I slept horribly. Every time I’d close my eyes, the current edition of the American Bar Association’s law journal would appear. On its cover was a picture of me in an orange jumpsuit. The caption underneath my photo was, “America’s Worst Attorney.” Apparently, the punishment for violating a lawyer’s duty of competence to his client was now a long prison sentence.
As the digital clock clicked to 4:30, I gave up. After showering, dressing, and eating a bowl of Raisin Bran cereal, I headed for the law school. No lawyer likes to be embarrassed. As I made the twenty-minute drive, I secretly hoped the New York legal eagle was only a sparrow.
By 6:30, I’d concluded Rob was smarter than I’d ever imagined. He had been correct to question whether I was a real attorney. My WESTLAW search had produced six cases that addressed the National Registry (officially named National Register of Historic Places), and eminent domain. Each case had wound up in federal court except one. I ignored it and concentrated on the other five. After reading two cases, I realized I had been wrong. Embarrassed or not, as an attorney, I had to follow the truth wherever it led.
The case whose facts were closest to the Hunt House was out of the seventh circuit (Illinois, Indiana, and Wisconsin). It originated in South Bend, Indiana in a state trial court but was quickly moved to federal court. The National Registry was the issue that gave the Feds jurisdiction. Ultimately, the property owner lost but the appeals court’s reasoning turned on the fact the real estate had once been a commercial warehouse.
I kept looking. One case I’d initially skipped now looked promising. It had originated in Macon, Georgia, which was part of the Eleventh Circuit. Alabama is also in this circuit. My interest was not because of the Court’s ultimate ruling. It was the attention it had given to a temporary injunction. What made the analysis so powerful was that it was controlling law. Since I hadn’t found a single case on my issue that had made it to the U.S. Supreme Court, I had to depend on a lower federal court’s ruling. Any other analysis and ruling on temporary injunctions could be used, but they would only be persuasive authority, not controlling. Of course, all federal circuits might think the same way on this issue, but I didn’t have the time, nor interest, to chase that rabbit.
However, I was curious enough to review the only case I’d found where a state appeal’s court had considered the National Registry’s effect on a local municipality’s eminent domain action against a private landowner. It originated in Dubois, Wyoming. The property was Twin Pines Lodge, on Highway 287, the heartbeat of downtown Dubois. It was built in 1913 and operated for years as a hotel. The thing I liked most about this case was the unquestioning viability of razing the Lodge and constructing a mega-mall, including three restaurants and forty other stores. But the learned Wyoming Supreme Court justices gave a long and inspiring opinion including two pages weighing the importance of the past and comparing it to expected profits in the future. History won. I particularly liked the last sentence of the paragraph addressed to the National Registry: “The National Register of Historic Places included Twin Pines Lodge for one simple reason: to preserve and protect our past. Economic progress is too high a price to pay to lose physical proof of the rough and tumultuous journey we’ve trod to get us where we are today.”
I printed a copy of Twin Pines Lodge vs. City of Dubois. It felt more than persuasive. I was ashamed to admit that all I had really wanted to find this morning was some legitimate way to slow down Judge Broadside’s ruling. For the first time, I realized the Hunt House was a national treasure. Losing it to another shopping center, one in existence simply to generate a few more sales tax dollars for the City’s till was clearly too high a price to pay. Even if the citizens of Boaz didn’t realize it.
But there was another issue I had to address before I could draft and move for temporary injunctive relief. I wasn’t a member of the Alabama Bar. Thankfully, each state had a procedure to resolve my problem. It’s called Pro hac vice. These Latin words mean, “for this occasion.” It is a legal term for adding an attorney to a case in a jurisdiction that does not license him, in a way the attorney does not commit the unauthorized practice of law.
I quickly searched the Alabama Bar’s website and wasn’t surprised by its rules. I had to associate with an attorney who was already a member in good standing with the Alabama State Bar. Then, that attorney had to file a verified application for my admission to practice. It was a lot to ask of another attorney. I’d need to find one who didn’t have a conflict with the City of Boaz, one who wouldn’t require me to travel to his office for a personal interview before he would agree to our association.
Thankfully, I already knew who I would call. And, even better, his office was in old downtown Boaz. Micaden Tanner was a high school classmate. Although we had not been close friends, I always sensed a mutual respect. I hadn’t seen him since graduation in 1972, but I had talked with him once. It was the year 2000 when I was working for the U.S. Department of Justice in Washington, D.C. He had called to ask the name of the best Assistant U.S. attorney to talk with in the Civil Rights Division. We had promised each other to stay in touch. Promises we both had neglected. Until now.
Fortunately, I reached him on my first attempt. Unfortunately, I was running out of time before my 8:00 AM Torts class, and Micaden was ten minutes from having to depart for a motions docket in Calhoun County. After exchanging pleasantries, I went for the jugular. “I need to associate with a local attorney in a case against the City of Boaz.”
Before I could go further, he responded, “the Hunt House?” He didn’t pause for my acknowledgment. “The sons of bitches respect nothing or no one unless it lines their pockets.” I liked a straight shooter, even if I didn’t fully understand his bold statement.
I confirmed I needed authority to represent Rob and Rosa Kern in their defense of the Hunt House. “I’m hoping you don’t have a conflict.”
“No. Never. I’ve always represented the little guys, those who don’t have a chance in hell against the big boys. But I must warn you. How long has it been since you lived here?”
“Early August 1972, right before I moved to Charlottesville, Virginia. Why?”
“As long as you keep David and Goliath in mind, you’ll be okay.”
I didn’t question his analogy, since his secretary came in and announced his need to leave for Anniston.
“After I’m admitted, assuming Judge Broadside approves my application, I want to move for temporary injunction.”
Again, Micaden was quick to jump in. “I’ll have Tina email you the application. Complete and return it to me ASAP. I’ll have it on Judge Broadside’s desk by noon if you do your part. Talk later.” The line went dead without a goodbye. I too disliked chit-chat.
I grabbed my Prosser, Wade, and Schwartz tome and headed to my 1L Tort class. Mostly, 1L’s (first-year students) spend their time on the law school’s first floor, 2L’s on the second, and 3L’s on the third. Administration sandwiched my office between two smaller classrooms and was easily accessible to 3L’s and professors alike. Although I enjoyed teaching the more advanced classes, after Rachel died, I’d requested permission to teach introduction to torts. There was something special about witnessing a mental toddler transform into a hair-splitting adult. It was as beautiful as observing the caterpillar-to-cocoon-to-butterfly process.
After class and interacting with a couple of students, including answering a false imprisonment hypothetical, I returned to my office via the stairwell. Rachel would be proud.
It took less than half an hour to print the Pro hac vice application and return it to Micaden’s secretary. I halfway expected her to call with at least a clarification question or two. She did not.
I spent the rest of the morning with Lauren Araya, a 3L, having a problem with the essay she was writing for the Yale Law Journal, the student led publication.
At noon, I ate my sack lunch and closed my eyes. I semi-dozed twenty minutes before my iPhone alarm sounded. This practice had become valuable.
For the next three hours, behind a locked door, I read and graded case briefs written by my Appellate Advocacy students. Naturally, all 3L’s. The best students always impressed me with their ability to set out the Statement of Facts in narrative form.
At three-twenty, Gina tapped on my door and whispered she had an emergency. I took a break and learned her daughter had suffered a broken tooth during soccer practice.
I whisked her away right as Professor Stallings stuck his head inside my open doorway. As usual, he didn’t tarry. He stayed just long enough to learn I had called Connie Morgan but had to leave a message. I took the liberty of succinctly stating she might lead to another prospect.
At four fifteen, once again my iPhone sounded. This time, it was a phone call from Micaden’s office. I answered, assuming there was a problem. “Lee, is now a good time to talk.” I affirmed. “Okay, hold for Mr. Tanner.”
Tersely, he said: “Good news and bad news. Shit, I’m getting windy. Judge Broadside approved your application and is demanding we both appear at next Tuesday’s hearing.”
I felt woozy. I’m glad I’m not the fainting type. All along I had failed to consider real life law practice in the South. Why can’t Alabama judges make conference calls or even online video exchanges, especially with attorneys living a thousand miles away? “Gosh, are you kidding?” I already had my answer. Micaden wasn’t the kidding type.
“No. Be glad you’ve got a cushy teaching job. Judge Broadside is hell on wheels. It was your motion for temporary injunctive relief that raised his dander.”
“How did he know that? That motion hasn’t been drafted.”
“Trust me, it’s better I forewarned him. Why else would you be getting in the case? Shit, you have to do more than kiss the city attorney’s ass.”
Micaden had a point. I had nothing to say except thanks.
He quickly responded with, “Send me a copy of your draft motion. If possible, have it here early. Tomorrow.” The line went dead. My high school classmate certainly wasn’t a chit-chatter, but he clearly wasn’t passive.
Damn, what had I gotten myself into?
The Pencil Driven Life 