Juris Magazine- Winter 1978

路 .. his career broug,h t honor not only to himself but to Duquesne University School of Law

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IN MEMORIAM Judge Austin L. Staley "Four things belong to ajudge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially."

Socrates TO HEAR COURTEOUSLY Judge Staley was not a man who lacked firm convictions or hesitated to express them in forceful terms. But in conference, he sought to persuade rather than to overwhelm .

He was always willing to listen carefully to the views of his colleagues rather than to reject outright a position contrary to his own.

Hon. Joseph F . Weiss , Jr. Judge of U.S. Court of Appeals for the Third Circuit Jud ge Staley and I have been close perso nal friends for approximately forty years. For many years, prior to his elevation to the bench , we were partners in the practice of law .

He was a kind and courteous ma n at all times, and he was a very capable lawyer and judge .

A. E. Kountz, Esquire He enjoyed and strongly encouraged open, frank, and robu st debate and argument with his law clerks on the cases which were the subject of his work. And, because he had an open and ever searching mind , he was always willing to be convinced, but only by reasons which were sound, cogent, and based upon solid legal principles.

Paul A. Manion, Esquire Former law clerk to Judge Staley

TO ANSWER WISELY Judge Staley wrote 353 majority opinions, 17 dissents, and four concurrences ... The small num bers of concurrences and dissents reflect his philosophy of searching路 for a judicial consensus.

Hon. Josep h F. Weiss, Jr. Judge of U.S. Court of Appeals for the Third Circuit A measure of the man is to be found in the circumstances of his voluntary relinquishment of his office of Chief Judge ... to assume ... (the) status of Senior Circuit Judge . Judge Staley elected to become a Senior Circuit Judge at the age of sixty-five, the earliest age at which the law permits an active federal judge to make that election. In so doing he enabled the President to appoint a successor while he would continue to sit and to share in the work of the court as a Senior Judge . Thus , he wa s willing to give up the office of Chief Judge and assume a less celebrated and conspicuous judicial role, albeit a most useful one , in order that the

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AUSTIN L. STALEY (1902-1978)

judicial manpower available to an overburdened court might be increased. A second motivating consideration is one that he would not pu blicize , although I can properly do so. His age and mine are abou t the same. So though hc could have continued five years longer as Chief Judge , he was concerned that he not continue so long as Chief Jud ge that I would, by reason of age, be de prived of the opportunity to se rve as Chief Judge of our court. On both counts, his motivation was selfless concern for the administration of justice coup led with fraternal regard for all of his colleagues and particularly his administrative successor.

Hon . William H. Hastie Late Chief Judge of U.S. Court of Appeals for the Third Circuit, 6 Duq. L. Rev. 215,216 (1967-68) His opmlOns were marked by their clarity, brevity, and decisiveness , characteristics which are greatly cherished by the Bar. After reading one of his opinions , one knew exactly what the holding was and what had been decided .

Hon. Joseph F. Weiss, Jr. Judge of U.S. Court of Appeals for the Third Circuit

TO CONSIDER SOBERLY The Judge was blessed with a keen analytical mind which enabled him quickly to penetrate to the heart of any case .

This uncanny ability was perhaps never more apparent than at oral argument when , with one or two probing questions, he would expose the core of even the most complex piece of litigation .

Paul A. Manion , Esquire former law clerk to Judge Staley He was a skilled mathematician . He had more intellectual curiosity than anyone I ever knew. He was never satisfied until he had mastered a problem all the way to the bottom and in all of its ramifications. He was the only law student whom I knew who could explain intelligen tly and step by step the procedure by which a land owner at common law suffered what was then known as a 'common recovery ' in order to bar an entailed estate .

Judge Staley's continuing insatiable desire for knowledge , his relentless search for the truth, and his tolerance only for the highest standards of excellence in our profession were the qualities which made him a prodigious lawyer and judge .

Hon . Hugh C. Boyle, Senior Judge of Court of Common Pleas of Allegheny County and classmate of Judge Staley's at Duquesne University School of Law

TO DECIDE IMPARTIALLY Judge Staley remained an avid cigarette smoker, though he wrote the opinion in Pritchard versus Liggett and Meyers, holding that a cigarette manufacturer might be held liable for lung cancer of a customer who relied on deceptive advertising.

Hon . Joseph F. Weiss, Jr. Judge of U. S. Court of Appeals for the Third Circuit My firm brought an action in behalf of a client to prevent the use of our client's trade name by the defendant in a related business . The District Court Judge refused to grant us relief. On appeal , this Court reversed with an opinion by Judge Staley in our favor .

Three years later, the same client sought an injunction to prevent another defendant from using customer lists furnished to the defendant. The same District Court Judge again refused the injunction, but this time the same panel of the Court of Appeals affirmed, with an opinion by Judge Staley .

When the same plaintiff, with the same counsel, with the same District Court Judge, with the same Court of Appeals panel, with the same Judge writing the opinion , in the same general area of unfair business competition, wins one and loses one , that, in my view , is the best example of evenhanded justice.

Louis J . Coffman , Esq. President of the Pennsylvania Bar Association

Edited by Mark Zimmer

the

final iudgment

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we will miss him Several years ago when I first became Dean of Duq uesne Law School, a good friend of mine, a graduate of Harvard Law School and a prominent practitioner in the City of Philadelphia asked, " Ron, is it possible for one to go to evening law school and receive a decent education?" My answer was that some of the most outstanding students at Duquesne Law School were members of the evening class.

Duquesne's Law School was founded in 1911 for students like Judge Austin L. Staley. In varying times in his professional life, Judge Staley worked as an Assistant City Solicitor, as a Director of Pennsylvania's Workmen 's Compensation Board, and as Deputy Secretary of Labor and Industry for the Commonwealth of Pennsylvania. But, more importantly, prior to coming to Duquesne he held jobs which ranged from working as an inspector in a steel mill to running his own produce company. Although Judge Staley graduated from our law school in 1928, he did not receive his college degree until 1963 and even then it was honorary. Judge Staley was admitted to our Law School not ever having attended college, bu t his career , his scholarly judicial reputation, his becoming Chief Justice of the Third Circuit Court of Appeals demonstrate that a college degree is not a prerequisite to distinction. Judge Staley 's career reflects the reason for the existence of Duquesne Law School. We perform the gatekeeper function providing people of ordinary birth the opportunity to compete for the highest office. His career brought honor not only to himself but to Duquesne . His concern about his alma mater and his consistent attempts to assist us in any way he could reflected his commitment to Duquesne.

We will miss him .

Ronald R. Davenport

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JUDGE AUSTIN L. STALEY •

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I had never heard of Senior United Sta tes Circuit Judge Austin L. Staley when he passed away on August 3, 1978. I first heard his name when I was given this assignment. As could have been expected, I had a lot of questions.

Who was Austin Staley and what did he do? He was a lawyer and a judge. Ad mitted to the Pennsylvania Bar in 1928 Austin Staley practiced law in Pittsburgh from that time ~nti1 he became Assistant City Solicitor of Pittsburgh in 1934. In 1935 he became a Deputy Attorney General for the Commonwealth and in 1936 a Director of Pennsylvania 's Compensation Board. Prior to his return to private practice in 1938 Austin Staley served as Deputy Secretary of Labor and Ind~stry for the Commonwealth of Pennsylvania. From 1942 to 1950 he was a partner in the firm of Kountz, Fry, Staley & Meyer. In 1950 President Truman appointed h.im judge of the United States Court of Appeals for the Thud Circuit. Judge Staley served that honorable court until his death - first as Judge, then as Chief Judge and finally as Senior Judge.

In recognition of his outstanding service to the bench and bar, St. Vincent College awarded him a richly deserved LL.D . in 1963 and the Duquesne University Law Review dedicated an issue of its sixth volume to him.

Some of his greatest accomplishments came in the field of labor law. When Rev. Father James L. Cox led his "army of unemployed" to Washington in the early thirties to demonstrate the plight of the poor, Judge Staley was in the background as the "army's" executive director. That effort resulted in the Social Security Act. Judge Staley helped Pennsylvania Senator Joseph Guffey write the Guffey Bituminous Coal Act. This act was the first piece of legislation recognizing the right of collective bargaining . While this act and the National Recovery Act (using identical provisions) were declared unconstitutional, they laid the ground work for the Wagner Labor Relations Act of 1935 which finally secured the right of collective bargaining.

Naturally after I had seen these accomplishments, I wondered what type of education Judge Staley had to prepare him for such tasks . He graduated from Peabody High School in Pittsburgh and attended Connors Private School.

Although he never went to college, he attended Duquesne University School of Law from 1925 until 1928 when he graduated with an LL.B .

Although the educational profile on his resume would never state it , I have a feeling that Judge Staley would probably tell you he received most of his ed ucation in the various jobs he held prior to law school. From 1916 to 1919 he worked as an inspector in the Bar Mill for J & L Steel at the rate of 20¢ an hour. For two years in the early twenties he worked as a cowboy for the Thickrb Ranch in Burbank, California. Just prior to his admittance to Duquesne he was a fireman for the Pennsylvania Railroad, and while he was attending law school he was the sole owner of a produce company . As the list of accomplishments shows, this type of education served Judge Staley as well as or even better than a college ed ucation .

With such a diverse background, the Judge must have been intriguing in person. He described himself in a little piece he wrote entitled "The Saga of the Judge, The Frenchman and Magans Bay" as follows:

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"The Judge : He is a big man, a semi-retired Senior Judge of the U.S. Court of Appeals, and fat. He has a gravely voice . You note that his fingers are peculiarly soft and delicate for such a big man as he frequently readjusts his rimless glasses on his nose."

Near the end of the story the au thor inadvertently allows the reader to view the wisdom he possesses . The Frenchman has just risked his life in an unsuccessful attempt to save a frogman from a shark . The author continues: "The Frenchman was hailed for his courage and knowledge of the ways of sharks , but for him it was a pyrrhic victory. The Judge did not see it that way at all.

He had lived long enough and seen enough to realize that man can only do his best."

My research for the "In Memoriam" piece that accompanies this article revealed that no one who knew the Judge ever talked about him withou t mentioning his grea t personal charm . Besides noting that Judge Staley was a devoted and loving father and husband, Judge Hugh C. Boyle, a long time friend , said that he could say much "about his ability as a cook, about hunting and fishing trips, even about his courtship , and the humorous incidents which occured on these occasions."

In addition to being humorous, the Judge must have been something of a wit. A story appears in the Memorial Resolution of the Judicial Conference of the Third Circuit that involves young Lawyer Staley in the days of the depression. As he and his young wife walked by the county jail, a prisoner and former client yelled out, "Look where. I've ended up because of you , Staley'" The young lawyer qUickly reminded the prisoner that perhaps he was better off than those on the outside -- he did not have to worry about the source of his nex t meal.

Almost without exception the distinguished gentlemen who spoke of Judge Staley at the memorial proceedings in the Third Circuit mentioned his love of fishing, gardening and cooking. His former clerk, Paul A. Manion, spoke of his ultimate humanity and generosity which led to the "Staley Scholarship Program"-- a practice the Judge had of appointing to his staff Duquesne Law students from the evening division. Many of the people who benefited from this opportunity are now leading mem bers of the bench and bar.

The Judge's personal friend and former law partner, A. E. Kountz, though t that the poet Fitz Green Halleck summed up his feelings on the occasion of the memorial service: "Green be the grass above thee , Friend of my better days .

None knew you but to love you, None spoke except to praise. " Of all the people who commented on Judge Staley's personal charm and appeal perhaps Frank Micale, one of his last clerks, said it best while he was helping me get some background information on the Judge. "You're going to write an article on the Judge? Do.a good job . He was a great man and a helluva guy . They don't make them like that anymore."

It is for that reason that JURIS joins Judge Staley's friends, relatives and colleagues in their time of sorrow.

While they suffer a sense of loss at the paSSing of a man they knew, I suffer a greater loss with the knowledge that I will never know him.

Juris Editorial Board

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JURIS TALKS WITH CAROL MANSMANN APPELLATE ADVOCACY

JURIS: Could you give us your biography since law school and tell us how you became involved with appellate advocacy?

MANSMANN: Sure. I graduated from Duquesne Law School in 1967. I then worked for Judge Ralph N. Smith, Jr., in Common Pleas Court as his clerk.

I went from there to the District Attorney's Office and worked in the Appeals Division. I also tried some cases for experience, homicides, so I would have trial experience and know what was going on there. I left the DA's Office, went into private practice with my husband.

We had a law firm, Mansmann & Mansmann. I began teaching at Duquesne in the fall of 1974 and that was at the very same time we were contacted to handle these abortion cases, to represen t essentially any State Departments -- Public Welfare, Department of Health, the Attorney General -- whenever sued on the Abortion Control Act. For the most part, I am not chiefly in private practice.

Essentially what I do is prepare selected cases and, of course, teaching here as well as being a mother, because I have three children and I very much want to raise them .

JURIS: What are your du ties here at the Duquesne University School of Law? MANSMANN : I teach Agency, Criminal Law, and Sex Discrimination Law. Also I'm the fawlty advisor for the AppeJlate Moot Court Program.

JURIS: How did you get involved in your most recent U.S. Supreme Court case?

MANSMANN: Interestingly enough , the way I got involved in my most recent case is that I argued another abortion case in the early 1970's while working at the D.A.'s office. We had a conviction here in Allegheny County of a physician who performed an abortion on a young co llege girl from Ohio and she died the following day . When you read the facts proven at trial you're stunned at the fact that he was even a physician . He perforated the uterus. The fetus was never expelled . It forced itself, because of the perforation and puncture , through the uterine wall and the young woman died of shock and loss of blood the following day. The doctor was prosecuted under an abortion resulting in death statu te, was convicted, and he appealed.

Our Supreme Court then held off their decision until Roe v. Wade came down, and on the basis of that, had to strike the statute, because essentially it prohibited all abortions.

JURIS: What was the issue involved in your most recent U. S. Supreme Court appearance?

MANSMANN: This particular cas~ is the very last issue left that was challenged in the Abortion Control Act. The act was passed in 1974; it went into effect in October of 1974 over the veto of the Governor. The act regulates abortion, prohibiting it from viability of the fetus onward, except where the mother's life or health are at stake.

After a trial in the Federal District Court for the Eastern District of Pennsy lvania that I was involved in with my co-counse l, my husband, several sections of the act were declared unconstitu tional; others were declared constitutional. Both sides took an appeal to the U.S. Supreme Court and essentially what Ule Court did was to rule that everything that the Commonwealth won was affirmed and everything the Commonwealth lost was lifted. The Court remanded the appeal to the court to rethink the decision in light of a case then handed down: Danforth v. Planned Parenthood. We got together then with the other side and the only thing we couldn't agree upon was one section, Section 5a of the statu teo That particular sta tu te requires that a physician who is going to perform an abortion -- it really says "any person," but because only physicians are permitted to do it under another section we read in "physician"-must make a determination that the

fetus is not viable. The reason , of course, is that the Supreme Court in Roe v. Wade and Doe v. Bolton, tne 1973 landmark abortion cases, says that a state may legislate to protect the unborn child from viab.ility onward because the interest of the state is compelling on behalf of the unborn child at that point.

Now in the second part of that section it sta tes tha t if the physician makes a determination that the fetus is viable or if there is sufficient reason to believe that the fetus may be viable, then the physician has to use an abortion method that essentially produces a live birth, so long as the condition of the mother doesn't mandate another -- such as her life or health. If the mother's condition mandates another method , then he may go ahead and use that method, even though it might kill the baby . The physicians, who are the plaintiffs in the lower court, argued that the phrase, "may be viable," was unclear and hence unconstitutional.

JURIS: Void for vagueness?

MANSMANN: Void for vagueness. And they said if you are using the words "may be viable," that language carves out an additional time period prior to viability . Essentially what they are saying is that this whole section should be taken in parts rather than read together.

And takjng it in parts means that first the physician has to make a determination that the fetus is not viable. But if his determina tion is that it may be viable, then he would have to use a procedure to safeguard the life of trus viable child . So nobody is confused in thinking Ulat we are trying to prohibit abortions, abortions can be done. It's just a question of whether the baby is going to be live-born or not.

Now, we were representing the Attorney General, who was sued independently, and the Commonwealth of Pennsylvania, and our position was that all those words were intended to do was to tell the physician that there is an objective standard that is governing him . No physician is going to say that an unborn child is absolutely 100 percent viable.

When the child is in utero you can't tell that. All he can say is that, based on what he knows about this particular patient, her menstrual history, her past obstetrical history, upon medical knowl-

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edge and skill, the approximate age, weigh t and size of this fetus and its general health, this fetus has a medical statistical probability of survival. That's aJJ that statutory line was intended to mean . We're just letting the physicians know that since medical research is based upon sta tis tics the physician may utilize whatever he utilizes in practice every day.

This particular statute was written 18 months after the Supreme Court decision in Roe v. Wade . There was no intention to circumvent or undercut this decision .

What the legislature did was to interpret into "legalese" what physicians do every single day . These physicians essentially said in their depositions tha t there was no problem with judging viability. PhYSicians aren't going to differ on viability; if they differed, it was at gestational age.

The Supreme Court said in Danforth v.

Planned Parenthood that gestational age alone is insufficient" as a judgment. Consequently, the standard of viability tha t wa s set forth in Roe v. Wade is the only one that is certain enough for legal proof.

JURIS: What happened a t oral argument?

MANSMANN: The briefs were due in June. The Court called the case on the second day they sat -- October 3. Each side was given a half hour of argument, which is customary. Because we lost in the lower court, we were the appellan ts, and I was first up for oral argument. In other cases that we had watched the day before, the Court, though asking a number of questions, was essentially pretty silent. For the most part they listened to the arguments that were given, the prepared texts and speeches.

I got up, introduced myself as an Assistant Attorney General because I was listed at a Pittsburgh address and I wanted to be sure that the Court understood that I represented the Commonwealth of Pennsylvania . I began with the language of the statu te and told them in a nu tshell what Pennsylvania law provided as far as, abortions were concerned.

That was as far as r got into my prepared text -- one-half minute into my prepared text -- and never got to give any part of it. The questions were started by Burger and Stewart. Then followed question after question. In fact, they were interrupting each other to ask questions. That's how vigorous the argument was. The primary concern in all of

these questions was that responsible physicians are going to be confused and -- I don't know how to put it -- "irresponsible" prosecu tors are going to be bringing them into criminal courts all over the country. Essentially, I answered their questions and tried to remain firm that the statute announced an objective standard; that we're not talking about the dictionary definition of the words "may be viable" , we're talking about physicians, ob-gyns -- those who deal with mid-term or late-term abortions and their techniques. They're the ones who have to interpret this.

I attempted to show that there wasn't any discrepancy as far as viability was concerned. Discrepancy was centered arollnd gestational age at trial. One justice screamed ou t at me tha t he had a dictionary and his dictionary says that "may be viab Ie" is not the same as "is viable." I attempted to remain firm by countering, "But we're not talking about your dictionary, not a dictionary definition , We ' re talking about medical de fini tio ns."

JURIS: During the argument was there any time that things got out of control between you and the Court?

MANSMANN : In the heat of all of this discussion, the only time it got out of hand was with Mr. Justice Thurgood Marshall. He set up the example that a prosecu tor migh t say tha t the fetus is viable; Marshall's three experts will say the fetus is not viable. 1 then said, "We will not have that discrepancy at the trial, because viability is the issue. Physicians will not disagree as to viability.

The only relevant evidence under our statu te is what the physician knew prior to the abortion, based upon what the prevailing medical arts are in his community. We're not talking about some neo-natal center in CinCinnati or Boston.

We're talking about the country doctor.

We ' re talking about what's known to him about his patient. It's his professional skill, expertise. determination that we're judging." Marshall screamed at me that he said those three experts had said that. I responded , "You can get experts to say anything ." I said to him, "The question is, has the prosecu tion proven its case beyond a reasonable doubt; and if there is a reasonable doubt because of expert testimony, this physician cannot be convicted under Pennsylvania law."

The building alone is intimidating ... " 6

He seemed very upset by my answer and responded something to the effect that he knew a lot of people who couldn't afford three experts, and he knew a lot of people who couldn't afford one expert. I then responded, "I probably couldn't afford three experts, but the point is not whether you can afford experts or not, but has the prosecu tion proved its case . And he then sa id, "Well, are you going to tell me that some doctor who goes into an operation where he is going to ampu ta te a leg and by accident cuts off the person ' s head, are they .going to be prosecuted under Pennsylvania law? " I believe Marshall meant to say "cu t off the other leg." I pointed out to him that decapitation is rather serious; it's a homicide under Pennsylvania law. We could certainly prosecute him. And I said, "I apologize to the Court. I certainly meant no offense or disrespect." He brusquely said, "just go ahead and answer." He looked me straigh t in the face and I realized that he understood there was no personal affront intended by me. The newspaper reports misinterpreted that as almost a personal conflict between the two of us which really was not wha t Marshall intended. All the newspapers around the country that carry articles from the Washington Post had this little personal confronta tion .

JURIS: What happeued after your discussion with Justice Marshal!?

MANSMANN: Then I addressed the question of the "responsible" physician .

The Court's opinions all talk abou t the responsible physician and its concern seems to be for them. Let me tell you how responsible these physicians really are. They bitterly fought pregnancy testing. They did n 't want to have to do that prior to doing an abortion . They didn't want to tell their own patients the procedure they were going to use ; they didn't want to tell them of the complications; they didn't want to tell them all the alternatives. And then I brough t ou t the trial testimony of Mary Ann Gallagher, who is a reporter for WCAU-TV. She was one of our witnesses. She had gone around on behalf of her television sta tion pretending that she was under 18 years of age, tha t she thought she might be pregnant, and was worried, was scared. She went to hospitals and clinics in the Philadelphia area and practically to a one, some with pregnancy ' testing and others without any whatsoever, pu t her up on the table and started the abortion procedure before she said , ''rve changed my mind.

I don't want to go through with this."

What I was saying to the Court was, you're concerned that the responsible physician is going to be hurt, look at

what they're doing. Physicians are saying, "We want to be above the law."

They wanted to be above it as far as pregnancy testing and they got "hammered." They can no longer fight that and now we're seeing the same arguments with respect to the viable child.

Our statute says if you do a procedure after viability you've got to attempt to save this baby's life. The parents want the abortion and they can get it under Pennsylvania law by saying that their mental health due to the possibility of birth defect is at stake . They can get the abortion, but they want a dead baby.

They don't want this baby to live.

The physicians are say ing they should be able to make the judgment to destroy the child. They are also saying that if the deformed child is even as old as seven or eight and still living it is not leading a meaningful life, therefore it's not even viable at age seven or eigh t.

And I said, "With all due respect to the Court, I don't think any of us is in a position to judge what is a meaningful life that brings abou t constitutional protection. What is meaningful and what isn't meaningful? This Court is in no position and those physicians who in so many si tua tions we've seen to be unscrupulous as far as the woman patient is concerned, they're not able to judge. I wouldn' t let them judge meaningful life either. I said, "Pennsylvania law has clearly decided that the unborn child , if viable, but maybe defective, has a right to live. And this Court can't step in now and say "No, the state doesn't have the right to do that." I emphasized our fear that we could lose this whole thing on poor choice of words because the legislature stuck in a couple of words that maybe the Court migh t now thin k are vague. Bu t the proposi tion that all of this stands for, that the defective child has the right to live, shouldn't go down the drain. And so I said, "Even if you strike the statute, give us one line that says the state may legislate with respect to viability to protect the unborn child, even though it might be defective."

If physicians have the power to determine what is a meaningful life, who is to say they will apply it only for the grossest defect? Who is to say, really, that it can't go from what we consider to be the worst possible defect, mental, motor, whatever, down to the very slightest?

It's a child with a low socio-economic background, a child where the family wants a boy and they've got all these girls, and it's a girl -- the wrong sex, the wrong race, the wrong background.

What disturbs me the most I think is that essentially this Court might make a statement that is interpreted to

mean handicapped people have no constitu tional protection or that their righ ts are less than those who enjoy good health.

JURIS: What, if anything, did you say on rebu ttal?

MANSMANN: I got up on rebu ttal and mentioned that there was really an underlying question to a great deal of testimony in the lower court, and that was, "Essentially what is an abortion?"

I s an abortion a termina tion of pregnancy? Or is it the termination of pregnancy plus the production of a dead fetus?

We maintained at the lower court level, and now before this Court, that we have two different philosophical arguments that are clashing sharply here.

JURIS: Were there journalists in the courtroom?

MANSMANN: The Court broke for lunch and got up and left. I turned away from the podium, then said a few words to my opponent , and then I turned around to find all these reporters there .

They had their cameras set up on the steps outside. I went outside and spoke with ABC , NBC, CBS, and Group W reporters. The plaintiff, Dr. John Franklin, had come down for the oral argument. He came up to my co-counsel and said, "You know, basically I don' t disagree with a great deal of what Carol had to say ." That was a big surprise . Wish the Court had heard that one!

JURIS: Were any amicus briefs filed?

MANSMANN: Yes, four. There was a very interesting brief that was filed on behalf of 53 physicians. Another was filed -- someone asking to be a guardian ad litem for the unborn child . Another on behalf of the Catholic Church argued that the unborn child should be protected from conception onward. It was something a little different from our argument. There was a fourth one filed

by Americans United For Life that essentially followed our argument.

JURIS: Did you receive copies of the amicus briefs?

MANSMANN: Yes. JURIS: And do those who submitted amicus briefs have your briefs 'llso?

MANSMANN : They essentially know what our arguments are going to be on the basis of our jurisdictional statement.

JURIS: Did you have a strategy going in, going before the Court? Did you want to aim your argument at particular justices?

MANSMANN: No. What I was aiming my argument for was, first of all, to make them aware that we do have a problem when you get down to the street level, that maybe the lofty Court doesn't see because they're not on the street. We have the problem, and now the problem is complicated because the physicians are saying they are above the law .

JURIS : Do you have any predictions for this one?

MANSMANN: I have some feeling it will be a split decision . What I'm hoping for is that they will give us one line that says, "We are not saying that the state cannot legisla te from viability onward -the state does have the power to do that." That would be a tremendous win.

JURIS: What stresses and strains did the appearance before the Court pu t on your family? They must have felt your tension.

MANSMANN : Sure. Preparation time is ex tensive. I had to u pda te th ree years of medical literature from trial. The Court's entitled to know what's happening in the here and now, not three years ago. I spent about a month in preparation time. This meant, because I teach and have other things going on, a grea t deal of weekend time was spent on this and that means that the family just has to put up with my being gone at the office or locked into a room at home,and the rest of the world has to go by during that time.

JURIS: What role did your husband play in the case?

MANSMANN: In the lower court he was the lead trial counsel. He was also the case administrator for all the paper work . I was responsible for the brief and the oral argument. He did research with me ; and we, of course, discussed arguments the whole time .

JURIS: Perhaps our readers would like to know what you wore in your appearance before the U.S. Supreme Court?

MANSMANN: The Supreme Court lets you know that formal business attire is the appropriate dress. The only people who adhere to the tails,the formal dress, are members of the Soliciter General's sta ff.

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I was teased a great deal the very first time I was going down there. And everybody said, "Do you have your long black dress and are you carrying your dozen of long-stemmed roses like the concert pianist?" I wore business attire.

This time I wore essentially a grey flannel dress that had a vest. It was a creamcolored top with a grey flannel skirt and the vest was trimmed in grey flannel. It was conservative business attire, courtroom dress.

JURIS : Would it be appropriate for a woman to appear before the Supreme Court in slacks?

MANSMANN: I have no idea at all how the Court would feel abou t that. It' s my position that I'm not representing how I want to dress that day . And because I do n't ever want my client's int erests judged on the way I look , I always try to look my most conservative, so that there's no question that there might have been some judgment on how I looked rather than how I presented the case . It' s a question of professionalism, I think.

I was trying a homicide case one time.

The fashions then were hemlines way above the knee . And I was wearing not what I would consider a mini-skirt or inappropriate dress, but it was something that was in fashion at the time.

Everybody was wearing it. I t was a dress.

It was above the knee . As the newspaper s do in homicide cases, they carry accounts of what the evidence was , and on one of the days, the very last line of the news article said, "The Assistant District Attorney was wearing a purple and grey mini-skirt." I read the newspaper that day and I had a heart attack when I saw that line. J actually flushed, you know, sitting at home reading this by myself; I was beet-red and furious .

I was furious because there was nothing in there about how brilliant I was that day, what a great argument, or what a great summation. It was mini-skirt. I learned my lesson. It' s not how 1 see myself but rather how the community sees me if I am representing the community .

JURIS: What did you say to yourself to prevent intimidation? You're in an austere setting, here are the justices -- that could be intimidating.

MANSMANN: Absolutely , the building alone is intimidating -- those marble steps and the pillaJs, the double columned pillars, before you ever get into the building . Then you walk in there -- more pillars, columns, all that pu rple velvet.

First of all, I listened to the questions they were asking other counsel on previous cases . And I listened to the rapport that they had with the lawyers. I've

8

been in front of them before and , yes , there is a tremendous amount of nervousness ahead of time . You're saying to yourself: Can I really answer their questions? Can I represent my client fairly? Will I make a fool out of myself?

I said to myself I really have something to tell them. They really want to hear me . That's why they've called me.

They have questions , they have problems with this, and I know as much about this case as anybody else in this room .

And that really gave me the confidence to get up and not be nervous at all. The Chief Justice , especially, is extremely polite to you. He looks like "Mr. Justice" himself anyway -- with all that grey hair.

I had heard a case a number of years ago when I was arguing before the U.S. Supreme Court for the very first time, a case where the appellant was represented by an elderly gentleman from Georgia who got up and explained that he was there without purse , meaning he wasn't being paid and that his daddy would have been proud of him and his granddaddy, and his great-granddaddy would have been proud of him . I thought any minu te one of those marshalls who is walking around telling everyone to sit up straight and don't chew gum is going to have a big hook and pull this guy right out. The Court couldn't have been kinder to him . They listened and the Chief Justice said something like, "We're proud to have you here, too." And then he began his argumen t. So I knew no big hook was going to come out regardless of how poorly I did. Let me also say, I couldn't ea t a full meal for two days before that. I really didn't. I had salad for two days and I prayed a lot.

JURIS : What other appellate experience did you have prior to your appearance before the Court?

MANSMANN : I was chief of the Appellate Division for the District Attorney's Office of Allegheny County. I worked there from 1968 to the end of 1972. It was abo!.!t 5 years' experience. J argued in front of the Pennsylvania Supreme Court, the Superior Court numerous times, the Third Circuit Court of Appeals, and in front of the U.S. Supreme Court on two prior appeals.

My first case was a substantial win . It was the search and seizure of an automobile : Chambers v. Maron . The second case was Mayberry v. Pennsylvania, which involved Richard Mayberry, who was a defiant defendant at trial.They remanded for a hearing.

JURIS: On general appellate practice, do you ever find, since appellate courts are in the business of making law , that they'll take a case that you think is going up on one appeal and decide it on another?

MANSMANN: Absolutely. That happened to me in Chambers v. Maron.

There were two main issues. The first was effective assistance of coun sel. The second was search and seizure of an automobile . We thought the reason the Court was taking the case was effective assistance of counsel. We went down there and the question right off the bat got to the search-and-seizure of the automobile . We were stunned. And all the questions dealt with search-andseizure of the automobile .

JURIS : Do you notice a difference between appellate bodies, say the Supreme Court of Pennsylvania vs. the Supreme Court of the United States, in terms of preparedness, acquaintance with the briefs, questions asked?

MANSMANN: The difficulty is always the number of cases. To give you an example, the Supreme Court of the United Sta tes sits from ten until twelve, then from one until three. They hear four cases . The Supreme Court of Pennsylvania sits all day long until they finish that list for the day and they may have as many as 15 cases that they have to hear. I can't make any judgment about preparedness on their part. What I can say from a practitioner'spoint of view is that your approach is different, because with the Supreme Court of Pennsylvania you have to get to the core and acquaint them with the problem just to remind them what you're doing there. Whereas, with the U.S. Supreme Court, they're only hearing four cases that day. You get up and you say it's the abortion case and they kno~ what the issue is. You can get to the heart of the matter. Now. see a big difference in the Third Circuit.

When you get up in the ThiJd Circuit you are told , we have read your briefs, and we know them, now tell us something you want to tell us besides that.

And then you go from there. But that's not true in front of either the Pennsylvania Supreme Court or the U. S. Supreme Court.

THE SOLO PRACTITIONER

by Mark Zimmer Attorney Richard D. Ballou graduated from the University of Scranton with a Bachelor of Science Degree. He received his Juris Doctor Degree from Duquesne University School of Law in 1971. During his third year in lawschool he was Chairman of both the Appellate and Trial Moot Court Boards and the Secretary of the Student Bar Association. Since graduation from law school and subsequent admission to the bar, Mr. Ballou has been engaged in the general practice of law as a solo practitioner in the rural area of Wayne County, Pennsylvania.

'~dvice to the third year law student;' Dick Ballou sat forward in his office chair, "I just thought of it and I'd better say it willie it' s on my mind . After the bar exam, take two or three weeks off for a vacation. It doesn't matter if you only spend it at home doing nothing. It will be the freest vacation you'll ever have as long as you practice law. From that time on your filing cabinet will always be on your mind. It will sneak up and hit you when you're watching television or out on the golf course."

The thought had come to him in the middle of an answer to a question regarding course structure in law school.

I wasn't taken too much by surprise .

The entire interview was being conducted in an informal manner and this aside seemed to reflect the mood of the morning.

Attorney Ballou had arrived at his office for the interview dressed in a striped polo shirt. As he carefully answered every question I asked him, he would puff on his pipe or stroke his beard depending on the degree of thought the question required. When he wanted to make a point, he would quickly remove his feet from the edge of the desk, sit up in his chair and point the mou thpiece of ills pipe at me. The remark on post bar exam vacations was just such a point.

After graduation from Duquesne University School of Law in 1971, Dick Ballou worked for a three lawyer firm in Homesdale, Pennsylvania. He received word that he passed the bar in October of 1971 and immediately started plans to practice alone. In January of 1972 he hung out his shingle. Since that time he has been a solo practitioner.

He describes ills practice "with semitongue in cheek" as that of a specialist

because he is a generalist. "I'm expected by my clientele and by the population at large in this area -- as are the other lawyers in the area -- to know quite a bit about everything." While he believes that the rural population will forgive a lawyer for not being an expert in all areas, he is certain that they expect a lawyer to have some expertise in certain fields. These areas are mainly Real Property Law, Domestic Relations, and Decedent's Estates. Dick expressed his personal belief that clients also like to see a lawyer who is well versed in crimina I law and personal injury law.

Since the rural practitioner must have a working knowledge of a variety of legal topics, I thought that Dick should be in a position to assess the various courses offered in law school in regards to their practical value . At the bottom of the list Dick Ballou placed the course on Uniform Commercial Code. While hoping that the course had changed since he took it, Dick said that the reason the course did not come across to him was that it was not taugh t conceptually.

"I always find that if I can tie one idea into another idea that I have learned, the new idea is more meaningful and of much greater use when I have to apply it."

"I remember when we were ninety percent through Professor Broughton's first year property course. We had just finished analysing a case when Professor Broughton said, "Doesn't that tie in with Pierson v. Post?' Well, when you went back to your room to study and think abou t it, the two concepts really really did make sense together."

"Doesn't the fact that courses like UCC are based on statutory law rather than common law necessarily mean that they will be more black letter and less conceptual?"

Dick jumped on the question, "It shouldn't." The concept becomes the policy of the statute. Tills iswhatshould be studied. When one of the nine municipalities I represent wants a new crdinance drawn, the first thing I do is specifically define the policy they wish to further before I sit down to start to write the ordinance. Once I have the policy before me, the rest is easy."

Dick believes that the most valuable course he took in law school was Evidence . "You never interview a client without the rules of evidence in the

back of your mind. You know that you're going to have to prove his case using those rules. If there is one course that should be expanded in its treatment in law school, it is Evidence."

That answer led into a hypothetical that I had composed, "Assuming that nothing has changed since you graduated from Duquesne in regards to courses and curriculum, what changes would you recommend to the curriculum committee if you were made Dean tomorrow?"

Dick took a long draw on his pipe, "Besides trying to find a way to teach UCC conceptually and expanding the course on evidence, I would lengthen the courses on Land Use Planning and MUnicipal Law . Both of them should be two-credit required courses. Both of these areas are changing so fast that all students should be made aware of them and the changes. Students should see at least where these areas appear to be heading."

To the suggestion that law school education be supplemented with either a one year clerkship, roughly analogous to the medical internship, or a one year school designed to teach the practical aspects of the practice of law, Dick was adamant, "Practicalities of practice can only be taught in practice." A one-or two-summer clinic with real courts and real clients seemed to be his idea of the best way for a student to prepare for practice . He informed me that he had just hired an associa te who was to join him after her vacation following the bar.

Willie she had not been an honor student in law school, she had had practical experience in various clinics. This, he said, made him decide to illre her.

I was curious whether he believed law school education de-emphasizes the fact that the law applied to people in their everyday lives. While Dick agreed with me that it did, he believed that this disassociation with the human element was necessary for a good legal education.

His reasoning stemmed from the belief that law school must teach you to use all of your analytical techniques. In order for this learning process to work, the student must see the facts, issue and conclusion in a completely objective setting. When the student has mastered the legal problems in an objective setting, he is prepared to deal with the added problem of the emotionally involved client.

9

Since our discussion had brought us to the point of interviewing clients, I decided to ask Dick whether he believed that law school adequately prepared a person for the interviewing of clients .

"Yes," he answered in all sincereity. "A client gives you the facts as he sees them and as he believes they are important.

He may very well be wrong . The lawyer must ask the questions that are pertinent to the type of case that the client is describing. Law school trains a person to know where the potential problems may arise in the legal concepts. The lawyer then asks the client the proper questions in order to get to the problems."

Dick was careful to draw a distinction between interviewmg clients and handling clients. There is a large difference here that becomes very apparent when the client is overbearing or eccentric.

In the area of handling clients Dick advised, "You simply have to draw from your experience as a human being." Apparently, the idea is that no school and no degree of educat;;) n can teach a person to interact effectively with others.

We had established that law school teaches a person to identify the problem in a given factual situation. The answer for this problem can usually be supplied after research into the proper area. I now wondered what Dick does with clients who want an answer immediately after they describe the factual setting.

After first implying that most cllents do not want answers that quickly, Dick said that when one does, it immediately raises "a red flag" inside his brain. The client is either under some kind of mental distress that should be easy to spot or he has been to other lawyers with exactly the same question . If the latter is the case, the client is not looking for a lawyer but a co-conspirator. Dick's usual answe t : "My good man, I've invested many thousands of dollars in law school to find out what the questions are. Now, I've also invested many thousands of dollars in books to find the answers. If you'll give me some time, I'll try to find the answer, but I don't have it righ t now. I find no shame in telling a client, 'I don' t know.'"

In another aside, Dick shared with me rus recipe for handling clients who will not believe their "legal" conclusion is wrong . This involves a four step proccss.

First, you advise the client early in the course of the interview of your hourly rate. Second, if the client is semi-spotting the issue and coming to a conclusion, ask him for his rationale. Third, if his explana tion continues for more than thirty seconds (which it usually does), diplomatically stop the client. Finally,

10

advise the client very nicely that he is paying you "x" dollars per hour to work on his case and that you have already started on that hourly basis; that it will take longer for you to unravel the client's misconceptions about what the conclusion should be; and that it is going to cost more money for you to give him a brief legal education in order for him to understand his error. The next move is the client's. When he has mellowed a little, you should inform him that he probably is right to a certain ex tent. After aU, he has a lot of common sense and law is based in common sense.

Since Dick had shared an insight with me, I felt that I could ask him what his preconceived ideas abou t practice had been like when he was in his third year of law school. Since he had been a Justice of the Peace and a real esta te agent prior to his attending law school, he felt that his view of practice was different from that of most law students. He had already dealt with lawyers and their clients.

"Those students who view practice through rose-colored glasses are in for a shock," he said. "Things just aren't arranged in the order of facts, issue and conclusion . The more realistic things never occu r to the studen t."

As an example of a realistic thing that never comes up in law school, Dick cited stalling tactics that the opposition in any given case may use to preven t a trial on the merits from ever occuring.

"I know that everyone comes out of law school wanting to set the world right," he said with a smile, "but a lot of times you have to roll with the punches to get that or any job done ."

"The one thing too many lawyers do when they come ou t of school is get cocky. Don't be impressed with your education . Lawyers are no better than anyone else. We are just the same as plumbers or electricians. We are Simply trained individuals who are needed by our clients to do a job that they cannot do for themselves."

Does he believe that the work of the lawyer has become more analogous to that of the technician than to that of an artist who crea tes and fashions laws'?

Dick admitted that lawyers are technicians, but believed that lawyers can also be artists. His belief is that once you master the technique, you are free to mold and shape the law as you hope it will develop. Dick referred to the writing of briefs, "You will find very few cases on point. You must argue from analogy. Here is where the artist comes out. If you're a good technician , the creativity appears." Dick even mentioned

Michelangelo as an example from the artistic world who mastered the technique of his trade first and then created great art works.

"If you let the technique become your master, you come close to being a businessman rather than a profeSSional in the true sense of the word. This you must not do ."

I found this last statement particularly interesting because I once heard an elderly member of our profession say that the trouble with too many young lawyers is that they view the practice of law as a business and not as a profeSSion.

Did Dick agree or disagree?

"In Wayne County I would have to disagree. Oh, there are one or two exceptions , not young lawyers either, but they are in the minority."

I posed a hypothetical situation as the last question of the interview, "Let's assume that [ am a third-year student with student loans to payoff following graduation; that big firm s don't appeal to me because of a personal preference; that I come to the conclusion that what I would really like to do is start my own practice; and that I come to you for advice, since I have learned that you did just that. What advice?"

Dick spelled out the following check list for the hypothetical third year student: I) Be either a native or well known in the area in which you plan to practice.

2) Justify your decision with your spouse jf you have one . Family obligations must comc first. Hc or she has seen you through law school. Make sure this is what he or she wants too. While it will not be as hard as law school , it will not be the "good life" for a wh.ile either.

3) Get a two room office and furnish it with second hand equipment. Don't look rich. Clients have a hard time grasping the idea that a new lawyer has the most expensive office in town.

4) Do not worry abou t starving.

You will get by with referrals from other lawyers. Lawyers have clients that they simply do not get along with or cases that they are just too busy to handle .

They will refer these cases to you because they know that they are doing all sides a favor in so doing.

5) Above all, concentrate on the job you have to do for the client. Don't keep checking the books. They will take care of themselves.

As I was leaving the office Dick wished me luck in my last year at school and added one final bit of wisdom: "Remember, your personality will determine your practice and its success."

TH BU51N 55 OF LAWYERI G: AN INTERVIEW WITH MICHAEL W. lURAT Michael W. Zurat was graduated cum laude from the College of Steubenville with a Bachelor of Arts degree majoring in both political science and history. Mr. Zurat attended graduate school (history) at the University of Pittsburgh. He was gradua ted from the Duquesne University School of Law in June of 1972.

Mr. Zurat worked nights as a teacher while attending law school and then served as law clerk for the Honorable Rabe F. Marsh and the Honorable Daniel J. Snyder, United States District Court Judges. He is now a partner in the law firm of Mullen and Zurat. The downtown office is located in the Plaza Building.

Special thanks to Mr. Zurat for taking the time he really didn't have to answer our questions about the private practice of law, and to Carol, his wife, and Paul, their three-year-old son, who had to wait two more hours that day before seeing Mr. Zurat arrive home.

JURIS: How long have you been in private practice?

ZURAT: Since September of 1974 -four years.

JURIS: What kind of legal practice are you in?

ZURAT: It's a broad general practice.

We try to handle most of the people who come through the door. We do a lot of small civil cases, as well as criminal and estate work. Certain areas we feed out to other attorneys, like compensation, medical malpractice -- something that's just too much for us to handle.

JURIS: We've recently heard people saying general practices are outdated.

How do you feel about that?

ZURAT: We're the exception to the rule. There are people every day that hang their shingle out but they don't last for more than two or three years.

The one thing about a private practice, contrary to popular belief, is that if you're not making money or making a living after the first year, you might as well forget it. At least that has been my experience with priva te practice after watching other people with their own practice as well as my own law firm. It's not true that you don't make money un til five or ten yea rs la ter.

JURIS: Could you tell us a little more about starting your own practice?

ZURAT: Looking back, the first year was most difficult. It seemed the gross receipts started increasing after the first eight or nine months. The case load started increasing abou t that time and so did the number of people sharing space with us. I watched fellow classmates who had been in private practice close their doors after about two years-some in less time. Personally, when I started I had a loan and a shoestring, so it had to go. If it didn't go, it was all over, but we made it. Just from what I've seen in the past few years, I'd say if you're meant to be a private practitioner, it comes almost naturally.

JURIS: Were you not attracted to any particular specialty?

ZURAT: I guess my real attraction is trial work. I enjoy the give and take whether it's a custody case, a support hearing, a civil case that lasts for four or five days, or defending someone in a criminal action. I enjoy the mental gymnastics of trial work, watching the sequence, what's going on, the judge's attitude, how the judge develops his attitude from his prior experiences, the other attorneys, and my opponent's attitude -- I enjoy all of it. It's challenging making snap decisions and acting on them. Sometimes you think at the time you make the decision you're absolutely righ t. Then you look back on it and say,

"If I had known what I know now, I would have done this o"r that instead:' You have to be able to make a decision about whatever is required at that moment. You have to stand or fall by that instantaneous decision.

JURIS: Don't you think that if you specialized you'd be making your life a lot easier?

ZURAT: That's partially true. If a practice continues to grow, more people could be hired and then, for instance, one attorney might handle the support cases and another migh t do strictly insurance-defense work. It would be easier in terms of answering clients' questions immediately. A lawyer specializing is more ap t to know the answer due to being totaJJy immersed in that area of law, while I would have to go look up the answer before answering some specific, narrow legal questions.

JURIS: Do you think your law school education helps you answer some of these questions?

ZURAT: Unfortunately, the law school legal research course is totally inadequate. They don't even teach law students how to use the basic tools. I've had law students come to work for the first time without any idea how to research a legal problem. Some lawyers have been out three or four years and still can't find the right books or come up with a reasonable solution. People who spend their time using the books get to be more efficient at it after a time, bu t the law school preparation is really deficient in that area.

JURIS: Are there other ways you think law school education has failed?

ZURAT: It's too idealistic; it's not practical. The Paper Chase describes the education you're getting and the professors' attitudes; then when you get ou t in the real world, it's a totaJJy different life. It's a "dollars and cents" thing; a practice has to run as a business.

Three things you have to do: you have to be able to get clients, you have to be able to get paid, and you have to get the work done. If you can't do all three of them, you're never going to be successful in any kind of private practice, whether it's the most specialized field of law or it's a broader general practice. In law school students are so involved with theoretical law, legalisms, and defining

11

issues they seem to miss the entire practical point. Practical lawyering involves so much more than being able to spout off law or answer ridiculous questions that, as a rule, never happen in the practice of law. Law school exams with their dozens of issues and subtle intricacies, are totally useless .

Professors would probably do a lot better if they would give simpler exams with simpler problems where the issue is centralized -- withou t aJl the smoke screens . Most legal problems you get are cut and dried ; you cut them down to one major issue. Sometimes you can do that with a law school exam, but it takes you forever to read through the "smoke " in the questions. Compounding issues is not what the practice of law is aJl abou t. The exams are really no measure of a person's ab ility to be a competent lawyer.

Another aspect of law totally ignored is learning to deal with people. You must have the personality to pu t up with some of the characters that walk through that door. Many times people with legal problems aren't your average "Joe Citizen." They're people who have repea t legal prob lems, like the f ast-talking businessman who's avoiding his debtors and trying to keep his business going. In the criminal field, most of the people have been involved with the law on more than one occasion . They 've probably experienced more law than some of the attorneys coming out of law school. They know legal angles; they know the courts; they know the judges.

JURIS: How would you improve law school education?

ZURAT: Some of the practical courses, the Trial Moot Court, The Appellate Moot Court, and the Client Counseling Program should be given more priority and possibly become electives so people could get so me practical experience.

One of the problems I saw while working with the Client Counseling Program was the lack of mterest on the part of the students.

JURIS : It has been suggested the law school education we now have should be supplemented with either a one-year clerkship, which would be analogous to the medical internship, or one year of law school devoted to teaching the practicalities of legal practice .

ZURA T. That's a good idea. Three years is a long time to go to school, though, and four is going to make it even more of a struggle; it would turn the four-year evening school into five long years. The practicalities can be taught without increasing the length of time. There are a lot of electives that

12

could be eliminated, and different courses involving actual practice could be substituted for credit. One obvious substitution would be working in a law firm, giving the students credit for the practical experience they get. You don't know what to do at the Prothonotary's office until you get there and do it. I have to say that for myself, because I worked at FederaJ Court for three years, and I learned the same way the law clerks that work for us learn . I learned by going over, doing it, making friends with people, and asking them to teach me as much as they could . You can read the rules day and nigh t, bu t you go over there and they have some special form they want you to use and there's no getting around it. You have to do it their way or it isn't going to get done.

That 's just a way of life around the Prothonota ry' s 0 ffice.

JURIS : Do you think law school experience helped you at all?

ZURA T : It was good training in the legal thought process. The ability to define an issue and the question-answer method was definitely worth the experience, something totally different from other schooling. After the first year, though, you should be able to define issues. No one can ever know all the law -- that's why you have books. After you get the knack for stating the issue, students should learn how to use the books .

Practicality should start taking precedence. It doesn't take three years to learn how to spot an issue. Those who have the ability usually have it after the first year; those who don't never find it.

They are probably still trying to find it.

JURIS : Can you think of anyone memorable course that rea lly helped you?

ZURA T: I'd have to say one of the most beneficial courses was Torts. Professor (now Justice) Manderino taught it. He was running back and forth to the constitutional convention that year, so we would have marathon Torts classes whenever he was available . They would stretch from 12 :00 to 5:00 p.m . Friday afternoons . Manderino was exciting and dynamic and the class took on the same characterist ics.

JURIS: Is there any principle you learned in law school that you use in your day-to-day practice?

ZURAT: The old adage, "Change the facts and change the law," comes immediately to mind . It came from Professor

Rafalko's Civil Procedure class. This weary idiom was drummed into us; I found later it may be old, but it's still true . When you are in front of a judge or jury or master, whoever is acting as the finder of facts in the case, his findings predetermine what the legal rulings will be .

JURIS: Do you advocate attorneys advertising?

ZURAT: I don't believe advertising has helped many attorneys since most practices I've seen get clients through referrals, word of mouth, by other attorneys who are too busy to handle the situation, and by prior sa tisfied clients. Satisfied clients are your best sales people. I could name ten people who have each sent us five or six cases. That kind of thing just snowballs. There are some clients who are hard to get aJong with, but you have to befriend them . They may be the same people who go out and tell their friends they 've found an attorney who understands them -- and their friends may show up at your door when they have a legal problem.

JURIS: How would you suggest becoming known in a community?

ZURAT: You must get involved in the community, if you're living in an area from which you want to get business.

Get out and meet people. Some of them may be impressed by you, and if they have a legal problem some day or know someone with a legal problem , they may bring that legal problem to you . Sometimes being involved with politics helps.

I'm a committeeman, and my partner has also been involved with politics.

Other times the loca tion of your office may be beneficial. We have a suburban office in an area totally unrelated to where either my partner or I live. The suburban office has been successful. I've found just being around the office, being available, spending some evenings away from home -- which doesn't go over too well with my family -- helps becoming known in the community. Most communities have some kind of organization ; it 's worthwhile to join some community organization.

JURIS : Do you attend social functions and actively promote your business, or does it happen more na turally than that?

ZURAT : It usually just happens naturally . I taught school for two years while I was in law school at night, and met possibly five or six hundred people that way . Some of my former students call

A practice has to run as a business ... "

me whenever they need a lawyer. I would say that teaching experience probably generated ten to twelve cases a year. The cases are not always big ones, but they're all important. Once again, these clients talk about "their case" with friends, and some of those friends end up coming to you with a legal problem, too.

JURIS: You said you have to spend some evenings away from home. How do you deal with the tension between trying to keep your business together and your family together?

ZURA T: You just have to do the best you can with the time you have. There is no real answer to the problem. A lawyer's job unfortunately gets to be like a doctor's; it never ends. Many things can't be done within the nine-to-five day; they have to be done after five. If you don't spend the ex tra time, someone else will. If someone wants to meet you at seven o'clock and maybe that person can't even get to your office, you have to go to them. Maybe you sit and watch TV with them for a half hour and get all the information you need while they watch TV. It may mean some sizeable estate in the not too distant future .

JURIS: Do you ever give people your phone number at home?

ZURAT: No. I gave it to a few of my clients in the beginning, but after a few experiences I decided to find a way around having people call me at home.

The best way is to use an answering service. I have the answering service call me and then I call the client if there's a real emergency. There are some people who think everything that happens to them is a real emergency. They would be calling you until two or three in the morning.

JURIS: What would you consider an emergency?

ZURAT: Well, if a woman's son was arrested and sent to night court, or if some child has been sent to the hospital following an injury-- that's an emergency Something should be done right away before evidence is destroyed or facts are altered.

JURIS: What about people who think everything happening to them is an emergency during the day?

ZURAT: Some people will call you five or six times a day to tell you nothing.

They want to know you're alive and the status of their case since the last couple hours has passed. It gets to be a bit upsetting, but you do have to return their calls. You usually wait a day or two, call them, and say, "Look, things are the same; nothing has changed yet and we're doing all we can. I'm here and you're there and if anything happens, you'll be the first to know."

JURIS: Do you think you could arrange matters so that your secretary or your law clerks could handle all the trivia for you? For instance, couldn't they take care of the "repea ters" on the phone?

ZURAT: Not really, because one of the basic complaints people have with attorneys is the lack of direct contact. To give you an example, there's a rather famous personal injury trial attorney in the city who never sees the clients, never meets them until maybe a day or two or maybe a week before trial. I've heard there's a lot of resentment about that. There's something special about the personal touch. If it's just delivering a message, a secretary can substitute.

But if it's the actual "sit-down talk," the time when a client discusses the facts as they believed they happened, they want to talk to the lawyer handling their case. They don't want to talk to a secretary or a law clerk or another attorney. They don't appreciate substitutes even in the simplest arbitration case.

JURIS: You just don't have time to do everything for the clients. Where do you draw the line?

ZURAT: Writing complaints, interrogatories, and motions are the jobs of the law clerks. They also do a part of the researching and a good deal of the filing.

It's the attorney's job to be decently prepared to present the case in court.

JURIS: How, as a private practitioner, would you feel about having paralegals work for you?

ZURA T: I'm not impressed with the paralegal system as it is here in Pittsburgh. Maybe because I grew up on it, I'm very satisfied with the law clerk system, the system of hiring students to get help with your legal work. It gives students good experience and they make a few dollars at the same time.

We've had great success with the people we've hired. Being a Duquesne graduate, I'm partial to Duquesne students, and it's handy to hire them since the school is so close to the office, the courthouse, and the city.

JURIS: Do you think there is any special type of person that fits in well with a private practice?

ZURAT: I like to work with good people, people who are competent in what they do, who learn quickly how the system operates, who get things done. One thing I've learned in this profession is that you can spend hundreds of hours on a problem, and if you don't get the results, the client is disappointed. Sometimes you can spend two hours on a problem and it's enough to do well for your client. So it's the results that count and eventually good work will get you good results.

JURIS: Would you say the work of a lawyer is more mechanical or technical or would you say it's more like an artist's work, more creative?

ZURAT: It's more creative. There is technical work involved which I, whenever possible, place on the law clerks and secretaries and other supporting personnel, but I view the lawyer's work as creative. Sometimes you have a case that looks so certain as to almost be mechanical, and then something turns up that you never dreamed could happen and there's not a rule in any book that will help you deal with it.

You can be creative with facts in any case to some extent, and how you present them makes a difference in the ou tcome of the case. Six witnesses see the same thing six different ways. The attorney must determine which way to ask the necessary questions, and who to ask. People tend to color their story, and tru th to them is something different than what it is to the other side, whether we're talking to the plaintiff or defendant in a civil case or the prosecution in a criminal case, or the defendant in that same case. One person tells you the facts as he saw them and you talk to the next person and hear something entirely differen t. The tru th is usually somewhere in the middle of what everyone is saying.

JURIS: Can you give us a further example of what you consider the creative work of a lawyer?

ZURAT: In a criminal case I like to use the preliminary hearing as a discovery tool to find out exactly what kind of case the D.A. has against my client. At the preliminary hearing you can call the police officers as your witnesses just to find out what is in their report. A lot of discoverable material is disclosed, making it easier to evaluate what your client's chances are. The information helps you evaluate your client's situation and accordingly work out a legal strategy . I've called police officers as my witnesses knowing full well they weren't going to help me by any means. I just wanted to know what they were going to say later on. The transcript of the hearing gives you testimony you can rely on.

JURIS: What about an example of creative work on the civil side?

ZURAT: I worked on an estate not long ago where a gentleman had a serious illness, was old, bu t had always been very active. His body was found in a river.

The estate he left was quite sizable. The man had a very good job, eVidently he never spent much of his money. He had money in lots of different banks all over the country. There was a single daughter who stood to inherit everything if there

13

•

was no will. There were six grandchildren . One of the grandchildren came to us ana said , "My grandfather told me I was the executrix of the estate ." We knew where he had safety deposit boxes.

So on a gamble we went to these banks.

We told the bank officers we represented th~ estate and believed there was a will appointing his grandaughter, who came along with us, as the execu trix. The bank officers let us conduct a will search. No inventory was taken or removed. Everything was done in the presence of the officers .. At the time, the mother was unsure about what she wanted us to do with all "her" money.

While she sat around deciding, we traveled to these banks and found the will in one of them. Thank goodness for us the will named the granddaughter executrix, since we spent a lot of time and money calling and visiting these places all over the country . Once the granddaughter was appointed executrix, we filed the will and got her letters. The grandchildren and other named heirs each shared one-tenth of the estate . The mother might easily have decided to collect the assets of the estate, go to the banks just as we did , gain access to the safety deposit box with the will in it, and destroy the will that would take the money out of her hands . We had no guarantee we'd be paid dollar one. It was a considerable investment to put out in the conducting of a will search, especially since we weren't sure we'd find a will. All we had was belief in what the granddaughter had told us. If we had taken the technical approach to the legal problem, we would have sat on our cans and let the mother take everything. Finding ways to protect your client's interest, as well as your own interest, is a way of being creative.

JURIS: On what grounds do you take pro bono work; what makes you decide

to take the case?

ZURA T: We've taken certain cases where there's a lot of sympathy involved.

It's just a feeling that some people deserve legal help even if they can't afford it. I really don't know what the percentage would be.

JURIS: Did anyone ever come to you knowing you'd do pro bono work, or did these people just happen to walk in?

ZURAT : They probably got quotations from some attorney that they thought were too exorbitant. A lot of the pro bono work we do may not have been free work, but done at a minimum charge, Now there's only so much of it you can do. It's a hard thing to turn people away who need help, but sometimes you have to -- especially if you

14

have a feeling that they don't have a worthwhile case .

JURIS: Have you run into any ethical problems during your years as a private practitioner?

ZURAT: I guess I have. I've run into problems doing criminal work . We took some appointments involving the PostConviction Hearing Acts, and visited guys in the penitentiary . Always these prisoners responded to anything by saying, "Just get me out of here , man."

Many PCHA's are filed yearly and most of them are probably turned down; it's the exceptional one that's granted a hearing .

JURIS: PCHA? ZURAT. Post-Conviction Hearing Act. It' s similar to a habeas corpus in federal court. It's a collateral attack on a conviction. But the problem is, these prisoners are dissatisfied because they can't get their sentences changed. There are only a few that get a hearing, and of those few heard , there are even fewer that actually get any change in their sen tence .

JURIS: What would you do if you had a client in jail for a length of time who was guilty? He loses perspective after awhile and begins to believe he is really innocent, saying he wants you to do this for him and that for him . In the meantime you feel, since he's your client, you should do your best to represent him; but he's guilty. What do you do in that kind of situation?

ZURAT : Basically the old problem of who defends the guilty, right? You have to remember the reason you're a lawyer: to exercise your skills. Your duty is to give them full disclosure. You tell them what the pros and cons are, what the alternatives are, what you think is the best that can be done for them and then let them make the decision. If they want to'roll the dice and go the route, that's their deciSion, not yours.

I have a perfect example. I had an arson case . It was the first jury trial I ever tried in criminal division. I'll never forget it; because it was amazing . I was totally convinced the guy was guilty, because the prosecution had a very good circumstantial case against him. This guy, so I thought, burned part of his girlfriend's house . The prosecution had him spotted at an all-night gas station about an hour before the fire was started. The walking distance from the station to the house was about 45 minutes. The prosecution had a person identifying him running away from the scene.

It just seemed to me that I could believe these people. Near the end of the prosecution's case we had an offer that if he would plead guilty they would recommend

only probation. I told him, "Look, why don't you just plead it?" He said he wasn't guilty and he wasn't going to plead gUilty . I was thinking the guy had to be totally whacko.

Anyway, we presented our case, sort of threw some aspersions that the gas station man was a drunk and didn't know what he saw. We got our client on the stand and asked him to explain the whole situation as he saw it -- where he had been at the time and why he couldn' t have burned the house . Facts came out on my client's directed cross that just didn't seem believable. He had an alibi that he was at a bar and was taken by cab to a sort of "girlie type" place .

We were trying to locate the taxi driver.

No luck. Anyway, the jury heard his story and they came back from deliberating not more than an hOLir and fifteen minutes after leaving the courtoom. I told the court reporter I did n't think I did such a bad job; I though t they would be ou t at least two or three hours before they convicted him . The jury acquitted him. It shocked me.

Then, three days la ter I got a call from a cab driver in this particular borough who remembered driving him that Saturday morning, the day the fire occurred, about 2 :30 in the morning from a bar that had closed to some all-night "girlie" show. The guy couldn't have been burning his girlfriend's place down, because the fire allegedly occurred abo.ut 3:00 - 3:30 in the morning. The cabby remembered, because the guy gave him a ten or twenty . It was the biggest tip he had gotten in a long time, and the guy was dead drunk. When he dropped off his passenger he had to push him out of the cab. Here was the same guy who, when the evidence was heard , appeared to be guilty. He kept saying he was innocent, and I, to be quite honest with you, didn' t believe hjm.

JURIS: Could you leave us with some worthwhile thought about the private practice of law?

ZURAT: I find it as exciting as I ever dreamed it would be. You deal with all sorts of people. I find the realism of the business must take priority as far as money is concerned. Money has to be earned just to pay the rent, salaries, and other expenses of running an office. It really is a' business and all the idealism of law school is totally changed when you realize it is a business. It has to be run like a bUSiness, otherwise you just aren ' t going to make any money and you won' t be in business very long.

You'll have to close up and sell, and there goes your priva te practice.

FROM THE HAL S PHI ALPHA DELTA

ASSIST ANT DEAN PARSE

STUDENT GOVERNMENT

The Egan Chapter held its initiation on October 27 in conjunction with Watson Chapter from the University of Pittsburgh. The ceremony took place in the new moot court room at Pitt. A reception was held following the ceremony for the new members and faculty .

The fraternity also sponsored the second annual Robert Broughton Memorial Blood Drive on November 14.

Dean Parse attenqep the 10th Anniversary Symposium of the Council on Legal Education Opportunities, which was held in late September in Washington, D.C. He also participated in the Law School Admission Council meeting held on November 17 in New York, and has been involved in Careers Day activities at the University of Pittsburgh, Washington and Jefferson College, and Kent State University .

BARRISTER'S BALL

99 PER CENT!

Mary Lynne Schwartz (3D) was elected Secretary to the 1978-79 Student Bar Association Executive Board, replacing Virginia Shuey (3E).

The following students were elected to the 1978 -79 Student Bar Association Representa tive Board; Arlene Angel (2E), Nancy Baron (2E), Mary BassettStanford (1E), John Bell (3D), Carlotta Bohm (4E), R andy Brungard (20), Cynthia Danel (10), John Fonzo (20), John Fraraccio (3D), Linda Frank (4E), Paul Klein (IE), and Tom Newell (10).

Representing the Law School in the 1978-79 Student Government Association Sena te are Yaier Lehrer, Dennis Modzelewski and Martin Vinci (all 3D).

The Barrister ' s Ball, sponsored annually by the Student Bar Association, will be held in the Duquesne University Student Union Ballroom on Saturday, December 9. All students are cordially invited to attend .

Juris congratulates those members of the Class of 1978 who recently passed the Pennsylvania Bar Exam. 136 of 148 Duquesne graduates passed the bar for a 99 per cent pass rate . The statewide average was 89 per cent. No figures were available as to the number of students currently employed as lawyers or in a legal capacity.

TENNIS CHAMPION Wayne Stander (3D) defeated Dave Wrobleski in straight sets to win the 1978 Duquesne University men's intramural tennis tournament and to mark the third straight year that a law student has won the title .

LAW FOOTBALL Continuing its tradition of fielding competitive intramural touch football teams, the Law School finished its 1978 season with seven wins, a loss, and a tie game.

Leading the potent offense were quarterback Mark McKenna (3D), blocking backs Frank Bolock (3D), Joe Covelli (20), Bill Myers (3E) and Paul Tershel (3D), center Rich Daly (20), wide receivers Mike Baggett (3D), Larry Baldasare (3D) and Ken Horoho (20), and kickoff team members Jim Andrews (3D), Bill Cassidy (3D), Mike Fagella (3D), Paul Vey (4E) and Dan Whalen (3D) .

Working under veteran middle linebacker Nick Bires (3D), the defense featured an effective backfiield in cornerbacks Mike Ahwesh (3D) and Bob Del Greco (2E), and safety Dave White (IE), along with a wealth of rushers in Randy Brungard (20), Bill Goodrich (4E), Jim Haines (3D), Jim Kmec (3D), John Noble (I E), Dan Penetar (3D) and Tony Plastino (3D).

15

VOL XIII No.2 - Winter 1978 Editor-in-Chief

PROFESSOR MURPHY

Robert D. Taylor

Professor Murphy's Legal Process and Procedure class was recently treated to visits and lectures by two foreign dignitaries : Dr. Carlos Tovar, an attorney, judge and law professor from Boliva' and Lev Slitenko, chairman of the Ba; Association of Leningrad. Each addressed the Day class through an interpreter and remarked afterwards that he was impressed by the amount of classroom participation.

Professor Murphy himself has been asked to serve on the AMINTOPHIL (International Association for Philosophy of Law and Social Philosophy) program committee for the association' s Fall 1979 meeting in Austin, Texas. The topic ',vill be the concept of accountability with special emphasis on bureaucra~y, democrat~c government, the profeSSIOns, the family and education.

Associate Editors Marc Abrams Sharon Profeta Mark Zimmer

Assistant Editors Joseph Messina Gino F. Peluso

Layout Editor Mary Lynne Schwartz

Features Editor John Fraraccio

News Editor WiUiam McCabe

Faculty Advisors John J . Sciullo Nicholas J. Demas

Editorial Consultant Thomas R. Kline Photography PROFESSOR McCLELLAN

LI BRARY STAFF

Professor McClellan has had an article published in the November i~sue of the Wayne Law Review. The article is entitled, "Strict Liability for Drug Induced Injuries: An Excursion thro~gh the Maze of Products Liability, NegiJgence, and Absolute Liability ."

Ms. Doris E. Corsello is a welcome addition to the library staff. She obtained a Liberal Arts degree along with teacher certification in English from LaRoche College in 1975 and acquired her Masters Degree in Library Science from Duquesne. UniverSity in 1978 . She also served at the Allegheny Intermediate Unit as an intern and staff writer for In House Publications while working on grant writing.

Another new addition to our library staff is senior Journalism major Faith Manilla . She is assisting the staff by performing secretarial duties and is currently working on her real estate license.

PROFESSOR CONTI Professor Joy Conti has been nominated for the position of chairperson of the Young Lawyers' Section of the Allegheny County Bar Association.

William C. Price, Jr.

Staff Members: Steven R. Abramovitz, Michael J. Calabro, Barbara Cymennan Nica Giel, Greg Kirstein, Nancy Schultz: Nancy Taylor, Joseph S. Popiden.

JURIS is a student publication of the Duquesne University School of Law. Manuscripts and comments may be addressed to JURIS, Duquesne University School of Law, 600 Forbes Avenue Pittsburgh, Pennsylvania 15219 . ' Telephone (412) 434-6305.

Copyright漏 1978 , Duquesne University Artwork by Edward Luczak

Non 路Profit Organization

U .S. POSTAGE

PAID PROFESSOR DONAHER During the summer, Professor Donaher was a principal speaker on the subject of Products Liability at Pennsylvana Bar I.nstitute Seminars held in Pittsburgh, Harnsburg and Philadelphia, and also presented a program on the subject at the 1978 Annual Meeting of the Idaho State Bar Association.

Professor Donaher is also the proud co-author of Products Liability and the

Duquesne University School of Law 600 Forbes Avenue Pittsburgh, Pennsylvania 15219

Reasonably Safe Product -- A Guide for Ma'!Ogement, Design and Marketing.

ThIS work was recently published by John Wiley and Sons.

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