For myself, our three children – Douglas, Courtenay and David, for Gary’s and my three sisters and brothers in law and for all the nieces and nephews, I accept this award for Gary’s Lawyering Process book.
We all thank you for joining us today to remember Gary and his wonderful life; and we extend our heartfelt thanks to those who could not be here but who have shared in the extraordinary outpouring of notes, letters, and e-mails, telling us and the larger communities in which Gary worked and lived how much the life he chose to lead and the causes that he championed meant to them. We will treasure these remembrances from friends, students, colleagues, and acquaintances -- some barely that -- whose paths intersected Gary’s, perhaps just once, but for whom that moment was significant, even formative.
Gary’s and my colleague and friend David Wilkins had it right when he said in his tribute to Gary that the Lawyering Process case book “translated Hart and Sacks' legal process theories into the legal services context to produce rich and important insights about lawyering.” The book and all of Gary’s work at Harvard owes a great debt to Al Sacks who both brought Gary here and, by wholeheartedly supporting Gary’s proposal to create, within the school, a teaching law office, made it possible for Gary to stay.
In 1978, the year the book was published, and a year before we started what is now the Hale and Dorr Legal Services Center, Gary wrote in the NYU Law Review,
“I find it puzzling that we have done so little to understand law as modified, structured, altered, changed and lied about in relationships between people. All the major conflicts of legal education and jurisprudence – competition and cooperation, stability and change, rule and discretion – are played out in interactions between lawyers and clients, lawyers and other lawyers, lawyers and judges. Yet rarely do we seriously ask how law is created in these contexts or what the experience of the practitioner actually is in these situations. Rules have different meanings when argued to a court than when used in a negotiation. Nor do facts have the stability we often attribute to them, especially when restructured again and again in the progress of a lawsuit.”
The Lawyering Process book was Gary’s effort to describe and analyze
these law making and law enforcing functions of the practicing bar.
It was also an effort to understand lawyer skills and the synthetic and
personally demanding tasks of “lawyering”, particularly of doing
law work for clients. Gary told me many times that he always wanted
to be a lawyer. He did become a superb lawyer; and the continuing
refinement and deployment of his craft skills -- in the courtroom, in deposition,
with a client, bargaining with an opponent, mastering every aspect of his
case, working and reworking his strategies and theories, -- was an enduring
source of satisfaction and learning for him. The book, and a huge
part of his teaching, was an invitation to his students to join him in
the fascinating and ever challenging work of practicing law at the highest
levels of excellence for ordinary people.
“In this life…we worry about things, think about injustices, read what Tolstoi or Ruskin ….has to say….Then, all of a sudden, the issues is not whether we agree with what we have heard and read and studied…the issues is us, and what we have become.”
Gary dismissed the possibility that in becoming a skilled and effective lawyer we would not be changed. The question for him was always in what ways would we be changed and had we maximized the opportunities for choice and redefinition; what balance would each of us strike between useful, even necessary accommodations on the one hand and resistance to role demands on the other, particularly role demands that rationalized the continued exclusion of poor or disadvantaged clients from the full benefits and strategic possibilities of highly skilled and dedicated advocacy; or that justified mediocre results as “the best we can do” or all that the judge or the “system” or the present rule configuration would allow. He hoped that the book would expose the malleability of perceived constraints and encourage lawyers to push their limits or to define new, better roles.
Every ounce of Gary’s tremendous capacities as a lawyer, as a teacher and as a really smart and persuasive guy, were devoted to assaulting the complex of constraints, roles, beliefs, and institutions that told us and taught us that it was not possible or practical or feasible to do much more than we were already doing for those who lacked resources, or power, or, in some cases, even hope. He routinely challenged all forms of complacency. He was sharp in his critiques. But most of the time the sheer force of his energy and joy and his incredible persuasive powers built consensus – caused people who shouldn’t have been in his radical camp to believe that the project or approach he advocated really did “make a lot of sense”.
Gary’s work was devoted entirely to a critical exploration of the ways in which law, lawyers and legal institutions could aid have-nots. He inspired hundreds – perhaps thousands to join him in this effort, but I don’t recall that he ever urged a student or a young attorney to take one type of job over another. Wherever they were headed -- large firm, government, the academy or a small legal aid office -- he always had an agenda of useful work that needed to be done in that place, work that would move along the larger projects of equality and justice. Typically, he also had some cautionary advice on the pitfalls and seductions that would lead to dead–ends or ineffectiveness, not only in the big firm but in the small legal aid office.
Certainly every single person who is here and every one who has
taken the time to write to me or to the children or to our family admired
Gary, but not just for his enormous talent , intelligence, skill and dedication.
We were all drawn to his energy and to the joy and enthusiasm he had for
his work and his life’s projects. There was no hint of burden or
world weariness or self-sacrifice in Gary’s passionate embrace of legal
aid work and what he understood as its potential to alter the balance of
power and privilege in our society. While he seriously engaged the
complexities and barriers to structural and institutional changes,
he never felt that there was “nothing we could do”. He always found
some tack, some strategy that skillfully and smartly deployed yielded results,
would get us to the next place and then we could see where we were and
figure out what to do next.
Thank you for this wonderful award and thank you all for being with
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