Good afternoon, everyone.
Let me tell you a story.
It’s a story that a great law professor told us during my first year of law school.
The story takes place in the late 1930s or early 1940s. My future professor, Ben Kaplan, had just begun work as a litigation associate in a prestigious New York law firm. No doubt the future Professor Kaplan had an excellent legal education, but he was green in the ways of practicing lawyers.
One afternoon not long after he started at the New York firm, Kaplan received a phone call from opposing counsel—an equally green new associate—at another New York firm. The opposing lawyer was pressed for time. He called to ask if Kaplan would agree to give him more time to file a certain pleading that was due to be filed with the court in the next few days.
Kaplan, who literally wrote the book on civil procedure some years later, immediately recognized something that his opponent did not. The deadline facing the other lawyer was “jurisdictional”—that is, a hard and fast deadline fixed by the legislature that cannot be extended by agreement of the lawyers or even by an order of the court.
Even if Kaplan had agreed to the extension of time, his opponent still would have to file by the existing deadline or the opponent’s client would literally be out of court.
Kaplan quickly saw the issue. If he agreed to the requested extension of time, his opposing counsel would rely on Kaplan’s gracious consent, but miss the jurisdictional deadline, embarrass himself and incur the wrath of his client (not to mention liability for malpractice).
To Kaplan, it seemed mighty tricky to lead his opponent on by remaining silent when he knew better.
On the other hand, if Kaplan warned the opposing counsel, he would be passing up a golden opportunity to score a quick knockout punch on behalf of his own client, to whom Kaplan and his firm owed a duty of loyalty and zealous representation.
What should Kaplan do? He had only an instant to decide.
Kaplan followed his gut and made a quick decision. He told opposing counsel that he, Kaplan, ordinarily would be delighted to give him more time to file his papers… BUT the deadline was jurisdictional, Kaplan’s consent would be meaningless, and he had better do what he had to do to meet the deadline.
In other words, Kaplan alerted his opposing counsel to the error of his thinking and rescued him from the edge of a very steep cliff.
The other lawyer thanked Kaplan profusely and ran off to get his pleading ready to file by the statutory deadline.
But the story doesn’t end there.
After Kaplan hung up the phone, he began to wonder if he had not himself made an egregious error. Should he have kept his mouth shut about the jurisdictional deadline? Had he indeed betrayed his primary duty, to win the case for the firm’s client, especially since he could have done so without doing anything to affirmatively mislead the other lawyer by just agreeing to the other lawyer’s own foolish request?
Kaplan decided he had no choice but to come clean with the senior partner of the firm, a prominent and powerful New York lawyer of that era. In those days, even lawyers in the same firm referred to each other as “Mr.”.
With great trepidation, Kaplan told the senior partner about the phone call. There was an ominous silence after Kaplan finished recounting what he had done. At that point, the senior partner calmly looked Kaplan in the eye and said this—these were very nearly Professor Kaplan’s exact words when he recounted the story to me as a first year law student 39 years ago:
“Mr. Kaplan, I am glad you chose the course you did, for if you had done otherwise we would have been forced to dismiss you.”
As you begin the study of law today at this great law school, there is no more important message I can impart to you than the one that Professor Kaplan imparted to me when I sat in your place.
Winning isn’t everything. How you conduct yourself pretty nearly is.
You have come to a law school that justly prides itself on the rigor and vigor with which classes are taught. You have come to a law school with an outstanding faculty and a demanding curriculum. They will equip you to practice in both common law and civil law jurisdictions, and of course to excel in jurisdictions like our own that draw upon both traditions.
But above all else you have come to a law school whose faculty throughout the hundred years of our existence has wanted to imbue you with a clear sense of the higher calling of the law.
Honor and integrity are not antique virtues. They are values that infuse every deed and every word of what the best lawyers do.
Every day lawyers in the real world face the same kinds of dilemmas that Ben Kaplan faced as a young man. For trial lawyers, the question does typically revolve around how far you will go to win. It is late at night, and you have just come across a “smoking gun” document that could sink your client’s case or at least cause your client big problems at trial. No one knows you’ve seen the document or even that it still exists. Do you turn over the document to the other side, or just stick the document back in a big stack of paper and figure that no one will ever know the difference?
Think transactional or “deal” lawyers live in an ivory tower, divorced from these kinds of issues? They don’t.
In the transactional world, there are countless, thorny problems that arise from corporate disclosures. It is not unusual to have a very lucrative and important client pressing the case—often very persuasively—not to disclose business facts that your gut tells you are “material”, that is, that an investor or regulator might find very important. Government lawyers?
As anyone who follows the news surely knows, government lawyers, perhaps above all others in our profession, must know when to say no, when it is wrong to shade the truth—to “slice the baloney very thin”.
Now I don’t mean to suggest that all of the ethical dilemmas you will face as a lawyer will be black and white. Many surely won’t be.
But we will either have failed you or you will have failed us if your time at the LSU Law Center does not equip you to recognize, wrestle with, and reach a sound and an intellectually honest decision about the ethical challenges you will face.
Former Vice President Walter Mondale, himself a distinguished lawyer who also served as Attorney General of Minnesota and then United States Senator, once put it very well when he said:
“All of us have to take a fall [do something pragmatic that we are not entirely comfortable with] now and then. When you worry is when you don’t know you are doing it.”
You are the inheritors of a great tradition—a tradition of rigorous scholarship and learning coupled with the utmost in professionalism and integrity.
That is one reason why this law school is called the Paul M. Hebert Law Center.
Dean Hebert, as he is almost universally referred to by those who knew him (unfortunately, I did not), is remembered for his scholarship, the force of his personality, and his leadership of the law school and the broader university, but, perhaps above all else, for his strength of character and his integrity.
In the summer of 1939, just before Nazi Germany invaded Poland and touched off World War II, LSU faced a profound crisis of its own.
The President of the University, James Monroe Smith, was found to have committed forgery and embezzled millions of dollars of university funds. In June 1939, Smith resigned in disgrace and fled to Canada. There he was arrested, returned to Louisiana and jailed in East Baton Rouge Parish.
It was a dark time for LSU. The Board of Supervisors turned to our own Dean Hebert and named him Acting President of the University. On August 2, 1939, he spoke at the Greek Theatre, only a few hundred yards from where we sit today, at LSU’s summer graduation. Dean Hebert’s subject was the past and future of LSU, and more generally of the place of the university in our national life.
What Dean Hebert said some 68 years ago not far from where we sit today is just as relevant to this law school named for him, and indeed to the broader university, as it was in 1939:
“The functions of education in a democracy are many. First of all, it is the function of education to train leaders for all branches of human endeavor—the professions, industry, commerce, agriculture, and in public affairs. [We certainly aim to do that, and one of the reasons you are here is because you have shown your potential to be the future leaders of your generation.] Additionally, it is the function of education to inculcate the liberal ideal [liberal was not a buzz word in 1939]—to allow for that integration of knowledge and attitudes which makes men and women resourceful [note: men and women], which prepares them to face whatever situations life may bring with an open mind, prepared for the unpredictable requirements of a world in which the tempo of change has reached an amazing speed.”
Dean Hebert continued:
“It is the function of education to build into character the moral and spiritual values which are so necessary and which form the backbone of the true American citizenship . . .“A properly educated man or woman” he concluded, quoting FDR, should be able … always to put truth in the first place and not in the second.”
So this is what we shall expect of you as law students and always thereafter as graduates of the LSU Paul M. Hebert Law Center: “always to put truth in the first place and not in the second.”
I think Dean Hebert and Professor Kaplan would have understood each other very well, don’t you?
Now I want to shift the focus for just a minute—to the word “truth”. When Dean Hebert spoke about putting truth first, he meant truth in the sense of honesty and accuracy.
Very clearly, and very importantly, he did not mean “truth” as a synonym for “having all the answers” or anything like “ultimate truth”.
Indeed, Dean Hebert spoke quite explicitly of facing new situations in life “with an open mind”.
In my judgment, there is no surer recipe for failure as a lawyer, or at least as a law student, than an excessive degree of confidence in your own point of view. Lawyers call it “falling in love with your own case”. No, instead you must be able to absorb ideas and approaches other than your own, to give them their due in a fair and measured way, and then, and only then, arrive at some conclusions about how those ideas stand up against your own.
And even then do not fall into the pitfall of rigidity and orthodoxy, for tomorrow you may discover—indeed, you almost certainly will discover—something new that causes you to rethink that which today seems so clear.
Judge Robert Sack of the U.S. Court of Appeals in New York put it well when he said, “there will be times when you will be hounded by all manner of doubt. And others around you will seem so sure.”
But, Judge Sack reminds us, when you are tempted to be “so sure”, remember Oliver Cromwell’s plea…: ‘I beseech ye in the bowels of Christ, think that ye may be mistaken.'” —THINK THAT YE MAY BE MISTAKEN—a legend that should be written “over the portals of every church, every courthouse, and at every crossroads in the nation….” The spirit of liberty, Judge Sack noted, quoting another great Second Circuit judge [Learned Hand], is “in part the spirit that is not too sure that it is right”.
You have all heard, no doubt, that classic law school dean’s line delivered, according to the mythology, by someone like me speaking to students like you on this very occasion—the opening day of law school. “Look to your left, look to your right—one of them won’t be here by the end of the semester.”
Well, with a nod to Judge Sack, I want to offer you a different version of that I think will serve you much better: namely, “Look to your left, look to your right—who says they’re wrong and you’re right?”
So, to summarize: don’t be embarrassed to ask questions and be skeptical of those who seem to have all the answers.
When I speak of asking questions, I mean that on two distinct levels: the very small and the very large, the micro and the macro.
Much of the genius as well as the fascination of the law consists of learning to identify, and then understand details.
When you hear someone refer to “learning to think like a lawyer”, thinking precisely about seemingly small facts is at least a part of what they mean.
You’ll learn this particular discipline in many of your first year courses. You may find it annoying, or think it unnecessary, but it is a critical part of your future trade. Learn it well.
Paradoxically, though, it is by learning to think small about the law that you learn to, and earn the right to, think big.
For, ultimately, we your teachers do not dream of molding you into an army of legal bean counters—to quote the unforgettable words of one of this law school’s greatest graduates and teachers, Judge Alvin B. Rubin, lawyers who spin out “chain[s] of impeccable logic that lead inexorably to the wrong conclusion.”
No, we have a broader purpose in mind, a kind of intellectual alchemy: to enable you to grapple creatively and insightfully with the larger fabric of the world around you as it emerges through the study of particular, concrete events and relationships; through the study of particular laws and their application to particular facts.
We in Louisiana have a special responsibility not just to think big about the fabric of the world around us, but to do something about it. And if we don’t do it, who then will?
So today you begin a journey that will make you the trustees of the awesome power that law has to do good—or to do evil. That choice one day will rest in your hands.
Now, in conclusion, I want to offer you some very down to earth, practical advice about being a law student.
First of all, from this day forward you should think of yourself as professionals. During orientation, you will have a very valuable introduction to professionalism; take it seriously.
When you entered this auditorium this morning, you crossed an important threshold in your life. Whatever your age, you put away childish things and ceased to be a kid. As someone put it, you have made the transition from backpacks to briefcases.
It’s time to take yourself, and your future, seriously.
All of the things that, perhaps, when you were undergraduates you thought you could chance because everyone understands that these are things that college kids do—you can’t count on getting away with any more.
You know what I mean: driving and drinking; drugs; inappropriate postings on the internet or e-mails; any sort of comment or behavior that demeans a fellow student or other member of the Law Center community.
Please use your good judgment. You wouldn’t be sitting here today if you had not demonstrated, over a long period of time, the judgment and self-restraint not to jeopardize all you have come here to accomplish.
Second, on a very different note, stop to smell the roses along the way. Have a sense of humor. Take joy in all of the new friends you will make and in the sheer excitement of the new intellectual challenges you will face. Work hard, but do not just work.
You are located smack dab in the middle of one of the most fabulous college campuses in America. Take advantage of it. Have fun! Finally, I want to offer you three tried and true formulas for missing the boat in law school.
1: Operating on the principle that it is the duty of this faculty, however talented it may be, to make you understand and learn rather than your own primary responsibility to do so. You are now in graduate school. You are ultimately responsible for your own success or failure as a law student. Recognize that responsibility and you will be way ahead of the game.
2: Believing that law and the study of law are a matter of learning rules and remembering answers, as distinguished from formulating hard questions and grappling with uncertainties. You will find that your best teachers here formulate questions for you to struggle with; don’t be frustrated if they don’t spoon feed you the answers to those questions.
3: Running the first year race too quickly or being too hard on yourself too soon. The first year is more of a marathon than a sprint. Trust me, you will not know or understand a great deal in the first weeks of law school; in fact, you may not really “get it” until deep into the second semester. Don’t feel like the Lone Ranger if that happens to you; just keep preparing, keep attending class, and it will come together in due course. Don’t burn yourself out in the early going.
So, as your new Chancellor, I welcome you to the study of law at the LSU Law Center. In a very real sense, we begin this journey together, you and I. As the first freshman class in my first semester as Chancellor, there will always be a special bond between us. I hope that many of you will take advantage of the office hours, small lunches, and town meetings I am planning so that we can get to know each other and keep in touch as the year progresses.
MEMBERS OF THE LSU LAW CLASS OF 2010:
The world of law lies all before you. Now go forth, hustle into action, and drink in all the learning, growth, friendship and fun that this place has to offer.