Confessions of a fringe-sucker
By Rick Friedman
"The function of a hero is not to be perfect, but to expand our conception of what is possible."
-- Jim McComas
I am a fringe-sucker. Have been for years.
In the spring of '79 I was getting ready to graduate from law school. I knew I was heading to Sitka to open my own practice. I approached one of my heroes, Irving Younger. He was one of the most animated lawyers I had ever met. He was truly excited about the law, and excited about sharing his excitement.
I secured an audience with Younger--not an easy task--and managed to stammer out that I was going to Alaska to start a practice. Did he have any advice he could give me? He was busy and preoccupied. "I've never practiced law in Alaska, how can I give you advice?" I pointed out that he had himself embarked on many careers in the law, having been in the U.S. Attorneys office, private practice, a law professor and a judge. Surely those experiences gave him some insight and wisdom he could share? "Most of that was in New York, it wouldn't be relevant to anything you will be doing in Alaska."
Our four-minute discussion was over. He clearly did not share my excitement about the adventure I was about to undertake.
I approached another heroic law professor, David Rosenberg. He was the only reason I hadn't dropped out of law school after the first year. A truly great teacher and great lawyer. His advice: read the National Law Journal, cover to cover, every week; read every state and federal Supreme Court opinion.
What about learning the craft and the tricks of litigation? After all, we all know law school doesn't prepare you for that--and I would not have anyone to teach me. His answer: "Your opponents will teach you all you need to know."
In a way, this was good advice. And I followed it. But it wasn't enough. The fault may have been mine, for not asking the right question:
How do I screw up my courage to embark on this path of practicing law, learn what I need to learn to do a good job for my clients, in the meantime, not make any mistakes that will hurt my clients or embarrass me, earn a living, find and keep a sense of personal and professional purpose, not lose my way, and not be crushed beneath the superior power of my opponents?
When I arrived in Sitka, the lawyers there were a friendly, helpful, welcoming lot. But they were all struggling with this same question. It took me several years to realize we are all forever struggling with this same question. And no one can fully answer it for anyone else. Nevertheless, those who have wrestled with it longer might have things to say to those just starting out.
Or maybe not. Some lawyers are like that saying about bush pilots: there are those with 1,000 hours of experience, and then there are those with one hour of experience, repeated 1,000 times. And then there are those--I'm back to lawyers again--who have learned much, and have no interest in sharing. Which brings me back to sucking fringe.
It is the early 80's, and I am reading the National Law Journal, cover to cover, every week. And there on the first page is a picture of a lawyer wearing a fringe jacket, and an article about the impossible case he just won. As I read the article, I was impressed that any lawyer would even take the case, much less win a multi-million dollar award. Many of his quotes in the article were corny. But he had a trial track record that required me to take him seriously. More importantly, even from that first article, I could tell that here was a man willing to publicly struggle with the big and little questions of practicing law. He was not afraid of looking foolish or weak; he was not afraid of other people's opinions. Or, more precisely, he was not afraid of letting others see his fear. He recognized that practicing law, at its best, is an inward journey--and he was willing to share.
It's not surprising that Gerry Spence has such a devoted following. He has shared his strength; he has shared his wisdom; his fears, his foibles, his eccentricities, his vanity, his kindness and his meanness. He has showed it all. In doing so, he has helped light the paths the rest of us are following.
"Fringe-sucker" was originally a term of derision applied by Spence students to people they thought had gone over-board in their adoration of him. He certainly attracts his share of lost souls, dressed in fringe jackets, rigorously following his form and missing his substance. He also has his share of sycophants, clinging to him like those suckerfish on the skin of a shark. I prefer to think of the term fringe-sucker as a badge of honor--signifying those who have accepted the challenge of law as an inward journey--and recognizing that there is a master of this art that walks the earth at the same time we do.
For 15 years I read every published word by or about Spence that I could get my hands on. I bought every CLE tape that had anything to do with him. I tried to learn everything he was trying to teach. And what he taught was working for me. I still had to do the hard work, but I did not feel so alone.
Unlike other successful lawyers, he was willing to talk about his failings and failures. Failing the bar exam, losing his first eight trials, descending into the depths of alcoholism. Next to his, my difficulties seemed puny and surmountable. He was my hero.
I got my chance to meet him in the mid-nineties. I received a call from one of his partners. They had a case in Alaska, would I be local counsel? They would do all the work, I would just need to make sure things got properly filed. I never liked these arrangements--it had been years since I'd agreed to one. But I saw my chance. I would do it, for no fee, if the partner would arrange a dinner with Gerry Spence for me. The partner quickly and incredulously agreed. I told this story, many years later, to a long-term Spence devotee, who had seen every variety of fringe-sucker. "You don't just suck fringe," she told me, "you swallow." She was right.
One of the lessons I've learned from Spence is that we all have something to share. With all of his great failings, he still has great gifts to share. The same is true of us all. It is because of, not despite, our shared failures, fears, and disappointments that this sharing is valuable, to individuals struggling with the sometimes overwhelming challenges of our profession, as well as to the profession itself.
Lawyer-to-lawyer sharing (what the Bar Association types call "mentoring") can reshape and invigorate the lives of everyone involved. My wife, more fortunate than I in the early years of practice, had the benefit of several talented, experienced lawyers willing to share their time and insights with her. She still speaks enthusiastically of the lessons learned from Doug Baily, Julian Mason and Mark Ashburn. There is no question that they play a part in every one of her victories.
The act of sharing can be scary, tedious, frustrating, or even a waste of time. Yet, it is one good answer to the question I wish I had posed to my law professors years ago. As anyone who has put their heart into a CLE presentation knows, the act of sharing often enriches the person doing the sharing far more than the recipient. The sharing does not have to be formal – sometimes even the most casual off-handed advice or encouragement can change a recipient's life forever.
At my first meeting with Spence, he had just finished the Randy Weaver defense in Idaho. We sat in the Crows Nest and I finally had the chance to ask him all the questions that had built up over the years. He was kind enough to try to give me his best answers. Finally, I worked up the courage to ask him what I most wanted to know. He had achieved more than anyone could hope for in the practice of law. He had the trial victories, published books, financial success and the adoration of tens of thousands of young lawyers. He was pushing 70. Given the mental, physical and emotional strain of trial practice, why was he still doing it?
He did not need time to search for an answer: "It's the best way I've found to learn about myself." Like much of what he teaches, I wasn't ready for what he had to say. It sounded too pat, and a little narcissistic. It was only years later that it started to dawn on me that without ever saying it explicitly, he had been preaching "law as an inward journey" for years. And I had been following his example, without completely understanding where he was leading. While he was finding himself, he was showing me the way.
Speaking of sharing, I can't help but share my opinion of Justice Matthews' concurring opinion in State v. Sandsness, (Alaska Op.# S-9910; 5/23/03). Justice Matthews, joined by Chief Justice Fabe, expressed the opinion that Division of Corrections v. Neakok, 721 P.2d 1121 (Alaska 1986) should be overruled. He states: "The result of Neakok, I believe, has been to cause corrections officials to err on the side of restrictiveness when considering discretionary parole." It is hard to know if this statement is based upon a hunch, a guess, or some state study of some kind, as the justices do not explain the basis for their belief. Assuming Neakok does put pressure on corrections officials to err on the side of restrictiveness, I would like to share my own hunch about the pressure these officials are under.
My suspicion is that by under-funding the Department of Corrections and various rehabilitative programs, the Legislature has is put enormous pressure on corrections officials to err on the side of granting discretionary parole. This under-funding has been a problem for at least the last 25 years--and continues to get worse.
There are no political consequences when an under-funded Department of Corrections improperly releases a prisoner who then hurts an innocent member of the public. The Legislature is free to balance the budget on the backs of individual crime victims. But it is the traditional role of courts to protect individuals against majority expediencies. Putting pressure on the government to be more solicitous of the rights of potential victims is not a bad thing. Again, that is a primary function of the courts.
To the extent that Justices Matthews' and Fabe's concurrence is based on a concern for the rights of prisoners, one can only wonder what they hope the prisoners will gain from an under-funded system that is pressured to release them unprepared and unsupervised back into the general population. It is illogical and inconsistent with human nature to assume that making the Department of Corrections less responsible to the public will make them more responsible to the prison population.
We can only hope that these two Justices' comments about Neakok are a reflection of their struggle with admittedly difficult policy questions and not documentation of any disdain for the jury system.