Winning at All Costs: Ethics and Integrity in Law, Sports, and Film
Robert Aronson, Betts, Patterson & Mines Professor of Law
April 11, 2008
Dean Gregory Hicks:
Everyone, welcome. This is the seventh of the eighth installations of
endowed professorships that we'll be doing over the course of this
academic year. It's wonderful just to see you all here. It's a great
turnout, and very fitting, to honor our colleague and friend, Rob
Aronson, who is to be installed as the Betts, Patterson, and Mines
Professor of Law.
have a number of distinguished guests here today. I'd note--in
particular, Bill Gerberding, who was the 27th president of the
University of Washington, serving between 1979 and 1995; Wonderful to
have Bill here, members of Professor Aronson's family... his wife,
Terry, and daughters, Jenny and Tammy--and extended family members as
well. So I think we've got a good turnout of Aronsons. I don't know
everyone who's here, but it's very good that you are.
distinguished alumni who are here: representatives of the Alumni
Association and also the Washington Law School Foundation... and
members of the legal community, both from the downtown bar and from the
And I'd particularly note, again, the members of the law
firm of Betts, Patterson, and Mines who are here in force--specifically
James Nelson of the class of 1980, who is the chairman of the firm. And
he'll be speaking in just a little bit here. And also, Mike Mines of
the class of '54, another one of ours, and a founding partner of Betts,
Patterson, and Mines.
As we've noted on these occasions, the
creation of endowed professorships is just of huge importance for the
law school. Not only to support the scholarship of those who hold the
chairs, but it's a way, also, of the School of Law'sbeing able to project
its influence in scholarly conversation and national legal discourse.
the honor that comes along with having named professorships and the way
in which it gives capacity to the holders of the chairs by giving them
significant additional resources to support their research and to have
the ability to have their voices heard in significant quarters all
around the country.
And it takes a lot of vision to make these
endowments. These, of course, are creations of giving structures that
support activities over many, many years. And to make that type of
deep, institutional commitment that's going to resonate.
have the first Betts, Patterson, and Mines professor, and there will be
a string over the many years of Betts, Patterson, and Mines professors,
and each one will add to the luster of the endowment by the work that
they do and what they accomplish.
And we're off, beginning
really wonderfully, with Rob Aronson, and his wonderful work,
especially in the fields of evidence and professional responsibility.
aspect of the Betts, Patterson, and Mines endowment, in particular, is
that it supports not only Professor Aronson's work but also provides
some money that we can put into our trial advocacy program.
was very much at the heart of the concerns that the firm had, and we're
very much committed to the training in high levels of competence and
high levels of ethical practice in trial practice. And so, again, this
puts some wind in our sails and allows us to do very important work.
So thanks very much to the firm, and thanks, also, to all of those who just had the foresight to create this structure for us.
I'd like to introduce, now, James Nelson, of the class of 1980, who is
the chairman of the firm, Betts, Patterson, and Mines. And he's been a
trial lawyer for almost 30 years and has a diverse, complex litigation
practice. He is a graduate, as I've said, of this law school, and, I
guess, a Dub; a bachelor of science from the University of Oregon.
And please, James, is going to offer some remarks on Fred Betts, of the class of 1933, a founding partner of the law firm.
I took legal research and writing, professional responsibility, and
evidence from Professor Aronson. And I have used what he taught me in
my work almost every day for 28 years. But my role here today is to
introduce Fred Betts and our firm.
Betts was, without a doubt, one of the finest jury trial lawyers the
state of Washington ever produced. Fred tried cases in every county of
our state. We estimate that he tried 1,000 civil jury cases.
was a man of exceptional ability, integrity, and charm. He was, in all
respects, a gentleman. Most important for present purposes, he was also
extremely successful and generous. Fred cared deeply about this law
school, and Fred was passionate about the concept of excellence in
Betts, Patterson, and Mines, in turn, is a law
firm that Fred Betts co-founded. All three named partners graduated
from this law school. And as Dean Hicks pointed out, Mike Mines and his
wife Phyllis are with us here today. So are most of our absolutely
outstanding and talented staff.
Betts is just a mid-size,
downtown law firm, and we emphasize civil litigation work. Unlike some
firms, Betts lawyers still try lawsuits. We try corporate disputes. We
try consumer cases. We try class actions. We defend medical devices. We
try coverage cases. We try wrongful death cases. And we try malpractice
Our lawyers try cases in the state and federal courts in
Washington, Oregon, and Alaska. Our lawyers are in court every day.
Like Fred Betts, Betts lawyers today remain passionate about the
concept of excellence in trial advocacy.
Now, there are many
threats to the concept of excellence in trial advocacy today. Insurance
company billing guidelines are a threat to the concept of excellence in
trial advocacy today. So, too, is alternative dispute resolution,
congested court dockets. The federal rules of civil procedure
themselves threaten the concept of excellence in trial advocacy.
is hard to bring a case to trial in today's legal world. The road to
becoming a competent trial lawyer has never been more difficult.
Patterson, and Mines has taken numerous steps to protect and further
the concept of excellence in jury trial advocacy. Betts nurtures
budding trial lawyers at the firm.
We routinely send promising
associates to NITA and the International Academy of Defense Counsel.
Senior lawyers are always available to assist more junior lawyers in
preparing for trials and appellate arguments.
And Betts trial
lawyers are supplied with state-of-the-art trial-related technologies
and equipment. In addition, Betts's Complex Litigation Practice Group
regularly holds lively and informative internal training sessions.
with more than 30 years of trial experience and lawyers with less than
three sit around our boardroom table on a regular basis and talk about
how to do it better. New technologies are demonstrated, and recent
developments are discussed. Virtually all of our significant trials are
debriefed in this context.
It is against that background we see
the Betts professorship as a key additional step in furtherance of the
firm's mission. Fred Betts and the law firm he founded, Betts,
Patterson & Mines, each contributed substantial funds to endow this
Fred Betts was absolutely passionate about the
concept of excellence in trial advocacy while he was alive, and we
still feel that way today. We are proud to fund trial advocacy related
teaching and scholarship. We are also proud to establish even closer
ties with the University Of Washington School Of Law. Which we see as
one of the top public law schools in the country and rising.
are eager to become more involved with the law school and particularly
its trial advocacy programs, and we would be very pleased if you would
send us students who want to become trial lawyers.
it is now my distinct pleasure to introduce Professor Louis Wolcher.
Professor Wolcher joined the UW Law School faculty in 1986 after nine
years of private practice and three years of teaching. Professor
Wolcher holds an undergraduate degree from Stanford and a law degree
from Harvard where he edited the Law Review and graduated magna cum
An internationally recognized scholar in the fields of
philosophy of law, legal and political theory and human rights,
Professor Wolcher won the University of Washington's distinguished
teaching award in 2005.
Ladies and gentlemen, please join me in welcoming Charles I. Stone Professor of Law, Louis Wolcher.
Professor Louis Wolcher:
Thank you very much for the introduction. I apologize for my hobbled status here.
is a great honor and privilege to have been asked to give a few remarks
about my colleague and friend, Rob Aronson, on the occasion of his
installation as the Betts, Patterson & Mines professorship.
have known Rob for 22 years; ever since I arrived at the University of
Washington Law School from practice as an assistant professor without
tenure. He was a tenured professor, and immediately we struck it off on
the golf course and elsewhere. He has provided me with unquestioned
guidance and mentorship throughout my career.
Throughout all the
time I have noticed Rob and been aware of his accomplishments and his
commitments to the law school, there are a series of fundamental
principles that seem to me to have remained constant. At the top of the
list I would say his unfailing commitment to his students' learning is
Many law professors, and I will confess to this
myself as an example, all too often teach in order to teach. In other
words, we feel we have some big idea or great insight that we want to
communicate. And so we take the occasion of the public forum in the
school room to show how smart we are and identify our ideas and so
Rob is unquestionably a brilliant mind. But of all the
people in this law school from my perspective he is at the top of the
list of those people who teach in order for students to learn, not in
order for himself to fill the room with his own words.
compassion and his care for his students and for colleagues over the
past 30 years has been notable. Everybody who has been touched by him
in the course of their career will testify to his kindness and his
unfailing support. The word "no" in short is not in Rob Aronson's
I asked a few of his former students in preparation
for today's festivities to send me some quotations that I would like to
read. I got tons of them, and I had to winnow them down to just a few.
Here are some of the ones that struck me as particularly insightful
"He is brilliant, intense, incredibly hard working.
He is warm, funny, generous and a great friend. He is a great teacher
because he is open to all points of view. He would seriously consider
any reasoned position without the usual academic censorship of so many
professors who claim to want freedom of thought but who then swim in,
and demand that all swim in, a small pool of received wisdom."
remark: "Rob Aronson entertained all ideas with equal respect from one
end of the political spectrum to the other. And then the final remark
that I will read out to you today is, in a sense, my favorite. There
has never been any pomposity or arrogance in Rob's open mindedness. His
mind was simply open, fair, reasonable and I must say kind, above all,
kind." I think this last word kind and kindness is the most important
word in describing the person we are honoring today.
only look at the diversity and number of people who are here today to
realize the number of people whose lives Rob and his kindness have
touched over the years - students and former students, faculty members,
administration and staff, family members, friends, even golf buddies
and indeed people from the U-Dub sports community about which I will
say more in just a minute.
Speaking of sports, though, I really
would be remiss if I did not mention Rob's other great passion in life
in addition to his family and his teaching and scholarship, the great
passion of sports. And this is a theme that he will be developing in
his lecture to you today.
But, speaking of sports I must tell
you that he is one hell of an athlete. And you never would do well to
bet against him in any sport you might happen to participate in, as
many people in this room will testify to. I, for one, have almost
opened a line of credit for my golf debts...
... to him on account of the regular whipping that I get from Rob Aronson on the golf course.
was the U-Dub's faculty athletic representative for 11 years. And
performed that service with inestimable high quality and helped
literally hundreds of U-Dub student athletes achieve their objectives,
negotiate their way through the complex rules of the university and
NCAA, defend the university in a variety of contexts. In short, his
public service corresponds beautifully with his service to the law
school and its students.
On the scholarly side of things, Rob is
far more than deserving of the honor that is being bestowed on him
today. In addition to a steady stream of articles written over the
years that he has been a faculty member here and elsewhere, his book
"The Law of Evidence" is the locus classicus. It is the main work that
every lawyer in Washington knows. It is on every desk of every judge in
every law firm in the state and elsewhere in the country. It is the
standard treatise on the subject.
His casebook on professional
responsibility is another notable work. And moreover his work as a
uniform commissioner for many, many years produced enormous benefit for
the people of this country, to be honest.
In the Uniform
Commission acts that he worked on, including drafting the American
Academy of Matrimonial Lawyers' code of ethics... which was one of his
supreme achievements for which he received the President's Award in
2000 of the AAML; the first time, if I recall correctly, that any
outsider was ever given that award. As a result of that project, he
provided a well-needed code for matrimonial lawyers, which is effective
But beyond all of this, in closing, I would like to draw
attention to what I think is Rob Aronson's central intellectual passion.
comes down to three principles, it seems to me. The first principle
that I noticed time and again... not just in the classroom, not just in
day-to-day conversations, and not just in faculty meetings, but in
every breath he takes... is a sense that it is justice and not law that
we serve in this law school, and that students ought to serve; justice
and not law in the narrow sense.
The second principle is that
there is a greater good beyond the narrow self-interest that seems to
affect a daily life, in business and in law, to which we are all
accountable. And that part of legal education means to constantly hold
up this vision of a greater good to which we are accountable.
then finally... in a sense most importantly for me... is this final
principle; that fundamental decency and kindness between human being is
possible. And that it can ameliorate what is otherwise, and what can
otherwise, be the brutal work of law and justice.
It is my great pleasure and honor to present to you my friend and colleague, Professor Robert Aronson.
Thank you, Professor Wolcher, for those really wonderful words. For all
of us who have had the luck of just basking in Rob's friendship and
regard over the years, these words just ring true. This is a wonderful
person standing next to me.
it's my pleasure to confer on Professor Aronson, as a token of the
professorship with which he's being invested today, this medallion
which has on it simply, "Betts, Patterson and Mines Professor Robert H.
Aronson." It's my distinct honor and very deep pleasure to confer this
on Professor Aronson.
And now just to turn the podium over to Rob Aronson.
Robert Aronson. This is sort of daunting. I give talks all the time,
and normally I'm not very nervous about it. In light of Lou's... I
didn't quite recognize who he was talking about.
I appreciate it. I sort of feel more like I'm at a wake than a
presentation. When I saw the crowd, I thought maybe there are some
people who thought I was a warm-up act for the Dalai Lama.
I went in the wrong room.
had promised myself I was just sort of going to welcome everybody and
not go through individuals, as some other people have done, but then
when I saw I was given a list of the people coming and felt like I had
no choice but to recognize at least some people.
I noticed in
the hall some people who I didn't know were coming, so if I miss you,
then I apologize. If you're a former student, you can just write that
on my evaluation afterwards. And if I recognize somebody who isn't
here, well, then you should have showed up.
First of all I'd like to thank Lou, who is a colleague, a friend, a
fellow whiner, a golf patsy. Not just for being a friend for being
here, but for those unbelievably gracious remarks.
Hicks, our outstanding dean, has been a long friend, former golf patsy
before he gave up the game. We're very lucky to have him serving as our
Jim Nelson, as he indicated, a former student. You can
tell that I must have done something right, or despite whatever I've
done, he's turned out pretty well.
My daughters, Tammy and Jenny
are here. I can't help but to think about... as will be obvious from my
talk and as my students know... I teach a course on law, literature and
film. Law, literature and film, it's one of my passions.
couldn't help but thinking about Scout and Jim in To Kill a
Mockingbird, and how they were embarrassed that all their father did
for a living was talk. That was until one day he brought down a rabid
dog with a single shot. Sorry, girls, I didn't bring my gun today.
My many research assistants, a number of them who are here... I want to
particularly recognize Britney French, who is my research assistant,
who helped work on the numerous videos and other materials that I've
us, we have booklets and booklets of quotes and cases and films and
whatever, so look for my book or article on the future. I've been told
that a four hour presentations is not normally acceptable for these
presentations, so I'll have to leave some of them out.
Jessica Murphy, who I saw, was a research assistant last summer and did a wonderful job as well.
course, Betts, Patterson and Mines, without whom I wouldn't be here.
Particularly Michael Mines; I have a special and somewhat ironic thank
you that I'll be giving to him a little bit later in my presentation.
most important, of course, my wife Terry... class of '82 of the law
school... who's not only supported me through all my endeavors and
served as my person role model of morality and caring, but as an
attorney and teacher has had an attitude that's always been, "What can
I do to help others?" She's my antidote to any winning-at-all-costs
A special thank you to our incredible development
staff; they're responsible for the whole proceedings, the installation
proceedings, the award winning brochures, and every other aspect.
like to mention, although he's not here, Damion Koemans and Jon Larson,
who work with me on the videos and getting them in a form so that
somebody who's somewhat technology-challenged could still have it work
And also a particular thanks to Lenny Hom, who's back in the booth somewhere and is our audio-visual person.
use a lot of visuals and I use a lot of film clips in my teaching. But
I'm sort of like the person who knows how to drive a car and can fix a
few things, but if anything seriously wrong goes on calls AAA. Well,
Lenny has been my AAA, who I often call five minutes before class when
I can't get anything to work. So I'd like to thank him.
former students, who did not cut this class, even though it wasn't
required and they had already graduated. I'm not responsible for their
ability, integrity and success, but I take credit for it whenever
possible. I don't have the time to mention all of you. I wish I did.
Maybe I could avoid the rest of my speech, but there are a few people that I do feel that I should mention.
Judges Bill Downing and Bob Lasnik were in the first class I taught at UW law school. That dates both of us, I think.
Mike Trickey and Marlon Applewick and Judge Trickey's wife Lois who was
in the same class. They were in the next year's class, the second class
that I taught at the University of Washington. And we went through a
pretty turbulent era together that you can ask them about some time, if
you'd like to.
Council Member Dow Constantine who graduated about 10 years later; I am
not giving you any of the years for these people to protect the elderly.
I would also like to thank Kevin Swan and Gale Stone. They were
research assistants and teaching assistants. And both of whom are
incredibly successful. I appreciate their coming back.
are a number of my colleagues and faculty members, but I have to
particular mention Craig Allen and Maureen Howard, who are former
students of mine.
Craig took more courses from me than anybody
who has ever been in the law school and lived to tell the tale. And so,
the fact that he would come and hear me one more time is particularly
Joe Brotherton is here and as the President of our
foundation board which tells you that the seriousness with which one
undergoes his legal studies is not necessarily a predictor of future
Joe and I had a lot of good times together at the law school.
don't know if she's here; I didn't see her but Lesle Gallimore was
going to be attending. Lesle is our women's soccer coach. She is the
epitome of a good role model. I am going to be talking a little bit
about role models in a minute, and she had the good sense to quit law
school in order to go into coaching.
If all coaches had Lesle's integrity and concern for student athletes, I'd still be doing more in the athletics world.
want to give a special thanks to President Emeritus, Bill Gerberding.
In addition to his 16 years of incredible service to the University, we
went through some very good and very bad times together, including long
hours and weeks preparing the university's appeal of the football
sanctions to the NCAA.
He was always supportive and most
important always had a great concern for athletics and was one of the
great spokesmen in the country in terms of the importance of treating
student athletes better. His widely regarded and read op-ed piece is
something that was way ahead of its time.
A number of my golf
buddies are here. I'm not going to embarrass them by naming them
individually. However, I want to thank them for keeping me sane and for
contributing to my daughter's college fund.
Many thanks to the rest of my family who are all here. I am not going
to go through them individually. I am going to thank them privately
later. But I really appreciate a number of them came up all the way
from San Diego just for this presentation.
want to welcome the Gates Public Service Scholarship finalists who are
here. I had the pleasure of several years of reading the files of the
finalists. I've had several of the people who actually came as Gates
Scholarship recipients in my classes. They are an incredible group of
people. What I am going to talk about would be totally unnecessary if
we all could have their kinds of accomplishments and devotion to the
There are many others who I would like to thank, but you all came here to watch video clips.
So, I'll move on with my presentation.
I am going to start in a little more serious vein.
Sunday morning in May about 20 years ago. I receive a phone call from a
local attorney who I know. He wants to know will I meet him downtown to
discuss the possibility of Rule 11 sanctions that may be brought
against them and he may bring against another law firm.
him it's Sunday morning. Not only is it Sunday morning, but it's
Mother's Day; however, he tells me what the case is about and I agree
to come down.
A young girl who was given asthma medicine went
into a coma and ended up in a vegetative state. The parents sued the
doctor and the pharmaceutical company that manufactured the drug that
was given to the child but could not really find anything wrong with
After several years of discovery and nothing that
appeared to have occurred out of the ordinary, one of the lawyers in
the case came into his office and found an anonymously provided "dear
doctor" letter from the Chief Medical Officer of the pharmaceutical
company that had been sent to a number of selected doctors... but not
to the majority of doctors in the country... indicating that the drug,
when given to children who had had a viral infection, could cause
seizures and death.
The drug company had avoided discovery of a
number of these similar documents for years that indicated the life
threatening side effects of the drug. Now, discovery gamesmanship, I
daresay abuse, has existed for a long time. Many attorneys consider it
part of the game.
In fact, in this particular case leading
attorneys in the Washington Bar from many different law firms submitted
affidavits suggesting that the conduct of the lawyers in this case was
just good lawyering.
The Washington Supreme Court in a 9-0
decision disagreed and stated: the drug company's attorneys claim they
were just doing their job, that is, they were vigorously representing
The conflict here is between the attorney's duty
to represent the client's interest and the attorney's duty as an
officer of the court to use but not abuse the judicial process.
Vigorous advocacy is not contingent on lawyers being free to pursue
litigation tactics that they cannot justify as legitimate.
moved me on that Mother's Day Sunday to come down and file an affidavit
in behalf of the case... on a day when I could have been out playing
golf... was that the effect of the conduct was to help hide information
that doctors were unknowingly giving drugs to children that could cause
seizures and deaths.
The case, known as Fisons versus Physicians Insurance Exchange, was a watershed case for me.
there was a downside for me personally. At that particular time in that
year I was asked by our then dean to be the Associate Dean. The law
firm in the documents went to the dean and indicated that neither the
firm nor anybody in the firm would ever give money to the law school as
long as I was Associate Dean.
Subsequently, a few years later
and when I was a dean finalist, the same firm went to the then
president of the University, and I am told that they indicated that I
would not be a suitable choice for dean because my reputation and
standing in the legal community was so bad.
It is my
understanding that Michael Mines who was then on the dean search
committee at the time was given the task of finding out whether these
stories about me were, in fact, true.
It is also my understanding that he reported back that my reputation and standing were not quite so bad as had been suggested.
This gives me an opportunity particularly in light of the tenor of my
talk to thank him personally. I hope I haven't done anything in the
interim to change his report.
Fisons case caused me to pay particular attention to the
win-at-all-costs mentality in the legal profession. It is my contention
that that mentality has increased over time with very bad repercussions
for lawyers, the legal systems and society as a whole. Shortly, I will
provide a few examples.
A number of years after the Fisons case
I was asked by members of the Attorney General to assist in the case of
the State of Washington against the tobacco industry.
needed an ethics expert was the question I asked them initially. What
they said was that in Florida in their case against the tobacco company
they had tried out their case on a mock jury. The mock jury had found
for the defendants which they found to be hard to understand given all
the information and given the misconduct that occurred by the lawyers
for the tobacco industry over a period of 40 years.
the mock jurors said they couldn't understand what all this concern was
about lawyers helping to engineer misinformation to the public about
the addictive and carcinogenic aspects of tobacco. Isn't that what
lawyers are supposed to do for their clients?
attorneys in Washington thought maybe they would like to have somebody
tell the jury, "No, that's not what lawyers are supposed to do for
Not long after the Fisons case, I became the
university's faculty athletic representative. I've long been a
participant and a fan of athletics. Ideally, student athletes learn
discipline. They learn hard work. They learn to set goals and to meet
them. They learn how to overcome difficult obstacles, both physical and
mental. They learn good time-management skills.
lessons that can be transferred to all aspects of their lives. And, to
the extent that they learn those aspects and they display them in the
public forum, they can serve as good role models for fans of all ages.
help instill those skills and moral standards, or they can, by words
and conduct, show that winning is more important than any of those
The virtues of intercollegiate athletics were
aptly demonstrated by Pat O'Brien playing the famed Notre Dame coach
Knute Rockne in "Knute Rockne, All American". And this'll be the first
of a series of video clips that I'm going to show, hopefully.
I suggested that very idea to Father Callahan, our president. He was downright interested until we...
Pat O'Brien: "We are living in the 20th century. To limit a college education to
books, classrooms, and laboratories is to give to education too narrow
a meaning for modern times.
if I have learned any one thing in my 20 years' work with my boys, it's
this one fact: The most dangerous thing in American life today is we're
getting soft, inside and out.
"We're losing that forceful
heritage of mind and body that was once our most precious possession.
And we, these men and I, have spent our lives trying to work out that
flaccid philosophy. Work it out of our boys' minds and bodies.
believe that the finest work of man is building the character of man.
We have tried to build courage and initiative and tolerance and
persistence. Without which the most educated brain of man is not worth
"Now, our boys of Notre Dame have played all over the
country. And they've gotten to learn that Southerners aren't lazy,
Northerners aren't cold, Middle-westerners aren't hicks, and
Californians aren't big and dumb."
Pat O'Brien: "They've learned from all sorts of Americans what America is. And in that process, they found themselves.
I don't know... I don't know how you'd grade a boy for learning these
things, Professor; 50, 75, 90 perhaps. But wouldn't it be a good idea
not to grade anybody's contribution to the national intelligence until
all the results are in, maybe five or 10 years after graduation, when
his record and character are not hung on the wall like a diploma but
inside the man himself?"
OK. Part of my thesis as you will see as I go through is that the old
images, the images of an earlier time, whether you consider them to be
accurate or a mythological romanticism, were seen by many, many people,
both children and adults, and set the stage for moral standards and
what people should aspire to.
of my thesis is that popular culture films, TV, both create and reflect
the view of athletes and lawyers in the legal system to the extent
they've become more cynical. They've become more negative. They either
reflect or they encourage negative views as well.
athletic representative I was required to monitor athletic department
recruiting, admissions policies, adherence to NCA rules, and when there
were allegations that we had violated NCA rules, to investigate them.
my 11 years in that role and stints on the Pac-10 compliance and NCA
management councils, I came to see the good and bad of intercollegiate
athletics. I found much similarity in the value and the ills of
athletics and the legal system.
One of the most significant
similarities was the win-at-all-costs mentality. The pressure to win,
and the media's and the public's emphasis on not finishing second or
worse, has grown to epidemic proportions.
I do not need to tell
any of you who've practiced law for more than six months about the
aggressive, hardball, Rambo tactics of other lawyers.
of you who are or have been students of mine know, I've long used
excerpts and scenes from popular culture to illustrate legal issues,
particularly those dealing with morality, justice, and ethics.
stated by Thomas Shaffer, a former dean of a Notre Dame Law school,
whose law school text for teaching legal ethics includes studies of
real life and fictional lawyers. He said, "The truth about who we are
which explains our morality. Including such things as what our
communities are and what our families have been, is more a matter of
character, of life as we live it; of story, than of principles. Our
stories are the sources of our moral notions, and our moral notions are
prior in time and in logic to our classifications, our categories, and
our principles. Stories bring moral notions to light. And moral notions
are prior to moral problems."
To put that another way, a moral
notion becomes something we can see and talk about because of a story.
A moral notion is displayed and understood in a narrative context
better than it is displayed and understood in the context of issues,
quandaries, decisions, acts, and principles.
Not only do good
storytellers and filmmakers do a great job of raising the issues in the
context of human affairs, they do it in a much more compelling and
interesting way than either cases, statutes, rules of professional
conduct, or even the unquestioned eloquence of law professors.
books, movies, TV shows both represent and influence the public
perceptions of athletes and lawyers. So in merging my long-term
interests in ethics and integrity in law and sports with my passion for
films, I've selected a limited number of film clips to illustrate my
Despite my desire to show you all of the 60 or 70 minutes
of film clips that I've developed, the first rule of presentations such
as this is to not overstay one's welcome. So I've cut them
substantially, and hope to be done by at least 7:00.
An emphasis on winning can be a spur to many positive results and
achievements. My concern's not with a winning mentality or the exertion
of extreme effort to win. Rather, it's with a winning at all costs
mentality, by cutting corners, cheating, or otherwise acting immorally.
and sports are similar in that there are opponents and rules of the
game. However, they're also similar in that, by tradition and
necessity, both rely heavily on the ethics of the participants to
ensure the fairness of the results.
I grew up on sporting
events, sports stories and movies about athletes that promoted courage,
overcoming obstacles and misfortune.
I internalized those values
and messages of the stories. The portrayal of the star athlete as a
person of character, modesty and integrity, who does what he considers
right and not because it will give him good publicity is well portrayed
by contrasting Babe Ruth and Lou Gehrig in "Pride of the Yankees."
[movie clip plays]
All right, Babe.
All right, hold it Babe. That's it, still.
Hand the ball to the kid now. That's it Babe, give it us a big smile Billy.
Can you sit up a little bit, son?
Oh, there you are kid. Now let's have one with your arm around the kid. Can you look up at Mr. Ruth, Billy?
Hold it. That's it.
Just one more.
Go right ahead. Page one on every rag from coast to coast or I go back to the copy desk. Oh, that's enough boys.
That's enough boys. And what's more Billy, I'm going to hit a home run
for you this afternoon. And what's more, you can pick your own field,
left, center or right. What did you say; center field, OK.
I wonder if you'd autograph this for me.
I sure will.
Mr. Ruth, would you autograph mine too please?
Keep your chin up Billy.
Mr. Gehrig, would you put your name on it too?
Sure. You're quite a fan aren't you?
Haven't missed a game this season.
Thanks. I like to play baseball.
You'll play again.
Billy, you know there isn't anything you can't do if you try hard enough.
You think so?
Could you knock a homerun for me this afternoon?
Why, you've already been promised one by Babe Ruth.
Well, that's a pretty tall order. OK.
Could you knock two homers?
Two homers? In a world series?
Well Mr. Gehrig, you said you could do anything if you tried hard enough.
That's what you said.
Yeah, OK. I'll hit two homers for you, if you hit one for me.
You've got to promise me that one of these days, you're going to get up out of this bed and go home on your own power.
If you want to do something hard enough, you can do it. Hey, we can both do it can't we? OK. So long Billy.
So long Mr. Gehrig.
[clip ends, commercial begins]
OK. I could live with what's happened to professional and many amateur
sports since those days portrayed in "Pride of the Yankees". I could
live with the flash, the self-promotion. In fact, my wife appreciates
the much reduced amount of time I spend watching sports on television
and in person. But what it says about our culture and what it's done to
the moral fabric of society is something of great concern.
the many examples in film clips that I could have picked including
"Friday Night Lights", "He Got Game", "Blue Chips", I've chosen from
one of the most cynical, "Any Given Sunday".
In fact, I
originally had five clips from "Any Given Sunday", but I knew you
wouldn't be able to take it. So, I've just given you one that is the
most in contrast from the ones that you've already seen.
What are the odds?
Well, there's no telling. It's an odontoid fracture.
Ah wait a....
[problems with film clip]
This is where Lenny usually comes in and saves me.
[film clip begins again]
[music and background talk]
We've got to talk about some basics.
You're getting ready to yell at me, right?
No, no. Come on...
Coach? I ain't trying to disrespect nobody but winning is the only thing I respect.
OK son. I want you to listen very carefully 'cause one day you're going
to realize this is the truest thing you ever heard.
game, this game has got to be about more than winning. You're part of
something here. Lombardi, Tiddle, Sammy Bore, Unitas, hundreds of great
players, those men on the wall. You're part of that now. Along the way
I want you to cherish it because when it's gone, it's gone; forever.
Yeah, but when I look at them pictures, the trophies and stuff, it just
makes me sad. It's like a room full of ghosts. When I'm done with this
game or the game is done with me, I don't want to be no ghost on the
wall. I want to be more than that.
Looks like Cappy's going to make it back in time for the playoffs.
I'm going to start him.
And that's the only reason you got me here? I knew you was going to sell me out.
Cap's a leader. He's a team player.
Need a team that's going to win in the playoffs.
That's such bullshit. He ain't half the athlete I am. You look me in the eye and tell me that Cap is a better player.
Cap's a better player.
I guess that was somebody else out there winning them last two games,
huh? I put the points on the board. He lost four in a row. I lead by
You kicked ass.
Yeah, I did.
But I'll tell you something. Cap Rudy's been doing it for years.
And his time is over.
And yours is too unless you start taking some risks and start playing
this game the way it is played today. It is not about the past and the
trophies on the wall.
[shouting] I owned this game for three decades kid. I know football. Now those men on the wall, they own it too.
Just like you do.
You could be the president of affairs, that whole sacrifice, and the
glory of the game, crap you do it well. But I've been there. I seen a
long line of coaches just like you always coming at me with that same
old bullshit half-time speech.
Is that what it is to you?
Yes, it's bullshit. You know what you are?
It's always bullshit because it's about the money. Raking in the TV
contracts, fat-cat boosters sitting in the sky boxes, the coaches
trying to up their salaries and the whole time, what you looking for?
You looking for the next black stud to take you to the top ten. Get you
in a bowl game. It's the same.
I had a number of other ones I could have shown you but I didn't want to depress you too greatly.
same phenomenon has been occurring in the legal world as well. As with
athletic heroes, I and many of us grew up with legal heroes. From the
many examples I could have picked, I picked two short clips. The first,
Atticus Finch in "To Kill a Mockingbird". I love, and those of you who
have suffered through orientation with me know that I love, the closing
argument in "To Kill a Mockingbird". But it's both too long and too
many of you have seen it.
So I picked a different clip from
that. Interestingly enough, "To Kill a Mockingbird" was in a study done
by The American Film Institute of the hundred most inspiring movies. It
came in second to "It's A Wonderful Life."
With respect to the
greatest heroes of all time, Atticus Finch came out number one. Numbers
two through five were Indiana Jones, James Bond, Rick Blaine from
"Casablanca" and Will Kane from "High Noon". You'll note that a modest,
quiet lawyer being number one is something of an anomaly. I'm in that
But you also know the phenomenon of the many Civil Rights
lawyers and people who were inspired by "To Kill a Mockingbird" and
Atticus Finch. In fact, in her recent swearing in as a federal judge in
the second circuit, Judge Livingston indicated that her initial reason
for becoming a lawyer was due to "To Kill A Mockingbird."
Ah, wait a minute...
[Plays video clip]
What is it, Scout?
Atticus, do you defend niggers?
Don't say niggers, Scout.
I didn't say it! Cecille Jacobs did. That's why I had to fight him!
Scout, I don't want you fighting.
I had to, Atticus. He...
I don't care what the reasons are. I forbid you to fight.
Anyway, I'm simply defending a Negro, Tom Robinson. Scout, there are
some things that you're not old enough to understand just yet. There's
been some high talk around town to the effect that I shouldn't do much
about defending this man.
If you shouldn't be defending him, then why are you doing it?
For a number of reasons. Main one is that if I didn't, I couldn't hold
my head up in town. I couldn't even tell you or Jim not to do something
going to hear some ugly talk about this in school, but I want you to
promise me one thing, that you won't get into fights over it, no matter
what they say to you.
[End of video clip]
OK. For those of you who are less film buffs and more TV aficionados,
you might have grown up with the incomparable Perry Mason. Mason played
by Raymond Burr, starred in 271 hour long TV shows from 1957 to 1966.
He always represented innocent clients and he always succeeded
disclosing the identity of the real killer who usually broke down on
Although modern viewers view Perry Mason shows as a little bit campy
and many lawyers groan at the mention of his name, I agree with those
who believe that the show created a very positive view of the lawyers
and the legal system.
TV Perry Mason was quite different from the other pop culture heroes of
the 1950s who were mostly cowboys and detectives. They were loners who
achieved justice at the point of a gun.
Mason, aided by his
trusty investigator, Paul Drake and secretary, Della Street, always
achieved true justice through the legal process. And he never relied on
gunplay or other vigilante alternatives. I couldn't resist giving you
at least one taste, particularly for some of our newer people who may
not have seen Perry Mason in syndication.
[Plays video clip]
Well, Mason, did the trial transcript interest you?
Yes, it did, Judge. I want to thank you for digging it out for me.
Sit down, sit down. How come a little bird like this could interest you on an 18-year-old murder case?
Murder is murder, wherever you find it.
So is justice, which was carried out.
What are you getting at?
You didn't mention that you were the prosecutor in that case.
You didn't ask! Now, look, Mason, let's you and I stop beating about the bush.
All right, I will. All through the testimony, there was reference to a
Miss X. Why wasn't her identity revealed during the trial?
Because she wasn't involved in the murder or the motive. So, it was
decided there was no use to have an innocent girl's name dragged
through that kind of thing.
And the defense counsel agreed to that?
Of course he did. Now, look here, Mason, we don't have any desire to
have you come in to our community and start replaying our cases. The
man is dead. What's the big game by bringing it up again?
Something with which we're both familiar, justice?
[End of video clip]
The contrast to Perry Mason and other lawyer heroes such as Matt Loken,
the defenders of an earlier period, are too numerous to list. From TV:
at least, Shark, LA Law, The Practice, Boston Legal and to some extent,
the prosecutors on Law and Order; from films including this year's
Michael Clayton; of course, Chicago and Liar, Liar. Big firm, corporate
defense counsel are portrayed in the most negative light.
excerpts that I don't have time to show, but which you may want to view
for fun maybe Saturday night, include James Mason in The Verdict,
Sydney Pollack in Changing Lanes. And just to give equal time to nasty,
overzealous women lawyers, Tilda Swinton in Michael Clayton and Glenn
Close in Damages, a TV show.
The current trend portraying the
overzealous, win at all cost conduct of current lawyers is exemplified
in several clips that I don't have time to show, but I'll at least
mention to you.
One is Jon Voight in The Rainmaker. He plays a
big firm attorney who, consistent with the Fisons and other similar
case, hides documents. And in the scene I was going to show, Matt Damon
who's a novice plaintiff's lawyer who's trying to depose witnesses from
a large insurance company, is blocked by them, firing one, sending
another and hiding a third and telling him that he can't depose any of
those at the time.
In addition, Robert Duvall in A Civil Action
plays another big firm defense lawyer who, in a number of segments from
the movie, plays a cynical, crafty lawyer who also, through various
devices, blocks access to information.
In one particularly
humorous scene, particularly for those of us who either teach in law
school, particularly trial advocacy adjuncts. Duvall is in a scene
where he's in a law school class and obviously, as a guest lecturer in
the trial advocacy course, explaining that the best way to throw a
plaintiff's counsel off is object at every opportunity.
there's a little scene that's almost like something from Gilbert and
Sullivan where he says, "Hearsay, object. Best evidence, object." And
then, he says, "If you fall asleep..." and then the whole class says,
And then, they show him back in the scene, putting all of that into action at trial.
far, the most cynical of all of these is a scene from Changing Lanes in
which Ben Affleck plays a young associate in a large law firm and has
gotten into a minor fender bender in which he's lost the file that
contains the crucial power of attorney that he's promised the court
that he will produce.
He comes back and when he tells the senior
partners about it, after being outraged, they then come up with a plan
to take the will of the client that they have in their files, reformat
the power of attorney so that the last page... they can use the
signature page from the client... and put that on the document
When Ben Affleck says, "Well, isn't that forgery and
fraud," and all that, they inform him does he really want to get in
trouble and lose all the business, etcetera.
He's still debating
that when he's called to a lunch meeting with his wife who's also an
associate in the firm and the daughter of a senior partner, in which in
a scene reminiscent of Lady Macbeth tells him that if he really loves
her and he really wants to be a success then he'll do what they say.
She could have married a medieval English professor from Princeton who
would have been moral and upright.
But really, if he wants to
have a successful career he has to do what's necessary to achieve, and
he says, "Well, I don't know what to do. What do I need to do?" And she
says, "Well, take the page. Put it on the back of the will as they told
you to or the power of attorney. Turn it in and then meet me for
dinner." Again, another scene doing that.
Well, I am running out
of time. Although I have lots of other clips I'd love to show you, I
don't want to outstay my welcome. I want to leave you on a more
positive note. Despite some of these clips, I am really not as
pessimistic as I might seem.
What I would like to do is suggest
or, at least, list a few proposed remedies to what I see as the
win-at-all-cost mentality in sports and in law.
As the court
stated in Fisons, "Misconduct once tolerated will breed more
misconduct. Those who might seek relief against abuse will instead
resort to it in self-defense.
Good umpires and referees must
clamp down on initial hard fouls and violence to send a message that
they won't be tolerated and to avoid retaliation in self-defense.
Likewise, I applaud the recent trend of judges to impose severe
sanctions on discovery abuse."
There was a reported sea change
in the discovery practice in Washington after the Fisons case. And
every time a judge takes the bold stand and the difficult stand of
imposing severe sanctions... and in some cases around the country
excluding witnesses or even dismissing cases... the cost benefit
analysis that formerly weighed in favor of winning cases by using those
kinds of tactics shifts dramatically. Judges must continue to refuse to
tolerate discovery abuse and other misconduct.
governing bodies in sports and law must promulgate and enforce stricter
standards of conduct. Again, if the cost of overzealousness is
outweighed by the harm and the penalty, the conduct will decrease even
it is not totally eliminated.
My experience with the NCAA
management council was that virtually every effort to take dramatic
change to improve the situation was watered down substantially by the
concerns of those who wanted to win.
Third, we need to pay more
attention to better morals and ethics education at the K-12 level.
That's a critical subject that is beyond the scope of this presentation.
also need better education and concentration on ethics and morality in
law schools. I, and... I note there are several other professional
responsibility professors in the room... have long advocated that legal
ethics should be taught and emphasized as relevant in all law school
An unintended consequence of teaching discreet subjects
with skills learned and the ability to reason and apply cases
regardless of which side you are on, has the unintended consequence of
causing students to think that the justice of the result, the effect on
the humans involved and the morality is something that is slightly less
Students see lawyering as involving analytical
brilliance without regard to the morality of the social utility and the
position's argument. And then when they get to the professional
responsibility course, late in their second or third year, the small
voice of the professional responsibility professor says, "But, wait you
might want to consider some of these other issues".
It is my
belief and the belief of not only those of us who teach professional
responsibility but hopefully an increasing number of other law
professors that these kinds of issues need to be raised as they arise
in every class.
Law schools do a disservice to students if they
fail to explore success in terms other than making technically and
analytically brilliant arguments.
Next, there must be increased
emphasis on basis for happiness other than materialistic winning. Study
after study details the unhappiness of those involved in law in sports.
And the number of lawyers leaving the legal profession after a very
short time is somewhat alarming.
Finally, proselytizing at all
levels concerning values, balanced lives, the importance of family and
the importance of aspects other than winning cases and long hours. We
must not as parents, teachers, lawyers, judges and coaches
underestimate the importance of role models. The need to communicate in
words and conduct that while winning is highly valued; winning at all
cost is not.
Anyone who had the pleasure of seeing how Judge
William Dwyer conducted trials will understand the value and
effectiveness of a great role model.
And no less an icon than
Abraham Lincoln in refusing to help a potential client enforce a
legally warranted but morally repugnant claim stated, "Yes, we
doubtless can gain your case for you. We can set a whole neighborhood
at loggerheads. We can distress a widowed mother and her six fatherless
children and thereby get you the $600 to which you seem to have a legal
claim but which rightfully belongs, it appears, to me as much to the
woman and her children as it does to you".
"You must remember
that some things legally right are not morally right. We shall not take
your case, but we will give you a little advice for which we will
charge you nothing. You seem to be a sprightly, energetic man. We would
advise you to try your hand at making $600 some other way."
This is where literature and film can play such a valuable role. That's
one reason why I show Atticus Finch's closing argument every year
third year law student in my Law, Literature and Film class wrote in
her journal two and a half years later, "I remember so vividly when you
came in during our one hour orientation and played the famous courtroom
scene from 'To Kill a Mockingbird'. I had just finished reading the
book in an attempt to be inspired before starting school, and when the
tears welled up in my eyes watching the film clip I had all the
inspiration I needed".
To the extent that we provide support and
positive role models of lawyers, judges, coaches and athletes and to
the extent possible serve as positive role models ourselves, we can
encourage present and future lawyers and athletes to aspire to more and
enduring values and more responsible conduct than winning at all costs.
Thank you, Professor Aronson. As I was sitting here it was occurring to
me that these two major topics we have been talking about and Rob has
been talking to us about, sports and law, have in common not only the
fact that each one is a passion of Professor Aronson, but each of these
is in a sense one of our most important public places, public spaces;
places that we meet, where we display models of our own conduct.
they are most important to us to the extent that they become places
where you have corrosive images and where they somehow seem to be
reduced by the cynicism by those who are engaged in them.
really suffer something quite serious in the way of loss, and so I just
wanted to say that just to underscore the importance of the themes and
to highlight again the importance of the work that Professor Aronson is
doing. We are privileged to have him among us.
We are about now
to go to the Perkins Coie Room down at the end of this hall all the
way down to the end of the gallery. Please stay. There will be lots of
good food and drink and just looking around the room, evidently very
good company. Come and stay and help us continue the celebration. Thank