IN THE ARENA: THEODORE ROOSEVELT AND THE LAW TALMAGE BOSTON, Shareholder Winstead PC 1201 Elm Street 5400 Renaissance Tower Dallas, Texas 75270 (214) 745-5462 (Direct) [email protected] State Bar of Texas 28TH ANNUAL LITIGATION UPDATE INSTITUTE January 19-20, 2012 Dallas CHAPTER 21 Talmage Boston is a shareholder in the Dallas office of Winstead PC. He is a past Director of the SBOT, and has served as Chairman of the SBOT's Litigation Section, its Council of Chairs, and its Annual Meeting Committee. He has been the recipient of the SBOT's Presidential Citation every year from 2005-2011. Talmage practices in the area of commercial litigation, and is certified (and has been recertified many times) in both Civil Trial Law and Civil Appellate Law by the Texas Board of Legal Specialization. He currently serves on the editorial board of the Texas Bar Journal, and In the last 3 years, has written 3 featured articles in the Texas Bar Journal on Abraham Lincoln, Atticus Finch, and Theodore Roosevelt. His book "Raising the Bar; The Crucial Role of the Lawyer in Society" will be published by TexasBarBooks in February 2012. In the Arena: Theodore Roosevelt and the Law Chapter 21 TABLE OF CONTENTS INSPIRATION .................................................................................................................................................................................1 ROOSEVELT AND THE LAW .......................................................................................................................................................1 BULL MOOSE .................................................................................................................................................................................3 UNHAPPY ENDING .......................................................................................................................................................................5 LIFE LESSONS FOR LAWYERS ..................................................................................................................................................6 POWERPOINT PRESENTATION ...................................................................................................................................................9 i President Theodore Roosevelt, 1903. Library of Congress, Prints and Photographs Division IN THE ARENA OSEVELT AND DORE RO THE LA THEO BY TALMAGE BOSTON W ith the publication of the final volume of Edmund Morris’ trilogy on the life of Theodore Roosevelt, we now have a complete assess- Wment of our 26th president’s strengths and weaknesses. Examining the life of this non-lawyer, who spent his life operating in and around the law, provides insights and lessons for attorneys of every generation. 508 Texas Bar Journal • June 2011 1 www.texasbar.com In the Arena: Theodore Roosevelt and the Law Chapter 21 In the Arena: Theodore Roosevelt and the Law BOSTON INSPIRATION a.m. breakfast.” When he campaigned for president, he delivered When I started practicing law 33 years ago, one of my firm’s 30 whistle-stop speeches a day, keeping his energy up by shadow- partners displayed in his office the “Man in the Arena” excerpt boxing in the caboose. from Roosevelt’s 1910 speech at the Sorbonne: Roosevelt’s exuberance extended to his interactions with the It is not the critic who counts: not the man who points out law. Although never licensed as a lawyer, Roosevelt spent his life how the strong man stumbles or where the doer of deeds could in the arena of the law. have done better. The credit belongs to the man who is actual- ly in the arena, whose face is marred by dust and sweat and Law Student blood, who strives valiantly, who errs and comes up short again After graduating from Harvard College, Roosevelt attended and again, because there is no effort without error or short- Columbia Law School, where he was conspicuous for frequently coming, but who knows the great enthusiasms, the great devo- interrupting professors. Roosevelt quickly concluded that lawyers tions, who spends himself for a worthy cause; who, at the best, and judges preferred legalese to his notion of justice and quit law knows, in the end, the triumph of high achievement, and who, school after a single year. Auchincloss notes that Roosevelt was at the worst, if he fails, at least he fails while daring greatly, so deeply offended by the doctrine of caveat emptor. Morris con- that his place shall never be with those cold and timid souls cludes that Roosevelt lost interest in law school because he was who knew neither victory nor defeat. “impatient with logic,” intolerant of corporate lawyers’ “sharp practices,” and had no interest in the law’s arcane “intricacies.” Roosevelt’s words resonated with me during that formative time. They inspired me to make a name for myself in the arena Lawmaker of courtrooms. Yet my goal of fulfilling Roosevelt’s ideal was chal- Roosevelt planned to use his legal studies as a stepping-stone lenged just a few years later. My mentor, Walter Spradley, offered to politics. After quitting Columbia, he was elected to the New me the chance to leave the firm, which would have required shift- York State Assembly at the age of 23. Roosevelt immersed him- ing my practice from litigation to transactional work. When I self in legislation. To be recognized on the House floor, the 5’8” told Walter I wanted to stay, he said, “I understand your deci- legislator would jump up and stand on his chair, calling out, sion, but let me tell you something. My experience in watching “Mr. Speaker! Mr. Speaker!” lawyers over the last 40 years is that litigators are like pilots. I know a lot of old pilots, and I know a lot of bold pilots, but I Prosecutor don’t know a lot of old, bold pilots.” Following three terms in the legislature, Roosevelt was Since that conversation, I have enjoyed three decades in the appointed U.S. Civil Service commissioner (1889 to 1895) and litigation arena. Having seen scores of good lawyers flame out, then New York City police commissioner (1895 to 1896). In it occurred to me that exploring Roosevelt, my inspiration as a both positions, he acted as an investigator, enforcer of laws, and young lawyer, might be useful for assessing the effects of per- prosecutor. Unburdened by judges or evidentiary rules, he forming for decades at an intense level. I knew Roosevelt had became known for cross examinations so forceful he often died young, which seemed to bolster Spradley’s observation that “TR” had not lived to be an old, bold pilot. Although there are dozens of outstanding Roosevelt biogra- Roosevelt and John Muir on Glacier Point, Yosemite Valley, Calif., 1906. phies, I have focused on three authors: Edmund Morris, who Library of Congress, Prints and Photographs Division received a Pulitzer Prize for The Rise of Theodore Roosevelt (1979) and followed it with Theodore Rex (2001) and Colonel Roosevelt (2010); Louis Auchincloss, whose concise Theodore Roosevelt (2001) is written from the perspective of an author trained as a lawyer; and Douglas Brinkley, a professor of history at Rice University, whose The Wilderness Warrior: Theodore Roosevelt and the Crusade for America (2009) incorporates the persuasive psy- chiatric assessments of Kay Redfield Jamison. (Morris and Brink- ley will be presenting during the State Bar of Texas Annual Meeting, June 23–24 in San Antonio, as will another esteemed Roosevelt biographer, H.W. Brands.) ROOSEVELT AND THE LAW Everything Roosevelt did, he did ferociously. When he wrote, he did so at frenetic pace — whipping out 25 letters in a morn- ing and entire books in just weeks. In the Dakota Territory, according to Morris, Roosevelt earned the respect of fellow cow- boys as one who “rode a horse a hundred miles a day, stayed up all night on watch, and was back at work after a hastily gulped 3:00 www.texasbar.com/tbj 2 Vol. 74, No. 6 • Texas Bar Journal 509 In the Arena: Theodore Roosevelt and the Law Chapter 21 In the Arena: Theodore Roosevelt and the Law BOSTON interrupted witnesses with new questions before they could manipulation of men.” The president delighted in being center complete their responses. Morris relates Roosevelt’s self-right- stage — there were no rules, restrictions, lawyers, or judges to eous attitude as he remembered it later in life: “Justice was jus- inhibit his pursuit of final resolution. tice because I did it.” Auchincloss acknowledges Roosevelt’s preference for operating in a mode disconnected from law and lawyers by relating U.S. Conflict Strategist Supreme Court Justice Oliver Wendell Holmes’ response to crit- At 38, Roosevelt was named assistant secretary of the U.S. icism leveled at him by Roosevelt after Holmes had dissented Navy. He expanded the fleet of American warships while his supe- in an opinion. When Roosevelt compared the jurist’s backbone rior alternately suffered from illness and took long vacations. to a banana, Holmes said it didn’t bother him because he Despite aggressive posturing, Roosevelt avoided international agreed with an unnamed senator’s quip: “What the boys like altercations during his first year, but soon helped to engineer the about Roosevelt is that he doesn’t give a damn about the law.” start of the Spanish-American War. In situations involving poten- Before leaving the White House, Roosevelt received a rare tial conflict, Roosevelt adhered to his famous slogan: “Speak softly comeuppance in the law. After Joseph Pulitzer’s newspaper crit- and carry a big stick.” icized him for making misrepresentations