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Benjamin Cowgill
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Old Wisdom for New Lawyers: A Conversation with Lincoln and Brandeis

Originally published in the May 2002 issue of
the Kentucky Bar Association's Bench & Bar magazine

Benjamin Cowgill, Counselor and Attorney at Law

2333 Alexandria Drive, Lexington, Kentucky 40504

Telephone: (859) 225-5236  •  Fax: (859) 225-5237

E-mail: ben@cowgill.com

Web site: cowgill.com

CLE material only  

Consider the remarkably different lives of two native Kentuckians, Abraham Lincoln and Louis Brandeis: 

  • One was a descendant of early American settlers. The other was a first-generation American, the son of German immigrants.

  • One was born in a log cabin on a farm near Hodgenville, the other in the bustling urban milieu of nineteenth-century Louisville.

  • One taught himself the law.  The other went to Harvard Law School, was taught by Christopher Columbus Langdell and graduated first in his class. 

  • One gained notoriety in the courtroom as a lawyer for ordinary people  -- but later won his biggest case representing the Illinois Central Railroad.  The other became a millionaire practicing commercial law -- but later won a reputation as “the people’s lawyer” because of his strident critiques of big corporations.

  • One is remembered as Honest Abe, the other as an intellectual giant.

Those differences remind us that greatness can be achieved on different paths and in different ways. After all, Lincoln and Brandeis were arguably the two greatest men our state has ever produced. 

But in some ways they had much in common.  They were both proud to be lawyers.  They both cared deeply about the profession. And they were both happy to share the lessons of their careers with young people who sought their advice.

Imagine that we could somehow bring both of them to the Kentucky Bar Center for a round-table conversation about the practice of law. What advice would they offer to the newest members of the profession?  In this fanciful interview, all of their statements are actual quotations from their letters, speeches and personal papers.

Cowgill: President Lincoln, Justice Brandeis, thank you both for being here. It’s Derby time again, which means that several hundred men and women are about to graduate from Kentucky’s law schools. What advice would you give them about how to succeed in the real world of law practice?

Abraham Lincoln: If you are resolutely determined to make a lawyer of yourself, the thing is more than half done already. . . Always bear in mind that your own resolution to succeed is more important than any other one thing. [1]

Louis Brandeis: Law seems so interesting to me in all its aspects, it is difficult for me to understand that any of the initiated should not burn with enthusiasm. [2]

Cowgill: I’m sure many new lawyers are hoping that the practice of law will offer them the opportunity to “do good” while also “doing well.” What do you say to them?

Brandeis: Nothing can better fit you for taking part in the solution of [our country’s] problems than . . . the practice of law. Those of you . . . drawn to the profession may rest assured that you will find in it an opportunity for usefulness which is probably unequaled. [3]

Lincoln: [T]he lawyer has a superior opportunity of being a good man. [4]

Cowgill: Okay, let’s suppose that a new graduate is, as you say, "resolutely determined” to become a great lawyer. What's the most important thing she can do to grow and develop?

Lincoln: Attach no consequence to the place you are in, or the person you are with, but get books, sit down anywhere, and go to reading for yourself. That will make a lawyer of you quicker than any other way. [5]  The mode is very simple, though laborious, and tedious.  It is only to get the books, and read, and study them carefully. [6]

Cowgill: Justice Brandeis, do you agree?

Brandeis: Knowledge of the decided cases and of the rules of logic cannot alone make a great lawyer.  He must know, must feel “in his bones” the facts to which they apply – must know, too, that if they do not stand the test of such application the logical result will somehow or other be avoided. . . . Your law may be perfect, your ability to apply it great[,] and yet you cannot be a successful advisor unless your advice is followed [and] it will not be followed unless you can satisfy your clients, unless you impress them with your superior knowledge, and that you cannot do unless you know their affairs better than they because you see them from a fullness of knowledge. [7]

Cowgill: Are there particular social or business skills they should try to cultivate?

Brandeis: Cultivate the society of men – particularly men of affairs.  This is essential to your professional success.  Pursue that study as heretofore you have devoted yourself to books. . . . The knowledge of men, the ability to handle, to impress them is needed by you – not only in order that clients may appreciate your advice and that you may be able to apply the law to human affairs – but also that you may more accurately and surely determine what the rules of law are. . . . No hermit can be a great lawyer, least of all a commercial lawyer. [8]

Lincoln: Extemporaneous speaking should be practiced and cultivated; it is the lawyer’s avenue to the public. However able and faithful [a young lawyer] may be in other respects, people are slow to bring him business if he cannot make a speech. [9]

Brandeis: But by far the greater part of the work done by lawyers is done not in court, but in advising men on important matters. . . . Lawyers are needed . . . because the particular mental attributes and attainments which the legal profession develops are demanded. . . . [10]

Lincoln: . . .and there is not a more fatal error to young lawyers than relying too much on speech-making. If any one, upon his rare powers of speaking, shall claim an exemption from the drudgery of the law, his case is a failure in advance. [11]

Cowgill: So what is the main thing a young lawyer needs to do?

Lincoln: Work, work, work is the main thing. [12]

Cowgill: Does that mean working around the clock?  Justice Brandeis, I see that you are shaking your head.

Brandeis: A man who practices law, who aspires to the higher places of his profession, must keep his mind fresh.  It must be alert and be capable of meeting emergencies, must be capable of the tour de force.  This is not possible for him who works alone, not only during the day but much of the night, without change, without turning the mind into new channels, with the mind always at some tension.  The bow must be strung and unstrung; work must be measured not merely by time but also by its intensity.  There must be time for that unconscious thinking which comes to the busy man in his play. [13]

Cowgill: But I seem to recall that you refused to take vacations as a young lawyer. Did you have a change of heart?

Brandeis: I soon learned that I could do twelve months' work in eleven months, but not in twelve. [14]

Lincoln: The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for tomorrow which can be done today. [15]

Cowgill: Well, sure, we’ve heard you say that many times. But surely a lawyer must leave something for tomorrow, or else she never leaves the office!  Can you suggest a more practical rule?

Lincoln: Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done. [16]

Cowgill: For example?

Lincoln: Draft orders and decrees in advance. This course has a triple advantage: it avoids omissions and neglect, saves you labor . . . and performs the labor out of court when you have leisure, rather than in court when you have not. [17]

Cowgill: I must say that it sounds like you were more successful in managing your work than most of us.

Lincoln: I find quite as much material for a lecture in those points wherein I have failed as in those wherein I have been moderately successful. [18]

Cowgill: Me, too. Let’s turn to the subject of client counseling.  Are you able to offer any words of wisdom about advising clients?

Lincoln: Discourage litigation. Persuade your [clients] to compromise whenever you can. Point out to them how the nominal winner is often a real loser - in fees, expenses, and waste of time. [19]

Cowgill: But what do you say to the young lawyer who is hungry for business?

Lincoln: There will still be business enough. [20]

Cowgill: Gentlemen, I knew we could count on the two of you for some timeless advice.  Would you like to offer any closing remark to men and women who have chosen the law as their occupation?

Brandeis: It is, as a rule, far more important how [they] pursue their occupation than what occupation they select. [21]

Lincoln: Resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. [22]

Notes:

The author thanks Donald L. Burnett, Jr., former Dean of the Brandeis School of Law at the University of Louisville, for his assistance in locating quotations from Louis D. Brandeis.  Dean Burnett’s eloquent tribute to Brandeis can be found, quite appropriately, in the Brandeis Law Journal. See The Brandeis Vision, 37 Brandeis L. J. 1 (1999).

[1] Lincoln, in a letter to Isham Reavis dated November 5, 1855.

[2] Brandeis, in a letter to Amy Brandeis Wehle, January 20, 1877, quoted in David W. Levy, The Lawyer as Judge: Brandeis' View of the Legal Profession, 22 Okla. L. Rev. 374, 381 (1969).

[3] Brandeis, in an address entitled "The Opportunity in the Law," delivered to the Harvard Ethical Society in 1905, quoted in Philippa Strum, Louis D. Brandeis: Justice for the People (1984) [hereinafter “The Opportunity in the Law”].

[4] Lincoln, in a document fragment generally known as Notes for a Law Lecture, circa 1850 [hereinafter “Notes for a Law Lecture”]. It is not known whether the lecture was ever delivered.

[5] Lincoln, in a letter to William H. Grigsby dated August 3, 1858.

[6] Lincoln, in a letter to John M. Brockman dated September 25, 1860.

[7] Brandeis, in a letter to William H. Dunbar, as quoted in Melvin I. Urofsky, Louis D. Brandeis and the Progressive Tradition (1981) at pp. 6-7.

[8] Brandeis, in a letter to William H. Dunbar, quoted in Levy, supra, at 384 (1969).

[9] Lincoln, in Notes for a Law Lecture, supra at note 4.

[10] Brandeis, in The Opportunity in the Law, supra at note 3.

[11] Lincoln, in Notes for a Law Lecture, supra at note 4.

[12] Lincoln, Brockman letter, supra at note 6.

[13] Brandeis, in a letter to William H. Dunbar dated February 2, 1893, on file at the Brandeis School of Law and quoted in Philippa Strum, Louis D. Brandeis: Justice for the People (1984) at p. 42.

[14] Brandeis, in a letter to Harold Laski dated September 21, 1921, as quoted in Strum, supra, at p. 42.

[15] Lincoln, in Notes for a Law Lecture, supra at note 4.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Brandeis, in The Opportunity in the Law, supra at note 3.

[22] Lincoln, in Notes for a Law Lecture, supra at note 4 (emphasis supplied).

 

© 2006 Benjamin Cowgill All rights reserved

 


NOTES

This is a CLE article, not legal advice.

This article discusses issues that are highly fact-dependent and questions that can be approached in a variety of ways. It also addresses matters on which reasonable minds may differ and describes situations that necessarily require the exercise of good judgment.

Consequently, the author makes no representation about the "correct" interpretation of any rule of law discussed in this article or any warranty about how that rule will be applied to any specific set of facts. Likewise,  the information contained in this article should not be construed as a recommendation regarding the course of action anyone should pursue in a particular situation or as a prediction about what any decision-maker will do.

In short, any reliance upon this article is a matter of choice that lies entirely within the considered judgment of the reader. The reader is encouraged to seek the assistance of an attorney competent in the field of legal ethics regarding any situation that involves, or may involve, a serious issue of compliance with the Rules of Professional Conduct.

 

Benjamin Cowgill, Counselor and Attorney at Law

2333 Alexandria Drive, Lexington, Kentucky 40504        (859) 225-5236

The content of this page is provided for use as general information only.  Nothing on this page should be construed as legal advice or legal opinion regarding any specific set of facts or circumstances.  Any links to other websites are provided as a convenience for persons engaged in research. This site makes no warranties regarding the content of other websites.

© 2006 Benjamin Cowgill

This page was last updated on 12/11/2006