My Life in Court, by Louis Nizer
A Breed Apart
My Life in Court.
by Louis Nizer.
Doubleday. 524 pp. $595.
No matter how much the nine out of ten lawyers who never go to court may deny it, and no matter what legal entrancements they may find to occupy themselves meanwhile, the pure, true, and transcendent legal event is a trial. And the work of the sorrowful 90 per cent consists entirely of imagining what would happen if the contract, the letter, the prospectus, or other piece of paper ended up in court. Trial lawyers, the really good ones, are a breed apart. They are like intellectual matadors or fifty-mission war aces. Whole firms are built around a single one, because the mystique of a trial-winner is a great lodestone for clients who are money-winners. The money in legal practice, however, does not come directly from trying cases—and the best lawyers are always those who keep their clients out of court. But every once in a long while . . . the gauntlet is offered and cannot be refused. Then you run for Simon Rifkind or Bruce Bromley, Milton Pollack or Louis Nizer, or somebody who carried a briefcase for someone who was trained by Max Steuer. That is, if you really want to win, and can afford to pay the price. Trials are frightfully expensive, because there are thousands of man-hours of highly trained work behind the blue-serge baritone who finally initiates what is still one of the great secular mysteries of our way of life with the portentous, “May it please Your Honor. . . .”
No one ever told me that Louis Nizer was another Max Steuer, but everybody knows he’s very good—one of the better ones around today. His book tends to prove this point; and has much besides to recommend it to the general reader. Properly read, it is an occasion for some real understanding of the trial man. Haphazardly or naively read, it is interesting, instructive, and even exciting. I don’t pretend to understand why it has become a best seller—except that it is good, which wouldn’t alone accomplish that; and was also superbly launched, which might. I do see very well why something from it has already been scheduled for a Broadway production this fall: television has revived our interest in law, and rightly so: great trials can sum up a generation, being both political and artistic events. A trial is the basic prototype of intellectual drama—fuller and richer than the dialogue: less rational and Platonic, more emotional and human.
My Life in Court is not “one of the great legal autobiographies of our time,” as suggested by Max Lerner. It is hardly an autobiography at all, legal or otherwise. It mostly consists of a dramatic retelling of about eight or nine of Louis Nizer’s legal victories, but: (1) no defeats; (2) no story of a career; (3) very little that is personal—hardly anything more than how he managed to get to sleep before the summation in such-and-so; and (4) it is basically the trial man putting himself on trial for the benefit of the public, all roles choreographed by the same prime-mover. The big victories heralded and dramatized are Quentin Reynolds’s libel case against Westbrook Pegler; several divorce actions including one of Billy Rose, a foot fetishist, and a John Jacob Astor; a song plagiarism involving the classic “Rum and Coca-Cola”; another libel action brought by the refugee anti-Nazi, Professor Friedrich Foerster, against Victor F. Ridder, publisher of the New Yorker Staats-Zeitung und Herald; a couple of choice negligence cases; and the complicated struggle for control of Loew’s, Inc. The long section on divorce is a bit of an anomaly in the book, since it is a rather broad (and surprisingly good) discussion of law technique in matrimonial matters—rather than the dramatic narrative of courtroom action. The plagiarism case is effective for showing how much hard work can be consumed in a more or less ridiculous litigation. The negligence cases are quite good, but are included, I imagine, because of the author’s deep pride in the almost impossible triumphs—especially the first one, in which an unheard-of victory was gained against an obstetrician (you can hardly ever get a doctor for careless practice, because you need another doctor to testify as an expert and they just won’t). The weakest section is that of the libel case concerning Nazi sympathies (but most noble and important to the author, who years ago wrote a defense of the Morgenthau thesis on Germany).
The narrative of the Pegler trial is far and away the best of the collection. It convinced me that this trial could stand nomination for one of the most significant of our generation—because, as in the Hiss case, the issue was deeply imbedded in the personalities of two combatants, and was tragically impossible of resolution by a legal judgment. Nizer sees it as a hard-fought vindication of one of his kind of people against a popularly detested troublemaker; and also, naturally, as his achievement of the largest libel award of punitive damages in American legal history. But the true fascination of the Reynolds-Pegler conflict lies in the deeper nuance and profounder inevitability of the clash of journalistic-literary values. Reynolds was one of the most popular, well-liked, big-time journalists in the country, almost a nice Ed Murrow; as Nizer says, he had even had a private dinner with Churchill. (There is an awful lot of name-dropping in this book.) But no intimation of anything more than a popular-magazine talent, with a “Me, the People” posture. (For example, out of topical foolishness he spoke in favor of the Russian Army purges.) Pegler, on the other hand, can hardly be characterized without libeling him—so I won’t try. But he is probably one of the most talented stylists appearing regularly in American newspapers. Both started out together years ago in the Heywood Broun coterie. (One of the charges of libel was that Pegler said Reynolds bathed in the nude at Broun’s Connecticut country place, and proposed marriage to the widow on the way to the burial—also that he was pro-Communist, a coward as a war correspondent, etc.) Pegler’s hatred of Reynolds is almost too understandable, because Reynolds had the kind of success that, in a better world, Pegler (for talent) deserved even more; but that, in this world, he (out of abrasive feeling) had disqualified himself from achieving. Pegler was too talented, even too “serious” in a distorted way: these right-wing hot-heads are nothing if not emotionally interesting.
Although Nizer never admits it, in an equivocal way the case from his end was almost too easy. Pegler was the classic sitting-duck for cross-examination: he could get a job, anytime Hearst readers tire of him, as a demonstrator in law schools. Nizer succeeded so well as a cross-examiner that several times Pegler nearly struck him when he approached the witness stand too closely. This goading technique is indicated by the following:
I found that one of the easiest ways to reveal Pegler’s extremism and irresponsibility was to question him about men who were genuinely admired and draw his denunciation of them.
Q. Did you rely on General MacArthur with respect to . . .
A. No, I don’t think he knew head to finger side what he was talking about. . .
The baiting was required in order to bring out the malice which supplies the legal basis for an award of punitive damages—the libel itself was fairly clear from the beginning, and there were no actual damages. Sitting-duck though Pegler was, Nizer showed great cleverness in taking fullest advantage of him. For example, the legal answer to Reynolds’s complaint initiating the lawsuit repeated and embellished the original libel (apparently it was touched up by Pegler himself, who published part of it in his column), but Nizer shrewdly let it stand instead of moving to have it changed, because it confirmed the malice and also implicated the Hearst companies more directly: they were finally charged with $75,000 of the $175,000 award by the jury.
One might imagine oneself, in the role of cross-examiner, letting up after awhile on someone like Pegler. But not the real trial men. They are a breed apart. The essential difference was once characterized for me by a man who was as good a craftsman as any I have ever met. I was assisting him in a frantic injunction action and, in a reflective mood, he insisted on formulating the reason he was not a top-flight trial man. “I have the brains, the legal sense, and the imagination,” he admitted, staring at the ceiling. “But I just don’t have the jugular instinct—and you can’t learn that. You have to be born a tiger and then go to law school.” Not just any old tiger, you understand, but one with supple language, an actor’s projective sense of himself, a quick instinctive intelligence, a degrading intuitive sense of popular values (certainly for the jury actor), an unerring feel for an opponent’s psychological weakness—all built around and serving a tiger’s passion to win.
The last case in the book concerns the struggle for control of Metro-Goldwyn-Mayer (Loew’s, Inc.), which Nizer masterminded on behalf of the management. He tells the story well—but I happen to know that it is a much better story than the one he tells, because I was a line lieutenant in the army under his command. The fight for Loew’s was a massive donnybrook—not comparable at all to a single courtroom action, no matter how intensely engaged in. (The over-all maneuvering did include several lawsuits, as well as hearings before the SEC: Nizer says there were twenty-six hours of oral argument on motions, etc., along with eighteen sizeable legal briefs.) What happened was that the great Louis B. Mayer made an attempt to regain control of the company he helped to make great, using a young protégé and a freewheeling Canadian millionaire to front for him. They nearly succeeded by undermining and then taking over control of the board of directors. The management strategy was to call a special stockholders’ meeting in order to retake control of the board; the opposition tried everything in the book (and one or two of the supplements) to prevent this meeting—they never seriously undertook a counter-solicitation of proxies, much to our surprise. There was no letup from July until the meeting was finally held some time in the middle of October. Backstage at the Loew’s State Theater, where the meeting was appropriately held, the tired tiger retained his fierce devotion until the last proxy was counted, the last vote-counter’s affidavit signed. Then it was all over, the “real movie people” had won, Napoleon had not reached Paris, and we all gathered at Dinty Moore’s for a victory celebration. One of the kind of things Louis Nizer doesn’t mention about the practice of the law is that some of us ended up needlessly insulting each other.