“It Never Hurts To Be Bold”: Karen Kaplowitz, Trailblazer for Women in the Law

“It Never Hurts To Be Bold”: Karen Kaplowitz, Trailblazer for Women in the Law

This week’s post is my interview of Karen Kaplowitz, who I first knew as a business development coach for lawyers. Turns out she was also a real trailblazer for women in law practice, as you will see. If you prefer to watch the interview in convenient video format, you can find it here on my YouTube channel, That Non-Compete Lawyer.

Z: I’m Zach Wolfe. I’m here with my friend, Karen Kaplowitz. Karen, welcome.

K: Thank you, Zach. Thanks for inviting me to have this conversation with you.

Z: You’re welcome. So, let’s start with what you do today, and that is you are the founder and owner and operator of The New Ellis Group.

K: That is true. The New Ellis Group is a business development strategy and coaching firm, which I started in 1997 when I was a practicing trial lawyer in Los Angeles. So, for the last 23 years, I have been the owner, operator, proprietor, chief cook and bottle washer of the New Ellis Group.

Z: And that’s actually how I first met you. You were doing some business development coaching for a firm that I formerly worked for, and we had a firm retreat and you gave some great tips. And so I’ve kept in touch with you and gotten lots more great tips over the years. But what led me to want to do this was I started hearing some of your stories about law practice, law school, all kinds of things. So we’ll come back to the New Ellis Group later, but first let’s go back in time. It’s the late 1960s, and a young Karen Kaplowitz is a student at the University of Chicago Law School. Now, people who are not lawyers might not realize this, that is one of the elite law schools in the country. So, you’re a student there. And there were not a lot of women students at that time. What was that like?

K:  I am a child of the sixties, which was a time, which was a lot like now in some ways. I started law school in the fall of 1968, the day after there were riots in Grant Park, in Chicago, in connection with the Democratic National Convention. It was a time of great political turmoil and crisis. Robert Kennedy had been assassinated that spring. Martin Luther King had been assassinated that spring. It was a time of chaos and violence and political upheaval. It reminds us a lot of what it’s like now, 50 years later. So, I’m about to celebrate my 50th law school reunion from the University of Chicago. But the struggle in those days, a lot of it had to do with the Vietnam War. And I was admitted to the University of Chicago Law School because of the Vietnam War. The University of Chicago saw that men were being drafted and decided that instead of having empty seats, they would accept women law students. My class, the class of 1971, was the first class at the University of Chicago Law School with 20% women law students. That’s how I got into law school. It was an economic decision on the part of the law school. So that’s where I fit kind of historically. And here we are, you know, 50 years later.

Karen Kaplowitz, lead plaintiff in Kaplowitz v. Univ. of Chicago

Z: When you started law school, what did you have in your mind that you wanted to do with that law degree?

K:  I wanted to be a civil rights lawyer. I wanted to change the world. I wanted to create more racial equity in particular. I was just beginning to think about gender equity. That wasn’t as much on the horizon in those days, but I thought I’d be a civil rights lawyer or a legal aid lawyer. I didn’t expect to end up in a commercial kind of law firm environment.

Z: Speaking of gender equality, what was the on-campus law firm interviewing like for women at the University of Chicago in the late sixties?

K: Well, so that was one of the surprises. You know, there we were, there were 30 women in my class and maybe 15 or 20 in the class ahead of us and the law school had accepted us, but law firms weren’t hiring women lawyers yet in any great numbers. And so one of the things women in my class encountered was a lot of really overt sex discrimination.  Law firms would show up and they’d just kind of blow off the women law students. And, you know, “we don’t really need to talk today.” “We’re not hiring trusts and estates lawyers this year.” “So there’s no point in our talking to you,” with the subtext, that the only reason we’d consider a woman would be for a trust and estates job. So that was pretty disconcerting. And we found to our dismay that when we took those experiences to the law school administration and said, this is what’s happening, please help us deal with it, the law school was pretty indifferent initially.

Z: And it turns out there was even a lawsuit, and there’s an opinion. People can actually read about this. And the case is called Kaplowitz v. University of Chicago [387 F. Supp. 42 (N.D. Ill. 1974)]. Now, would you happen to know the named plaintiff in that case?

K: Well, so when we experienced, when some of the women in our class experienced sex discrimination and the law school wouldn’t take action, one of my classmates who had just studied the new civil rights law, Title VII of the Civil Rights Act of 1964,  said, “you know, the law school is acting like an employment agency, and don’t we have rights to enforce a non-discriminatory environment against a law school as an employment agency?” Ultimately we filed a Title VII charge, and then a lawsuit, asking the federal court to require the law school to protect women from overt discrimination.

Z: Reading that case, it seemed like the law school had a very clear written policy of non-discrimination. So if that was the case, what did the law school do wrong?

K: What the law school did wrong was failed to take action. When it discovered through complaints filed by women law students, that there was actual overt discrimination taking place on its premises, in connection with the recruiting function, having a non-discrimination policy that’s not enforced was not, to our minds, a sufficient application of the spirit of the law involved.

Z: The federal district court judge agreed with the theory that the law school was acting as an employment agency as defined in Title VII. So that was a win. And then I want to read just a little portion of the judge’s opinion. He said: “Sex discrimination is a bane to both men and women in this society, and to the extent that it is practiced by the employers who use the University of Chicago Law School placement facilities, it is a particularly ugly scar on the legal profession. In this decade of heightened consciousness, it is disheartening to note the degree to which sexism flourishes. It is prevalent in both professional and non-professional careers and all the more odious because of the subtle manner in which it is practiced.” That sounds pretty darn good. So you had the right judge, right?

K: And the judge by the way, was named Abraham Lincoln Marovitz.

Z: So Judge Marovitz ruled in your favor?

K: In some ways. This case, Kaplowitz v. University of Chicago, is a landmark case because it is the first case interpreting the scope of the employment agencies’ section of Title VII broadly. So, from that standpoint, it was a win. But the judge at the end of the day told the women in my class that we needed to exercise our rights against employers directly against the employers, and that we could not require a law school to hold hearings to make determinations. So we lost that part of our case. And at that point we took the part we won and we called it a day.

Z: It definitely set a precedent. And I imagine that even though you didn’t get the relief you were asking for in the lawsuit, this must have had ripple effects in the law school community.

K: For sure. This year is my 50th law school reunion. And we’re expecting to be doing a panel at reunion weekend in the spring on 50 years of women at the University of Chicago Law School, students, faculty, and alumni. So yes, we made our mark, elicited a lot of commitment on the part of the Law School, more of a commitment to gender equity. And that was at the end of the day, what we really wanted to accomplish.

Z: Now on just a personal level, when I think back to when I was in law school, I was just like, okay, just keep your head down. Don’t cause trouble, don’t make anybody mad at you, get good grades, get a job offer. I would be terrified to take on the entire law school and, and, you know, have people think, oh, that guy’s a troublemaker. Did those thoughts go through your mind at the time?

K: Well, you know, I didn’t act on my own. I was one of about 15 women law students who confronted the law school over these issues. And there’s safety in numbers. This was an era of protest and commitment to civil rights. I honestly really never thought too much that it would have adverse consequences, and the opposite turned out to be true. Because I was a leader of that group, I had a lot of interaction with the faculty and with the administration of the law school. And the Dean of the Law School taught me an incredible lesson about professionalism. You know, the Dean never held it against me—that I knew about anyway—that I had confronted the law school in this way and challenged their policies, and he went out of his way to be helpful to me. So that was kind of an interesting lesson on the outcome of being bold and of being courageous. It didn’t hurt. It probably helped me in my career.

Z: That’s great. Okay, so you graduate from law school and you start doing civil rights law?

K: No, I actually ended up deciding that before I became a civil rights lawyer, I wanted to get some conventional experience in a big law firm. And I joined what was then the largest law firm in Los Angeles, O’Melveny and Myers, where I was recruited by a University of Chicago alum who was very committed to bringing in more women. And I was the third woman lawyer at O’Melveny and Myers.

I love L.A.

Z: So, I know what it’s like to be a brand-new lawyer at a firm with experienced lawyers who know what they’re doing, and you’re trying to figure out what to do. You had to do that while being just the third woman at the firm, right?

K: Well, what that meant though, was that there were people who mentored me, you know, like the lawyer who recruited me, he was a mentor to me. There were other people at that office in those days who cared about the idea of being more diverse. Warren, Christopher, who later became Secretary of State was a partner in the firm, for example. There were people of goodwill, in other words.

Z: That’s great. So back to the subject of civil rights, I understand there were issues early in your career with the LA County Women’s Jail. Can you tell us how did that come about?

K: O’Melveny and Myers absolutely supported lawyers doing pro bono work. And I took on a project to investigate and then challenge civil rights violations at the Los Angeles Women’s County Jail, along with the ACLU. I organized a group, there were about 25 lawyers involved, and we investigated civil rights violations. And then we brought a civil rights lawsuit against the Women’s County Jail. And this was all under the rubric of pro bono work at O’Melveny and Myers. That was a tremendous learning experience for me as a young lawyer.

Z: Was that the case where you had sort of a run in with the FBI, or was that another case?

K: No, ultimately, I didn’t have a run in with the FBI. I was a young lawyer. I was like a second year lawyer doing this civil rights work. And I made a really classical mistake of a young lawyer. My mistake was that one of the named plaintiffs in our civil rights case was a member of the Manson family, if you remember Charles Manson. So this woman who was an inmate at the Women’s County Jail was not one of the murderers. She was a burglar in the Manson family, and we included her as a named plaintiff in the case. And at the hearing, when we filed the lawsuit, there was a TRO hearing at which the County Counsel had to stop the rest of the hearing to explain to the judge that our plaintiff had just tried to escape from the Women’s County Jail and that she had a hacksaw blade, which he was sure must have been smuggled into her by one of her lawyers, pointing at me.

Now, the good news was the judge did not take seriously the idea that I had smuggled a hacksaw blade to this member of the Manson family, but my hearing on the TRO, you know, blew up, didn’t get too far. Fast forward a couple of years, and I get a call one day from the FBI. And the FBI is calling me around the time that Squeaky Fromme, another member of the Manson family, had tried to assassinate President Ford, and the FBI called to say, we got your name off a list that Squeaky Fromme had in her possession. And we’re calling to warn everybody whose name was on the list to be careful. And I said, if my name was on the list, it probably wasn’t an enemies list. I represented another member of the Manson family in connection with my civil rights case. So that was my contact with the FBI. The FBI was trying to protect me from a risk I probably didn’t have.

Z: When your named plaintiff escaped using the hacksaw, did she tie the bedsheets and climb out the window?

K: She didn’t escape, she attempted to escape.

Z: Oh, she attempted escape.

K: She attempted an escape and they confiscated her hacksaw blade.

Z: Got it. That’s just an amazing story. Now, you also had something early in your career involving the Beverly Hills Hotel?

K: Yes. So, you know, I’ve explained that I started my law career at O’Melveny and Myers, and I stayed there for three years. At the end of three years, I left and started a women-owned law firm in Los Angeles with two other women lawyers, one from Gibson Dunn & Crutcher, the other big firm in town, and the other from the State Attorney General’s office. And that was a law firm that was designed to handle civil rights cases. So, I started with an idea of civil rights, I went to O’Melveny and Myers for three years, and then I started a women-owned law firm to handle civil rights cases. And one of our cases was against what’s now probably still well-known, the Beverly Hills Hotel. Former President Trump had some alleged liaisons that took place at the Beverly Hills Hotel.

Well, in those days they had a bar called the Polo Lounge, and the Polo Lounge had a rule. The rule was a woman who was not escorted could not enter the premises. And the concept behind that rule was that if a woman was unescorted, she must be a prostitute. So, our law firm represented somebody, an unescorted woman who tried to patronize the Polo Lounge and was of course, escorted out. And we brought a lawsuit against the Beverly Hills Hotel on the grounds that that was sex discrimination. They couldn’t arbitrarily say an unescorted woman was not allowed on the premises. And we resolved that case quite quickly.

Beverly Hills, that’s where I want to be.

Z: So, you were at this women-owned firm in the mid-seventies in LA and you’re doing all kinds of different cases. This like sounds to me like basically a women’s version of LA Law. This has got to be made into a TV show.

K: We’ve been asked actually on several occasions to submit some information on our stories. One of my favorite stories I can share with you, in those days, was the lawsuit we brought against the California Court of Appeal. The court itself was advertising to hire a new deputy court clerk. And we had a client who had experience in the trial court level being a court clerk, who applied to become the deputy clerk of the court of the Court of Appeal. And the man who was the court administrator flatly turned her down, saying quite explicitly he would not hire a woman. So that was one of our very favorite cases. We brought a Title VII lawsuit against the California Court of Appeal itself. And again, the Court quickly settled that case because we kind of had them dead to rights. It was a pretty blatant act of sex discrimination.

Z: Now, again, in that case, you’re successful with the case, but did you worry about some kind of retaliation later on by, you know, judges or other lawyers who were not happy about this?

K: You know, we didn’t really worry about it. One of my law partners in those days had been in the State Attorney General’s office, and the offices of the California Court of Appeal were in the same office building as the Attorney General’s office. My partner knew justices on the California Court of Appeal. One day she was in the lobby of that building. One of the justices she knew well came over and started to give her a hug, and then he said, “oh no, I better not do that, you’re suing us”. So, you know, it was the right thing to do. It didn’t seem like it took a lot of courage to do it. It needed to be done. It was simply the right thing to do. And fortunately for us, we did not suffer any retaliation that I’m aware of.

Z: So then, I guess all good things must come to an end. You eventually leave that firm and you go to a bigger litigation boutique, is that right?

K: So after six years of our women-owned firm, my partners and I parted because we just had different interests. One of my partners became one of the most prominent family law attorneys in Los Angeles. I joined a twenty-five-lawyer litigation boutique and stayed there for close to 20 years.

Z: How did you end up becoming the marketing partner, in effect, for that firm?

K: When I joined the firm, I was of course used to running my own small firm and bringing in clients and managing client work. And that firm had a problem. The problem that my new firm had was that one lawyer, a very prominent trial lawyer, brought in most of the work in the firm, and that created a risk. That was a risk for everybody else because he was young and healthy. But if anything happened to him, if he got hit by a bus, the firm would have collapsed because there were 25 lawyers who mostly depended on a work he generated. So, I became initially really just the de facto go-to person to help any other lawyers in the firm who wanted to create more independence, wanted to create their own pipeline of clients and cases. So that’s kind of what I did, just to be a good team player and to fill a need.Over time, it became something I really enjoyed, which ultimately led me to start my consulting business.

Z: In addition to your consulting and helping people with business development, I know that you’re active in a number of nonprofit causes. I think one of those is Legal Momentum. Can you tell us a little bit about Legal Momentum, and what’s your involvement with them?

K: Legal Momentum is a women’s civil rights organization that was started 50 years ago. When I moved to the East Coast in 1998, after starting my consulting business, I began working on a pro bono basis for Legal Momentum and created what became known as the Aiming High Awards. The idea of the Aiming High Awards has been to recognize very powerful and successful business leaders who care about civil rights and would bring their companies and their business partners to an event to honor them and to support Legal Momentum. So, for the last 20 years, my core pro bono work has been raising money to sustain their work in women’s civil rights.

For example, one of the things that they are best known for is being an advocate for something called the Violence Against Women Act, VAWA. This is a law that was passed in 1994, which creates protection and has pumped literally billions of dollars into police departments and police programs to help support protection of women against domestic violence and other violence. So, that’s been a core part of what I’ve done on a pro bono basis. I don’t practice civil rights law anymore, but I found another way to contribute to the cause.

Z: And I think it was a few months back, I was able to watch these awards online. When is the next presentation of the Legal Momentum awards?

K: The next awards will be sometime this fall. We haven’t set the date yet. We will be honoring another group of people, including our Man of Distinction this year, the Chief Legal Officer and Secretary of Comcast, Tom Reid. And we’ll be honoring a group of people. I’ll be happy to let you know the date as soon as it’s set.

Karen is heavily involved in Legal Momentum’s “Aiming High” awards

Z: Great. I’m sure people will be interested in that. So, you become sort of the marketing guru at this previous firm, but then at some point you decide to move on from the practice of law to full-time consulting to help lawyers. What was that like, starting your own consulting business?

K: You know, it felt like a leap because I had practiced law for over 25 years and that was kind of the core of what I knew. It was a little bit scary to do that, but when I thought about what interested me and what I wanted to do, I kept thinking back to my mother’s experience. My mother had been an immigrant born in Eastern Europe who came to the United States speaking no English at age 13. And I thought, okay, well, it’s a little bit scary for me to leave my secure job as a partner in a very successful law firm in Los Angeles and start a business, but probably not nearly as scary as being an immigrant, coming to a strange country and not speaking the language and having no resources. So, you know, that’s, that was kind of my reference point. My mother was my reference point. So when I started my business, I called it The New Ellis Group, Ellis being a reference to my mother’s experience, being an immigrant at Ellis Island.

Z: What a great inspiration for the name. Now I have to ask you this. What did your mother think when she found out you were going to be the plaintiff in Kaplowitz v. University of Chicago?

K: I’ll tell you what my mother thought when I left O’Melveny and Myers and started my own law firm.  I don’t remember what she said about my lawsuit, but I do remember what she said about my leaving a secure job and starting my little law firm. She said, “are you crazy? Are you crazy? You went to the University of Chicago Law School, you have this fabulous job in a big law firm. And, you know, you get a paycheck.” I mean, you know, the paycheck in those days was probably $15,000 a year, but you know, that was a lot of money in the early seventies. And my mother was literally horrified, but she assured me that no matter what happened, she would always be there to support me.

Z: Well, that’s great. And that reminds me, what did the bank tell you when you went to get a loan to start your law firm?

K: Ah, yes. Well, so I had banked for the three years I was at O’Melveny and Myers at a bank called Security Pacific National Bank, which was later acquired by Bank of America.  I’d been a loyal and, you know, creditworthy customer of Security Pacific for three years. And when we started our women-owned law firm in 1974, we decided we needed a line of credit. So I went to my bank, Security Pacific, and I said, may I please have a line of credit? I don’t even remember if it was for $10,000 or $20,000, whatever it was, it was a modest sum of money. And they said, of course, we are happy to provide you with a line of credit, provided that you deposit an amount equal to the line of credit in the bank and do not touch it during the term of the line of credit. And I said, if I had whatever the amount was, $10,000 or $20,000, to deposit in your bank account, I wouldn’t need a line of credit. That would be enough for me. I need a line of credit because I don’t have $10,000 or $20,000 just lying around. They turned us down.

Z: But you started anyway.

K: We did start anyway.

Z: Good for you. Well, when I first heard the story about your lawsuit back when you were a law student, you told me “being bold, never hurts.” What did you mean by that?

K: I meant that I’ve been lucky in my life that when I’ve done things that you might’ve thought were bold, like bringing a lawsuit against the Law School, or leaving a secure job and starting a women-owned law firm, or starting a new business doing business development, coaching, and strategy, I’ve been lucky that those things turned out well. I may have shared with you a story.  As a young lawyer, I was aggressive, all the time, and had a lot of agendas, especially in the women’s rights arena. And about 20 years into my law practice, I ran into a judge before whom I’d appeared as a young lawyer, who had gone on to the Court of Appeal by that time. He was a very well known judge and I met him at some bar event or a cocktail party. And I said, you know, I want to share with you that I’ve mellowed, since you knew me as a young lawyer out there fighting the good fight in your courtroom. I’ve really mellowed a lot. And I’ll never forget his response. He said, “I’m sorry to hear that.”

Z: That’s great.

K: Yeah. So, I’ve been lucky. I’ve been lucky that the things that I’ve been passionate about and have advocated for and worked hard to accomplish, haven’t hurt me. That’s the good news. As I look back on 50 years of practicing law and look at, you know, this time period marked on one end by, you know, riots in Grant Park in Chicago and marked at the other end, by January 6th, the riots at the US Capitol, you know, I am saddened that more has not changed in these intervening 50 years, and that we are again, fighting to preserve our democracy, our rule of law, and I’m glad that I’ve had a small part in being part of a profession whose core commitment is to preserving the Constitution, preserving the rule of law, and preserving our democratic institutions. So, that’s kind of how I look back on these 50 years.

The name of Karen’s consulting company was inspired by her mother

Z: Well, I think “small part” might be a little bit of an understatement. That is quite a career of accomplishment. So thank you for sharing some of those stories with me and with our audience. Before we wrap up, I just want to get back a little bit to your current consulting practice. I know that I’ve gotten so much great input from you on business development issues. What would you say makes your consulting approach different from some of the other coaches who are out there?

K: Thanks for asking. I would say that the one thing that I try hard to do in my coaching work is to help people figure out how to identify their best opportunities and how to integrate what they do in the realm of business development and marketing into their everyday work. So it’s not an add on, it’s not an extra burden, it’s part and parcel about how they go about their everyday opportunities. It’s a real privilege for me to have worked with literally hundreds of partners in law firms around the country to help them build their practices. And I’m glad to have run into you, and glad to have had the opportunity to work with you and your former law firm, and appreciate this opportunity to talk to you about work, law, and life in 2021.

Z: Well, I was so happy to do it, and if you are a lawyer looking for coaching, I highly recommend Karen. And if you’re not ready to take that leap, at least check out Karen’s newsletter, which is called what?

K: Monday Monday.

Z: Monday Monday, a great song and a great newsletter. It comes out usually once every two weeks?

K: Every two weeks. Right. People can go to my website, newellis.com, and they can sign up.

Z: And I recommend people do that. It’s concise, it’s fresh, it’s right to the point. It’s worth a few minutes, every two weeks to check it out, if you’re a lawyer who cares about business development. Okay. Thank you, Karen!

K: Thank you so much.

_______________________

Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Thomson Reuters named him a 2020 Texas “Super Lawyer”® for Business Litigation.

Disclaimer: Every case is different. Suing your elite law school in federal court may not achieve similar results.

Bostock Opinion Shows Strict Textualism Fails to Deliver on its Central Promise

Bostock Opinion Shows Strict Textualism Fails to Deliver on its Central Promise

Survey says . . .

I’m going to ask you to take an opinion poll.

But first, I have one small request: put aside, for a moment, whether you think discriminating against homosexual or transsexual employees is wrong, or whether you think it should be illegal. Easy, right?

Now here’s the question: Do you think that an employer firing an employee because the employee is gay is firing “because of sex”? You’ve got three choices:

A. Yes. And this is the only reasonable interpretation.

B. No. And this is the only reasonable interpretation.

C. Maybe. The phrase “because of sex” is ambiguous. Both A and B are reasonable interpretations, even if one is better.

If you picked A, you agree with Justice Gorsuch, who wrote the majority opinion in Bostock v. Clayton County. If you picked B, you agree with Justice Alito, who wrote a scathing dissenting opinion. If you picked C, then you agree with Five Minute Law.

Notably, both Gorsuch and Alito purported to apply the method of judging known as “textualism.” My thesis is that this teaches us an important point about textualism: it fails to deliver on its central promise of providing an objective, determinate, non-political basis for deciding hard cases.

Let’s break it down.

What is Strict Textualism?

First we need to distinguish between two kinds of textualism. For convenience, I’ll label them “Modest Textualism” and “Strict Textualism.”

Modest Textualism says when interpreting a statute the court should start with the text. If there is only one reasonable interpretation of the text of the statute, the court should stop there and not consider extrinsic sources.

“Extrinsic” sources means everything other than the text, but most notably, it could include what Congress intended the words to mean, how courts have interpreted the text in the past, pragmatic factors, and considerations of what is fair, just, or good public policy.

Virtually everyone who is serious about the law is at least a Modest Textualist. No serious practitioner—i.e. a judge or practicing lawyer—says “in interpreting a statute, the text of the statute is totally irrelevant.”

No. Everyone agrees you start with the text. Of course you start with the text.

The difference of opinion arises when different people interpret the text differently.

Even then, the Modest Textualist does not immediately jump to extrinsic sources. The mere fact that two litigants disagree over the statute’s interpretation does not mean the court has to look beyond the text. A party’s proffered interpretation must be at least reasonable. The court can reject an unreasonable interpretation without looking beyond the text.

But what if I told you that sometimes, just sometimes, there is more than one reasonable interpretation of a statute? Not only that, but once in a blue moon, there are two reasonable interpretations of a statute that lead to diametrically opposite results.

That’s called a Hard Case. And that’s where Modest Textualism and Strict Textualism part ways.

In a Hard Case, the Modest Textualist says ok, there are two reasonable interpretations of this statute. That means the statute is ambiguous as applied to this dispute. So we’re going to have to look to something else to decide which interpretation to adopt. The text alone just doesn’t give us the answer.

And of course, I’m joking when I say “once in a blue moon.” This happens all the time, at least in the kind of case that makes it up to the Supreme Court. And as a practicing litigator, I can tell you it even happens fairly often in the kind of boring, ordinary business disputes I handle.

So what should the judge do in such cases?

In theory, the Strict Textualist agrees that when a statute is ambiguous, the court can look to extrinsic sources. The difference is that the Strict Textualist tries really, really hard to avoid jumping to extrinsic sources too quickly. The Strict Textualist will first use close reading of the statute, “canons of construction,” and dictionaries to interpret the statute. It is only when those methods fail to yield a clear answer that the Strict Textualist will even consider looking to extrinsic sources. (In theory)

This immediately raises a complication, because Strict Textualism does allow the judge to look at the “ordinary public meaning” of the statute at the time it was enacted, which can include looking at dictionaries, which are an extrinsic source.

And Strict Textualism has a close cousin named Originalism, which says you must look to extrinsic sources—e.g. the Federalist Papers—to interpret the “original understanding” of the Constitution, especially considering that the broadly worded text of the Constitution just doesn’t give you the answers to Hard Cases.

But for simplicity, let’s just say the Strict Textualist tries really hard to confine the inquiry to the text.

You might object to my sharp distinction and argue the difference between the Modest Textualist and the Strict Textualist is only a matter of degree. And you’d have a point. But still, the difference is pretty easy to spot in the wild. If a judicial opinion gets down into  the punctuation of a statute and parses multiple definitions of ordinary words from multiple dictionaries, that’s probably a Strict Textualist writing the opinion.

You might also object that my distinction is too abstract. So far, I’ve ignored the elephant in the room (no pun intended). Strict Textualists are almost always Republicans.

Now, in the abstract, there is nothing inherently “liberal” or “conservative” about either form of textualism. But in practice, one political ideology tends to favor Strict Textualism.

Everybody knows that conservatives and Republicans like Strict Textualism, while liberals and Democrats like Modest Textualism. But why is that? Modest Textualism does not necessarily lead to a liberal result, and Strict Textualism does not necessarily lead to a conservative result (again, in theory), so why the stark difference?

I’ll come back to that. First we need to understand the rationale behind Strict Textualism.

Strict Textualism’s Central Promise

The rationale behind Strict Textualism has two parts.

First, Strict Textualism says that judges must have an objective, non-political basis for deciding Hard Cases. Otherwise, judges would just be deciding cases based on their own personal opinions on what is fair, just, or good public policy. That would not be the rule of law, the proponent of Strict Textualism says. That would be legislating.

Thus, even if Strict Textualism did not exist, the Strict Textualist says, judges would have to invent it.

Second, Strict Textualism says that Strict Textualism provides an objective, non-political basis for deciding Hard Cases. When Strict Textualism is applied correctly, it yields a single determinate answer, even in Hard Cases where there appear to be strong arguments on both sides. This is the central promise of Strict Textualism.

Now, let’s clear aside one obvious objection to this central promise. Strict Textualism does not claim that the answer will always be obvious, or that all reasonable people will agree on the answer.

No, the Strict Textualist realizes that reasonable people will disagree on the correct application of Strict Textualism. Not only that, even the foremost legal experts, or even members of the Supreme Court, will sometimes disagree. But the fact that they disagree doesn’t change the fact that there is still a single correct answer.

The Strict Textualist might analogize to medicine. Two doctors who are renowned experts in their field could examine the same patient and come up with diametrically opposite diagnoses. The fact that they disagree does not change the fact that only one of them is correct. The one true diagnosis is “out there,” even if it is sometimes hard to discern.

So even if judges applying Strict Textualism sometimes get it wrong, the important thing is that they apply it, Strict Textualism says. That is the only way to maintain the rule of law and avoid turning judges into de facto legislators.

In short, Strict Textualism promises political legitimacy.

And one more thing. The corollary is that other theories of adjudication are illegitimate. Strict Textualism does not just claim to provide determinate answers to Hard Cases. It claims to be the only theory of adjudication that does so (with the possible exception of Originalism, but that’s another can of worms).

This turns Strict Textualism into a sword that can be used to attack a judicial decision as not only wrong, but as illegitimate. This is the key to its political appeal. And for various reasons I don’t have time to get into here, this appeal is especially strong for conservatives.

But does Strict Textualism deliver on its promise? Oh, if only we had a test case.

Enter Bostock.

Bostock v. Clayton County

Bostock is almost the perfect test case for Strict Textualism. It has it all: a hot-button social issue that turns on the interpretation of just three words in a statute, i.e. “because of sex.”

Specifically, Bostock presented a question of statutory interpretation concerning Title VII of the 1964 Civil Rights Act: does discrimination “because of sex” include discriminating against an employee for being a homosexual or transsexual. Writing for the 6-3 majority, conservative Justice Gorsuch said yes.

Screen Shot 2020-06-21 at 7.06.55 PM
The results of my highly scientific poll about Bostock

In a role reversal, Justice Gorsuch’s opinion offered a “textualist” rationale for this “liberal” result. Chief Justice Roberts, another conservative, joined in the Gorsuch opinion, along with the four liberal justices. The three most conservative justices—Alito, Thomas, and Kavanaugh—dissented.

Justice Gorsuch reasoned that the text of the statute provided one—and only one answer—to this question. Therefore, it did not matter what Congress intended when it passed Title VII of the Civil Rights Act of 1964. “When the express terms of a statute give us one answer and extratextual considerations suggest another,” he wrote, “it’s no contest.” Only the “written word” is the law.

This was textbook Strict Textualism, at least on its face. “This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment,” Gorsuch wrote.

And he offered the textbook justification for this method of adjudication: constraining judges and thereby providing legitimacy. “If judges could add to, remodel, update, or detract from old statutory terms inspired only be extratextual sources and our own imaginations,” he said, “we would risk amending statutes outside the legislative process reserved for the people’s representatives.”

Justice Gorsuch then made a painstaking logical argument for why the plain meaning of “because of sex” necessarily includes sexual orientation and gender identity. Under the Supreme Court’s precedents, discrimination “because of sex” means any discrimination where the individual’s sex is a “but for” cause of the employer’s action. Applying that standard, Justice Gorsuch reasoned, there is just no way for an employer to take an action because of an individual’s sexual orientation or gender identity that does not in some way take into account the individual’s sex. His logic hypotheticals would make the LSAT proud.

Some of you will buy his argument, and others will not. I’ll wager this will depend largely on whether you think discrimination on the basis of sexual orientation or gender identity should be illegal or not. It will be a rare case where someone says “I strongly believe discrimination based on sexual orientation should be against the law, but the statute simply doesn’t say that,” or vice-versa.

I only hope you will agree that Justice Gorsuch’s interpretation of “because of sex” is at least one reasonable interpretation. I mean, he’s a pretty smart guy, with generally conservative views. The idea that he just made it up to “appeal to college campuses and editorial boards” doesn’t seem credible. And the justices who joined him are intelligent too. They all have degrees from fancy law schools and years of judicial experience.

Of course, none of this proves they are right, but isn’t the fact that six out of nine justices on the highest court in the land agree with this interpretation some indication that their interpretation is at least reasonable? Surely they haven’t all lost their minds.

Alito’s Dissent

So how did Alito respond? Ever the gentleman, he began by saying:

My learned colleague Justice Gorsuch has written an opinion that sincerely attempts to decide this hard question through the good-faith application of textualism, a theory we both agree with, but I fear he has gone astray and applied the method incorrectly.

I’m kidding, of course. It was quite the opposite. Alito’s anger was palpable. He lashed out at Gorsuch’s opinion as not only incorrect, but as dishonest and illegitimate. “There is only one word for what the Court has done today: legislation,” he led off. “The document that the Court releases is in the form of a judicial opinion interpreting a statute,” he said, “but that is deceptive.”

Why so angry?

I think it was a combination of three things. First, the result. Second, the fact that Gorsuch and Roberts joined the liberals. Third, and perhaps the most galling, was the fact that Gorsuch wrote a textualist opinion justifying the result. “The Court’s opinion is like a pirate ship,” Alito  wrote. “It sails under a textualist flag,” he said, but it actually reflects the illegitimate theory that courts should “update” old statutes so they reflect the “current values of society.”

Let’s put aside Alito’s anger for the moment and just look at what the disagreement tells us about textualism.

Alito characterized the majority opinion as holding that the only reasonable interpretation of “because of sex” is that it includes sexual orientation and gender identity. In Alito’s words, the majority argued “not merely that the terms of Title VII can be interpreted that way but that they cannot reasonably be interpreted any other way.” “According to the Court,” he said, “the text is unambiguous.”

On this point Alito got the majority opinion right. Gorsuch did not argue that “because of sex” is ambiguous and then offer an argument for choosing one of two reasonable interpretations. No, Gorsuch argued that application of the plain meaning of the statute yields only one result: discrimination based on sexual orientation or sexual identity is inherently discrimination “based on sex.”

Alito wasn’t buying it. “The arrogance of this argument is breathtaking,” he wrote. “The Court’s excuse for ignoring everything other than the bare statutory text is that the text is unambiguous,” Alito said, “and therefore no one can reasonably interpret the text in any way other than the Court does.” But “to say that the Court’s interpretation is the only possible reading is indefensible.”

You might expect Alito’s next move to be an argument that the majority’s interpretation is only one reasonable interpretation, and that the statute is therefore ambiguous.

But no. Alito believes that the majority’s interpretation is not only wrong, but that his opposite interpretation is the only reasonable one. In other words, Alito would pick option B, not C, in my opinion poll above. “The Court’s argument is not only arrogant,” he said, “it is wrong.”

Alito argued that “because of sex” does not include sexual orientation or gender identity. He supported his interpretation with evidence that included:

  • The fact that Congress has considered—but rejected—attempts to amend the statute to expressly add “sexual orientation” and “gender identity.”
  • Dictionary definitions showing that “sex” did not mean “sexual orientation” or “gender identity” in 1964. (Remember, textualists love dictionaries.)
  • The fact that ordinary people in 1964 would not have understood “discrimination because of sex” to include discrimination because of sexual orientation or gender identity. (This is textualism’s “ordinary public meaning.”)
  • Evidence that Congress didn’t intend to prohibit discrimination based on sexual orientation or gender identity.

I’ll let others get into the weeds on these points. Conservatives will tend to find Alito’s evidence compelling. Liberals will tend to reject it.

I only hope to make the modest point that Alito’s interpretation of the statute, like the majority’s, is at least one reasonable interpretation.

Ask people on the street, either today or in 1964, if discrimination “based on sex” includes discrimination based on sexual orientation—without telling them the effect of their answer—and plenty of people will say no. As Justice Kavanaugh emphasized in his separate dissent, textualism means applying the “ordinary” meaning of a phrase, not the “literal” meaning of an isolated term.

Surely, Justice Alito’s interpretation of “because of sex” to mean “because the person is male or female but not because of that person’s sexual orientation” is at least one reasonable interpretation, even if you ultimately disagree with it.

Failure to Deliver

If I’m right—if both Justice Gorsuch and Justice Alito have reasonable interpretations of the statute—then Bostock shows that Strict Textualism fails to deliver on its central promise, at least in practice.

Remember, the promise was that Strict Textualism would provide an objective, determinate way to decide Hard Cases, i.e. a method that would yield only one correct answer. But Strict Textualism had its chance in Bostock, and it failed spectacularly.

Instead of a single correct answer, there was a reasonable textualist argument for construing the statute one way (Gorsuch’s) and a reasonable textualist argument for construing it the other way (Alito’s). That left each side to pick the reasonable interpretation that would yield the result it wanted. The fact that each side acted like its interpretation was the only reasonable one did not change this.

Thus, Strict Textualism did not provide any constraint on the justices choosing the interpretation they considered fair or just. In other words, it did not prevent them from making a political judgment about the better outcome.

Objection, the Strict Textualist says, Bostock proves no such thing. The mere fact that judges will sometimes disagree over the result of applying Strict Textualism does not mean that Strict Textualism fails to provide a determinate answer, the Strict Textualist will protest. Remember the medical analogy.

This argument strikes me as plausible in theory, but unpersuasive in practice. I’m not saying Strict Textualism must provide a determinate answer that is obvious to everyone. But if Strict Textualism cannot yield an answer that can be demonstrated to people skilled in the law to be the single correct answer, I just don’t see how it provides any meaningful constraint on judges. In practice, it simply fails to provide the special legitimacy it claims.

But doesn’t this leave us in an untenable state of affairs? If Strict Textualism fails to deliver on its central promise, doesn’t that mean that judges will be allowed to do what Justice Alito accused the Bostock majority of doing, legislating instead of judging? And if judges decide cases based on what they think is fair or just, do we even have the “rule of law”?

Fair questions, but there are no easy answers. Trouble is, there’s just no avoiding this problem. You can argue that judges shouldn’t decide cases by picking the interpretation they think is fair and then reasoning their way into that interpretation. But isn’t that effectively what judges are already doing–what they’ve always done–regardless of the label they put on it, and even if they sincerely think they are doing something else?

We just have to muddle through somehow.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

MLK Day Lessons from the Movie “Selma”

MLK Day Lessons from the Movie “Selma”

If you’ve read my morning routine you know that one piece of it is listening to sports talk radio to find out for the final time if Lebron James is better than Michael Jordan. Another perennial drive-time debate is whether Bill Belichick has won so many games with the New England Patriots because he has Tom Brady as his quarterback, or if Brady has won so much because he has Belichick.

Wherever you come down in this debate, you have to admit the Patriots had an amazing run in the Brady-Belichick era, with 11 Super Bowl appearances and six Super Bowl wins.

This is infuriating for fans of other teams because the NFL is supposedly built for “parity.” In contrast to college football, it rewards winners by giving them worse draft picks. Perhaps this is why, sadly, the Patriots replaced my Dallas Cowboys as the NFL’s most hated team.

Haters will claim it’s the cheating. But some part of the credit for the Patriots’ astounding run should go to the well-known philosophy posted in their practice facility: Do Your Job.

This is a great mantra because in three little words it conveys two distinct messages, one of exhortation, the other of relaxation. “Do Your Job” says first, take care of your responsibilities. Your teammates are counting on you. But second it tells you not to worry too much. You don’t have to do anything spectacular, just do your job. Trust that if your teammates do their jobs too, the team will succeed.

This reminds me of a scene from the 2014 historical drama Selma, directed by Ava DuVernay and starring David Oyelowo as Martin Luther King, Jr.

Selma tells the story of Dr. King leading the protests that culminated in the famous march(es) across Edmund Pettus Bridge, and ultimately, the Voting Rights Act of 1965. If you haven’t seen the movie, I highly recommend checking it out on Netflix.[1]

The scene that sticks in my mind takes place about 18 minutes into the movie, in the modest kitchen of the King home in Atlanta. Mrs. King is folding laundry at the kitchen table. The phone rings.

Coretta: Hello? [We hear a man speaking in ominous tones over the receiver, she hangs up as Martin walks in.]

Martin: Same thing? [She looks at him knowingly then turns away.] 

Coretta: When are y’all heading out? 

Martin: We, uh, head back to Selma at 5 am. Turned out to be an ideal staging ground. There’s a . . . a full couple of weeks planned, quite a bit to be done.

Coretta: [drinks from a glass of water] I see.  [Martin takes the trash bag out of the kitchen trash can.] That highway is nice now, get you there in a couple of hours. Good people in those parts, though. [She hands him a new garbage bag.][2] 

Martin: Well, I’m worried about the ones who ain’t so good. [He puts a new bag in the trash can]. This local sheriff, Jim Clark,[3] is supposed to be bad business. Won’t go down without a fight, they say. And since we don’t fight . . . Well, good a place to die as any, I guess. 

Coretta: I wish you wouldn’t talk like that.

Martin: It just takes the edge off. 

Coretta: You and your friends can joke about that. I don’t joke about that.

Martin: You’re right. I’m sorry.

Coretta: I’ll uh, put these things away in your bag now, I didn’t realize you were leaving so early [she walks out carrying some folded clothes]. 

[Martin turns off kitchen light, hesitates.]

This is a great, economical scene. It conveys a lot of information without a lot of action or dialog. You know the Kings are receiving harassing phone calls. You sense tension in their marriage. You get the exposition about what’s happening with the sheriff in Selma. And, perhaps most important, you see that Dr. King is a real flesh and blood person who has to balance his family life with the very real possibility that his activism could get him killed.

But there’s one part of this scene that really resonated with me. Did you spot it? Remember, this is Martin Luther King, who we see in the opening scene preparing to accept the Nobel Peace Prize. Martin Luther King, the hero who led the Civil Rights movement. I mean, today the dude has his own national holiday. Yet in this scene we see him taking out the trash?

Why did the director or screenplay writer include this detail? The Kings could have simply stood in the kitchen, or sat at the kitchen table, talking.

Maybe it was just to give the actors something to do so the dialog would sound more natural. But I suspect there was more to it. When we see Dr. King emptying the trash can, it’s a reminder. Even a person who is doing great things still has to deal with the mundane necessities of daily life.

Of course, when the people doing the great things are rich, they pay other people to do the tedious things. The wealthy can’t be bothered with even the simplest of tasks, like folding their own umbrellas.

But still, even Very Important People have to do a lot of the same things ordinary people do. They put their pants on one leg at a time just like the rest of us. Or to vary a common saying, their trash stinks too.

And seeing Martin Luther King take out the trash was a small but important lesson for white-collar “professionals.” It was especially necessary for me because I work in the profession with the whitest of collars: the law. There is a tendency for us lawyers—especially lawyers in the more “elite” firms—to think we’re above everyone else. We have advanced degrees. We have licenses. We don’t take out the trash; we have people who come through the office after 5:30 to do that.

And when your hourly rate is $500 or higher, you start to think your time is more valuable than other people’s. Why should you spend an hour doing yardwork when you could be billing that time?

I’m not saying lawyers–or other busy professionals–shouldn’t pay someone else to mow the grass. I’m more concerned with the mindset. Do you get frustrated with the time you have to spend doing “ordinary” things when you’re trying to accomplish something important? I know I do. And all I’m trying to do is build a law practice. It’s not like I’m leading a movement to overcome 100 years of state-sponsored terror and voter suppression.

But maybe we shouldn’t look at household chores as a hindrance. Why should we expect to be trusted with great things when we can’t be trusted with the little things? Selma reminds us that taking care of minor tasks we don’t really want to do is perhaps the simplest form of morality.

So do your job. Take out the trash. Or whatever the equivalent responsibility is for you.

And trust that if you do your job, and other people do theirs, great things can happen.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Thomson Reuters named him a 2020 Texas Super Lawyer® for Business Litigation.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

[1] I recommend the movie with one significant caveat. As you may recall, there was some controversy over the film’s historical accuracy, particularly its portrayal of President Lyndon Johnson as a reluctant ally who King had to pressure into supporting the Voting Rights Act. Former Johnson aide Joe Califano blasted this portrayal as inaccurate. Director Ava DuVernay responded that she was telling a story, not making a documentary. This raises thorny questions: How much historical inaccuracy we should accept as artistic license? Do factual inaccuracies lessen the quality of a historical drama? Are minorities held to a double standard when they use artistic license? Interesting issues that I will save for another day.

[2] Apparently the clear plastic trash bag in the scene was an anachronism; such bags were not used in 1965. Also, you can see the blender on the counter is plugged into an outlet that has a green LED light. But let’s not quibble.

[3] Sheriff Clark was an ardent segregationist known for recruiting a horse-mounted posse of KKK members, wearing military style clothing, and carrying a cattle prod that he infamously used on black protestors. In his later life, Clark sold mobile homes, got accused of embezzlement, and even served time for conspiring to smuggle marijuana from Colombia. He was unrepentant to the end. In a 2006 interview, Clark said “I’d do the same thing today if I had to do it all over again.” See Jim Clark, Sheriff Who Enforced Segregation, Dies at 84.

Lessons From “I Have a Dream”

Lessons From “I Have a Dream”

On August 28, 1963, Dr. Martin Luther King, Jr. stepped up to a podium in front of the Lincoln Memorial and delivered what would become the signature speech of the American civil rights movement. You know the words. “I have a dream that one day this nation will rise up, live out the true meaning of its creed: ‘We hold these truths to be self-evident, that all men are created equal.’”

Today, the high points of King’s “I Have a Dream” speech are so familiar to most Americans that there is some danger of the speech fading into mere orthodoxy.

But it was not always so. In a confidential memo following the speech, the head of the FBI’s domestic intelligence division gave this assessment of King:

Personally I believe in the light of King’s demagogic speech yesterday he stands head and shoulders over all other Negro leaders put together when it comes to influencing great masses of Negroes. We must mark him now, if we have not done so before, as the most dangerous Negro of the future in this Nation . . .

In a sense, the FBI was right. King was the most “dangerous” leader of the civil rights movement, just not in the way the FBI thought. The danger King posed was his ability to influence the nation to effect real change in the advancement of civil rights for African-Americans. If he was dangerous, it was because he was inspirational and persuasive.

Persuasiveness is critical for lawyers, especially litigators, who are called upon to persuade judges, juries, and arbitrators—and from time to time their own clients and the opposing party. So aside from the obvious political and historical significance of the “I Have a Dream” speech, I wondered what it could teach lawyers and other humans about effective persuasion.

There is of course King’s incomparable speaking style. Just the sound of his voice still gives me goosebumps. And the brilliant way he wove Biblical references and imagery into his message must have resonated with a large part of his audience.

But for most of us, adopting King’s speaking style would be too much to pull off. So what can the substance of the speech teach us about effective persuasion? For me, two things stand out.

First, King rejected radicalism. He brilliantly characterized his demand for civil rights as delivering on the nation’s founding principles, not as a revolution seeking to establish new principles. Second, King rejected what we might call moderate gradualism. He made it clear his movement was insisting on immediate and substantial political change.

As we will see, these were two sides of the same coin.

FBI memo on MLK
Excerpt from FBI memo shortly after the “I Have a Dream” speech

King’s first rhetorical move was to characterize the struggle for civil rights as the fulfillment of the promises made in the founding documents of the Declaration of Independence and the Constitution, using the metaphor of a check or promissory note:

In a sense we’ve come to our nation’s capital to cash a check. When the architects of our Republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men—yes, black men as well as white men—would be guaranteed the unalienable rights of life, liberty and the pursuit of happiness.

This interpretation of the nation’s founding seems almost obvious now, but it is not universally shared. The “white nationalist” would say that when Thomas Jefferson wrote “all men are created equal,” he really meant that all white men are equal. After all, Jefferson himself was a slaveholder.

And this view is not necessarily confined to neo-Nazis or white supremacists. There are radicals on the left who effectively agree with the white nationalist view that America’s founding was essentially racist. “We didn’t land on Plymouth Rock,” Malcolm X said, “Plymouth Rock landed on us.”

In a sense, the radicals agree with the white nationalists that America’s founding documents excluded non-whites (this is before we even get to the further complication of the status of women). The difference is whether they view this as a good or bad thing.

On the whole, I disagree with the radical interpretation, but reasonable people have to concede that it is at least a plausible interpretation. So Martin Luther King could have adopted the radical view in the “I Have a Dream” speech. He could have rejected America’s founding documents as excluding African-Americans. He could have proposed a revolution, a new founding. But of course that’s not what he did.

Instead of rejecting America’s founding as racist, or as a fraud, King interpreted America’s founding documents as a promise of equality encompassing all races. He interpreted “all men are created equal” as universal.

But King did not sugarcoat the blunt reality that America had reneged on the promise:

It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked “insufficient funds.”

This was a brilliant rhetorical device. With the promissory note metaphor, King laid claim to America’s founding principles on behalf of all races, while simultaneously acknowledging that his race had been excluded from enjoying the benefits of those principles.

And here’s the important thing for persuaders to understand: Whether this interpretation of the founding was historically or philosophically accurate was not the point. The point was to inspire and persuade the audience.

The “I Have a Dream” speech really had two audiences: followers who were already committed to civil rights and moderate whites who were on the fence. King needed to inspire his followers to continue the struggle and to persuade the moderates to get off the fence.

King saw that reinterpreting the American founding as universal was the right way to persuade the moderates. “I’m not leading a revolution against your values,” he was essentially saying to them, “I’m leading a movement to require you to live up to your own stated values.” Paradoxically, his rejection of the radical approach was part of what made him so “dangerous,” to borrow the FBI’s term.

And this leads us the second key point about the “I Have a Dream” speech: the rejection of moderate gradualism. King made it clear his movement insisted on real, immediate reform:

We have also come to this hallowed spot to remind America of the fierce urgency of now. This is not time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy. . . .

Those who hope that the Negro needed to blow off steam and will now be content will have a rude awakening if the nation returns to business as usual. There will be neither rest nor tranquility in America until the Negro is granted his citizenship rights. The whirlwinds of revolt will continue to shake the foundations of our nation until the bright days of justice emerge. 

These words made it plain that King’s earlier invocation of America’s universal principle of equality was not merely abstract or aspirational.

The rhetoric of “whirlwinds of revolt” may have been jarring to white moderates, but it was an essential counterpart to invoking the nation’s founding principles. Without the insistence on immediate change, the promissory note metaphor would have been merely abstract. The other side of the coin was that “gradual” change wasn’t going to cut it.

Urgency of Now MLK
Excerpt from “I Have a Dream”

This is not to say that moderation and gradualism are always wrong. Depending on the situation, the right approach to any political problem could be conservatism (maintaining the status quo), radicalism (revolting against the status quo), or moderation (gradual reform).

But I think Martin Luther King correctly sensed in 1963 that it was time to push for immediate and lasting reform. The arc of history may ultimately bend towards justice, but windows of opportunity don’t stay open very long in politics. You have to know when to seize the opportunity to make a major change. And major change would come soon after the “I Have a Dream” speech, including the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

This gives us the second lesson about persuasion. It’s usually not enough to persuade the audience that your point of view is correct. You’ve got to persuade them to do something about it, even if it’s something they wouldn’t ordinarily do. Once you’ve got people nodding their heads in agreement with you, then you have to push them out of their “comfort zone.”

You have to convince them that, in King’s words, “now is the time to make justice a reality.”

What a dangerous idea.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. He’ll probably get back to non-compete and trade secret law in next week’s post.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

Essential MLK Day Reading for Lawyers and Other Humans

Essential MLK Day Reading for Lawyers and Other Humans

Script Idea for New Courtroom Drama

For this Martin Luther King, Jr. Day, I’ve got a movie idea to pitch. Picture this. A racist white sheriff rules his county in the Jim Crow South with an iron fist. A teenage white girl falsely claims she was raped by a black man. An all-white jury convicts on the flimsiest of evidence. It is very likely the young woman was not assaulted at all.

You think it’s been done before in To Kill a Mockingbird? Well I’m going to spice it up for an audience of millennials. Though undeniably gripping, the courtroom drama in the Gregory Peck classic was, sadly, a fairly ordinary story. An all-white jury convicts a wrongfully accused African-American man of raping a young white woman in the segregated American South? No big surprise. The only parts that are at all hard to believe are that a small-town white lawyer would mount a serious defense of the case, and that the defendant would actually make it to trial without getting lynched.

mlk-at-microphones
I’ve got a book recommendation for MLK Day

My movie will be wilder, crazier, more dangerous.  Instead of one accused black man, there will be three. One of the accused men will not even be in the same county when the “crime” occurred.  Instead of a no-name small town lawyer, the lead defense counsel will be a famous civil rights lawyer. Instead of one trial, there will be two, and in between the two trials the case will go all the way to the U.S. Supreme Court.

Action and danger? Imagine this. In the opening scene, the civil rights lawyer runs from the courthouse and jumps in a car that speeds out of the county with angry Klansmen in hot pursuit. Sheriff’s deputies beat false confessions out of two suspects, but a third refuses to confess. In between the two trials, the racist sheriff picks up two of the accused from prison, pulls over to the side of a country road in the middle of the night, pulls a gun, and then . . . well I don’t want to spoil it.

I know, it sounds too sensational. But this story is real. You can read it in Gilbert King’s Devil in the Grove: Thurgood Marshall, the Groveland Boys, and the Dawn of a New America, which won a Pulitzer Prize. If you care about the American civil rights movement, you will want to read this book. If you are a lawyer, you will enjoy learning how Thurgood Marshall and his colleagues handled the actual nuts and bolts of defending three wrongfully accused men under the most difficult conditions. If you are a trial lawyer, you absolutely must read this book.

You can read reviews of the book to find out more details about the story. Here are just a few of the broader points I took away from this riveting account of a chilling episode in American legal history.

Thurgood Marshall, Super Lawyer

I knew that Thurgood Marshall was a pioneering civil rights lawyer who won the landmark Brown v. Board of Education case and went on to serve as the first African-American justice on the U.S. Supreme Court. But before this book I did not realize that Marshall was one of the best trial and appellate lawyers in the country. I pictured the young Thurgood Marshall as a political activist who happened to be a lawyer. But Devil in the Grove shows that Marshall was a lawyer’s lawyer, a top-notch practitioner who wrote meticulous briefs and loved to argue cases.

Marshall was also a shrewd strategist who carefully chose the cases the NAACP Legal Defense Fund took on. In the Groveland case, the goal was not only to save three innocent lives, but to set up a legal challenge to a system that denied due process based on race.

A System Built on Dishonesty

Aside from the obvious injustice of the state-sponsored discrimination that reigned in the South until the 1960s, the most striking feature of the system was its fundamental dishonesty. The basic legal problem for southern segregationists was the 14th Amendment. (Remember that one? We had to fight a civil war to get it.) It guaranteed due process and equal protection of the laws, and it was the supreme law of the land.

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The defense table in the second Groveland trial

So ultimately, the law was on Thurgood Marshall’s side. This meant that openly defending racial oppression was not a viable long-term strategy for defenders of the racist status quo. They had to pretend that African-Americans actually had civil rights. They had to maintain the fiction that black and white schools were “separate but equal.” Brown v. Board of Education’s rejection of the separate-but-equal doctrine was like a collective “come on, man!” from the Supreme Court. Don’t pee on my leg and tell me it’s raining.

Appellate Courts Sometimes Have to Get Real

A related lesson is that appellate courts can’t always take legal arguments at face value. Defenders of the most unjust system can always come up with arguments that have a surface plausibility. For example, when Texas Attorney General Price Daniel and his assistant Joe Greenhill defended Dallas County’s history of all-white grand juries, they could argue with some plausibility that exclusion of blacks from the grand jury was not a denial of equal protection, but merely a result of the fact that the grand jury commissioners did not know any black people who were qualified to serve.

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Thurgood Marshall and colleagues on the steps of the Supreme Court

But this was effectively a lie. Everyone knew the system was designed–formally or informally–to exclude African-Americans. The Supreme Court implicitly recognized as much in Cassell v. Texas, 339 U.S. 282 (1950), when it reversed a murder conviction on the ground that blacks were excluded from the grand jury. One year later, in Sheperd v. Florida, 341 U.S. 50 (1951), the Supreme Court cited Cassell to reverse the convictions in the first Groveland trial. Justices Jackson and Frankfurter wrote a concurring opinion saying they would have reversed based on the failure to remedy prejudicial pretrial publicity of the defendants’ alleged confessions.

Formal Rights Don’t Guarantee Actual Justice

The story of the Groveland trial also teaches a related fundamental point about the law. Formal rights under the law mean nothing if judges and juries don’t sincerely enforce them. When a judge refuses to allow defense lawyers to call to the stand the physician who examined the alleged rape victim, the Equal Protection Clause has not done the defendant much good. When a jury convicts three African-American men based on community outrage and racism, not on solid evidence, the Due Process Clause hasn’t given the defendants much comfort. Favoritism and prejudice on an individual level can make a mockery of even the best-designed institutions.

But these points are way too abstract. At its core, Devil in the Grove is great story-telling.  And it really happened. Hollywood couldn’t make this stuff up.

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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. These are his opinions, not the opinions of his firm or clients.