We returned from Philadelphia, Boston, Yuma, Chicago, Kansas City, Palm Beach, Mishawaka, Puerto Rico, Bosnia, and other "home towns." One student had been back on his parents' 1,200 acre farm that straddles the Indiana/Ohio border; he was up at 3:45 on Christmas morn, tending dairy cattle. Another had spent Christmas in five feet of snow in Bosnia, his hometown. One had become a wife over the break, and a few from our section had gone to her wedding in North Carolina. Most seemed delighted to be back in Washington, DC.
The first semester had been not so much an intellectual experience as an obstacle course or an endurance test. There was an exact circuit to walk, with things to do at certain points along the route, at certain times. In December, the points we had to touch on the circuit were three final exams: torts, contracts, and civil procedure.
My first exam was on Pearl Harbor day, but my last exam was the one that scared me the most: civil procedure. The "issue" never seemed to be what the case was about. We would read about people burning in car crashes, and the fight was about what court would handle the case. In comparing the course to my other subjects, I was confused: I began law school knowing what a contract was and having a vague notion of what a tort was, but before this course I'd never talked about a "civil procedure." The weekend before the exam I listened to audio tapes that purported to teach all of civil procedure in six hours of recorded lectures. I kept reading over notes and praying for miraculous intervention. I went to Mass that Sunday with Legalines, kind of a Cliff's Notes for law school. I'll leave it to church lawyers to decide whether I met my Sunday obligation. I did stand up and sit down at the right times.
I was so nervous before leaving for home for the civ pro exam that I popped the cork on a bottle of Beaujolais. I hoped the wine would calm me. It did not. The exam was horrible. I thought, "Maybe I was sitting in the wrong class all semester." I looked at the crucifix on the wall and prayed. God had no words for me. I finally understood subject matter jurisdiction versus personal jurisdiction, but I tripped over res judicata and claim preclusion. I have prepared myself for an F in the class. As I have told my own daughter, flowers bloom at different times, and some people need to go thru the wash twice for algebra. Civil procedure may have been my "algebra."
[For the non-law folks, "subject matter jurisdiction" is, "May that court handle that subject?" and "personal jurisdiction is, "Does that court have power over that person?" "Res judicata" means that once something has had its day in court, and there's a final decision, the matter is over. "Claim preclusion" is, "Sorry, buddy. You forgot to raise this claim in a previous law suit; you can't do now." And, no, I didn't get an F; I got a C+.]
When I left the law school after that final exam, all I wanted for Christmas was to forget how much money I might have lost in this gamble.
We drove to Indiana to see family during the break, and on the drive I listened to audio tapes for the new set of classes. The plan was to get a "jump start" on the second semester. If I had the first semester to do over, I'd do things differently. I would begin the semester with overview audio tapes. I would not read a case over eight pages long. I'd use case notes and prepared legal briefs from the start. I'd spend more time reading the Nutshells on the subjects, and less time reading the casebooks.
Some will say they did well by reading every case in its entirety, rather than reading only the portion in the case book; others will say they did well with shortcuts. A friend graduated from Georgetown in the top third of his class. He does well as a lawyer at a not-for-profit corporation, and his solution was case notes and Nutshells. He said his favorite year in law school was when he had all of his classes on Tuesdays and Thursdays because it left the other days free. I said, "But you'd have been busy the other days reading, right?" His German blue eyes twinkled under his Iranian curly hair; he threw back his head, laughed, and said, "You'd think, wouldn't you?"
When we were over the river and thru the mountains of Pennsylvania on our way back to Indiana, there was a call from my brother: As we'd been leaving DC, Mom had been en route to the hospital. Mom is 79. The daughter of a migrant farmer, she was the first of her family to graduate from high school. She was a mom during WW II, and the price she paid for WW II was the death of her first marriage. She was left with two little girls and nothing but guts. Before the days of government-funded day care, my mother's solution was to live with her dirt poor parents, and work all day, and mother all night. Thru a family member, she met a WW II vet and married again. She continued working until a few weeks before I was born. In recent years, Mom has survived a radical mastectomy, chemotherapy, radiation, two heart attacks, a quadruple bypass, and diabetes. And here was my brother with the modern convenience of a cell phone telling me she was hospitalized again.
The next day I drove Dad in for a day of sitting with Mom. We drove over the railroad tracks on Main Street, the same tracks I used to walk across on my way to and from school. Dad said that in the 1920s, Grandpa had been driving across those tracks in a Model T Ford when his car was hit by a train and totaled. The first thing I thought of was the "stop, look, and listen" rule established by Justice Oliver Wendell Holmes in the 1927 case of Baltimore & Ohio R.R. v. Goodman. The son of a poet himself, Holmes grew up amidst literary greats. In 1927, the great words Holmes wrote were that "Stop, look, and listen" is the standard. Apparently Grandpa had missed one of those words. He survived the collision because he was thrown out of the car; he was thrown out of the car because there were no seat belts and no seatbelt laws. Grandpa had acquired the Model T by trading an old sow for the car and a horse. (An exchange of this-for-that, made on a handshake.) Dad said he used to ride the sow around Fulton Co., IN, "because it was easier than walking." Dad was two or three, and the pig was named Pollyanna. The story continued after we got to Mom. I learned Grandpa had harvested 40 acres of corn with the horse part of the trade. Then I sat and listened to the daughter of a migrant farmer & a farmer's wife and the son of a road builder & a Hoosier schoolmarm give a rendition about smart pigs and how soft their hair is before it turns to bristles. I was back home again, in Indiana.
That nite, back at the hotel built on what had been "the farmer's field" when I was a kid, I talked online with Randy. Like me, Randy moved away from the hometown. We grew up in the same neighborhood built for WW II veterans. His dad drove a bread truck, and mine ran a vulcanizer at the local rubber factory, familiar to law students because of Mishawaka Rubber & Woolen Mfg. Co. v. S.S. Kresgee Co. We began kindergarten together. I beat him up in 3rd grade and arm wrestled with him in 8th grade. I competed with him in math classes, planned the graduation ceremony with him and a few others, and walked across the stage with him at graduation one June day in 1968 when the wind blew against my face and everything seemed possible. Randy was co-captain of the football team and was the Indiana All-State football guard who turned down offers from military academies to accept an academic scholarship to Cornell. That nite, Randy had some advice for me. He lost his dad less than two years ago. Randy asked, "Have you had 'the talk' with your mom?" He meant the "thank you for what you gave up for me" talk. He continued: "I was going to have 'the talk' our last Christmas together. I lost my nerve. The next I was with my father, he was in the hospital in a coma. Listen to my voice of experience."
The next nite I sat with Mom and told her she'd done all right against incredible odds and problems not of her making. She'd reared six kids to adulthood; there was a meal on the table every nite at 6 o'clock and a way to school every morning. Four graduated from college; one became a lawyer. Then I sat back and listened to Mom's life story as she sees it. I heard her tell how she'd worked at rebuilding her life after her youngest began school. I'd never understood why she began breeding and selling Boston Terrier dogs. She did it for the most basic of reasons: In the late 1960s and early 1970s, there were few choices for a working class, middle-aged woman with only a high-school diploma, who had been "nothing but a mom" for 20 years. As she checked and tried her options, she realized that she could make money by keeping a few dogs as pets, breeding them regularly, hand raising the puppies, and selling quality pets. She talked about a few times when folks came to buy one of her puppies and her instincts said they weren't nice people. On those few occasions, she refused to sell any puppy. I wondered what my contracts professor would say about that. If Mom had advertised that she had pups for sale at a certain price, if a person came with the money in hand, was she obligated to go thru with the sale? Her ad, after all, had not said, "You must be what I consider a good person to buy one of my puppies." I didn't share that thought with Mom; she might have said that a person who would go to a lawyer for something like that definitely was not a good person, and he would not have deserved one of her puppies. [Fast answer to the puppy problem is that an advertisement is not normally a contract, and puppies come under the U.C.C. because you can pick them up and move them.]
When I got back to DC, I stopped in at the law school. It was empty of students, but in the student lounge, I found a tired looking, gray-haired man in a rumpled suit. It was Robert L. Behan, an attorney from Waco, TX, who had flown all nite and researched at Catholic's law library all day for a case he had taken on a pro bono basis. He began talking, and I thought, "Hey, I understand some of what he's saying! Maybe I did learn something first semester."
He is representing American Right to Life in its defense against the National Right to Life Committee, Inc. NRLC wants ARL to stop using "right to life" in its name. NRLC is the Goliath; ARL is the David, and ARL hopes Mr. Behan will be the jawbone of an ass. ARL is a political action committee that registered in July 1998; it is not incorporated. It was begun by Patrick J. Mooney who says he started it because he saw the NRLC backing pro-abortion Republicans against pro-life Democrats. Mr. Behan says Mr. Mooney has taken no pay for his work with ARL: "He's doing it because he's a good Catholic, and he thinks what NRLC is doing is wrong."
The first thing Mr. Mooney did was contract with a telephone fund raiser, a telemarketer. When NRLC learned this, they began legal action to try to stop ARL from using the words "right to life" in their name. NRLC's legal action began in September 1998. NRLC's lawyers made an initial procedural goof: They sued "the American Right to Life." However, ARL is not incorporated, so it does not stand as a "body." The complaint had to be amended so that NRLC was suing Patrick J. Mooney, doing business as American Right to Life, and Michael Montagna, and the telemarketer. (Montagna is the treasurer of the fledgling ARL; I missed the name of the telemarketer.)
As Mr. Behan began telling the story, he said he had spent the day in the law library reading ALRs, and he paused just long enough to say, "You know what the ALR is, don't you?" I thought, "PRAISE GOD! Yes, I learned something!" ALR stands for American Law Reports. It reports important court decisions and includes commentary on those decisions; the commentary can serve as a research memo like what a lawyer's clerk might write. Since he is handling the case pro bono, Mr. Behan has no law clerk.
ARL's first lawyer was Marion Edwyn Harrison, a close personal friend of Supreme Court Justice Antonin Scalia. Mr. Harrison did not work pro bono. His legal fees left ARL broke.
Mr. Harrison was able to knock down an initial motion that NRLC had filed asking the court to order ARL to stop using the name "American Right to Life." He got that win in December 1998 when Judge Judith Retchin said "no" to NRLC's request. NRLC continued their fight. In June 1999 there was a settlement agreement drawn up in which NRLC said to ARL, "We'll stop coming after you, if you promise never again to use the words 'right to life.'" Mr. Mooney refused; he did not feel anyone had the right to lay claim to the words "right to life." The telemarketer, however, agreed to the settlement so he could get out of any legal proceedings. NRLC continued against ARL with a class action suit of dubious worth.
It was August 1999; Mr. Mooney had no money and no lawyer. Mr. Behan agreed to take the case pro bono. Mr. Behan is a 70-year-old lawyer who went to law school in his 40s after 20 years as a professional musician in Europe. He sang operas and worked with the Vienna Boys Choir. He said he agreed to handle the case without fee because, "I'm a Catholic and against abortion. The fact that the NRLC is supporting some abortionists and opposing some right to lifers is wrong." Mr. Behan's first work on the case was to knock down the class action charge. "I showed the class action was not germane to the subject." Next, he filed a motion to bring the telemarketer back into the law suit as a third party defendant; the motion was denied, Mr. Behan said, on a technicality.
NRLC had begun the legal action in the DC Superior Court, part of the State Court system. In November 1999, Mr. Behan was able to have the case moved to the Federal Court system. When NRLC had first filed, there was no question of federal law, and there was no diversity of citizenship because both NRLC and Mr. Mooney were residents of Washington, DC. However, after the case began, Mr. Mooney moved to Virginia. After he moved, NRLC filed a second amended complaint saying that ARL had violated the Lanham Act. (The Lanham Act is a federal law that deals with trademark infringement; we'd dealt with an aspect of it during the first semester in our lawyering skills class in a memorandum we wrote). Because of the amended complaint that was filed after the plaintiff and defendant lived in different states, and because the supposed damages were greater then $75,000, Mr. Behan was able to move the case into the Federal Court system. Mr. Behan added, "Only a defendant can move the case, you know." I thought, "YES! I know!" Mr. Behan could also have had the case moved based on a federal question. The case is now in the Federal District Court for DC. It is still in the "discovery stage" which means that each side is trying to make the other side give it all the information required before the case moves forward.
As Mr. Behan told the story, I thought, "Maybe I DID learn something in civil procedure." My exam may not have convinced the professor that I learned anything, but Mr. Behan convinced me that I'd learned something.
As my mom would say, if the good Lord's willin' and the creek don't rise, I'll see you next month.
Alice Marie Beard
In her mid-fifties, after a quarter-of-a-century as a housewife and mom,
Alice Beard graduated from a law school that ranked # 38
and passed a bar exam that only 57% passed.