One L (17 page)

The episode was carried off with a lot of hamming and joviality on all sides, and the discussion afterwards, trying to reconcile court decisions and the realities of police conduct, had been pragmatic but searching. When we came into Contracts, everyone was quite chipper, perhaps with the sense of better things ahead. I introduced Annette to a number of people whom she hadn't met yet—Gina and Kyle and Karen Sondergard—and together we steered her to a seat on the back benches, suggesting a number of half-obscene responses in case Perini called on her or commented on her presence.

When class started, it was apparent that Perini did not share our high mood. Attendance had been lagging throughout the period while the Methods briefs were being written. Now, with oral arguments at hand, attendance had dropped substantially. Many people were preparing for the argument even more doggedly than for the brief. Perhaps a quarter of the seats were empty and Perini had stared for a long time at the sparsely occupied tiers before beginning.

Perini's normal pattern was to treat a single case each day. I don't know whether it was his upset over attendance or just the nature of the material that caused Perini to press so far ahead in that session. Whatever the reason, by forty minutes into the period he had finished two cases, and there was a lot of uneasy shifting about among the students as Perini headed back to the seating chart. My guess was that a number of people had not read the last of the prescribed three cases very carefully. Yesterday, I had read nothing at all; but I took the precaution of leaving Perini a note. “Overburdened,” it read. “Barely breathing. Unprepared.” Some of the men and women in the section would not hand Perini a note except in the event of typhoon or leukemia. At HLS exams are graded anonymously, with a private identifying number affixed to the test instead of the name. The registrar matches numbers and grades with names, and professors often never know who got what. But many of my classmates, overawed by Perini, were convinced he filed our notes and would find some way to use them to detract from our marks. I didn't believe Perini would go that far.

“Mr. Mooney!” Perini cried out. He was still calling our names in that sharply rising, stabbing voice every time a student was selected for the case.

Mooney was a long, thin, mild man, extremely quiet and barely expressive. He glanced up with his usual serious look, but when he spoke my heart turned solid.

“I am sorry, sir,” Mooney said, “I'm not prepared.”

Perini froze over the seating chart, stock-still, one elbow hooked in the air as he held his pencil. His jaw rotated once or twice before he spoke.

“You mean, you didn't think we'd get that far,” he said. He was looking up at Mooney with horrible hatred in his face and his voice was icy with contempt. This was betrayal. That was it. Mooney had betrayed him.

Mooney tried once, weakly, to explain. “I have this oral argument today in Legal Methods. I—”

“There are other people in this room who have an argument today,
aren't
there? Do I have a note from you? The rules of the road were laid down on the first day, Mr. Mooney. If there is
any
excuse, I want a note about it.” Perini stepped away from the podium for an instant, his face still wrought with anger. I'd heard that this had happened once several years before and that Perini had stood over the student and made him read the case right there, answering questions line by line as he went through it, a torture of exposure which had lasted nearly forty minutes. But Perini seemed to have no punishment as immediate in mind for Mooney.

He touched the podium.

“I hope you are
very
well prepared on Monday, Mr. Mooney.” Again that voice and look, brewing hatred. What would he do to Mooney on Monday? Something unpleasant. Something terrible. Right now Perini looked mad enough for murder. And Mooney would have to carry that worry for the next five days.

The class sat stunned, absolutely still. Perini leaned over the seating chart and made a furious mark on it; then he called on the man who sat on Mooney's left. Calling on the person beside an unprepared student is a familiar device, used by law professors to increase the pressure on those who fail to respond. Mann, despite the gentleness of his rhetoric on the first day, often did the same thing. Pass, and you served up the head of your nearest classmate, thus adding peer contempt to your disgrace. It was the Socratic classroom's answer to the thumbscrew.

The man, Zimmerman, started slowly, softly—breathless, like the rest of us.

“What did he say?” a few people murmured.

“Nothing worth listening to,” Perini snapped. Then he went back to the seating chart and, while Zimmerman recited, made a ceremony of marking off the absences around the room.

When the hour had expired, Perini packed the seating chart beneath his arm. He glared about.

“I had hoped to get further,” he said, “but the level of preparation was so
poor
.” Then he stalked out, awkward in his fury.

Slowly, quietly, we followed him from the classroom. I didn't know what to think. Annette and I walked down the corridor toward Torts with Greg Dawson beside us—the man who sat next to me in class. I introduced him to Annette.

“How did you feel about that?” I asked.

He shrugged. “I thought Perini lost his cool.”

“Did it bother you?”

“Not really,” he said. “Mooney knew what would be coming if he got caught.”

“You're used to it,” I said, smiling, “you just got out of the marines.” But the incident did not sit right with me as humor. I knew what I thought now. “It was wrong,” I said suddenly, “really wrong. A teacher shouldn't treat a student that way. Not in front of a hundred and forty people. Not anywhere.”

I was not the only one disturbed. In the minute before Torts began, Lindsey Steirer got to her feet. She is a thin dark woman in her mid-twenties, one of the people most active in the Guild and the Women's Law Association.

“I hope anyone who was upset by what happened in Contracts will stay around for a few minutes after class so we can have some kind of discussion,” she said.

When Torts was over and Zechman gone, Kyle—from my study group—and Wade Strunk joined Lindsey at the front of the room. Well over three quarters of the men and women in the section had remained. Most were angry. As they spoke up, people said repeatedly that they didn't like being treated as children, that they had had it with subscribing to Perini's terror and his iron rules. There was broad agreement that some kind of protest should be made.

A few students stuck up for Perini. Ned Cauley said it was a single error on the part of a great teacher and that it should be overlooked. A number of people said it was a matter between Mooney and Perini. Mooney himself was of that opinion.

“I'd prefer if nobody did anything,” he said several times. “I made a mistake. I'll settle it with the man myself.”

But most of the people present would not be dissuaded. Kyle said that it was a matter which touched all of us. We were all threatened with similar treatment.

For a while those present debated an appropriate response. Someone suggested we boycott class on Monday. Somebody else said that we should all turn in notes saying we were unprepared. Finally, it was agreed that a letter of protest would be written. Kyle and Lindsey and Wade and anyone else who was interested would join in writing it, and it would be presented to the section for approval the following day.

Before the meeting broke, I slipped out with Annette. My oral argument would begin in a few minutes and we headed toward Pound, where it was to be held. I was quiet, thinking about the entire incident, including my classmates' reaction. We had watched the meeting from the back of the room. I was still not sure how caught up with all of it I should get.

Annette suddenly spoke up. “You know, it wasn't
that
bad,” she said. “Perini was rude and he shouldn't have talked to Mooney that way. But it wasn't
so
awful.”

I was surprised at her. “Babe,” I said, “did you see the
hatred
when he looked at that kid?”

“But you've been saying all year how terrible he is. That's all I hear every night—Perini's so tough, Perini's so mean. And now you're having mass meetings.”

I thought for a second about what Annette had said. Maybe she was right. I could see how the whole episode might appear trifling to an outside observer. But there was so much wrapped up in it: the pressures, and the uncertainty, and the personal humblings, and the rules of the road—all the crap we had put up with. It was a frightening prospect to joust with Perini, but we were ready to fight back now and it seemed important not to let that moment pass.

“I'm not sure you can understand, babe,” I told her.

She agreed. She agreed that was quite possible.

 

The oral argument was a disaster.

I saw the moment we arrived outside the classroom in Pound where we'd argue that Willie and I were in trouble. Our opponents, Jim DeMarco and Jody May, had shown up in their best, he in an expensive three-piece suit, Jody wearing a smart tailored outfit. Willie and I were in old sports coats.

Far more disturbing was the identity of the judges. An authentic summary judgment motion is a trial-level procedure, argued to a single judge. But the more judges, the sharper the questioning, and for that reason the Methods arguments were conducted before a court of two, a teaching fellow and a member of BSA. In all other regards, we'd be observing courtroom formalities, calling the judges “Your Honor,” and being addressed as “Counsel.” Because of that, I'd assumed the judges would be people whom we didn't know well; that would make all the pretending easier. As I expected, the chief judge was a Methods teacher from another section, somebody named Quinley whom I'd never laid eyes on. But there'd been a mix-up in the BSA office and the student judge was Peter Geocaris. When I saw him, my heart sank. I knew how seriously Peter, with all his standard-of-excellence ideas, would take this business. I hated the notion of disappointing him.

We all filed into the room together. Quinley and Peter sat behind the professor's podium. Willie and I, Jody and Jim took the first row of desks, the two sides being separated by the aisle. Annette sat in back.

Willie got to his feet and commenced the argument with the traditional opening line, “May it please the court.” That was probably the last correct thing either of us said. Willie made it plain how little interest he had in being here. He spoke rapidly and his tone was casual, even flip. He seemed to give the back of his hand to the judges' questions. “That's what
you
think, Judge,” he told Quinley at one point. He turned aside one of Peter's inquiries, saying, “Maybe that's so, but I don't want to talk about it.”

When he sat down, it was apparent that Quinley was displeased. Nor did Peter look happy. And I only made things worse. Oral advocacy, this process of arguing aloud to a court, is one of the most highly respected elements of the lawyer's craft. The great oral advocates—Daniel Webster, John W. Davis—are legends in the legal world. To be an advocate of that quality, it is usually said that two things are required. First, you must be extraordinarily well-spoken and quick-witted. The judge is liable to interrupt with questions regarding
any
aspect of the case, no matter how trivial, which seems to him a hindrance in accepting your argument or dismissing your opponent's. You have to be ready to address any point. And to do that, a second thing is needed: You must be consummately prepared, acquainted with the minutest details of the case.

I was not ready in that way. I'd glossed the sheaf of cases we'd been given when I'd picked out the series of slick quotations I'd stuck into my brief. I'd figured that no more would be necessary—I'd just stand up there and mumble for a while. When, a minute or two after I'd started, Quinley and Peter began to drill me with sharp questions about cases I could barely recall, I knew I was in deep. I resorted to any device to get through the fifteen minutes. I haggled the smallest points. I tried to make every question semantic. I even smiled warmly at Peter now and then, trying, I guess, to remind him that we were students, allies, friends, which was a quiet but unscrupulous breach of the formalities we were supposedly observing.

The Jack Katz case ultimately turned on a typically slender legal question. In order to fire Katz, could Elliot Grueman, the raincoat factory owner, merely claim to have been personally dissatisfied with Katz's performance, or did he have to offer reasons which a reasonable person would regard as valid? Representing Grueman, Willie and I were arguing that the law required no more than Elliot's subjective dissatisfaction. There was a lot of material in the cases which supported that position, but I had missed most of it, and Quinley, for at least ten minutes, tried gently to lead me onto that track. By then, however, I had assumed a battlefront mentality and just fought back blindly. Thus, for half the time I was on my feet, I was fiercely trying to punch holes in my own best arguments. Near the end, Quinley gave up hope.

“Counsel,” he said, “we seem to be going in circles.”

“Indeed we do, your honor,” I answered, and soon after that I sat down. I caught Peter's eyes for a second. He looked incredulous and somewhat pained.

In a real courtroom, the judge might have ruled against us then, but here Jim and Jody were required to speak and in turn they got their feet. Jody was the M.D. in the section, a tall, handsome, genial woman. Jim was a Chinese scholar from Cornell. They had been fine people to work against. Many of the opponent pairs had actually become quite heated with each other. Stephen and Kyle, for instance, had ended up on opposite sides and Kyle was still loudly complaining about Stephen's negotiating tactics. But with Jim and Jody there had been no strain, no sense that they were out for any kind of ruthless victory. They'd merely done a good job, written a thorough brief, and come ready for the argument. Watching them, I realized suddenly how reasonably the whole project could have been handled. I was not surprised when, in the moment after they'd finished, Quinley announced they had won. It was one of the few out-and-out victories I heard of during those weeks.