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Lawyer’s Lawyer By William M. Harbaugh (University of Virginia Press, 648 pages) Take a man raised near the West Virginia coal mines who wants to be a lawyer, but loses the cases of his first three walk-in clients. He worries each day about the need to get business. He does well in a good union labor case and new business (those beautiful words) comes his way. He runs for Congress without any money and is elected. He unexpectedly is appointed solicitor general, and he establishes himself as an extraordinary appellate advocate. He is then appointed ambassador to Great Britain. When he returns to the law practice, he is the leader of the Supreme Court Bar and the lawyer of choice for the richest people in the world. It does not stop there. In 1924, at the request of the Democratic Party he takes time out from his law practice to run as the Democratic candidate for president of the United States. He loses and happily returns to his first love, the courtroom, appearing either for the appellant or the appellee. He agrees to appear as a character witness for Alger Hiss. He agrees to represent, at no charge, a number of lawyers in trouble. He also represents physicist J. Robert Oppenheimer in his security problems. He represents big steel and overturns President Harry Truman’s seizure of the steel industry. He winds up his career by appearing for the defendants in Brown v. Board of Education. The person who did all this was John W. Davis (1873-1955). His astonishing career is set forth in Lawyer’s Lawyer: The Life of John W. Davis, William H. Harbaugh’s out-of-print biography originally published in 1973. Born in Clarksburg, W.Va., Davis spent his childhood and early life in Charleston, W.Va. He graduated from Washington & Lee University in 1892 and law school in 1895. He joined his father in a small-time law practice in Charleston. John’s father did not get along with people. Young John had a way with people. He was courteous, civil, both friendly and reserved, and reassuring to be around. His clients, in the beginning, were walk-ins. Here is a contemporaneous comment. “I have had two very loquacious and unprofitable clients. One was a ‘speak-easy-keeper’ who has just been indicted for unlawful retailing. The other was a brick mason who is about to turn speak-easy’s keeper, and wanted to know how he could put his property beyond the reach of prospective fines. I advised both repentant sinner and intended transgressor to the best of my ability and bade them depart in peace.” Davis went to trial on three of these cases to see what trials were all about. He lost all three. He became despondent. He considered giving up the law practice. He decided to stay with it a little longer and see if things picked up. The big case he wanted came to the firm through his father. Members of the United Mine Workers Union were on strike for higher wages. A judge, friendly to the mine owners, enjoined the strikes. Several strikers disobeyed the injunction. They were charged with contempt. John’s father turned the case over to his son. Davis proved to himself he could outwork the lawyers on the other side. Although his clients were held in contempt, the sanction was much less severe than what was expected, and Davis was much better than anyone expected. It was the big victory he needed. It brought him the recognition and the clients he was seeking. Nevertheless, his diary and his letters continued to be filled with concern about getting business, about working nights, and about winning and losing. As his fame spread, his Democratic friends in 1911 encouraged him to run for Congress. He was reluctant to take the step. It would interfere with his growing law practice. He decided that being a candidate would give him many speaking opportunities that would help his practice. He agreed to run. He won. He was elected to the House of Representatives. He liked the legal work. He did not like the rest of it. Patronage wore Davis down. He said he had six calls from job-seekers the day he took his seat. He was bored. He and a colleague, a distinguished New York lawyer, Martin Littleton, left the chamber in disgust. “I can’t stand this thing,” Littleton said, as they waited for a drink at the Congress Hotel. “I’m used to trying cases, and when a case is tried, it’s tried, and that’s the end of it. Here, no matter . . . how hard you work, some damned fool who has never thought about it will throw a monkey wrench into your position.” Davis agreed. Weeks, months, a year, slipped by without accomplishment: “Endless cunctation � active obstruction, sometimes, more often mere passive inertia � until I wish myself at something else.” He was told of a federal judgeship that he should seek. He did not get the judgeship but his effort brought him to the attention of then-President Woodrow Wilson. In 1913, during his second term, Wilson had to name a solicitor general. He named Davis to the job that used all his energy and talent. His days and nights were taken up with work he enjoyed. Davis liked to win. As he explained, “I may not strike people as one who enjoys battle, but with the different kinds of battle come different kinds of joy. No exhilaration in the world exceeds that of being clearly seized of your case, convinced that you’ve got an answer for all your adversary’s propositions, and then to stand up and let him have it.” In 1918, Wilson appointed Davis ambassador to Great Britain, where he served until 1921. During this time, he made lifelong friendships with the leaders of the English bar. He returned to the practice of law as a partner in the new Wall Street firm to be known as David Polk & Wardwell. His clients included J.P. Morgan and the Morgan Banking interests. In 1933, the Senate conducted an investigation of the banking industry. Morgan was called before the investigating committee. Morgan wished Davis to appear with him. There was standing room only in the committee room. When the matters were concluded, J.P. Morgan and 13 of his partners sent this letter to Davis: Words are entirely insufficient to express our deep sense of gratitude to you and your associates through these past three months of work and strain. Without your wisdom and sympathetic interests we should have been at a loss how to prepare for the examination before the Senate Committee; without your great legal ability we should not have known how, or to what extent it was wise, to defend our rights against the attacks of the Counsel for the Committee. For this and for the tireless work of yourself and all your associates, we wish to express our heartfelt thanks and our true gratitude. In 1924 the Democratic Party met in New York to nominate its candidate for the presidency of the United States. Al Smith, the popular New York governor, was seeking the nomination as was former Treasury Secretary William G. McAdoo. On the 103rd ballot, the convention turned to Davis as the reluctant dark horse. With regret, he put aside his law practice to campaign for the presidency. He lost to Calvin Coolidge. He happily returned to the law practice where he belonged. His practice involved interesting detours that puzzled his partners. He represented members of the bar who could not afford his services, but who needed help. He defended Oppenheimer against charges that he was a security risk. He appeared as a character witness for Hiss. In the eyes of his partners, the most significant detour was Davis’ role in Brown v. Board of Education. His involvement commenced with a visit by Gov. James F. Byrnes of South Carolina. Byrnes and Davis had many things in common. They both commenced in the South under humble circumstances. They both were lawyers. They both had outstanding careers in public service. Byrnes’ career began as a court reporter in South Carolina. He read law. He was admitted to the bar. He was elected as a public prosecutor in South Carolina. He was elected to the U.S. House of Representatives in 1911 and remained there until 1925. Davis and Byrnes knew each other as young congressmen. Byrnes went to the Senate in 1931 and helped direct President Franklin D. Roosevelt’s New Deal legislation through Congress. In 1941, FDR nominated Byrnes to the Supreme Court. Shortly after Byrnes’ elevation to the high court, FDR, in 1942, appointed him to run the Office of War Mobilization with authority over production, procurement, and distribution of the civilian war effort. Byrnes was convinced that FDR in 1944 would name him as the vice presidential candidate. FDR did not name Byrnes, but designated Sen. Harry S. Truman. Truman was surprised; Byrnes, disappointed and angry. President Truman appointed Byrnes secretary of state. Yet he remained angry. Thereafter, Byrnes had a falling out with Truman and turned against the New Deal. He criticized Truman and the New Deal in his campaign for governor of South Carolina. Davis himself had turned against the New Deal by the time he and Byrnes met and discussed the desegregation cases. Byrnes wanted and got a commitment from Davis that he would present the case for South Carolina and manage the defense. Davis’ partners were concerned because they thought Davis was on the losing side and was out of touch with the times. His daughter asked him not to take the case. Thurgood Marshall, who represented the plaintiffs, rarely let devotion to cause distort his view of men and events. Marshall said Davis was his ideal. He “was the greatest solicitor general we ever had. You and I will never see a better one. He was a great advocate, the greatest.” Davis had convinced himself he was on the right side of the case as a matter of law. In his statement to the Court on Dec. 7, 1953, he said: “Somewhere, sometime, to every principle comes a moment of repose when it has been so often announced, so confidently relied upon, so long continued, that it passes the limits of judicial discretion and disturbance.” This principle, which the Court applied in Miranda v. Arizona, was not a sufficient counterweight to balance off the public’s recognition of the injustice of school segregation. Davis argued the case twice because of a change in the chief justice from Fred Vinson to Earl Warren. When Davis rose to speak before the Warren Court, he was treated as a leader of the bar. Harbaugh writes: “The Court’s deference had been an act of respect to the man who had appeared before it more times [140] than any advocate in modern history.” To the very end, Davis wished to be thought of as a working lawyer, a lawyer’s lawyer, who knows his case, and will present it better than anyone else. John W. Davis died March 24, 1955. The Washington Post carried this obituary: He was a gentleman in the sense that Confucius used that much abused word � a superior man, with a courtliness that came from a fine intellect and a warm heart and a gentle manner. In whatever circle he moved, there was none other who seemed so fitted to be at the head of the table. To that place his fellows instinctively beckoned him. Nobody can say what kind of a President he would have made, but one can say with confidence that John W. Davis had a sense of statesmanship. If Davis is remembered at all these days, it is in connection with his remarks concerning the technique of arguing appeals. Here in summary is his advice: • Change places with the judge and answer the questions he must have in mind. • When the facts are set forth clearly and chronologically, the legal issues are often elementary. • Go for the jugular. • Answer the court’s questions. • Read sparingly from notes or books. • Avoid personalities. • Know the record. • And now, fold up your papers and sit down. Jacob A. Stein is a founding partner of Stein, Mitchell & Mezines. He is past president of the D.C. Bar and of the Bar Association of the District of Columbia. His books include Legal Spectator & More. “Lest We Forget . . .” is an occasional feature that revisits older or overlooked books worthy of comment.

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