The Ultimate Trial Lawyer

(Editor’s note: Virtually every fact in this post can be objected to on the basis of its being hearsay: I have no firsthand knowledge of any of the facts which have been reported by third parties, which, moreover, I have no way to verify. However, as Professor Walker Blakey of UNC Law School used to say, nodding and windmilling his hands, “Hearsay is just a way of talking about evidence,” leading into a discussion of all of the exceptions that allow hearsay evidence to be admitted.

Nothing in this post is admissible due to any exception to the hearsay rule, however, so you’re just going to have to trust, first, the original interlocutor, and, second, me. On further reflection, I’d just skip this altogether if I were you.)

When I was at my first law firm, one attorney was the ultimate trial lawyer, Pell Whitemore. He had attended North Carolina State where he played linebacker. When he was being recruited, they took him out to dinner, and he ordered a ham steak (remember ham steaks, by God?) He said that in order to impress them with how strong he was, he disdained the knife and tried to cut the ham with only a fork. The ham escaped from under the fork, and the syrupy stuff that used to come with it sprayed all over. He got a scholarship anyway.

Later he joined the Marines and served in Vietnam, and, by the time I met him, he was a litigation partner in our firm. As a trial lawyer, he was still a warrior. I can see him sitting at his desk, papers all over, his thinning blond hair brushed back and askew, his face anguished and resigned.

When I was a summer associate, he settled a huge antitrust action that I take it had been a bit of a financial gamble; when we got paid, another more demonstrative partner, Jim Putney, threw his arms around Pell and held him for some time. Not prone to any emotion except anger and irony, if that is an emotion, Pell just endured the hug, blinking. Putney had multiple alimony and child support payments to make.

One day, a bunch of us went out to Stamey’s Barbecue, a fixture in Greensboro, NC, for lunch. (I just checked its website. They haven’t updated the prices since 1988 or so.) Discussion turned to what we’d all do if we were given a million dollars. The head corporate lawyer, a nice man but clearly bitter and defeated, said, “I’d just go home and never come back.”

I felt the same way, but, in only my second year with the firm, even I knew enough to keep my mouth shut.

Pell sighed heavily and said, “I’d sail around the world, and then I’d just come back here and start trying cases again.”

I recall Pell annihilating his lunch of sliced barbeque. He ran all of the time; I never saw him, but I imagine a labored stride, a monster stomping on the terra. I recall now that he sighed a lot: “I run so much because I love to eat,” he said, shaking his head in resignation.

I only worked with him on one case; I wrote a brief in support of our motion for summary judgment, which means a motion before trial saying that, hey, all of the facts are in, and there’s no dispute about these certain facts, and the law is on our side, so dismiss these claims from the suit.

I had written the brief, at which Pell didn’t look before we filed. He read it while the Judge, Doug Albright, whose kid played tight end at UNC, read it, the sleeves of his robes riding up to his elbow. Pell read the brief as Albright did and sighed and said, “Well, we out-briefed them, anyway,” which I took as a huge compliment. And Judge Albright granted our motion on most of the claims. When Albright was done, Pell simply packed up, and we left. No celebration, either there or back at the office.

To be clear, I already felt appreciated by Pell. When I had received an offer of permanent employment, he confronted me in the hallway, gave me not a vulnerable look but a commanding one, and, pointing his index fingers at the ground, said, “We want you to come to work here.”

Yet Pell gave nothing away and took advantage of everything I conceded. In a terribly weak moment, I told him that I thought I might be manic-depressive, which I believe we now probably term bipolar. Every time after that when I showed up in his office door, he’d raise his hand and wiggle it up and down and ask, “M or D today?”

But then after three years, Nancy took a job at Burroughs-Wellcome, about an hour away, and in those days that commute was too much. So I got a job at SAS Institute a few minutes farther down the road, and we moved to Durham, to an old enormous house near Duke’s East Campus. We acquired an old English sheepdog mix with a lot of terrier in her, and she murdered squirrels blissfully on Duke’s grounds.

No one at the firm was gracious about my exit. That head corporate partner heard me out, then got up from his desk and left his office with no further word or gesture, leaving me standing there.

Then I positioned myself just inside Pell’s door and said, “Pell, I’m sorry, but I’m leaving.” He stared at me for about three seconds, nodded, sighed, and went back to what he was editing.

I felt dismissed and, frankly, disliked. Yet all I had done was what everyone did all the time. My firm was always very enthusiastic about what a great family we were, but life didn’t play out that way. Any number of partners left before me, and a bunch left after me. As of a few years ago, the firm ceased to exist altogether, gobbled up by a firm from, of all places, South Carolina. And now they have merged with a firm from, of all places, Alabama, and my old firm has disappeared completely.

A lesson of old age: no matter how solid and settled an institution seems, it’s ultimately fragile and just waiting to collapse. The NCAA is next.

In fact, a few years later, Pell was reported to have done something entirely out of character. This is too serious to rely on hearsay, but it may have been something as serious as forging a judge’s signature to a motion. The firm was unforgiving and fired him.

On his way out the door, he was accompanied by Jim Putney, who was nothing if not loyal. They set up shop a few blocks away, Putney & Whitemore, and hired another couple of lawyers. Though I had moved to Delaware by then, Putney and I had conversations about my joining them. However, they seemed to want me to do actual work, like in corporate tax, so I demurred. Jim and I always kept in touch.

They must have filled up an office; Pell was well over six feet, and, though slender thanks to all of that running, still muscled like a linebacker. Putney had played fullback at Duke and was thick as a ‘50s Chevy.

A couple of years later, this story reached me via a young partner at the old firm: Pell was in court one day when the judge said, “OK, the trial date is set, then. August 24.”

Pell said, “Well, you’re going to have to do it without me. I won’t be here.” And he packed up and left.

One can only imagine the reaction of the Court, not to mention opposing counsel.

Word reached Jim Putney through the grapevine that his partner had quit. Pell hadn’t come to the office for a day or two, so Putney drove over to his house. The front door was open, and Putney walked in and found Pell in the basement working on an exercise bicycle like he was trying to leave town yesterday. Putney asked if Pell was done with the practice of law, and Pell, continuing to peddle at pace, nodded.

“Pell, when were you going to tell me?” Putney all but pleaded. Putney was a tough guy; he was a brilliant trial lawyer, and he had that sense of loyalty and a great sense of humor, but you wouldn’t want to cross him, I’m guessing.

Pell considered and said, “Well, I haven’t told my wife yet.”

Putney countered, “But I’m your partner!”

There was no word how that scene ended.

Pell, who would have traveled the world and then come back to try cases, quit trying cases.

Then he went to nursing school. As a nurse, he was apparently so empathic with patients that the other nurses called him “Squishy.” I bet he didn’t go into hospital rooms and wiggle his hands and ask, “M or D?” anyway. But I think it’s a wonderful thing that Pell opened up his obviously considerable heart.

Again, I don’t know if much or even any of this is true. Maybe it’s just a good story of the arc of a life from linebacker to nurse. Even if it’s not true, it still makes for one more story about a human about which I have no understanding whatsoever.

The world turned upside down.