January 01, 2013

The Courage of a Lawyer

Courage is the defining quality of great lawyers. How can we learn it and from whom?

Hon. John Cannon Few

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Courage is the defining quality of great lawyers. Good lawyers think deeply, speak eloquently, and write persuasively. They are creative, persistent, and dedicated. Good lawyers combine an extraordinary work ethic with compassion for ordinary people. However, no good lawyer, no matter how talented and skilled in these respects or in others, can be great unless the lawyer has courage.

This essay reflects a lifelong admiration for the courage of a lawyer. I grew up under the tutelage of a tenacious lawyer. My first job was law clerk to a principled judge. In all of my early experiences as a lawyer, I worked with people who held firm in the face of adversity. I came to believe every lawyer was courageous, so I worked to define myself by courage. Through 23 years of practicing law and holding court as a judge, I have reached two inescapable conclusions: Not all lawyers are courageous, and I have far to go before I reach that ideal for myself.

As I strive to move forward in my own journey, these questions resonate within me: What is courage? How can we learn courage, and from whom? Does the courage we learn from others play out in the lives of the men, women, and children we as lawyers represent? The answers to these questions go to the heart of why we chose to become lawyers. Exhibitions of courage by great men and women in our history teach us to be courageous. Their examples enable each of us to be the best lawyers we can be. In turn, our courage plays itself out over and over again in the lives of those we touch.

Millions of men and women throughout our history have demonstrated courage. Many of them have shown such extraordinary courage that they have become emblems of courage in our society. Three of those emblems illustrate the manner in which courage is passed down to us and, in turn, passed on to the people lawyers represent. They are Frederick Douglass, Thurgood Marshall, and Waties Waring.

Frederick Douglass

One of the first acts of courage in Frederick Douglass’s life was teaching other slaves to read the New Testament, with as many as 40 people attending his classes. His master retaliated against his courage by sending him to another owner who had a reputation for breaking courageous slaves. After several years of severe beatings from this new master, 16-year-old Douglass fought back. He later wrote: “At that moment—from whence came the spirit I don’t know—I resolved to fight.” The “spirit” was his courage. Douglass said, “I seized him hard by the throat, and as I did so, I rose.” Seizing adversity by the throat his entire life, Douglass rose to become one of the foremost antislavery advocates of his time. At age 27, still technically a slave although he had long since escaped, he published Narrative of the Life of Frederick Douglass, an American Slave, a compelling autobiography of courage in a lifelong struggle for racial equality. Douglass went on to become internationally known, serving as minister general to Haiti and running for vice president of the United States. Douglass defined his life by courage and became an emblem of courage in his time and today.

Thurgood Marshall

The struggle for racial equality reached a milestone in 1967 when Thurgood Marshall joined the Supreme Court. In the six years before that, he had been solicitor general of the United States and a judge on the Second Circuit Court of Appeals. Understandably, many people believe Justice Marshall was famous simply because he was the first African American to serve on our highest court. Those who have carefully studied his life might be aware that lawyer Marshall argued Brown v. Board of Education before the Supreme Court. Hardly anyone alive today, however, remembers that young Thurgood Marshall was the principal lawyer in the trials of two of the five cases consolidated for appeal in Brown. In actuality, Marshall was already a national celebrity in 1951 when he tried the first of those cases, Briggs v. Elliott, which arose near Summerton, South Carolina. The story of how Briggs became one of those important cases illustrates how the courage of one lawyer changed not only the lives of the plaintiffs and their families and the lives of millions of school children since, but also the lives of many lawyers and the clients they represent even to this day.

Briggs arose in an atmosphere of extreme adversity, even terror, surrounding the question of racial inequality and school segregation. The social and political establishment throughout the South, particularly in South Carolina, created this atmosphere through threats and violence. The efforts of the National Association for the Advancement of Colored People (NAACP) to recruit parents to sue schools always included a warning that they might lose their jobs and face violence against their homes, themselves, and their families. The NAACP tried to bring a case in Louisiana, but no parents were willing to be plaintiffs. Marshall’s courage made it different in South Carolina. Marshall sent his cocounsel, Robert Carter, to Summerton to meet with 20 parents to discuss Marshall’s plan for success. After that meeting, inspired by Marshall’s involvement, Harry Briggs and 18 others agreed to join the case. Briggs and Brown happened because the courage of a lawyer enabled ordinary people like Harry Briggs to take the risks necessary to stand up and make history. As we look back in time, we see easily they were right. But to roll up their sleeves and confront injustice in the early 1950s took guts. It took courage! Thurgood Marshall is an emblem of that courage.

Before Briggs, Marshall and the NAACP avoided challenging the constitutionality of segregated schools because they believed the time was not right. In every case before Briggs, the plaintiffs argued that the separate schools were not equal, and thus were illegal, instead of arguing that the separate nature of the schools was unconstitutional in the first place. Marshall carefully drafted the complaint in Briggs to exclude the argument that separate-but-equal was unconstitutional. However, when Marshall and his co-counsel arrived in Charleston for pretrial hearings in front of U.S. District Judge J. Waties Waring, Judge Waring challenged Marshall in open court to attack the constitutionality of segregated schools.

Judge J. Waties Waring

Very few people today have heard of Judge Waring, even in his home state of South Carolina. Yet Waties Waring was fully capable of exerting influence over the giant young Thurgood Marshall had become. Judge Waring made bold decisions in several early civil rights cases that shook the foundation of segregated society and shocked the political and social leadership of the South and of the nation. One of those decisions was Elmore v. Rice, in which Judge Waring ruled that the Democratic Party in South Carolina must open its primaries to black voters. Another was Wrighten v. University of South Carolina, in which Judge Waring ordered the state to provide legal education opportunities to blacks.

In retaliation for these and other decisions, Waring was ostracized by his friends, his city, and his state. He and his wife were verbally abused, and their home was vandalized. The animosity became so public that two congressmen called for Waring’s impeachment, leading to an impeachment petition signed by 20,000 South Carolinians. In one seemingly humorous incident, when lightning struck the house next door to Waring’s vacation home on Sullivan’s Island, his neighbor put a large sign on the roof that said, “Dear God, Judge Waring Lives Next Door.” In another incident not humorous at all, a nighttime mob burned a cross in front of Waring’s home. Despite all this, Judge Waring boldly and publicly pushed Marshall to attack separate schools on a constitutional basis, knowingly putting himself in a position of being further ostracized, perhaps endangering his life.

In recognition of the same decisions, however, Judge Waring was known nationally for his courage. On August 23, 1948, Time Magazine published a story on Judge Waring entitled “The Man They Love to Hate.” The article describes Judge Waring as “cold-eyed” in the face of the bitterness his own city “spent” on him. The article quotes him from the Elmore trial: “It is a disgrace when you have to come . . . and ask a judge to tell you how to be an American.” Time predicted that history would “remember . . . Judge J. Waties Waring as a man of cool courage.”

The National Lawyers Guild honored Judge Waring for his courage with the 1948 Roosevelt Award. In a speech commemorating the award, prominent Alabama lawyer Clifford Durr drew a comparison between the courage shown by Judge Waring in the face of retaliation and the courage shown by heroes on the battlefield. Durr, who would later represent Rosa Parks, remarked that soldiers, like lawyers, “draw courage from each other.” He went on to say:

Courage of a greater and rarer kind is required to face the disapproval of society in defense of a basic democratic principle. . . . It takes real courage for a judge, in opposition to the deepseated folkways of those with whom he lives . . . to say, “This is the law. It is my duty to enforce the law and I will do my duty.”

Judge Waring was praised and criticized in major newspapers from New York to California. In both the praise and the criticism, Judge Waring was recognized as an emblem of courage.

Moral Courage in Action

What is this quality that is the hallmark of these great leaders and lawyers? In a general sense, courage is “the state or quality of mind or spirit that enables one to face danger or fear with self-possession, confidence, and resolution.” This abstract definition, however, has little practical meaning until heroic and ordinary people give it character through their actions. We have seen heroic people demonstrate acts of courage in battle and in other arenas of physical danger. From the flag raisers atop Mount Iwo Jima to the firefighters racing back into the World Trade Center, our heroes have painted images of courage as a vivid scene in our national portrait.

Courage can be described as physical or moral. Physical courage drove the flag raisers and firefighters to their heroic acts. Moral courage might be less vivid in its imagery, but it is no less heroic. Moral courage is the determination to take action, to hold firm in the face of adversity, terror, or retaliation, despite the risk of adverse consequences. Moral courage is the foundation for physical courage, but it has a separate identity particularly applicable to lawyers and legal ethics. Seemingly ordinary lawyers become heroic as the actions they take on behalf of clients every day give character to moral courage.

It took both physical and moral courage for Douglass, Marshall, and Waring to live the lives they chose. They defined their lives, however, primarily by moral courage. Many of the rules of legal ethics call upon lawyers to embrace the same moral courage these men and others have shown us. Rule 1.6(b) of the Model Rules of Professional Conduct provides an excellent example. This rule allows an exception to the prohibition against disclosing a client’s confidences if “necessary . . . to prevent reasonably certain death or substantial bodily harm; [or] to prevent . . . a crime or fraud that is reasonably certain to result in substantial injury to . . . another.” A lawyer who believes that keeping a client’s confidence will endanger another person faces a difficult test of moral courage.

The preamble to the Model Rules contains another call upon lawyers to demonstrate moral courage: “A lawyer . . . is a public citizen having special responsibility for the quality of justice.” Although it may be rare that a lawyer must make a courageous choice between allowing a crime to be committed and disclosing a client’s confidences, it is not rare that a lawyer has an opportunity to exhibit this “special responsibility for the quality of justice.” We are fortunate to have compelling images in literature of lawyers fulfilling this special responsibility. Atticus Finch demonstrates the courage of a lawyer in Harper Lee’s To Kill a Mockingbird, not only in representing his clients but also in raising his children and leading his community. Lee reminds us that Atticus demonstrates moral courage when Scout says, “It was times like these that I thought my father, who hated guns and had never been to any wars, was the bravest man who ever lived.”

These compelling images of courage are not limited to literature. We also have local images of courageous lawyers. Communities large and small remember men and women whose lives became legend as stories of their courage were retold. In South Carolina, one of those legendary figures is the late Frank Eppes. Over his 38 years of service as a trial judge, Judge Eppes touched thousands of lives all over the state. The stories told about Judge Eppes are inspirational, but South Carolina remembers Judge Eppes not simply because he inspired us. Every legal community remembers its legendary figures because their lives embodied courage and because they demonstrated dedication to the duty of a lawyer to fulfill our “special responsibility for the quality of justice.”

As images of courage from literature and local lore replay themselves in our courtrooms every day, they show us the courage of a lawyer. Six years ago, when I served as a trial judge, the state called to trial a defendant accused of shooting his former girlfriend’s new boyfriend. Long before trial, the state offered a plea bargain of 9 years out of the 20 the defendant faced. The defense lawyer never told his client about the plea bargain, and the state withdrew the offer. The defendant pleaded guilty on the morning of trial, and I sentenced him to 20 years.

The courtroom was full of people that day, many of whom were lawyers. Everyone grieved for the victim as he explained from his wheelchair that he would never walk again. Everyone raged at the defense lawyer as it became clear that he failed to communicate something as important to his client as this offer. Everyone struggled with which of these terrible injustices should more forcefully guide my sentence.

Nobody struggled, however, with whether the defense lawyer had done an injustice to his client. That much was clear. Another lawyer in the courtroom resolved to do something about that injustice. I watched him fidget while I deliberated over the sentence, and wince when I announced it would be 20 years. I watched him get up from his chair and walk over to speak to the defendant. As I watched them talk, and as I struggled within myself as to whether I had done the right thing, I saw the courage of a lawyer play itself out. The lawyer volunteered to file a post-conviction relief action and got the sentence changed to nine years, because the defendant had been denied his right to the effective assistance of counsel under the Sixth Amendment.

The lawyer who stepped up to do this was Frank Eppes. However, the lawyer was not the legendary Judge Eppes who died before this crime was committed. Rather, illustrating my point that the courage of a lawyer lives on in the lives we touch, the lawyer was Frank Eppes Jr., a man who inherited at least two things from his father: a keen sense of his “special responsibility for the quality of justice” and the courage to step up and fulfill that responsibility.

Frederick Douglass, Thurgood Marshall, and Waties Waring illustrate the courage of great leaders and lawyers. However, their lives represent more than that to us. Just as Judge Eppes’s courage inspired and influenced his son, the courage demonstrated by Douglass inspired Marshall, who influenced Waring, who in return inspired and influenced Marshall. The courage of all three has trickled down to each of us. Their lives teach us the reverberating effect courage can have and, thus, the effect our courage will have on those who follow us.

Douglass was an important role model in Marshall’s life, even though he died eight years before Marshall was born. Douglass’s life, his writings, and his courage influenced who Marshall became and how Marshall influenced the lives he touched along the way. It was purely coincidental that Marshall graduated from Frederick Douglass High School in Baltimore. It was not coincidental, however, that a bust of Douglass stood on Marshall’s desk at the Supreme Court. Marshall placed the bust as a reminder of the man Douglass was, what he stood for, and how Marshall’s life had grown in part out of Douglass’s courage.

In similar fashion, Marshall and Waring influenced each other’s lives. Many of the civil rights cases Judge Waring heard in the 1940s were brought and tried by Marshall. Waring’s views on the world were influenced by the issues raised in those cases and the lawyer who tried them. Judge Waring derived the courage he brought to the challenge of making these difficult rulings in part from the courage Marshall demonstrated.

Waring’s influence over Marshall was even more direct. Every other white southern judge in a civil rights case had treated Marshall with disrespect, but Judge Waring was different. Marshall later joked that he went through his first trial with Judge Waring with his mouth hanging open in disbelief, not only because he was respected but also because he was winning. That trial was the beginning of a lifelong friendship through which Waring pushed Marshall to mount a direct attack on the constitutionality of school segregation.

Waring’s long-standing efforts culminated in an unlikely conversation that illustrates Waring’s influence over Marshall. While Marshall was preparing his pretrial brief in Briggs, Judge Waring invited Marshall to his house in downtown Charleston and insisted over dinner that Marshall rewrite his brief to include the constitutional attack. Waring told Marshall “it’s time to make law by making history,” and reportedly made Marshall rewrite the brief twice before Waring was satisfied the constitutionality of segregation was squarely challenged. Waring’s stature as a man of courage enabled him to influence Marshall and, thus, change the course of history.

The influence of the courage demonstrated by these men continued to trickle down.

Courage Spreads

South Carolina had hardly ever seen a case of such moral significance as Briggs. Young people throughout the South chose legal careers because of it. Young lawyers throughout the nation modeled their careers on the courage demonstrated by Marshall and Waring. Because of that significance and also for its potential financial impact, South Carolina government, particularly the legislature, closely followed the trial.

It cannot be simply a coincidence that one of the legislators following Briggs was a young law student and freshman member of the South Carolina House of Representatives named Frank Eppes. Marshall and Waring’s public demonstration of moral courage in the face of that social and political landscape profoundly shaped Eppes’s career. At least indirectly, their courage influenced who Judge Eppes would become and how he, in turn, would influence the lives he touched along the way.

Their influence on Judge Eppes, however, was not merely indirect. There is a direct path from Douglass all the way down. Judge Eppes’s most significant role models included the late Matthew Perry, a courageous civil rights lawyer and later United States district judge. Perry’s many successes as a lawyer include Edwards v. South Carolina, one of the most cited First Amendment cases the Supreme Court has decided. Perry, who died in August 2011 after 23 years of practicing law and 32 years of distinguished service as a federal judge, was heavily influenced by Marshall.

Like Marshall, Matthew Perry was heavily influenced by Waties Waring. Young Matthew was not even a lawyer yet in 1947 when he attended the trials in Elmore and Wrighten. After those trials, future civil rights lawyer Perry went door to door encouraging black men and women to vote in the first-ever open primary required by Judge Waring’s decision in Elmore, and future judge Perry attended the law school created as a result of Wrighten. Professor Robert Moore wrote an essay on Perry’s development as a young man in which he states that the Elmore and Wrighten decisions “elevated Judge Waring to Matthew Perry’s pantheon of heroes.”

From Frederick Douglass to Thurgood Marshall; from Marshall to Waties Waring and back again to Marshall; from Waring and Marshall to the icons of your state like Matthew Perry is to South Carolina; to local legends like Frank Eppes Sr.; to the people they touch like Frank Eppes Jr.; to your entire legal community and to mine; to you; and to me. In the words of Clifford Durr praising Judge Waring, we draw a great and rare courage from each other.

Robert Hayden wrote a poem entitled “Frederick Douglass.” It describes a man who died 117 years ago, but the poem is about what this essay is about. It suggests that what we—as courageous abolitionists or as courageous lawyers—live on in the lives we touch. The “it” in the poem is “freedom” and “liberty.” Originally, “it” meant freedom and liberty in a different context from today. Even then, however, and especially reading the poem and reflecting on the life of this great man now, “it” might just as well mean justice for the people lawyers represent.

When it is finally ours, this freedom, this liberty, this beautiful and terrible thing, needful to man as air, usable as earth; when it belongs at last to all, when it is truly instinct, brain matter, diastole, systole, reflex action; when it is finally won; when it is more than the gaudy mumbo jumbo of politicians: this man, this Douglass, this former slave, this Negro beaten to his knees, exiled, visioning a world where none is lonely, none hunted, alien, this man, superb in love and logic, this man shall be remembered. Oh, not with statues’ rhetoric, not with legends and poems and wreaths of bronze alone, but with the lives grown out of his life, the lives fleshing his dream of the beautiful, needful thing.

Most lawyers have no idea of the connection from Douglass to Marshall, to Waring, and beyond. However, every lawyer is the beneficiary of our connection to these heroic people. On the one hand, their courage and that of thousands like them has grown out of their lives to enable lawyers today to represent their clients effectively. On the other hand, the connection circles back up. Don’t you know that in those dark, lonely moments when all men and women want to quit their work and take the easy path—perhaps for the night, perhaps for the rest of their lives—don’t you know that Frederick Douglass and other heroic men and women found the strength to go on in their vision of how their work would play itself out, and how their courage would live itself out, in the lives of people years from where they were? From our heroes down to us, on to our clients, and back again to our heroes, goes courage!

Every lawyer has touched and improved the life of some person. Great lawyers have touched many lives, and their courage has changed the world many times over. All lawyers should aspire to demonstrate courage and strive to achieve greatness. In doing both, we find strength in the courage those before us have shown and in the courage we can show to those around us. As we reflect on the good we have done, let us visualize the good we are yet to do. Let us seize adversity by the throat and rise to be an example of courage for others. In every community, an ordinary person is crying out for the extraordinary courage of a lawyer.

As men and women, but particularly as lawyers, we are armed with more than the heritage of courage those before us have shown. We are also armed with hope that the lives of those we touch will be strengthened and enabled by our courage and our work. Our courage lives on. What more could we want out of a professional life than that? 

 

A version of this article previously appeared in the journal of the American Board of Trial Advocates, 19 Voir Dire 22 (Spring 2012).

Hon. John Cannon Few

The author is the chief judge of the South Carolina Court of Appeals.