|May 8, 2000
For myself, our children, especially our 12 year old son who has, as yet, little understanding of his father as a public figure, and for Gary’s extended family, I want to thank you for taking the time to remember Gary and to think about his contributions to the work and dreams we all share.
Whether you worked with Gary for five minutes or a year or a decade or nearly 3 decades, as some of us at Harvard Law School have, his ambitious sense of the possible, his bedrock commitment to greater equity and fairness, his impatience with limits and his boundless energy and optimism were unmistakable. If you worked with him for even 5 minutes, likely you were pushed by him – to think more deeply, to read more widely, to practice law smarter and better. I think he would be touched, perhaps bemused by our tributes and accolades now that we have lost him (he knew this would happen when he died; in the past few years we occasionally talked about it), but he was --would be -- interested in only one thing: What are we going to do now? What projects will we take on? What agendas will we pursue? What will we do in the months and years ahead to make things fairer, more equitable?
In thinking about these things, I have re-read articles and comments
he wrote and looked again at videos of various events. It is striking
that most of his “scholarly” legacy derives from occasions where someone
or some group was trying to get something done. If the occasion was
commemorative (or self-congratulatory) then Gary would turn his energy
and intellectual and persuasive powers -- which we know were great -- to
putting an action item, a critical assessment, a wake-up call on the agenda.
Here are the most obvious themes:
Gary loved excellent law practice and he was practicing right up to the time he died. Since 1972, when I first met Gary, he was always working on cases -- consulting on big ones, true, but his own docket was typically 30 or 40 lower income clients with seemingly garden variety legal needs. (For one of the premier advocates of caseload limitation in legal services, Gary carried “on the side” a docket of the size typically advocated for a full time staff attorney.) In these cases Gary saw issues and challenges that ever engaged and taught him. He was a superb lawyer who just didn’t lose cases, no matter how improbable a successful outcome seemed to be. There are literally hundreds of poorly maintained files at the Center, most of them never officially “closed”, but outstanding results apparent. He took great pride in the lawyer’s craft and he was impatient with and intolerant of anything short of excellence. He made us all crazy, at times, when we didn’t produce the best for our clients, but he was ever ready to show and teach us how to do it better. After his heart transplant in 1998, he finished up some cases he had been working on before that 4 month hospital stay and then collaborated with his former mentee, now dear friend and colleague, Paul Collier on the end game of a fifteen year saga that began in 1984 with Gary and I representing 11 tenants suing a rich slumlord over outrageous conditions of disrepair. We had been awarded and collected over $200,000 for ten of the tenants and over $100,000 in attorney’s fees for the Center, but one case remained and Gary wouldn’t let it go! All this out of truly “garden variety” landlord tenant matters against a rich landlord who was as stubborn as Gary and just wouldn’t give in.
Gary loved being with and working with good lawyers. In a 1976 CLEPR report profiling leading clinicians in the country, Gary described his years after law school and the growing frustration and upset he felt at how poorly law school prepared its grads for practice. He recounted how he learned lawyer skills from Ken Pye, Bill Greenhalgh, and particularly a lawyer named George Shadoan with whom he worked at PDF in the early 60s. He never forgot that it was excellent practitioners, not professors, who taught him to practice, and he was ever aware that it was in circles and networks of expert (or aspiring expert) lawyers that we all teach ourselves and each other. It was inconceivable to him that there would be law school clinical education without a strong practitioner staff, alongside practice focussed faculty. In the 1976 CLEPR report he cited what he found to be the “over-controlled environment of a law school operated clinic and the under-controlled environment of agency offices” and advocated for “.. a modified system in which case load and supervision are controlled, but in the real life atmosphere….”
He said in 1976 that he wanted a “…reflective, self-taught practice in a pressured real world setting…Students have to learn to be taught by the experienced without being overwhelmed by them.” His vision, which fit Harvard’s peculiar needs, opportunities and resources, was a full fledged teaching law office, which he outlined in the CLEPR report. He then went out and did it. He was continually innovating, criticizing and working to improve our teaching law office right up to April of this year. I have on my desk 3 or 4 memos sharply critical of Center practice in some areas, and I have to get busy working with our staff to fix these lapses.
Gary infused his teaching and practice with activism and reform projects. In the fall of 1967, Gary was invited to speak as part of a symposium in honor of Harvard Law School’s 150th anniversary – a self-congratulatory occasion if ever there was one. Gary followed Justice Brennan and another distinguished speaker. His topic was legal services for the poor, a program then in its infancy and already controversial and under attack. He message was to criticize what he termed “…the very narrow assumptions..” that informed the emerging program.
He had (as usual) 3 main points: First, he said it was a mistake to separate legal services for the poor from the more general problem of unavailability of legal service to “..much of the rest of the nation..”. He called for technological and other innovations to reduce costs of service, exploration of legal insurance programs, and believed that involvement of the private bar on some type of judicare basis, in addition to staffed legal services offices, was critical to any effort to meet the needs of the vast numbers priced out of the fee for service system. Second, he argued that we ought to stop giving lots of clients a little bit of help, inevitably compromised in quality and aggressiveness. He called for, in appropriate cases, delegalization and increased use of lay advocates so that lawyers could set priorities and choose carefully in order to benefit the larger community of disadvantaged clients. As he later elaborated in “Turning Solutions Into Problems”, he had found at CRLA ways (in addition to high profile litigation) to focus the impact of excellent, aggressive work, in case after case, on the institutions and practices that enmeshed and held down poor clients. Third and finally, he called for the bar to shoulder responsibility for reform of larger institutions, rules and distributive mechanisms to assure a fairer society, one in which those at the bottom would be considerably advantaged.
Justice Henry Friendly noted at the end of Gary’s remarks, “If anybody had retained any degree of complacency after listening to Mr. Justice Brennan, and Mr. Wright, they certainly don’t have it now.”
That was Gary, challenging and upsetting complacency in the loftiest
of settings, in 1967 and in the year 2000.
Gary’s bright, shining light is gone now. Our challenge is not
so much to act in his script or to pick up his projects and run with them,
though many of us will. Whether we agree or differ with his visions
and approaches is not the issue, we will honor him best by being
as smart, savvy, opportunistic, eloquent and dedicated as we can be, in
whatever large or small way, to making our society fairer and better than
we found it. Gary certainly did that and he had a great time doing
it! So should we.
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