)

AND THE

DAVID 0. CAMPBELL

n the fall 1990 issue of the Clark Memorandum, Joseph Allegretti asked whether one can be both a good Chris- tian and a good lawyer He posed four models for deal- ing with the apparent discrepancy between these roles, the3 final model suggesting that a Christian life can not only coexist with the practice of law but can make it a powerful vehicle for the service of others. The article caused me to reflect on conduct I often witness as a commercial litigator, conduct engaged in by lawyers who profess Christianity. I do not purport to have answers to the difficult moral questions to which Professor Allegretti alluded, but I do believe one common kind of lawyerly conduct can be characterized as both un-Christian and unprofessional. Let me begin by describing the conduct I see it in two forms: the mad dog lawyer and the hardball litigator Mad dog lawyers are best described by a witness who was unfor- tunate enough to have been deposed by one On the day of his deposition, the witness was calm and good natured as he entered the deposition room. He assumed that the event about to occur would be a reasonable, businesslike inquiry into the truth. He was prepared to tell what he knew, and to tell it honestly

ILLUSTRATION BY BRANT DAY CLARK MEMORANDUM

What followed can best be described as a men- the motion has expired. tal and emotional mugging. In the words of the In short, the hardball litigator treats opposing witness, the deposing lawyer was "alternately-but counsel with the same contempt as the mad dog consistently-rude, coercive, threatening, abusive, lawyer, but apparently with more concern about and insulting His approach was to bait, belittle, outward appearances. Both display utter disre- [and] ridicule,” even to the extent of mimicking spect for those with whom they deal daily and the speech pattern of the witness. His venom was both would tell us that such conduct is required spewed at witness and counsel alike, and led to by their profession. “bitter and vicious exchanges” between all involved It is this justification of the conduct that in this supposed search for the facts Forty years in bothers me most. Shortly after reading Professor the business world had not prepared the witness Allegretti’s article, I was approached by a first-year for such treatment. Never had he, in his words, law student who was very concerned about the “come away from an experience with the disillu- profession he had chosen. While working as a legal sionment and revulsion that followed this expo- assistant in a law firm last summer, he saw other- sure to the legal profession.” The witness aptly wise normal people behaving like ill-tempered described his questioner as “The Junkyard Dog.”’ children in their litigation practice Belligerence Such conduct shocks a person of ordinary sen- and acrimony infected almost every case in the sibilities It rarely occurs in offices, at restaurants, office and was practiced zealously by young and or over backyard fences. Unfortunately, it is all too old lawyers The cxception was a new associate familiar in litigation Some lawyers and law firms who had joined the firm only a few months earlier. apparently believe that zealous representation of He was pleasant to all, and particularly kind to my one’s client requires unmitigated hostility toward student friend When my friend rnentioncd this one’s opponent. associate’s pleasant manner to a secretary in the second breed of litigator appears office, she replicd that all the lawyers had been outwardly to comply with the that way when they joined the firm “Just you norms of civilized behavior, but is wait,” she said, “he’ll become a jerk like the others 4 nearly as abusive as the first. This If he doesn’t, he’ll never make it here ” lawyer generally reserves his venom for opposing So I found this student in my office asking counsel, releasing it in measured doses through some troubling questions Did he really havc to seemingly legitimate litigation procedures Com- become a jerk to succeed as a litigator? Are thcre monly called “hardball litigator” (I have never law firms where lawyers behave normally? Is thcre understood this analogy to the honorable sport of any place in the practice of law for someone who baseball), this lawyer views the rules of civil pro- treats other people with respect? cedure as tools of obstruction He may not yell I believe the answers to these questions are during a deposition, but his relentless and long- easy. They do not fall in a gray area of uncertainty, winded objections will just as effectively prevent nor do they implicate deep, moral questions. Abu- examination by opposing counsel When asking sive behavior toward opposing parties and coun- questions himself, he will stretch a 30-minute sel, far from being required by the profession, is deposition into two days if he thinks some advan- expressly disapproved by the rules of professional tage might be gained by the delay Don’t bother conduct and leaders of the bar Acrimony rarely asking him for an extension or seeking to work out serves the client’s best interests, and always costs a discovery schedule; “real lawyers don’t cooper- the client money To those of us who profess to be ate ” Everything must be done the hard way Christians or to follow a comparable moral code, The hardball litigator seems primarily intent such conduct confiicts directly with fundamental on making opposing counsel’s life as miserable as tenets of our belief possible His standard interrogatories include 800 questions, not counting definitions or subparts. If THE PROFESSION’S ETHIC he detects the slightest defect in his opponent’s Talk to any mad dog lawyer or hardball litigator response, a motion to compel will be filed imme- and you will be told that litigation requires aggres- diately, requesting Rule 11 sanctions for good mea- sive tactics. Truly zealous representation of a cli- sure. This litigator files expedited motions on the entk interests, he will claim, demands a scorched- eve of his opponent’s long-planned vacation, earth, take-no-prisoners approach. After all, litiga- moves to disqualify opposing counsel at the drop tion is civilized warfare and lawyers are the of a hat, and serves motion papers by placing them corn bat ants at the bottom of document production boxes, To be sure, this view is fostered by some cli- where, he hopes, they won’t be discovered by his ents What litigator has not been asked by a pro- opponent until after the period for responding to spective client if he or she is mean enough to

32 CL IK MEMORANDUM

handle the client’s case? Mad dog clients often juch as to harass or to cause unnecessary delay or insist on being represented by their own kind. needless increase in the cost of litigation” This view has also had its champions at the bar. (F.R.C.P 11 and 26[g]). The Advisory Committee Lord Brougham taught that Notes to Rule 26(g) expressly state that “the spirit of the rules is violated when advocates attempt to an advocate, in the discharge ofhis dut3 knows but one use discovery tools as tactical weapons rather than person in all the world, and that person is his client To to expose the facts and illuminate the issues ” save that client by all means and expedients, and at all In its Code of Trial Conduct, the American hazards and costs to other persons, and among them, College of Trial Lawyers confirms that a lawyer to himself; is his first and only duty; and in performing owes his client “undivided allegiance,” but this duty he must not regard the alarm, the torments, instructs that “[a] lawyer should never be unfair the destruction which he may bring upon others. . . . or abusive or inconsiderate to adverse witnesses He must go on reckless of consequences or opposing litigants” and “should avoid disparaging personal remarks or acri-

Adopting this view of the profession, a lawyer mony toward opposing counsel ” The WLen it corned to might rely on the twin principles of amoral lawyer- college admonishes lawyers to maintain ing identificd in Professor Allegrctti’s article: zeal- “professional dignity,” and teaches that a re,.donaerePationd ousness and nonaccountability The lawyer must lawyer “should abide by these tenets and be zealous in his client’s cause, and, being required conform to the highest principles of pro- wid otLerd in tLe &%. . by the profession to use every means available to fcssional rectitude irrespective of the ttytton procedd, further his client’s interests, will not be held desires of his client or others ”’Even the accountable for the damage he inflicts on others Supreme Court of the United States has tLepe id notLing in don’t buy it At least when it comes to stated that lawyers “owe a duty of cour- tLe projLion tLat personal relations with others in the tesy to all other participants” in the liti- litigation process, there is nothing in gation process (In re Snyder, 472 U.S. required a Lwyer to the profession that requires a lawyer to 634, 647 [1985]) act &e a jerL act3 like a jerk On the contrary, the profession’s The ethic is thus well established ethical standards call for respectful and courteous Courtesy and respect for others are fun- bchavior damental requirements of good lawyer- Canon 7 of the Modcl Code of Professional ing The mad dogs and hardball litigators simply Responsibility, the vcry canon that requires law- cannot claim that their profession requires them yers to “rcprescnt a client zealously within the to act as they do Those who routinely sow acri- bounds of law,” states that a lawyer does not fail in mony in their practice act unethically. The profes- his duty “by acceding to reasonable requests of sion provides no justification for their beha~ior.~ opposing counsel which do not prejudice the Judge Noel Fidel, currently a member of the rights of his client, . . by avoiding offensive tac- Arizona Court of Appeals, summed it up well: tics, or by treating with courtesy and consideration all persons involved in the legal process” (DR 7- So a word to the Junkyard Dogs : Ifyou take 101[A][l]) The canon similarly provides that, “in satisfaction in your style, spare us the sanctimony. You his representation of a client, a lawyer shall not act as you do because it pleases you and not because file suit, assert a position, conduct a defense, delay you owe it to your clients or to your profession. That is a trial or take other action on behalf of his client your character; accept it when he knows or when it is obvious that such action would serve merely to harass or maliciously THE CLIENT’S INTEREST injure another” (DR 7-102[A] [l]) Some litigators might argue, ethical rules aside, The newer Model Rules of Professional Con- that they best serve their clients by ferociously duct continue these themes The rules prohibit attacking their opponents I side with Judge Fidel: lawyers from asserting frivolous claims or defenses “That’s baloney You owe your client the best of (Rule 3 I), making a frivolous discovery request or yourself, not the worst of yourself”6 I further refusing to comply with discovery requests from believe that acrimonious litigation tactics disserve opposing counsel (Rule 3.4[d]), obstructing clients another party’s access to evidence (Rule 3 4[a]), or I do not profess to be an expert on the subject, engaging in conduct intended to embarrass, delay, but in nine years of litigation practice I have seen or burden another person (Rule 4 4) my share of abusive tactics These include all the The Federal Rules of Civil Procedure expressly examples given at the outset of this article. Yet I disapprove discovery or other written materials cannot think of a single instance where the tactic that are “interposed for any improper purpose, produced a benefit for the client On the contrary,

33 CLARK MEMORANDUM

in almost every instance the acrimonious behavior and ma& appropriate disclosure, the result more of the attorney resulted in wasted time, wasted often than not is to increase the cost, duration, and motions, or wasted depositions, all billed to the acrimony of legal proceedings to the detriment, not client by the hour. the benefit, of the client.7 A lawyer who spends three hours of a day-long deposition arguing with the witness or opposing The most productive cases of my experience counsel charges his client for three hours of are those where lawyers cooperate Each side entirely unproductive time. And because he knows what the other must do and makes no offends everyone within hearing, the lawyer most effort to obstruct. Depositions are scheduled well likely obtains far less relevant information during in advance to ensure that witnesses and counsel are available Questioning proceeds without unnecessary interruption. Writ- ten discovery requests are fairly framed and fairly answered Little or no time is wasted in disputes Though the litigation is hard fought, with both sides vig- orously preparing and presenting their cases, the focus is on the case itself, not on the personal battles that characterize so much of modern litigation In short, rancor is not required to serve one’s client well, The most effective service is rendered by the lawyer who applies his skill and energy to the merits of the case, rather than dissipating them in side skirmishes with his opponent.

THE MORALITY OF ACRIMONY Once it is clear that the profession and the practice provide no justification for assaulting one’s business associates, can there be any doubt about the morality of abusive behavior? Professor Allegretti’s moral dilemma arises when the lawyer’s profession requires him to act in a seemingly immoral manner. But when the lawyer is free to choose moral behavior without disserving his client or his pro- the remaining four hours than he would in a civi- fession, the dilemma never arises. The lawyer who lized and courteous two. professes to be a Christian, or who follows any A lawyer who refuses to respond with candor other moral code that values respect and kindness to his opponent’s discovery requests, argues over in human relationships, thus should recognize the phone about the adequacy of his responses, that his hostile conduct might be costing far more exchanges accusatory letters, and finally sur- than his clientk money renders the information only after motions have The immorality of abusive behavior would been filed, obtains absolutely no advantage for his appear to be well settled under the Christian code. client. Furthermore, he most likely charges several Christ taught: “Therefore all things whatsoever ye thousand dollars for the service. I have often won- would that men should do to you, do ye even so to dered how clients would react if they really knew them: for this is the law and the prophets.”’ The what they were getting for their money. Apostle Paul expanded on the Golden Rule: Judge Fidel, then a trial judge in the Arizona Superior Court, described the effectiveness of Let no corrupt communication proceed out of your abusive tactics in this way: mouth, but that which is good. . Let all bitterness, and wrath, and anger, and Where lawyers play the margins, where they withhold clamour, and evil speaking, be put away from you, consent to reasonable requests of opposing counsel, with all malice. where they act discourteously, practice harassment, And be ye kind one to anothel:’

34 CL tK MEMORANDUM

I suspect that some lawyers attempt to ro THE YOUNG LAWYERS IN ALL OF us “compartmentalize” their lives, acting one way I told my young student friend that he need not with family and friends and another in the office. sacrifice his character to succeed at litigation. If Such lawyers might believe that their behavior that is the price his law firm demands of him, it is in the deposition room does not reflect or affect too dear. He should practice elsewhere There are their true character. This seems like dangerous many fine litigators who act like Christians rationalization. As Mark Green observes, To those of us who are a bit farther down the “Psychologists note that it is difficult for people road and might have developed some sharp edges to act one way and believe another Ultimately, in the rough-and-tumble of litigation, the same either action conforms to belief, or belief to notion applies. It is not too late to choose an action.” lo alternate course. Reducing the acrimony in our Christ made the point in more direct terms: 3Le Lwyer practice will save clients money, increase our effectiveness, and probably lengthen our lives (see any ,Lo pm/Lelr For every tree is known by his own fruit For of recent medical study on the effects of stress) It thorns men do not gatherjigs, nor of a bramble bush to 6e a will benefit the profession as well Most impor- gather they grapes. tantly, it will bring our professional lives more A good man out of the good treasure of his heart CLridtian, closely into conformity with our moral beliefs. Again, Judge Fidel captured the basic truth: bringeth forth that which is good; and an evil man or ,Lo out of the evil treasure of his heart bringeth forth that which is evil: for of the abundance of the heart his ,4PP,w, any As for . the law students and young lawyers who mouth speaketh worry whether they are tough enough for this hard otLer moraP field, don’t confise strength with abrasion You can Those who espouse the LDS faith have addi- code tLat bejirm without being rigid; you can be insistent with- tional reasons to view their lawyerly conduct as out being petty; you can practice courtesy without directly related to their moral character Individ- uaPue, weakness; you can choose your battles and make them ual agency and personal accountability are central reyect and count Readily cooperative, you can save your clients doctrines in Mormon theology. Mormon scripture time and money and preserve your combative energy teaches that “every man may act . . . according to Lindnedd for thosejine tests of wit and planning that are litiga- the moral agency which have given unto him, tion at its best. You can be successfil without relin- I in Lurnan that every man may be accountable for his own quishing those qualities that make your effortsworthy sins in the day of judgment ”I2 Whatever diffi- reLtiondip3, in your eyes.“’ cult moral questions might arise in Professor d0uPd Allegretti’s dilemma, where seemingly immoral conduct is required by one’s profession, they do recognize not arise where the profession requires conduct consistent with one’s moral beliefs. The strongest tLat Lid Notes 1 M Van Derveer, “Face to Face with an Abusive Attor- imperative seems to arise when one’s moral beliefs LodtiPe and professional ethics coincide, both requiring ney,” National Law/ournal, (14 May 1984), 13 2 Trial of Queen Caroline 8 (J Nightingale ed 1821), respect and courtesy for others In such a situa- conduct quoted in Frankel, “The Search for Truth: An Urnpireal tion, where the lawyer is free to choose how he migXt be View,” 123 U Pa L Rev. 1031, 1036 (1975) or she will act, the doctrines of agency and 3 The American College of Trial Lawyers, Roster, accountability seem to hold the lawyer responsible coding Bylaws, Code of Conduct, 294, 298 (1990) for his knowing mistreatment of others. This 4 See Allegretti, “Christ and the Code,” Clark Mem- ear more orandum (Fall 1990), 22 principle can be found in another passage of 5 Fidel, “Reflections on Discovery Practice, Sharp Mormon scripture: tLan Lid Elbows, Junkyard Dogs, and the Elusive Spirit of Coopera- tion,” Arizona Bar/ournal, (October-November 1984), 18 And now remembeq remember. . . that whosoever cdent; 6 Ibid, 17 perisheth, perisheth unto himself; and whosoever 7 Ibid, 18 money. 8 Matthew 7:12 doeth iniquity, doeth it unto himself;for behold, ye are 9 Ephesians 4:29, 31-32 See also 1 Peter 3:8-10 free; ye are permitted to act for yourselves; for behold, 10 G Hazard and D Rhode, The Legal Profession: God hath given unto you a knowledge and he hath Responsibility and Regulation (2d ed 1988) 181, quoting made you free. Chernerinsky, “Protecting Lawyers from Their Profession: He hath given unto you that you might know good Redefining the Lawyer’s Role,” 5/ournal of the Legal Profes- sion 31, 34 (1980) from evil, and he hath given unto you that ye might 11 Luke 6:44-45 choose lif. or death; and ye can do good and . have 12 D&C 101:78 that which is good restored unto you; or ye can do evil, 13 Helaman 14:30-31 and have that which is evil restored unto you.I3 14 Fidel, 18. MEMORANDA

Gender Bias in Law Explored at Week-Long Sy mposiu m

On the heels of Utah’s three-year study of gender bias in the judiciary, the Women’s Law Forum at BYU devoted a week in November to discussion of an area of prejudice that is alive within, as well as outside, the legal system. The American Trial Lawyers Association (ATLA), the Society of Law and Govern- parts, “to advocate the same personnel treating women Justice Michael Zimmer- ment, and the Diversity causes, [and] to blink at the dismissingly and with less man, and Judge Pam Green- Committee, joined the same outrages.” Echoing tolerance and respect than wood represented the 21 forum in sponsoring Judge Walt, she concluded, men lawyers, judges, court per- “Gender in Law Week,” “Why should we be any Justice Durham noted sonnel, and community November 8-1 5 more idealistic about our that, in spite of stereotyping leaders on the task force. The Utah Task Force profession than men arc? and favoritism, the “expres- In 1986 Justice Gordon on Gender and Justice Perhaps,” the judge sive capacities” relegated to R. Hall, the chief justice of delivered its findings several answered, “because we women may provide the the Supreme Court of Utah, days after Justice Christine are women.” ethic of care needed to asked Aileen Clyde to chair Durham of the Supreme “Now the work is there strengthen the quality of life a task force that would look Court of Utah addressed for us to do,” challenged for women, children, and into the nature and extent faculty, students, and Justice Durham Presenting families and create equal of gender bias within the professional counselors. results of the New York Task justice and social change Utah Court System and Reviewing the findings Force Report on women She asked her audience, “Is make recommendations for of the 1986 report of the and the court, she made it this an unrealistic approach reform. Mrs. Clyde reported New York Task Force on clear that there is a need for to the potential of women in that the task force, after women and the court, action “Gender bias in the our profession? ” Describing arduous debate, settled an Justice Durham noted that law and legal system is a “access to power” as a mat- the following definition of women attorneys, through matter of national propor- ter of ratio, she maintained gender bias: their professionalism, can tions,” Durham said She that the larger the propor- change things. then cited such problems tion of women in law, the Gender bias encompasses Durham said that 18 per- as judges and lawyers being greater their impact society’s perception of the cent of those in the legal uninformed about the prev- “Because women com- value of work assigned to each profession are women, and alence of domestic violence, pose half the population, sex, the myths and miscon- by the year 1995, women the victim’s inability to any legal issue is a women’s ceptions about the social and will make up one-third of access the court to obtain issue,” noted Durham. She economic realities of people’s the profession “Assuming protection, inequities in the hoped that, as more women lives, and the stereotypes that that women gain access to distribution of a family’s begin to have a voice, they society has assigned to the decision-making positions in assets and income upon will promote excellence and behavior of men and women proportion to their entrance divorce, and inability of professionalism and make into the profession,” she spouses to enforce awards changes in the legal system Under this definition, asked, “what kinds of for child support to protect fairness, equity, gender bias can operate to changes will women make The report found that and the quality of life for the detriment of both men in the profession?” some judges and lawyers women, children, and and women, although the Quoting Judge Pat hold to stereotypes, whether families. national and the Utah data Walt of the D C Circuit, choosing mothers as the In line with Justice show that women are dis- Durham said that the grow- preferred custodial parent Durham’s comments, mem- proportionately affected by ing number of women law- or relating to women law- bers of the Utah Task Force gender bias. yers must decide whether it yers Widespread problems on Gender and Justice “Many people, because is enough to aim no higher result from some judges, spoke at the close of the of the way they were raised than their male counter- male attorneys, and court week Aileen H. Clyde, or because of their religious

36 MEMORANDA

beliefs, intentionally and :onduct in the courtroom. lustice Zimmerman sug- Justice Sandra Day unintentionally become After reviewing the find- 5ested that clergy and O’Connor Chairs Moot involved in gender-biased ings of courtroom conduct, laypersons also might be Court Finals conduct,” Justice Zimmer- the task force made recom- %atekeepersto safety for man said “This tendency mendations that judges xbused persons “It is The Seventeenth Annual to stereotype is a universal refrain from any gender- important that gatekeepers I Reuben Clark Moot human problem, but what- biased conduct and that the 3nd [laypersons] do not Court Finals on January ever personal beliefs are, bar amend the rules of pro- respond to domestic vio- 28, 1991, included the law must operate to give fessional conduct to pro- lence as less serious than some of America’s most women and men equal hibit attorneys from engag- similar violence between distinguished jurists The treatment,” he emphasized. ing in inappropriate gender- strangers,” he said. competition was chaired Having this definition to biased behavior The task Among the report’s by Justice Sandra Day frame its inquiry, the task Force also suggested gather- many recommendations for O’Connor of the United force then held and gath- ing data to determine reform were: (1) that the States Supreme Court ered data from statewide whether the gender of the state legislature repeal Utah Other members included public hearings and confi- attorney affects fee awards Code Section 76-5-407(1), the Honorable Judge Ruth dential meetings. Key infor- Another major concern which prevents prosecution Bader Ginsburg of the mation came from a survey of the task force was the for rape and other violent District of Columbia Court of 2,000 Utah attorneys and problem of domestic vio- sexual offenses between of Appeals, the Honorable feedback from court person- lence “We talk about family married parties, (2) that the Judge Frank X. Altimari of nel The task force also ben- and family values in this community give domestic the Second Circuit Court efitted from appellate case state, but I’m convinced violence victims more sup- of Appeals, the Honorable law studies, personnel data, that we had better just port, (3) that the courts Judge Alvin B. Rubin of and studies conducted by watch it,” Mrs. Clyde said, afford victims easier access the Fifth Circuit Court of other groups referring to the fact that to the judicial system, Appeals, and the Honorable The findings: in court- Utah is right on par with (4) that courts and law Judge Frank H Easterbrook room interaction, women the national average for enforcement cease the of the Seventh Circuit lawyers reported that female occurrences of spouse and practice of issuing mutual Court of Appeals Justice lawyers, witnesses, and child abuse. protectivc orders sua sponte O’Connor stated that being litigants were interrupted The task force reported or on mere oral request by able to assemble the fine more frequently than men that most victims of domes- the respondent, and (5) that panel of judges was a com- Women lawyers who were tic violence are women. law schools include infor- pliment to the school as “helped”by the judge or “Most women who go to mation on domestic vio- these judges were among received other deferential the emergency room, go lence in their curriculum “the finest in the country.” treatment felt their cred- there as victims of domestic and encourage clinical Although their ibility with clients and other violence and more than 40 placements for law students credentials are over- lawyers was undermined percent of the women killed in organizations that help whelming, the jurists They also reported receiving in this country each year are domestic violence victims were approachable and fees lower than those paid killed by their husbands or Concluding its report, kind Three of the judges, to men for similar work. partners,” Justice Zimmer- the task force encouraged Ginsburg, Altimari, and Mcn lawyers reported that man said the audience to read the Rubin, participated in a there was no gender bias He and Judge Green- Utah Task Force on Gender panel discussion and in the courtroom and that wood emphasized that the and Justice report and to question and answer period deferential treatment given problem of domestic vio- help educate the public and beforc the competition. to women gave them an lence is a complex problem to reform the law. At the Judge Altimari started the advantage that cannot be solved by the luncheon following the task discussion recounting his Both men and women judiciary alone. Still, police force report, the panel made experience of the previous commonly reported that and prosecutors serve as a final point-there is not day watching the Super women tend to be addressed “gatekeepers to safety” and only a need for mutual Bowl with 40 law students by first names or terms of have a profound effect on respect between the sexes He said that he was endearment and subjected whether victims get access but also a need for women impressed with the devotion to comments about physical to protection. “Domestic to be empowered with of the students who had a or sexual attributes or violence cases will never choices that avoid exploitive prayer before the meal appearance. The report also reach the courts unless situations. However, he admitted that showed that judges seldom police arrest and prosecu- -Rebecca Slatel; Vice Presi- as the prayer continued and intervened to remedy inap- tors charge offenders,” dent of the Women’s Law continued and continued, propriate gender-related Judge Greenwood said. Forum he began to worry that he

37 MEMORANDA

was going to miss the Court would have left the meaning of its words, like a Pinkney were counsel for kickoff. But he didn’t miss state and local governments statute The second category the petitioner. The counsel the kickoff, and since his alone the women’s rights would look to the intent for the respondent were team won, it made his stay movement would have of the creators of the .David Cole, John C. Hyer, here all the more pleasant. pushed more liberal Constitution if the wording Andrew S. Williams. The He also mentioned that abortion laws through the is unclear. The third topic of the moot court being a judge was a very legislatures, but since the category is a more liberal competition this year rewarding experience, given Supreme Court took such view, which goes beyond the involved current Fourth thq collegiality of working a big step in that direction, first two Judge Rubin left and Sixth Amendment with other judges and the it took a lot of momentum the question of original problems The fact pattern ability to contribute to out of the pro-choice intent with questions of involved two issues: (1) the certain areas of the law movement. Nevertheless, his own. He queried as to use of a parabolic micro- However, he felt that the the judge predicted that whose intent would clarify phone to record the most rewarding aspect eventually abortion legis- the Constitution: Madison’s petitioner’s conversations, of being a judge was the lation would follow the secret notes, the colonial and (2) the use of an invited relationship that he had with his law clerks Judge Rubin began his remarks by clarifying that he was a “trial lawyer” and not a “litigator” A litigator he said, “is someone who takes depositions for five years and then settles,’’ He also emphasized that being a judge is different from being a lawyer because judges’ emotions do not go up and down with the wins and losses as much He also agrced with Judge Altimari trend of no-fault divorce citizens at that time, or informer to record the that being a judge was a and that the majority of perhaps the legislators who petitioner’s statements after positive and rewarding states would adopt a more ratified it? Judge Ginsburg the petitioner had retained career Judge Ginsburg said liberal position added that certain parts counsel for a prior arrest. that she had been on the The second main of the Constitution are At the close of the D.C. circuit for over 10 question pertained to the easily understood, like the Competition each of the years and that she found concept of original intent requirements of a senator, judges commented on the job both challenging in constitutional decisions but other areas are vague the competition Judge and satisfjmg. and how the original intent and are meant to be Ginsburg called the Because of the cordiality theory applied in cases of interpreted broadly. She also competition “a truly great and frankness of the panel, ambiguity Judge AItimari added that the original show” and all the other the judges were able to field proposed that there were Constitution was short- panelists agreed Judge only a few questions, Judge two schools of thought sighted, allowing a Ginsburg also pointed out Ginsburg responded to the One espouses original intent significant minority, white that the experience closely first question concerning and the other considers the male landowners, the mirrored that of her court, her views on abortion The U S. Constitution a living majority of the rights including lots of questions judge began by putting Roe document subject to change The panel discussion from the judges Judge 2r. Wadi in perspective. She as unforeseen circumstances was followed later in the Rubin noted that the noted that, though generally arise. For Judge Altirnari, afternoon by the moot court participants were better the U.S Supreme Court denying the latter would be finals. Second-year members than most lawyers who moves in small steps, the to deny the genius of the of the Board of Advocates argue before his court Roe decision was a giant Constitution. had participated in Judge Easterbrook added step in one direction and Judge Rubin divided preliminary rounds of that although, as a student, it pushed the political the schools into three competition with the six he had been skeptical machinery of the states in categories. The first would finalists chosen to compete of comments like Judge the opposite direction. In interpret the Constitution in the finals. Jill Covington, Rubin’s, now that he other words, if the Supreme according to the literal Kelly Dunaway, and John has become a judge in

38 MEMORANDA

the court of appeals, he “The Disappearance of must confess that Judge Roman Law from Dark Age Rubin is right Judge Britain” fill his vita. A Altimari also left some respected author, he is also parting advice with the in demand as an editor, participants: “Don’t ever presently writing three let them see you sweat.” of the 15 revised volumes Justice O’Connor began of Michie Company’s her closing remarks by Thompson on Real Property. thanking BYU for allowing He has lectured from the panelists to visit She podiums throughout the complimented the school United States and in other for its beautiful setting and countries such as Israel and high quality of education. Great Britain. The U S. rep- Before extolling the virtues resentative to the British of the moot court system, Law Library Association for Justice O’Connor noted eight years, David sees the that one of thc finest oral Former Librarian a mission to Germany, life-time membership advocates in the United David Thomas Focuses married and had two chil- awarded him this past year States works at BYU. She on Teaching, Research dren, graduated cum laude as “probably the nicest said that Rex E. Lee is from BYU, and served in honor I have received ” among the best in the Walking into the office of Vietnam After earning a He is actively involved country. David Thomas, one could law degree from Duke Uni- with many professional and The justice pointed 2asily mistake him for a versity in 1972, he returned academic groups and has out that the problems in- photography instructor to his alma mater, where he served, for example, as a volved in this moot court Prized photos line the walls, joined Peter Mueller and president of the American competition were well- distractions from the laden others in organizing the law Association of Law chosen. Both issues were bookshelves and piled desk library in the new J. Reuben Libraries. In the Law legitimate and neither had The scenes are artistic Clark Law School Within School he chairs or sits on clear answers She went on pauses in the academic pace two years David was the numerous committees, to say that moot court was of Law Professor Thomas director of the law library focusing on the student an important part of legal Director of the law and a law professor. By 1977 level of legal preparation education. She emphasized library for the past 16 years, he had added a master of David, an educator who has that in this day of legal David has now shifted his library science degree from practiced law privately and practice it is critical to be efforts to his teaching and BWto his credentials publicly, also drafts ques- able to write well and that writing. He passed the Though the law library tions for bar exams in four oral skills are useful in directorship to Constance was “first in some areas of states. many settings besides the Lundberg in the summer of automation,” David did not Professor Thomas finds courtroom. 1990 after building “one of forget the “traditional mis- more time to submerse Finally, Justice the most automated law sion” of law “There are all himself in research now that O’Connor announced the libraries in the world. I kinds of people who are Dean Lundberg oversees the winners and handed out the started to get the feeling my experts on computers, but library and its large staff. awards Andrew Williams time could be even more they haven’t grasped that When he is not writing received the Dean’s Cup for productive, and there was they have to draft their doc- about real property and best oral argument. He and more I wanted to do,” uments and think about legal history, he is teaching his teammates, Hyer and David said. things.” He admits, how- it Among his various legal Cole, won the competition A person who thinks in ever, that with the aid of courses, David finds his and David Cole was terms of “growth curves” computers his “scholarly class in advanced legal awarded a trophy for writing and “mileage,” Professor productivity has increased writing particularly gratify- the best brief. The other Thomas is bound to exceed about fourfold ” ing, discovering that with team received an honorable his own hard-to-follow act. David’s knowledge of real each new semester he has mention award and all the A prolific scholar, he has a property and legal history, “gotten better prepared finalists will have their personal record filled with besides that of legal research students ” names inscribed on a plaque chapters of experience as tools, is evident in a list of David carries his enthu- that hangs outside the Guy well as productivity. his publications. Topics siasm home, where his wife, Anderson Moot Court By the time he was 26 ranging from “Access to For- Paula, and their eight chil- Room. years old, David had served eign Legal Databases” to dren share his nonstop,

39 MEMORANDA

absorbing approach to flexible approach to the them His bottom line contemplated a judicial learning. Revealing one x-actice of law. David assessment: teaching is a lot clerkship he asked himself, source of his motivation, he 2xplains that he accepted of fun. “The students have “Will this be a valuable way notes with delight that for I position with Meyer, great senses of humor They to spend my time?” He several successive years the Hendricks just to be able to were interested; they asked decided then that this is entire family has accom- have this type of flexibility good questions; and I a far superior question to panied him to Europe while For every year of partner- enjoyed the give and take,” “Will this experience be he researched legal history ship at Meyer, Hendricks a he stated. He especially a stepping stone in my partner accrues one month liked the one-on-one time career?” or even “Will I be a paid sabbatical. The sabbati- with the students. “I spent better lawyer for having this David Campbell Enjoys :a1 can be from two to nine a lot of time talking to the experience?” David also Sabbatical at BYU months long. The firm students about where they indicated that if a student places no restrictions on are going with their careers is marginally interested in One of the high points of what a partner does during and about their lives as well a federal clerkship he or the first semester of law his or her sabbatical The as legal issues,” David com- she should consider it ‘As school for the entering class partner collects a full salary mented “I have gotten to a federal clerk you get to of 1990 was the opportunity while he or she is away. know many of the students see the world from the to study civil procedure David makes a convincing well, and they are wondcrfu mountain top,” according

with visiting professor David argument that Meyer, people ” to Campbell “For one year Campbell. David was on a Hendricks’ flexible policy The life of a scholar was you get to question what four-month sabbatical from has strengthened the firm attractive to David He is right or wrong in these his practice with Meyer, and increased the loyalty of enjoyed having the freedom particular cases. From then Hendricks, Victor, Osborn & associates and partners He and flexibility to really learn on in the practice, the right Maledon in Phoenix On maintains that it contrib- a subject he wanted to answer will be your client’s the last day of the semester, utes to the mental and learn. Contrasting his expe- answer unless you become David’s students honored physical health of the law- rience as a litigator, David a judge, So there is an him with a citation for his yers and makes for a more noted, “as a lawyer you have objectivity you get to bring superior teaching. They interesting and diverse firm. to be concerned about your into it and a creativity that commented on his interest The benefit to the firm, client’s interests, as a law most lawyers will never get in them, the care he took in according to David, is that professor you can be curious the opportunity to preparing and presenting the clients are of necessity about any facet of the sub- experience I found that

the material, and his ability clients of the firm. With a ject you choose ” to be very stimulating ” to convey difficult concepts lawyer periodically taking a When asked how his When asked if he had David has had a diverse sabbatical, his or her clients firm benefitted from his some final advice for the legal career After graduat- are of necessity handed to experience at the Law students who had become ing from the University others in the firm, fostering School, David replied, “by his friends, David said he of Utah College of Law in a spirit of coaperation. my understanding of Inter- would encourage them not 1979, David clerked for When asked to comment national Shoe ’’ David states to lose their “moral Judge J. Clifford Wallace on his experience at the that he knows civil pro- compasses ” He indicated of the 9th Circuit Court Law School, David was cedure better now than ever that in an interview after of Appeals He then workcd quick to point out that as an before even though he has Watergate, Jeb Magruder as an associate in the New alumnus of the University of practiced for a number of said that somewhere along York and Los Angeles offices Utah and the University of years as a litigator. He feels the way he had lost his of O’Melveny & Meyers Utah College of Law, he was he is going back to his “moral compass ” David for one year before serving pleased to find out that he practice well rested and said, “In the practice of law as a law clerk for Justice could thoroughly enjoy enthused about the law and I perceive that many lawyers William Renquist of the BYU, and he was impressed the issues he faces. While are losing their moral U.S. Supreme Court. He with the quality of the stu- David believes he will return compasses and forgetting has been a litigator with dents He thought that as a better lawyer, he knows what is most important in Meyer, Hendricks since his Civil Procedure would be he is a better father and life. It is an easy thing when clerkship. a difficult course to teach husband because he has had you get caught up in your It is not often that a because it is not intuitive, four months to spend half client’s cause for that to be trial attorney can take four but he was impressed by of his time with his family the governing principle of months away from a full liti- how quickly the students David said that when your life 1 do not believe gation calendar and teach grasped complicated ideas he graduated from the that your client’s cause civil procedure, but then it and how hard they worked University of Utah College should ever divert you from is not every firm that takes to thoroughly understand of Law in 1979 and what you know is right.”