Jack “Frenchie” Helm was my oldest friend.  By that I mean, we were friends, and he was really, really old - forty-three years older than my friend (his youngest son) Jelly and me.  We started calling Frenchie “Frenchie” because our friend Crash felt strongly that Mr. Helm, as he was known back then, could and therefore should wear a beret.  Being the wise man that he was, Frenchie knew full well that no one can or should wear a beret and, therefore, never put Crash’s theory to the test.  The name stuck just the same. 

After Jelly had grown up and moved away, Frenchie and I continued to talk semi-regularly on the phone, and to meet for lunch whenever we could.  While I very much enjoyed our discussions about books, politics, and sports, that time was best spent listening to Frenchie talk about the formative times of his life.  These included wistful reminiscences about the simple joys of his boyhood growing up in depression era Louisville (idolizing his stoic but loving 9 ½ foot tall police-sergeant father), to thoughtful recollections of both the splendid triumphs and appalling failures of the human spirit he witnessed during his career as an artillery officer in the United States Army during World War II and the conflict in Korea (stranger than fiction accounts of army life that, if they weren’t true, would fall somewhere between Slaughterhouse 5 and Catch 22).  In addition to being a great storyteller, Frenchie was also a great storylistener.  He listened attentively, laughed enthusiastically, and held his usually perceptive questions and comments until the end.  The point I am trying to make so far, in order to fully drive home the point, I’ll be trying to make later, is that Frenchie was one of the finest and most thoroughly decent people I have ever known.  So that you don’t have to take my word for it, and as much as he would not want me to, I should probably share a couple of examples of how he lived his life. 

He was thoughtful.  Frenchie, who had a lifelong love of learning, chose not to accept his diploma from Male High School out of concern that if he did, his brother (who did not graduate) might be made to feel dumb.  He was generous.  Although he did not have a great deal of disposable income to dispose of, at the beginning of every school year he would pay for some young man to go to Trinity High School who would not otherwise have been able to afford it. The only condition he placed on the gift was that he never be told who got the money, and that the recipients never be told who gave it.  Frenchie was useful.  He taught an adult literacy class for the homeless at Wayside Christian Mission and, spanning some four decades, served as a sponsor for an untold number of fellow travelers in the secret society for sobriety.  He was hard-working.  When Frenchie got out of the Army, he started a small cleaning/janitorial supply service.  He found profound satisfaction in a difficult and often thankless job well done.  Frenchie was spiritual.  Way too modest to set himself up as an example to others, he led a life of calmness, compassion, and consideration that nevertheless served as an example to everyone who knew him. 

So, here’s what happened.  When he finally semi-retired, he sold his business but continued to work as a consultant to a number of other businesses - mostly churches.  The guy he sold the business to sued him, alleging that the consulting work was in breach of their sales agreement.  It wasn’t.  Frenchie, who knew he hadn’t done anything wrong, took being accused of wrongdoing very personally.  It mattered to him.  Unfortunately, as the case wound its way through the Jefferson Circuit Court, he was made to feel that it didn’t matter to anyone else.  More importantly, he was made to feel like he didn’t matter.  No one, including and perhaps most importantly the judge, ever acknowledged his existence despite his presence in the courtroom.  When he wasn’t being outright ignored, he was being given the clear impression that he was taking up more important people’s much more valuable time.  No one, including and perhaps most importantly the judge, took the time to explain anything about what was happening or why.  He was marginalized, patronized and, as a result, more than a little demoralized by this experience. 

Listening to him describe his slog through Circuit Court was very upsetting to me.  Frenchie was upset too.  The difference being that I was mad about how he had been devalued, while he, as was his way, was concerned about how others might be similarly devalued.  His take was not that he deserved more and better - and here’s the point - but that everyone deserves more and better.  Anyone and everyone who has their day in court (even the jerk who sued Frenchie) deserves not only to be acknowledged, but to be made welcome by the people, including and perhaps most importantly the judges, who spend every day in court. 

With this in mind I promised Frenchie three things: (1)  I would make sure to always introduce myself and speak directly from the bench with the parties in both civil and criminal cases; (2) I would make clear to them what it was we were doing that day in court; and (3) when deciding what to do, I would try to explain why I thought that’s what needed doing.  All of this takes a little extra time and, as such, sometimes annoys busy lawyers who I watch watch their watches or thumb-thump their smart-phones while I chat with a criminal defendant about his haircut or ask after his grandmother.  But, as I learned from Frenchie, it’s important that I take that time, because feeling disrespected and being disrespected feel pretty much the same.

​I had only been on the bench about four months when Frenchie died in 2004, but I think about him every time I head out to the bench.  I think about him because the last thing I see as I’m leaving my office is a hat (a fedora - not a beret) that Frenchie gave me.  It sits on top of my coat/robe rack as a reminder of my promise to my old friend and of my responsibility to complete strangers. 

My friend Bill Adams, a long-time Assistant Commonwealth’s Attorney and the much-beloved “Philosopher King of Portland,” once told me that life is like a conveyor belt.  You get on and if along the way you discover that you can bake, then you get off and you are a baker.  If you can build, you get off and you are a builder; etc., etc.  If, however, you can’t actually do anything, then you continue to ride the conveyor belt of life straight on to law school. 

Having taken that ride myself, I have always admired people who can do tangible things.  People with the kind of skills that would guarantee them a seat on an overcrowded lifeboat.  As such, I am drawn to television shows like Top Chef (cooks), Wheeler Dealers (auto mechanics), and Restored (carpenters/ plumbers/masons/roofers/landscapers) in which people are doing under pressure and hopefully under budget that which I don’t have the skills to do under any circumstances.  What I don’t watch are shows about lawyers.  Even if I was inclined to do so, my wife wouldn’t let me.  She claims that I ruin them for her by saying things like, “oh come on!”, or “that would never happen”, or just “pul-leeeease.”  When she quotes me saying things like that, she uses the voice that all long-suffering wives use when they are imitating/mocking their goofball husbands (it’s like the voice of Lenny from Of Mice and Men but with the tone and attitude of a complete know-it-all blowhard).  I don’t remember ever saying any such things (or sounding that way) but I do recall the occasional harrumph, chortle or highly audible sigh.  In fairness, I doubt cooks, auto mechanics, or building contractors are allowed to watch Top Chef, Wheeler Dealers, or Restored with their significant others either.

Lawyers have skills too.  The kind of skills that might be used to convince the rest of the people in the aforementioned overcrowded lifeboat not to toss them overboard (or to toss somebody else instead).  Our skill set is developed through and honed by reading.  We are among the last of a dying breed of readers.  It’s what we have to do when we’re at work.  It’s also what a great many of us choose to do when we’re off work.  It is my leisure activity of choice.  I am rarely without the book I am reading (which I carry tucked under the waistband of my pants in the small of my back) and another book “on deck” (which I do not stuff in my pants) for when I am finished with the first one.  I am allowed to read books about lawyers.  I have read quite a few.  I am not a particularly good audience for books set in the courtroom any more than I imagine plumbers are for books set in the bathroom, but I have read a few - very few - that I enjoyed a great deal.  If you either take pleasure in or haven’t given up the search for pleasurable stories which feature lawyers and lawyering, then I am pleased to recommend the ones I have listed in the SIDEBAR below.

Regardless of what you choose to read, reading allows you to better understand your world by allowing you to visit other people’s worlds.  The more you read the more readily you can use the language and ideas expressed by others to better express yourself.  The well-read lawyer is well-prepared to draft briefs that are well-written and make arguments that are well-spoken.  Well?  What are you waiting for?  As Socrates wrote in a book I haven’t read, “employ your time in improving yourself by other men’s writings so that you shall come easily by what others have labored so hard for.”  Or, as Dr. Seuss wrote in a book I have read, “the more that you read, the more things you will know.  The more that you learn, the more places you’ll go.” 

The world is not easily divided into “good guys” and “bad guys.”  Having spent the first fifteen (15) years of my lawyering life prosecuting cases involving serious and violent crimes, I realize that there are some people who are just too dangerous to live amongst us. Some people. In all that time I found that very few of the people who found themselves on the wrong side of the “v” (i.e., Commonwealth v. Them) were actual “bad guys.”  They were often undereducated.  They were usually underemployed.  They were almost always under the influence and nearly as often suffering to some degree from mental illness. It follows then that, while it is necessary that we continue to lock up the people who should be in prison; it is important that we continually look for ways to help those who shouldn’t be get educated, employed, sober and access to quality mental healthcare. 
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The traditional means available to judges to achieve that end is probation.  Under the traditional tough on crime probation model probationers get to stay out of prison so long as they follow the rules. The problem is that probationers, it turns out, are not particularly good rule followers.  That’s pretty much how they got to be probationers.  It’s like saying to someone, “You know how you’ve been your whole life? Starting tomorrow don’t be that way anymore or go to prison.”  We are disappointed but should not be surprised when that doesn’t happen on command or on schedule.  It wasn’t until 2008 that I finally wised up and got S.M.A.R.T. about probation. 

S.M.A.R.T. probation is rooted in unassailable behavioral modification principles and works by making sure that the people on probation have a clear understanding of what is expected of them and what they can expect in return along with the encouragement they may need to make the effort necessary to make a difference (i.e., Supervision and Motivation). Good choices are recognized and rewarded.  Poor choices are dealt with swiftly, surely and in proportion to the seriousness of the misconduct (i.e., Accountability and Responsibility).  And help is provided at every turn to increase each person’s capacity for making consistently and progressively better choices (i.e., Treatment).  A probationer with a long history of not making it on probation or parole summed up the spirit of the program at the end of a S.M.A.R.T. orientation session (what one of my curmudgeonly colleagues dubbed the “Kumbaya”) when he said: “I’ve been in trouble and in and out of jail my whole life and I’ve never had anyone, especially a Judge, talk to me and explain things this way.  I know I need help. I am going to try.  I can’t promise that I’m going to make it, but if I end up back in prison - man that’s my fault.”  Yes!  He was right.  He was also successful.  He completed his five (5) years of supervision without any violations and has not gotten into any trouble of any kind since.

I didn’t know it when I thunk this up, but programs similar to mine were springing up independently/organically all across the country.  These programs were started by judges (often former prosecutors) who, like me, were tired of watching people fail their way into prison and were encouraged by people across the political spectrum - from those with a moral imperative against locking people up to those with a fiscal imperative against the budget-busting cost of keeping people locked up and everyone in-between.

S.M.A.R.T. probationers have proven over three (3) times less likely to commit a new offense than other probationers.  That translates directly into a decreased criminal population in our prisons and correspondingly increased productive citizen population in our communities.  Communities which will enjoy the benefits made possible by freeing up money we no longer have to spend incarcerating people we didn’t build prisons for in the first place and spending that money on programs to help people get educated, employed, sober and address their mental health issues. While there will always be a time to be tough on crime, there’s never a time not to be smart on crime.

There comes a point in every lawyer’s career when (s)he starts to wonder whether (s)he still qualifies as a “young” lawyer. When you get to that point in your own career, there is simple test.  Ask yourself whether at any time within the last calendar year you have felt the urge to denounce and lament the decline of civility and decorum in the courtroom.  If the answer is “yes”, then sorry/congratulations, you are no longer a young lawyer.  Only lawyers of a certain age have been practicing long enough to reminisce about the golden age of lawyering (i.e. when they were young lawyers).  Each preceding generation of lawyers is shocked and appalled by how each succeeding generation of lawyers has brought the profession to an unprecedented and ruinous all-time low.  It’s not unlike how the jitterbug generation was horror-struck by the hooligan rock ‘n roll generation that followed, who, in turn, thought their punk-rock progeny were, you guessed it, punks! 

As a judge of a certain age, I find myself more and more often waxing nostalgic about the glory days I spent trying cases in the old Jefferson County Hall of Justice.  But were the good old days really as good as I remember them?  It begs the question; how can anyone remember fondly anything that took place inside the old Jefferson County Hall of Justice?  A building so horrible that it was once and best described as being, “like the men’s room in a bus station but without all the charm”.  Still and all, having started practicing law when lawyers from the greatest generation were still setting the bar for the bar, I can’t help but wonder about the latest generation.  And the more I wonder, the more fully I appreciate why the crooner crowd who listened to Bing Crosby in the 1940s were upset by Elvis and his swiveling pelvis in the 1950s, and why those suffering from Beatlemania in the 1960s were understandably concerned about people struck down by Disco-fever in the 1970s.  These may not have been signs that the end times were nigh, but they were signs that civilizedation as they knew it was coming to an end.  The fact that lawyers appear in court dressed in “business casual” attire, chew gum, and don’t stand up when they address the Court - now that’s a sign of the apocalypse.

I have never been one to hold litigants accountable for the fashion crimes they commit in my presence.  I did once have to ask a defendant charged with domestic violence who showed up for arraignment wearing a “wife-beater” undershirt to please wear a shirt when he came back to court.  When he looked puzzled, I explained to him that the reason they call it an undershirt is that it is supposed to be worn under an actual shirt.  I have always held lawyers to a different (i.e. higher) standard.  It would never have occurred to me to wear anything other than a suit and tie to court.  Not a jacket and tie.  A suit and tie.  It would appear that either or both have become optional.  It really bothers me when I see lawyers dressed casually for court.  I’m not saying it should.  I’m saying it does.  To me, and people like me (of whom there are still many), it is disrespectful. Not willfully disrespectful, but disrespectful nonetheless because it evidences a failure to consider that dressing appropriately for the occasion is a sign of respect. 

I, like my mother before me, am offended by the sight of people chewing gum in public.  I’m not saying I should be.  I’m saying I am.  It’s not just that I find chewing gum to be extremely tacky, it’s because the extreme tackiness of the gum being chewed allows it to adhere so readily to the underside of counsel table where I found (and scraped it off) on a regular basis.  That’s right - counsel table.  I know I could have hung a sign on the front door that read, “ATTENTION COUNSEL: CHEWING GUM IN THE COURTROOM AND/OR STICKING ABC GUM ON THE UNDERSIDE OF COURTROOM FURNISHINGS IS STRICTLY PROHIBITED”; but should that have been necessary?  If so, then what else would I have to tell people not to do?  Don’t spit tobacco juice, sunflower seeds or phlegm on the carpet?  Don’t carve your initials into or write on the walls?  Don’t set anything on fire?  As much as my reaction to this behavior may make me look and feel like a crotchety old man yelling at the neighborhood kids to stay off my lawn, I can’t help but feel that I shouldn’t have to yell at them - they should know that shouldn’t be on somebody else’s %#@* lawn!  
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Having been raised under the professional tutelage of the Hon. Mark Miller at both the Commonwealth’s and the United States Attorney’s offices, I am physically, mentally, and emotionally unable to remain seated when a judge enters a courtroom or, when addressing the Court, cannot open my mouth unless I am standing on my feet.  I, like my colleagues who were Millerized as baby lawyers, am chagrinned at seeing seated lawyers talking to sitting judges.  I’m not saying I should be.  I’m saying I am.  I get that it is a formality, but that doesn’t mean it isn’t important.  There comes a time in the life of every institution when the purpose underlying its rituals are in danger of being forgotten leaving behind nothing but ingrained but meaningless tradition.  Lawyers stand up when addressing the Court for the same fundamental reason that judges wear robes while sitting down and listening to them.  It is not only a sign of respect for the proceedings, but a reminder to the participants that the rules that fix their professional responsibilities and govern their behavior inside a courtroom, which may be different anywhere/everywhere else, are worthy of their respect.  Moreover, and as a practical matter, if they are already standing when the end of the world does come (brought on by gum-smacking lawyers arguing their case while sporting sweatpants and a golf shirt) they will have a leg up on everybody else in the mad dash to get out of the building before it comes crashing down around them.

Words have meaning.  That meaning can be literal, figurative, simple and straight-forward, or nuanced to the point of obscurity. The intended meaning is a creation of the speaker.  The perceived meaning is a creation of the listener.  When, for example, a lawyer says the word “clearly,” it is intended to mean “obviously.”  Clearly, if something is obvious then, by definition, it need not be pointed out.  As such, when a judge hears the word “clearly” (usually preceding an argument that sounds purposefully obscure) it is perceived to mean, “Your Honor, I have no idea how to explain this.” When preceded by the statement, “I’ll be brief,” “clearly” means the same thing, but signifies to the judge that it will take much much longer to not explain.

Both intention and perception are best appreciated in context.  When a lawyer says, “may I approach the bench” while en route to the bench, they aren’t asking for permission - they’re announcing their presence.  “May I approach?” can mean anything from “I need to discuss a pressing matter of law” to “I have a pressing need to go to the bathroom.”  The intended meaning is made apparent from the circumstances surrounding the request/announcement, the tone in which it was made, and (particularly with respect to the latter) the way the lawyer walks as (s)he approaches the bench.
 
The best example of the interplay between intended and perceived meaning is the dreaded, “with all due respect your honor.”   It could mean, “I acknowledge and appreciate the deference that should be afforded to someone in your esteemed position."  It might not mean anything - just something lawyers sometimes say as a prelude to saying something else, like “may it please the court” or “let me ask you this.”

I can assure you, however, that whatever the lawyer/speaker is trying to say, the judge/listener only hears: “Hey stupid! Let’s go over this again, only this time I’ll speak more slowly and use smaller words so that even a nitwit like you can follow along.”  “With all due respect” is to good Southern lawyers what “bless your heart” is to good Southern mothers.  It is meant to both provide fair warning about and seek absolution for the scurrilous observations to follow.

​Words have meaning.  Choose your words carefully in the hope that what you meant by what you said doesn’t get lost in translation.

Much to my son Jack’s considerable consternation, any and every time I felt compelled to dole out some fatherly wisdom, I would always end my sage counsel with the tag line: “Here endeth the lesson.”  It’s what Sgt. Malone (Sean Connery) says to Elliot Ness (Kevin Costner) in The Untouchables each time he tells him something worth remembering.  For Jack, it was a verbal cue that he was free to stop pretending to listen and may, upon completion of the obligatory eye roll, resume his boyhood misadventures. 

I doubt that I listened any harder to my father’s philosophical musings over the years than Jack did to mine.  However, and likely because I have been listening almost forty years longer than he has, I actually remember and am able to pass along at least some of what my father knows best.  Given the legal bent of this missive, I should probably focus on the pearls of his paternal sagacity that relate most directly to being a lawyer and leave out stuff like: “always eat your fat - it will make your hair lie down,” or “always give your fat to the dog - it will make his coat shine.”  Not that such brilliant maxims aren’t useful (although I don’t know how I can have my fat and the dog eat it too, and I’ve never understood why the fat won’t make my hair shine and the dog’s coat lie down), but it’s probably best not to try and process so many deep thoughts all at once. 

The first bit of legal career advice my father gave me was the last thing he said to me as I headed off to the Georgetown University Law Center. “There are two tricks to law school,” he said, “getting in and getting out.  You got in - now get out.”  A simple, gentle, and ultimately profound suggestion to approach law school as a process and not a competition; as the necessary means to the end of obtaining my “ticket” to practice law.  The result was, as intended, to give me (a small over-achieving fish in a big over-achiever fishpond) the perspective necessary to give myself permission to relax and enjoy the experience.  I did.  And while I spent way more time in the Smithsonian than I did in the law library, I still got a very fine education and managed to graduate comfortably in the top 100% of my law school class.        

Having achieved great success at law school (i.e. I got out), my father shared with me the not so secret formula for a successful legal career.  “Show up early for work,” he told me, “and don’t leave until your desk is clear.”  This sampler-worthy adage should be written in big bold print at the bottom of every law school diploma and law license.  Maybe in Latin for added gravitas and lawyerliness.  Translation: “work hard.”  Being a lawyer is a profession, but it is also a craft.  You learn the job on the job.  You get better at it by doing it.  The harder you work, the better you get.  That’s why, as the saying goes, they call it “practice."  Practice doesn’t make perfect, but it does create mental muscle memory that over time makes good lawyering look so effortless because of the considerable effort that has gone into it.

If you want to avoid trouble with clients, colleagues and courts, then do as my father said and did, that is: “return every phone call every day.”  An unreturned phone call, like an unanswered letter or e-mail, is a ticking time bomb.  Ignore it at your peril.  You will find the seven-digit code needed to defuse the device right there on your voice mail.  Ignore it at your peril.  Time spent reassuring a nervous client, victim, or witness that you are on their case, or speaking with opposing counsel about that case is time very well spent.  The return on that investment is realized in the number of happy clients, victims, and witnesses (more), gray hairs (fewer), and bar complaints (none).  More to his point for lawyers of my generation, lawyers of my father’s generation and temperament solved about the same number of problems on the telephone that we manage to create through e-mail.  The best way to ensure that someone understands what you’re saying is to say it to them.  Unlike an e-mail, which is devoid of tone, nuance and feeling, a telephone conversation is an actual conversation.  E-mail may be a very efficient way to convey information, but it is a terrible way to communicate.  Lawyers are in the communication business and the telephone is still one of the most important tools of the trade.         

Arguably the most important thing my father ever said about practicing law was his admonition to “be nice to everybody, not just the people you think you have to be nice to.”  I recognize that anybody who has to be told that they should be nice to people is probably not someone who will likely take that advice to heart.  Not everybody is nice.  I have heard lawyers talk to secretaries and clerks in a tone of voice that should be reserved for war criminals and anyone who has ever played or rooted for the Chicago Blackhawks (or whoever happens to be playing my beloved St. Louis Blues that day), and then turn around and greet a judge or fellow lawyer like a favorite (i.e. old, rich, and childless) uncle.  Not good.  Even if being nice wasn’t the right thing to do, it would still be the smart thing to do.  The courthouse is run by secretaries and clerks.  If you think they don’t keep a mental list of nice people who they are only too happy to help, and a second mental list of not so nice people who they are only too happy not to help, then you’re probably on that second list.  They can and will (and probably should) make it harder for you than it would be if you weren’t such a jerk - and their Judge will back their play.  Be that as it may, the larger point he was making to me, and that I have in turn tried to make to my son whenever the occasion presents itself, is that while people may want other people to think of them as smart, funny, good looking, successful, etc., the only thing that really matters, and the measure by which we will all ultimately be judged and remembered in the end, is simply how we treat other people.  Here endeth the lesson.

My father was among the last of a generation of remarkable lawyers who set the bar for everyone called to the bar thereafter.  He stated practicing law in 1961.  He was admitted to practice in eleven states and the District of Columbia, and argued cases at all levels of the state and federal courts including the United States Supreme Court.  He was known not only as a “lawyer’s lawyer” but as a “litigant’s lawyer,” for approaching each case as a problem to be solved - not a fight to be won.  He was admired by his colleagues for his exhaustive preparation, keen intelligence, unrivaled wit, sartorial splendor, unwavering civility, and respect bordering on veneration for the important role that lawyers play in our society.  His devotion to his chosen vocation drove him to become a leading advocate for the legal profession.  He served as President of the Louisville Bar Association, President of the American Judicature Society, Chairman of the Fellows of the American Bar Foundation, and Chairman of the House of Delegates and President of the American Bar Association. He traveled the country and the world (including trailblazing visits to China and the U.S.S.R.) promoting the rule of law, equal access to the courts for the disenfranchised, juvenile justice, prison reform, and the preservation of an independent judiciary.  He was recognized for his efforts with what he humbly described as “an obscene” number of awards, honors, and tributes.
 
Having greatly and gratefully benefitted as a young lawyer from mentorship by outstanding attorneys with years of experience, “Big Stan” paid this gift forward many times over by always making time for young lawyers wanting or needing advice, counsel, or just to hear a great story from a masterful storyteller in a beautiful expertly tailored suit.