Denver Bar Association
June 2009
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How to Leave Your Own Legacy, as Inspired by Lincoln
FULL TEXT VERSION


by Hon. David M. Ebel
U.S. Tenth Circuit Court of Appeals


Note: This is the original version of the Law Day speech that was printed on the front cover of The Docket, June 2009. This year’s theme for Law Day was "A Legacy of Liberty — Celebrating Lincoln’s Bicentennial."

LINCOLN’S LEGACY OF LIBERTY
Law Day — April 29, 2009

A speech by
DAVID M. EBEL, U. S. CIRCUIT JUDGE
U. S. Tenth Circuit Court of Appeals

for the
Denver Bar Association
Young Lawyers Law Day Luncheon

I. Introduction.

In 1809 a fairly unremarkable child was born. Fifty-six years later that person died, having left a greater legacy of unity and justice than perhaps any other person ever to be called an American.

As best as we can determine, this person was smart, but he was by no means off-the-charts smart. There were undoubtedly thousands of others living in America at his time who had greater brain power. And yet, 200 years later, we remember almost none of their names. He didn’t have the advantage of a prestigious academic degree. In fact, he didn’t have a college degree at all, or even a high school degree. He had no important family connections, nor family wealth. His family was poor, even by 1809 standards.

Although good looks are widely believed to be an asset for success, he was a homely man — one whose shabby physical appearance was widely mocked. He didn’t even have the deep resonant voice as is so often portrayed of him on TV. Rather, he had a high-pitched and rather thin voice, which was most unimposing.

With so much going against this man, one can only conclude that he must have been very lucky to have accomplished all that he did. Lucky? Indeed! Consider:

- Mother died when he was 9

- Lost one of his first jobs

- Defeated for state legislature

- Failed in his own business

- His first and most enduring love, Ann Rutledge, died

- His next proposal of marriage, to Mary Owens, was rejected

- Nervous breakdown

- Two of his children died in childhood

- Was defeated for speaker of state House of Representatives

- Was defeated in run for Congress

- Was defeated for Senate

- Was defeated in his nomination for the vice-presidency

$ Now, wrap this unpromising and unlucky character in a shroud of melancholy. He didn’t even have the sparkling personality of optimism so essential to a successful career in politics, as shown by Franklin Roosevelt or Ronald Reagan. This was not a horse that anyone would want to wager a bet on, even at the $2 window.

Yet, nearly all historians now rank him as one of our top two U.S. presidents of all time. And, among the many legacies that he has left for us are the staggering legacies of preserving our union and abolishing slavery.

I am speaking, of course, about Abraham Lincoln, our sixteenth president. Now, I could talk about his legacy of abolishing slavery or preserving the union. There are interesting stories to tell about those legacies. But, time is very short for me today, and what I really want to speak about instead are the legacies we can draw from Lincoln’s life that teach us about how to become successful lawyers and how to prepare for a life of service to others and to our country.

Lincoln’s journey is theoretically available to all of you in this room, although, of course, times are different today. Most of you in this room are intellectually at least in the same ballpark with Lincoln. All of you have better schooling and most of you have come from families with better connections. And, taking a clue from Garrison Keillor, a quick look around the room convinces me you are all better looking. So, you already possess the wherewithal to be a Lincoln. What made Lincoln "Lincoln" is how he used and developed the assets he had and that is what I want to focus on today because that may be Lincoln’s most relevant legacy to you as young lawyers just starting out on your careers.

There is a story told about a father who was trying to exhort his young son to study more and to be more industrious so he would be successful in life. The father wanted to hold out Abraham Lincoln’s industrious childhood as an example. Toward that end, he asked his son: "What do you think Abraham Lincoln was doing when he was your age?" The son looked up to his father and said, "I don’t know, but I do know what he was doing when he was your age."

So, let’s look at Abraham Lincoln as a young lawyer when he was your age and see what lessons we can learn. I will focus on just four legacies that we can draw from his life about how to be a more effective lawyer and how to prepare for the challenges and opportunities in your lives that lie ahead.

II. Lincoln’s Legacies.

1. Lincoln’s First Legacy that I focus on is the legacy of accepting responsibility for your own life. He understood that the world did not owe him a living. His parents did not owe him a successful career. No fancy school owed him an education or a job upon graduating. His law firm did not owe him a stream of clients or meaningful work. The only person that owed him anything was himself. He owed himself an education, and so he read voraciously night and day. He owed himself a job, and so he sought out a wide array of jobs, from farmer to rail splitter to lawyer.

I have never forgotten a Lincolnesque-type moment years ago when I was practicing at Davis, Graham & Stubbs. One of our senior partners, Don Hoagland, and I were meeting with a young associate about the possibility of cultivating a new client that the young associate knew. The young associate asked if the firm would pay for him to take the potential client and his wife out to dinner at a fancy restaurant. Quite to my surprise, Don Hoagland, who is a mild-mannered man, jumped up from his chair and said, "This is supposed to be your client. If he is not important enough to you for you to spend your money to dine him, then he is not important enough to the firm for us to spend our money." What Don Hoagland was saying was that it was the young associate’s responsibility to develop clients, to develop legal skills, to develop a reputation. Although the firm can provide some resources, ultimately whether you become a successful lawyer is up to you, and you alone. No one on Earth cares more about your career than you.

2. Lincoln’s Second Legacy is a legacy of immersing oneself in real life and learning from real people. I expect none of you ever had a course entitled "Real Life and Real People." And yet, Lincoln would say, that was the most important knowledge he ever acquired. Of course, this knowledge can not be acquired from classes, or from movies, or in cocktail chatter. It can only be learned through life experiences.

As a young man, Lincoln experienced the life of laboring men and women, and so he learned about those lives. As a lawyer, he traveled the circuit representing people from all walks of life, living in their towns and sharing stories with then at night in pubs and around campfires. More than anything else, it was those experiences with real people in real life that most prepared Abraham Lincoln for the challenges of the presidency.

When I was young, occasionally we would have dinner with my grandfather, who would always start the dinner out exactly the same way. He would ask each of us to tell him something new and interesting that we had learned that day. My mother hated that challenge, and yet I came to see it as a code of living.

How many real life experiences have you had this last week? This week, how many meaningful conversations have you had with people who have come from really different backgrounds? Have you taken your children to play on a playground in a neighborhood unlike your own? Have you gotten down and dirty in the messy business of real living?

Fortunately, even in today’s environment of legal specialization, expectations of 2,000 billable hours, passive entertainment on television and remote inter-connectivity on the Internet, that is still a way you as a young lawyer can experience real life. It is called pro bono legal work. There is not a one of you that couldn’t make time to do some of it.

I remember a woman that I met years ago on a cold, wintery Tuesday evening when I was providing free legal services to the poor in conjunction with a Denver Bar Association pro bono program. The young woman had come up to me and said she needed my help to persuade her landlord to turn back on the electricity in his garage. This didn’t seem to be a very important legal issue until she explained that the garage is where she lived as a single mother with her baby. The garage didn’t have any heat, but that was okay because she had blankets and coats from the Salvation Army. It was also okay that the electric light wouldn’t work because she could keep the baby entertained at night by talking to it and singing. She didn’t really expect a lot of the landlord because, after all, she was not paying very much rent. But, the problem was that she needed her electric heating pad to thaw out and warm the baby’s formula. Without electricity, she was afraid that the formula would freeze and the baby could not be fed. Then she turned to me and said, rather matter-of-factly, "Well, I don’t mean to complain, but you know how it is." YOU KNOW HOW IT IS? I couldn’t even imagine how it is. But, after representing her, I learned a little bit about how it is. And, had my grandfather still been living at that time, I would have been able to answer his inquiry the next time he joined us for dinner.

If I may humbly make a suggestion, I would suggest that you go to the Colorado Bar Association Web site, at www.cobar.org. There is a link there to 54 different organizations in our community that could use pro bono assistance. I can guarantee that you will find a number of organizations there that serve worthwhile causes important to you. In addition to those law-based pro bono opportunities, I can personally recommend that you consider the Big Brother/Big Sister program or a similar mentoring program. I have been a volunteer Big Brother for a great many years, and there are few things more rewarding than serving as an adult companion for a child who lacks such a role model in his or her own life.

Whatever you decide to do, it is your responsibility, not the responsibility of your firm, to get involved in the nitty gritty of life. Unless you do, you will be missing one of the essential lessons of life that made Lincoln "Lincoln."

3. Lincoln’s Third Legacy is his legacy as a story teller. Read his speeches; read the accounts of his closing arguments; read the antidotal stories of his daily conversations with both paupers and princes. Many of these accounts are filled with stories. You will read almost no language about "party of the first part" or "the aforesaid," or "race ipsa loquitur."

How often do you tell stories? Lincoln did all the time. Do you use antidotes, analogies and symbolism? Lincoln did, and it’s what drew people to him.

Lincoln understood that stories, and often humor, is the way the human brain has been hardwired to process information. One need only to read The Old Testament to understand that. That is probably also the purpose behind many nursery rhymes. For example, "Ring-Around-the-Rosie" addressed the terrible condition of the Black Plague in a manner that made it seem less frightening to children.

Juries appreciate stories; your friends appreciate stories; your clients appreciate stories. Of course, the most compelling stories that Lincoln ever told were stories of his own life experiences because ultimately a great story teller has to tell his own stories.

4. Lincoln’s Fourth Legacy is to appreciate the value of the word "no." You are all Type-A personalities, I assume, and you have been told the power of the word, "yes." Yes, take the opportunities that are offered you. Yes, accept the challenges. Find a way to say yes to your clients’ requests.

In fact, soon enough, you will come to see how "yes" can enslave you. By the simple expectancy of a partner telling you what good work you are doing, or a client telling you how important you are or how critical it is to achieve a particular result, you can be lead to say yes to all kinds of work, time commitments, and even ethical quagmires that you really should say no to.

Lincoln knew the power of no. He chose not to run for re-election to the Congress, even though he had the advantage of incumbency. He hadn’t found the job satisfying, and he knew that a further commitment to an unsatisfying job prevented him from pursuing better opportunities. At one point in his career, he was offered the Governorship of the new Oregon territory. It must have been attractive and prestigious, but he said no. It’s a good thing, because it would have shunted him off to a backwater where he probably would not have ever been heard from again.

About 150 years ago, Lincoln set the slaves free — at least those in Confederate territory. Today you can discover that Lincoln’s legacy of saying no can set you free from our modern-day version of slavery — being indentured to jobs or client expectations which are not your life’s calling and which crowd out better opportunities — particularly opportunities you do not yet even know about.

I once thought back to the most important decision I have made over my lifetime, and was surprised to realize that a majority of my most defining personal decisions were decisions to say no.

Try saying no — you’ll like it.

III. Law Day.

This day, and this speech, really, serve two masters. One, of course, is to honor the 200th anniversary of the birth of Abraham Lincoln. But, it is also close to Law Day, which is celebrated on May 1 of each year pursuant to a proclamation by President Eisenhower.

May 1 had been celebrated for a long time in the Soviet Union as its biggest holiday. Every May 1 the Soviet Union paraded troops, tanks, and missiles into Red Square and boasted that they would bury the West. President Eisenhower decided it would be good for the United States to counteract that with our own national celebration on May 1. But the question was, "What could be the most compelling response that we could make to counter the Soviet’s show of military might?"

One obvious response would be to have our own military parade on May 1 — matching strength against strength and army against army. This would be saying, in effect, that if you bury us, we can bury you too. A logical scenario perhaps, but not a particularly comforting one.

Eisenhower rejected that. So, what should America honor on May 1? I suppose he could have declared May 1 as national CPA day, saying in effect that you may bury us with bombs, but we can bury you with numbers. Well, that wouldn’t have worked either.

Instead, Eisenhower decided to make May 1 "Law Day" — an occasion to honor America’s commitment to government under law. In effect, he was saying that it is the law that can trump your armies.

And, indirectly, this day honors lawyers who are the primary guardians of the law. Who would have thought it? Lawyers have come a long way since Shakespeare’s day when, in Henry VI, Shakespeare penned the immortal phrase, "The first thing we do, let’s kill all the lawyers." How often have you heard this quote recited approvingly by your doctor friends and your CPA friends?

What is often overlooked is the context of that quote. That statement, in "Henry VI," was spoken by Dick the Butcher, a follower of an anachrist Jack Cade, who was portrayed as "head of an army of rabble and a demagoguery pandering to the ignorant" and whose goal was to overthrow the government. The context of the quote, in other words, is that if you want to overthrow the government and replace order with chaos and anarchy, and if you want tyranny and demagoguery to prevail, then the first thing you must do is to kill the lawyers because the lawyers are the defenders of liberty, and justice and democracy. It turns out, it was quite a compliment to the law and to lawyers.

Abraham Lincoln was a lawyer. 25 of the 56 signers of the Declaration of Independence were lawyers; 27 of our 44 Presidents have been lawyers; Clarence Darrow, was a lawyer, as was Thurgood Marshall, Sandra Day O’Connor, Ralph Nader, Morris Dees, Founder of the Southern Poverty Law Center, and countless other heroes in America.

And you are a lawyer. There are, you know, still injustices in the world; there is still a loss of liberty everywhere, great and small; there is still oppression. You don’t need to travel half-way around the world to find these things. There are plenty of wrongs right here, right in our own neighborhoods, that lawyers are trained to remedy. That, in fact, is how Abraham Lincoln got his start. Perhaps, not coincidentally, that is also how Barack Obama got his start — as a community organizer. The power of community involvement is alive and well. It was an essential part of the growth of both Lincoln and Obama, and it is essential for your own growth and development as well.

IV. Conclusion.

In Lincoln’s tradition, let me close with a story. It is a story told by our beloved Chief Judge of the Tenth Circuit Court of Appeals, Judge Robert Henry from Oklahoma.

Oklahoma City had suffered a rash of desecrations of supposed Jewish tombstones which had been painted over with hateful epithets. These anonymous hate mongers had largely identified as Jewish the graves of people ending with Germanic surnames — names like Beck, or Stein, or Barg. They were apparently oblivious to the fact that many of those graves actually bore Christian crosses. Judge Henry later commented that this was, inadvertently, perhaps the greatest hate crime in history against Lutherans.

In any event, to counter this atmosphere of ethnic and religious hate, the National Conference of Christians and Jews decided to hold a big rally of solidarity in Oklahoma City. Judge Henry asked Rabbi Shalman to speak on behalf of the Jews, and he was scheduled to speak last.

Unfortunately, for Rabbi Shalman, the speaker just before him was a powerful black Baptist minister who was an orator in the mighty rhetorical tradition of Dr. Martin Luther King, blending his powerful voice with remarkable rhythm, alliteration, and biblical reference. He ended his remarks by chanting: "We have just got to begin to love each other. We must learn to love each other. We must love each other." Each time he repeated the phrase, the congregation took it up until there was enthusiastic chanting throughout the large audience.

When the tumult of emotion subsided, it was Rabbi Shalman’s turn, and everyone could see that he was a poor choice to follow this powerful orator. Although Rabbi Shalman was a respected Rabbi, he was no orator. He was slight of build, bespectacled, and soft spoken. What could he possibly say that would not be lost amid the powerful emotions that had just been stirred?

Rabbi Shalman walked slowly and deliberately to the podium, deep in thought. Then, in a very soft voice he said to the audience, "We just have got to love each other. That is a wonderful aspiration but it may not work. I, for one, would be satisfied if we would just follow the law." The audience grew very still as they realized the impact of what he had said. Even if we can not love each other, we can respect each other’s liberty, freedom, and dignity if we will follow the law. That may be an achievable goal. Until the millennium of love is ushered in, our best hope is to follow the law. It is the law that brings peace between groups that do not love each other; between landlords and tenants; employers and employees; contracting parties; and the like.

That is what Law Day is all about. That is why President Eisenhower chose the law to be the counterpoint to Russia’s military strength. That is what Abraham Lincoln was all about. He fought. But he always fought for peace, and he always fought in the name of the law. He fought against succession because he believed it to be illegal under the compact among states in the Constitution. He abolished slavery because he believed it to be against the most basic law of the land — the Declaration of Independence. In each case he predicated his actions not on some feel-good abstract notion, but on the bedrock of the law.

We all know Lincoln’s legacies. But the question with which I now leave you is this: what will be your legacies to future generations? How can you prepare yourselves now for the challenges that life and the law have in store for you in the future? Lincoln’s legacies can point you in the right direction.


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