One L (23 page)

Late in January, the moot court competition began. At Harvard, the competition is an annual memorial to James Barr Ames, a renowned law professor who died early in the century; and in all its phases, the competition is usually known simply as “Ames.”

Moot court competitions are yet another of the universals of first-year education at most American law schools. Like the Legal Methods program, of which Ames is technically an extension, moot court seeks to acquaint the beginning law student with some of the practical aspects of being a lawyer. Students prepare and argue appellate cases—cases on which there is already a trial decision—against one another and at HLS all arguments supposedly take place in the mythical state of Ames. Every 1L is required to take part in the program. Those who enjoy their initial experience in moot court can, at Harvard and most other law schools, go on in their second and third years to what is called “upper round competition,” where there are money prizes and considerable honor to the winners.

First-year Ames features nothing so glamorous. There is only a single argument, in which it makes little practical difference who wins. Anyone with the inclination can go on to the upper rounds. In many regards, Ames is just a grander version of the summary judgment motion we prepared for Legal Methods, which was, in fact, partly intended to ready us for moot court. Again, students work in pairs. Once more we would have to write a brief—although for Ames the formalities of legal citation were to be observed—and again we would argue to a mock court, though there would be three judges this time instead of two, and one of them would be a member of the law school faculty.

The great distinction, however, between Ames and what we'd done in the fall was that for moot court no one was going to hand us the case law as they had in Methods. Now we would be in a position more like the one in which practicing attorneys often find themselves. We'd be presented with an abbreviated version of a trial record and assigned to argue on appeal either for or against the trial court's decision. From that point forward, we'd be on our own. We would have to analyze the case, figure out the matters in issue, and then retreat to the library and find the best law to support our side. The period from the time the record is first received to the date of the argument is about six weeks, so the work on Ames is expected to be extensive. We'd be closely supervised by 2Ls and 3Ls, usually from BSA, which presides over first-year Ames. Prior to the argument we'd have to prepare a research memo and a draft of our brief as well as the final brief itself. I'd been told that for many 1Ls Ames became the primary event of the winter, with more time invested in it than in any of the classes, which usually lolled into doldrums during the period.

In the kinds of cases 1Ls could argue, we had considerable choice. BSA offered thirteen cases, all fictionalized, but each relating to an area of law touched on by the first-year subjects. In addition, there were a number of “alternative” cases, sponsored by many of the upper-year extracurricular groups like the Environmental Law Society or the Civil Rights-Civil Liberties Research Committee.

I had asked Terry to be my partner and together we decided to request assignment to a BSA case on defamation. It was a subject Zechman had not reached in Torts and we were both interested in learning something about it.

On January 30, we went to the BSA office to pick up our trial report. It was a lulu. The Reverend Edward Gantry was minister of a church in Pound City. Previously, he had been the pastor of a congregation in a nearby town, but he had been dismissed in reproof for his antiwar activities. Now, Ralph Wilson, one of Gantry's former congregants, writes the reverend, irate that Gantry is still disgracing the ministry. He threatens to make public a distorted version of the events surrounding Gantry's discharge unless the Reverend Mr. Gantry resigns his current pastorate. Rather than allow the story to reach his congregation as pernicious gossip, Gantry reads Wilson's letter to the Pound City church members and explains his point of view. Nonetheless, he is fired again. He sues Wilson for the defamation contained in the letter and wins.

On the appeal, Terry and I were assigned to the side of Wilson, the letter writer. It made no difference that he sounded like a clod. The principle of advocacy we had been taught all year was that he deserved full and unbiased representation. We would have two lines of attack. Defamation occurs when someone publicly makes remarks, in print or byword of mouth, which are untrue and damaging to another's reputation. In
Gantry
v.
Wilson
, it was the minister himself who had chosen to allow the letter's content to be known. One issue on appeal would be Gantry's role in making the defamatory material public. The other was a Constitutional matter. On the face of it, there is some conflict between the law of defamation, which restricts what people can say about each other, and the First Amendment's guarantee of freedom of speech. For many years the U.S. Supreme Court has been seeking to reconcile the two principles, and the most recent doctrine is that short of reckless disregard for the truth, you can say what you want about somebody who is considered a public figure. Therefore on appeal, we would also argue that the minister was a public figure within the meaning of the law.

On Saturday morning I met Terry at the library to begin the research. The night before I had gone through Gilbert's on Torts and the Prosser hornbook and absorbed the outlines of the law on defamation. Now I was interested in more specific points of the law, which meant reading cases. In arguing to the Supreme Court of Ames, we would be contending that the trial judge had followed the wrong law, the wrong precedents. We would have to present the court with cases decided on similar facts which came to results more favorable to our client.

Normally, an attorney doing that kind of research would not look far beyond cases which arose in his own state. Cases from other jurisdictions do not have the same precedential effect in court. But the moot court competition was set up in such a way that the common law of the state of Ames was comprised of all the reported cases of every state in the nation. Those volumes occupy a good part of the enormous vaulted top floor of the huge Harvard Law School library and much of the lower stories.

Nevertheless, the job was not quite as forbidding as it sounds. The private company which publishes most of those reports analyzes each opinion in an elaborate code. By resorting to huge digests, and sometimes the treatises and legal encyclopedias, it is possible to follow the code and to find cases from all around the country on the point which concerns you. Problems remain. To avoid misleading the court, before you cite a case—call it
Black
v.
White—
you must be certain that it has not been overruled, as sometimes happens, or that other judges have not criticized the opinion as badly reasoned. Therefore it is wise to check, at least cursorily, every subsequent case in which there has been a reference to
Black
v.
White
. That means resort to another index, which lists those references, and then, usually, going over each one. Finally, if you are new to all of this, like most first-year law students, you'll find that the cases you read tend to expose smaller weaknesses in your argument which you hadn't noticed, each one of which must be shored up by more cases and citations. It's like unpacking a molecule, only to find that the molecule contains atoms, the atoms contain parts, and the parts particles.

The research can be endless but Terry and I had sworn to do a creditable job without going crazy. By the end of Saturday, I thought we'd made a good start. I had more or less appropriated the Constitutional issue and been through a few Supreme Court opinions. Working on the publication question, Terry had already located material all over the library—cases, law review articles, even copies of briefs. In the hours he'd spent up here while he was skipping class, he'd acquired phenomenal research skills.

During the week we each handed in a memo describing our research and initial analysis of the case. Friday we met for the first time with the advisor we had been assigned by BSA to discuss what we had found. Her name was Margo Sakarian. She was small and dark and extremely pretty. Like Terry, she was from New Jersey. Ames is probably the bane of the BSA advisors' year. They must supervise half a dozen Ames teams, all working on the same case, and read through reams of memos and draft briefs, checking each to be certain that the various legal formalities which Ames serves to introduce have been observed.

Margo was harried and a little short with us in our first encounter.

“You guys forgot the facts,” she told us at once. Each of us was to summarize the facts of the case in the memo. We'd both overlooked it. Terry was nonchalant.

“Look,” he told her, “if we can't get the facts out, we don't deserve to be at Harvard Law School.”

She didn't like that response.

“They're supposed to be here. You guys have a draft brief due in two weeks. Don't forget the facts in there.”

She made a few more comments about our memos, mostly mild complaints, then left. I could see she had not made a big hit with Terry. HLS had managed to accentuate everybody's eccentricities. Stephen had become more nervous. I'd gotten louder and more insecure. Terry seemed increasingly sensitive to criticism. That made sense. He had pulled himself a long distance doing things his own way and in this highly regimented atmosphere he felt a threat to the independence he valued. He resented anything which felt like control. Right after the Torts exam, when we'd had lunch, he'd sworn that he would mend his ways and start going to classes again—he had been too frightened facing that test. But in the first week of the new term, while we were on our way to Civil Procedure, he had suddenly done a little dance and sung out, “Ooo, ooo, I'm gettin that itchy feelin', just can't sit.” He'd laughed and socked me in the arm and headed off for the library. If anything, his attendance was worse now. He was learning law his own way, reading through the biggest law school library in the world.

As we watched Margo leave, he said to me, “Hey, that girl's a little snooty, don't you think?”

I told him not to worry about it. We had two weeks to research and write a brief. That seemed like a lot to do.

Contracts and Civil Procedure continued in the second term. As time went on, however, I found my attitude toward each course different than it had been in the first semester. In Contracts a single event had worked a remarkable change in my perspective.

Perini had finally called on me to state the case.

It had happened in the final week of the first term. In a way, I had brought the trouble on myself. Perini apparently teaches Contracts at the same pace each year and with the end of the first semester imminent he seemed anxious to hit some sort of benchmark. I was unwise enough to delay him with a question at the opening of class.

“What about the effect of the contracts clause of the Constitution,” I asked, “in yesterday's case?”

“What about
Bard
v.
Kent?
” Perini replied. “Today's case. Why don't you tell us about that?”

The class laughed vigorously, as we all usually did when Perini had somehow taken advantage of one of us. I smiled as I opened the casebook, but I knew this could have come at a more welcome time. I'd been so well prepared in so many instances in the past. That day, I didn't even have a brief. With all the work in the face of exams, I'd skipped the case abstract as well as the morning cram session. And the case was hard. We were deep in the murk of the “consideration doctrine,” one of the law's perpetual mysteries, a concept as elusive as transubstantiation. No contract is complete unless both sides have proved consideration. In general, it is some evidence that the transaction is intended to be a positive exchange, a bargain and not the giving of a gift. Consideration can be the payment of money, or something as slender as a promise. Perini had called consideration “the conceptual analytical core of the course, our most challenging topic.” My luck.

“The case is in the California Court of Appeals in 1942,” I said, my voice quailing a bit as I started.

“Court of
Appeals?
” Perini cried.

Lord, already, I thought. I couldn't see the mistake. “California Supreme Court,” Don beside me whispered. I was so nervous I thought I'd said that.

I corrected myself and went on, more or less reading the facts out of the casebook. The suit involved a fairly shady-looking operation in which a lawyer who represented an elderly widow had made use of his power of attorney to lease himself some of her real estate. He'd then sublet the property at a handsome profit. When the widow died, new and more virtuous lawyers, hired by her estate, sued hoping to bust the first attorney's lease. The only way out was a lot of fancy footwork with the consideration doctrine and the opinion, which held for the estate, was closely reasoned.