JOURNAL - North Carolina State Bar · 2016-04-12 · cials also applied to online marketing...

THE NORTH CAROLINA STATE BAR

JOURNALFALL

2009

IN THIS ISSUE

Avoiding Ethical Traps for Law Firm Websites page 8Social Networking—Blogging, Facebook, and Twitter, Oh My! page 10Donnie's Hawk—2009 Fiction Writing Competition Winner page 27

8 FALL 2009

Law firm websites made their first formalappearance on the State Bar's ethics radar in1996, when the Ethics Committee issuedRPC 239 (October 18, 1996). That opinionruled law firms could display informationabout their firms on a "world wide websiteon the internet." The Bar concluded thatmany of the same ethical rules that governprint ads or radio and television commer-cials also applied to online marketingefforts. The current provisions are containedin Rules 7.1 through 7.5.

The online world continues to createnew ethical challenges, and the Bar has doneits best to keep pace through its rules andethics opinions. If your firm is now online,here are some pointers to help you avoidethical headaches.

Just the facts,Jack. Be sure thatwhat appears onyour website isfactually correct. Rule 7.1, the guiding starfor lawyer advertising, states that "[a] lawyershall not make a false or misleading commu-nication about the lawyer or the lawyer'sservices." A communication is deemed to befalse or misleading if it "...contains a materi-al misrepresentation of fact or law...." It is theseemingly innocent factual statement, notthe questions of law, that may cause prob-lems, according to one Bar official. Supposeyour site states: "We answer all of our phonecalls within 24 hours." Your firm may be ableto demonstrate this is true if you use anaround-the-clock answering service. Even so,

be careful about making statements like thatunless they can be verified.

If you include video clips, or even pho-tographs that portray fictional persons orevents, be aware that the same rules thatapply to written text also apply to visualiza-tions. For instance, if your website video is adramatization, you must say so. See Rule7.1(b). Avoid images, such as the handingover of a million-dollar check to a client,that might create unjustified expectations.

Avoid implied comparisons. Rule 7.1states the comparison of a lawyer's serviceswith those of his or her colleagues may be

Avoiding Ethical Traps for LawFirm Websites

B Y M I K E D A Y T O N

The internet is widely acknowledged

to have been born in 1969, the

year of Woodstock. However, not

until the 1990s did the internet

capture the imagination of the general public. The rapid rise in

online users during that decade made it an inevitable marketing

avenue for law firms.

Dave Cutler/Images.com

considered false and misleading "unless thecomparison can be factually substantiated."Thus, a statement such as "service is our #1objective" is not likely to raise objections,but eyebrows may be raised when you pro-claim, "we are North Carolina's most expe-rienced law firm in food poisoning claims."Perhaps your firm has handled a class actionand represented 10,000 plaintiffs nation-wide. But that statement invites comparisonwith other firms. If you can't back it up,think twice about including it on your site.

Take a close look at client endorse-ments. Quotes from satisfied clients may bethe very thing that convinces a new client tosign up with your firm. That's why so manyfirms include them on their websites.General or "soft" endorsements typically donot raise ethical questions—for example,"XYZ Law Firm treated me with respect" or"They answered my phone call immediate-ly" or "I needed help and they were there."The more specific endorsement of "XYZLaw Firm got me $300,000 for my car acci-dent" is skating on thinner ice. The problemis one of unjustified expectations. Comment3 of Rule 7.1 states: "An advertisement that

truthfully reports a lawyer's achievementson behalf of clients or former clients may bemisleading if presented so as to lead a rea-sonable person to form an unjustified expec-tation that the same results could beobtained for other clients in similar matterswithout reference to the specific factual andlegal circumstances of each client's case."

Rules about "no fee unless we recover"statements. Lawyers who handle personalinjury matters on a contingent fee basis fre-quently include no-recovery, no-fee state-ments on their websites. Under ethics ruling2004 FEO 8, statements like those may bepotentially false or misleading if you don'tcharge a fee when there is no recovery butclients still have to repay costs. The bottomline from that ruling: "If the lawyer does notinvariably waive the costs advanced, theadvertisement must state that the client maybe required to repay the costs advancedregardless of success of the matter."

Know your Super Lawyer rules.Congratulations—you've been named aSuper Lawyer. Under 2007 FEO 14, youcan advertise inclusion in a Super Lawyerslisting on your website, subject to a few sim-

ple guidelines. Most importantly, do notsimply state you're a "Super Lawyer" as thatcould be seen as an unsubstantiated com-parison prohibited by Rule 7.1(a). Instead,make it clear the Super Lawyer designationis a listing in a publication by indicating thepublication name in a distinctive typeface oritalics, include the year you were honored,and link to the criteria for inclusion on theSuper Lawyer website.

A word about advertising verdicts andsettlements. For potential clients seekingan attorney, there may be no better sellingpoint than your firm's past successes. TheBar is still sorting out the guidelines on thisissue. In 2000 FEO 1, the Bar's EthicsCommittee concluded that the posting ofverdict and settlement amounts on websiteshad the potential to create an unjustifiedexpectation about the results a lawyer couldachieve. In 2000 FEO 1, the EthicsCommittee ruled that putting verdicts or set-tlements in context lessened the likelihoodthat a website visitor would be misled. Butthe context requirements proved difficult to

C O N T I N U E D O N P A G E 1 2

THE NORTH CAROLINA STATE BAR JOURNAL 9

10 FALL 2009

Social media is an easy way to connectwith people on a personal level. If your web-site serves as your online business card, thensocial media can be a form of online greetingcard, providing you with a more personalpresence on the internet and allowing you tointeract with clients individually.

When done properly, social media is afun, targeted way to reach your audience ona personal level with a wide range of positiveresults for marketing, search engine rank-ings, and traffic.

Don't stumble blindly into social net-working for your business. Whether you'reblogging or using social networking sites likeFacebook and Twitter to connect with yourclients, you need a strategy. Decide what youwant to accomplish through social media.Connection with customers? Web site traffic?Reputation management? Your ultimate goalwill determine the tactics you use and the net-works you join. Here's a basic overview of themost popular methods and how to use them.

BloggingIf you want to inform your cus-

tomers with industry and companynews and you're prepared to devotetime to quality content develop-ment, then you should start a blog.Adding a blog to your website pro-vides a personal voice to your busi-ness and allows you to offer youraudience useful information. It caneven help your website rank betterin search engines. It's also the most time con-suming method of social media and the mostdifficult.

Before starting a blog, come up with aplan. What kind of information do you wantto provide to your visitors? Will you havetime to write original content for your blogseveral times a week? Are you or someone onyour staff comfortable enough writing todevelop quality content? If the answer tothese questions is yes, then a blog is a perfectstart for your social media campaign.

The key to building a successful blog isn'tpromotion; it's quality content develop-ment. Your blog is not the place to sell yourservices. It's a place to share information thatis helpful and interesting to your readers.Promotion can help you build a network,though. Promote your blog to your clientbase by adding it to your email signature,website, and promotional materials.Connect with other bloggers in your indus-try by linking to them, commenting on theirposts, and submitting your content to social

Social Networking—Blogging, andFacebook, and Twitter, Oh My!

B Y M I C H A E L D U N C A N

Facebook, Twitter, blogging…in the past year, these social

networking tools have shifted from kid stuff to major mar-

keting tools. If you're wondering how to use these tools to

connect with potential clients, you're not alone.

Dave Cutler/Images.com

This article on using social networking to market a business was not written specifically for lawyers. Although the advice is topical and useful, lawyersare reminded of their paramount duties under the Rules of Professional Conduct. The prohibitions on in-person solicitation and targeted mail may, inparticular, limit the use of social networking for marketing a law practice. Before engaging in social networking as a marketing tool, contact ethics coun-sel at the North Carolina State Bar for advice.

bookmarking sites like Digg andStumbleUpon. Just remember, focus on thecontent to keep readers coming back formore.

If you're ready to build your blog, keepthese guidelines in mind: don't blog from anoutside website like WordPress or Blogger.Your blog should be a part of your website(http://www.yourdomain.com/blog), notpart of an outside website (http://yourdo-main.blogspot.com). By placing the blog onyour website, you're placing all of the con-tent from your blog directly on your site.Search engines love websites that are updat-ed frequently, so blogging directly on yoursite allows you to reap the search engine ben-efits of keyword-rich blog content. Writefresh, original posts regularly (at least threetimes a week), and try to keep them under500 words each for better readability foryour visitors.

FacebookIf you want to create a social media hub

for your business with content, photos,video, and networking capabilities, aFacebook page is what you need. Facebook is

the largest social network on the web. Thewebsite boasts more than 200 million activeusers with more than half of them logging onat least once a day. And it's not just kids,either. More than two-thirds of users are outof college, and the fastest growing demo-graphic is 35 years and older. If you're notalready a part of this huge community, nowis the time to join.

The way Facebook differentiates betweenpeople and businesses can be confusing.Facebook does not allow businesses to buildpersonal profiles. You have two options forpromoting your business: building a businessprofile page and creating a group for yourbusiness. Use the page as a central hub forinformation about your business onFacebook, and use the group as a forumwhere fans and friends can interact with youand each other.

Remember, profiles are for people; pagesare for businesses. Your business page willneed to be connected to a personal profile ifyou want to reap all of the benefits ofFacebook. Build your personal profile first,and keep it business appropriate. Then con-nect a business page to your profile.

Facebook is people oriented. The onlyway it's going to work is if you're willing toget involved in the conversation. Build a per-sonal profile, seek out friends in your targetaudience, and participate in groups related toyour profession.

For more information on Facebookpages, read Facebook's help section for busi-nesses at http://www.facebook.com/advertis-ing/#/advertising/?pages.

TwitterTo converse with your customers and

monitor what they're saying about you inreal time, consider Twitter. Twitter(http://www.twitter.com) has quickly grownto become one of the most powerful socialnetworking tools on the web. According todata compiled by Neilson Online, Twitterreaches more than 13 million people in theUnited States each month. It's also the socialnetworking tool that many novices have thehardest time using. Twitter allows users tobroadcast short, 140-word messages to otherusers who "follow" them.

It's no use if your target demographicisn't using Twitter. Do some research to


determine if you can reach your audiencethrough Twitter. Use Twitter Search(search.twitter.com) to find people talkingabout your products or services. TweetScan(www.tweetscan.com) notifies you whenyour services or keywords are mentionedon Twitter, and Twollow(www.twollow.com) allows you to auto-fol-low people who are talking about yourservices. For instance, if you specialize intraffic violations, you should set aTweetScan alert for relevant keywords suchas "speeding ticket" in your area. UsingTwollow, you can automatically followusers who are talking about traffic viola-tions. Following them will get you noticed,but they'll only follow back if you're shar-ing interesting information, so don't waituntil you have a network to start tweeting.

Initiate conversation about your industry,offer tips, listen to what people are sayingabout your company, and be proactive inresponding to @ replies and direct messages.Offer information that customers and otherpeople in your network will find interest-ing—not just marketing and PR speak.Don't toot your own horn too much, or

bombard users with links and repetitive mar-keting messages. Just like any conversation,these common mistakes will make you bor-ing or annoying to followers.

This is by no means a complete list ofsocial media sites that can help promotebusiness. There are hundreds of other sitesand social networking tools. Social mediamarketing is like any other marketing: differ-ent tactics work for different businesses.

Spend some time exploring these web-sites to determine if they can work for you.Come up with a strategy for how to imple-ment these tools and integrate them withyour current marketing efforts. Be sureyou're using a network that your target audi-ence is using.

If you're unsure of where to begin, inter-net marketing consultants can help youcome up with a strategy, set up your profiles,and learn to use these tools effectively, but inthe end your success depends on yourengagement. Designate someone withinyour company as the online "face" of yourbrand. Social media works best when it'sused to connect people with people. Use areal person as the online persona of your

brand instead of a faceless logo. Your onlineprofiles are an extension of your company, somake sure your company's online personapositively represents your brand.

After you've developed a strategy, builtyour profile, and joined a network, allthat's left is the conversation. Initiate con-versation with your customers about yourindustry and your brand, listen, andrespond promptly to @ replies, blog com-ments, wall comments, and direct mes-sages. Avoid excessive marketing and pro-motion of your brand, contribute to thecommunity, and be interesting!

Mike Duncan is the CEO and creativedirector of Sage Island, a Wilmington market-ing agency. Sage Island began as a custom pro-gramming company, but quickly expanded intocommercial web design and eventually full-service marketing. Today, Sage Island has builta strong reputation through award-winningdesigns, brand strategy, and internet marketingservices, including search engine optimizationand pay-per-click advertising. Mike can bereached at [email protected],www.sageisland.com.

12 FALL 2009

LLaaww FFiirrmm WWeebbssiitteess ((ccoonntt..))

meet. Among other things, firms wererequired to list favorable and unfavorableresults within a specified timeframe, as wellas the difficulty of the cases and whetherthere was clear liability.

This year, the Ethics Committee took asecond look at the 2000 ruling. 2009Formal Ethics Opinion 6, adopted by theCouncil on July 24, 2009, drops the mosttroublesome portion from the 2000 opin-ion—the requirement that favorable andunfavorable results be reported. The ethicsruling allows a case summary section onwebsites "if there is sufficient informationabout each case included on the webpage tocomply with Rule 7.1(a)." The opinionstates: "The summary should reference thecomplexity of the matter; whether liabilityand/or damages were contested; whether theopposing party was represented by legalcounsel; and, if applicable, the firm's successin actually collecting the judgment.Providing specific information about thefactual and legal circumstances of the cases

reported, in conjunction with the inclusionof an appropriate disclaimer, precludes afinding that the webpage is likely to createunjustified expectations or otherwise mis-lead a prospective client."

Be clear when advertising your firm'sage. It's not uncommon for lawyers in afirm to add their years of experiencetogether as a marketing strategy. When afirm says "put our 30 years of experienceto work for you," potentially you havethree lawyers in the firm that have eachbeen licensed and practicing for ten years.In ethics ruling 2004 Formal EthicsOpinion 7, the Bar declared it was mis-leading to advertise the number of years ofexperience of the lawyers with a firm with-out indicating that it was the combinedlegal experience of all the lawyers. Thesolution is an obvious one—simply stateyou're talking about "combined legalexperience" when you total the years ofpractice of the firm's attorneys.

Register your trade name. Rule 7.5(a)permits a law firm to use a trade name, pro-vided it doesn't imply a connection to a gov-ernment agency or a charitable legal services

organization and provided the name is notfalse or misleading. In ethics opinion 2005Formal Ethics Opinion 8, the Bar concludedthat the law firm's URL—the website'sunique internet address—could qualify as atrade name. If the URL is more than a minorvariation on the official firm name, it has tobe registered with the State Bar.SmithJonesLaw.com, a variation of the firm'sactual name, would not have to be regis-tered, while a name such as NC-Worker-Injury-Center.com would. Instructions forregistering the trade name can be found onthe Bar's website at www.ncbar.gov/resources/forms.asp.

Michael Dayton is the content manager forConsultwebs.com, a Raleigh-based web designand consulting company for law firms. He is theformer editor of North Carolina LawyersWeekly and South Carolina Lawyers Weeklyand co-author of a book on the history of WakeCounty lawyers, published in 2004.

Attorneys who have questions about theirwebsite content can contact the State Bar at 919-828-4620.

14 FALL 2009

Two things might be considered beforelooking at the debates; first, the backgroundof the two speakers, and second, the rules andconduct of the debates.

Lincoln, originally from Kentuckybefore practicing law in Illinois, had edu-

cated himself by reading everythinghe could find. He served two yearsin the United State House ofRepresentatives, and then returnedto his middle Illinois law office. Hewas not well-known throughoutthe state. However, when he wasnominated to run against Douglas forthe United States Senate, Douglaswrote to a friend, "Mr. Lincoln is thestrongest man of his party—full of wit,facts, and dates, and the best stumpspeaker with his droll ways and dryjokes in the West. He is as honest as heis shrewd, and if I beat him, my victorywill be very hardly won."

We all have mental pictures of tall,thin, bearded Abraham Lincoln.Stephen A. Douglas, born in Vermont,raised in upstate New York before goingto Illinois at the age of 19, was 5'5",large head, stocky, but so full of energythat a newspaper called him "The Little

Giant," a name by which he becamenationally known.

When Daniel Webster, Henry Clay, andJohn C. Calhoun had left the Senate floor,Douglas was considered the leading speaker inthe United States Senate. He had been a sen-

ator for 12 years before the debates and wasone of the nation's leading Democrats. Hewas chairman of the Committee onTerritories, which oversaw a variety to topicsrelated to the territories, including theiradmission as new states.

I will try to compare the 1858 Debateswith what we have come to know as debatesin our own time. I have watched numerousconfrontations called debates over the last 60years. Each has had the same format. Thecandidates appear on opposites sides of theroom facing the television camera. A panel ofseveral journalists or a single political punditasks a series of questions considered to beimportant to the television audience. Thecandidate has two and one-half minutes orthree minutes to answer; then the questiongoes to other candidate. Neither candidatehas time to give his reasons for his positionon the issues; he has no chance to questionhis opponent's reasoning. In some of these

The Civil War in the 1860s had been in the making for 40

years before shots were fired. The Lincoln-Douglas

Debates of 1858 reviewed all these years and focused on

the tensions and differences that clouded the minds of

our citizens, and finally tore our nation apart.

The Lincoln-Douglas DebatesB Y R . D . D O U G L A S J R .

Stephen Douglas

Abraham Lincoln


political arenas, each speaker may be giventwo minutes to rebut the other's answer, usu-ally an expected contradiction, but littlemore. At the end, you know the stand ofeach on issues already promoted by themedia. On some occasions, I have wonderedat the logic of the candidate, how he came tohis stated conclusions, but I have learnednothing of his character, his ability to com-promise, or where he might stand on futureissues which may arise to affect me.

When Kennedy debated Nixon in 1960, apanelist asked questions for a two and one-half minute answer. The Carter-Ford Debateallowed three-minute responses. When Regandebated Carter and then Mondale, Regan wasgiven two minutes to answer.

The 1858 Debates were wonderfully dif-ferent. The first speaker (rotated on each ofthe seven confrontations) spoke for onehour. He chose his own topics, gave hisposition on each, and his concern that theother side might prevail. The other candi-date then had one and one-half hours topropose his own beliefs, answer his oppo-nent, and paint pictures of his hopeful suc-cess and the terrible consequences of his

opponent's election. The first speaker thenhad thirty minutes of rebuttal or to intro-duce still other ideas.

No one told either speaker what to coverin his allotted time. Unlike our moderndebates, where nearly every viewer haswatched the previous debate, few in the 1858audiences had been present in the earlier con-frontations. Thus a speaker, remembering thecrowd's reaction to a particular exposition,decided what to repeat or whether to be silenton such subjects.

The audience listening to the debateswas usually about 10,000 settlers, farmers,and tradesmen, often bringing their familiesand doubling the size of the towns wherethe debates were taking place. They lookedforward to three hours of high entertain-ment. The physical strain on the speakerswas enormous. With no electric devices, thedebaters spoke from a raised platform or abalcony to crowds from 10,000 to 20,000people standing or sitting in an open field.A light rain fell on one of the seven encoun-ters; slight but steady winds at two othertowns, making speaking more onerous.Douglas spoke in what the newspapers

called a deep, sonorous voice. Lincoln had ahigh voice, but it carried well.

If one speaker believed his opponent hada position on some subject unpopular in thatarea, he would repeat at future debates toforce his opponent to repeat the stand on thequestion. Both knew when to rephrase theother's questions or statements or when toignore them.

Now we will consider the historicalbackground of the debates. Back in 1820,as new territories were seeking statehood,there was open talk of dissolution of theUnion. Southern states, roughly equal innumber to anti-slave states, feared anunbalanced nation. Webster, Clay, andCalhoun helped work out the MissouriCompromise of 1820. Missouri came in asa slave state, but the northern line ofMissouri was projected westward. New ter-ritories or states south of the projected linewould allow slavery, north of the line, slav-ery would be forbidden. This appeased theSouth, satisfied the North, and the tensionssubsided. All of Kansas, part of Colorado,all of the Mexican lands, and an area ofSpanish California were south of the line.

In 1848, the Mexican War was coming toa close and new lands, taken from Mexico,brought a renewal of concern. CongressmanDavid Wilmot proposed introducing a provi-so that slavery would not be allowed in anylands taken from Mexico. This WilmotProviso never actually passed in Congress, butfor years both the North and the South saw itas a possibility. Then California, ceded bySpain, enacted a slave-free constitution andasked for statehood, including its lands southof the Missouri Compromise line.

In 1850, furious talk arose concerningthe dissolution of the Union, and a newcompromise made its way throughCongress, taking in California as a free state,prohibiting slave trading in the District ofColumbia, and not actually prohibiting slav-ery in some of the territories.

In 1854, the huge land of Nebraska wasabout to be organized as a territory. SenatorDouglas helped write and pass the Kansas-Nebraska Act. The new territory would bedivided into Kansas and Nebraska, each toenact its own territorial constitution andthen later to vote on a state constitution. ToDouglas, this was a vindication of his greatdevotion to popular sovereignty. Kansas,south of the Missouri Compromise line, andall of Nebraska, north of the line, wereallowed to vote on the slavery issue. TheKansas-Nebraska Act actually violated theMissouri Compromise, which had predesig-nated the slavery status of each of these terri-tories. Consequently, the Kansas-NebraskaAct repealed the Missouri Compromise.

Before the debates started, the two candi-dates for the Senate from Illinois had well-defined their basic political positions.

Lincoln had stated that he would notattempt to disturb slavery in the states whereit was already allowed. The Constitution wassilent on slavery. The Bill of Rights amendingthe Constitution to ease the fears of theFounding Fathers stated in Amendment 10that all powers not specifically given to thefederal government would remain in thestates. Lincoln insisted that slavery must beprohibited in any of the new territories, bothwhen recognized as a territory and beforebecoming a state.

Douglas set his heart on popular sover-eignty; that each new territory had the right tovote on its status, with its own constitution,which would allow slavery or prohibit it.Then when the territory asked for statehoodin the Union, it could vote on its own state

constitution. Douglas said that popular sover-eignty was the very essence of democracy,allowing the people to make their decisions.

Lincoln constantly expressed the beliefthat slavery was morally wrong. He said onseveral occasions that he would not disturbslavery in the slave states which presentlyallowed it—it would eventually die of itself indue time—but there must be no extension ofthis great wrong.

Douglas, who frequently expressed hisopinion that slavery was an abomination toboth races, felt that in a great democracythis issue must be decided by the peoplethemselves in secret ballot. He said,"Southern men have consciences, are civi-lized, they know the difference betweenright and wrong as well as we do, and theywill have to account to God and posterity,not to us in 1858."

There is one logical conclusion whichneither speaker seems to have explained.Why was a vote by a territory so important?If a new territory were to allow slaves, inte-grate slavery into its customs, its work proce-dures, and its moral thinking; then whenready for statehood, it would in all likelihoodbecome a slave state. Conversely, if therewere no slaves for three or four years in a ter-ritory, it would be very unlikely that the newstate would decide it must now have slaves.Neither Lincoln nor Douglas presented thisargument. As observed elsewhere in thispaper, Douglas claimed that in the absenceof governmental power in the Constitution,each state could vote on this issue. Thereforein such absence of Constitution power overterritories, each territory could vote on theissue. This was democracy.

Lincoln, never actually demanding gov-ernment control over slavery, insisted thatas to territories, the Constitution did notrefer to slavery, and that meant that thefederal government had absolute right overthe territories.

One other bit of history made Douglas'task harder, and Lincoln seized on it and evenDemocrat President James Buchanandeclared war on Douglas.

Kansas as a territory had proposed a con-stitutional convention at its provisional capi-tal, Lecompton; but instead of voting on a fullplan of operations with the constitution,Kansas leaders limited the vote almost to slav-ery question alone. Also, hoards of men fromMissouri, Kentucky, and the southern statesswarmed into Lecompton overnight, and

Kansas voted to allow slavery.A victory for slavery? A triumph for popu-

lar sovereignty? Douglas promptly denouncedthe vote as a fraud, saying that the people ofKansas had not voted on a constitution andmust have another chance to express theirviews. His position alienated many southernsupporters, and President Buchanan sent apostal service official to 50 Illinois towns todischarge any post master or employee whohad openly supported Douglas.

Before the debates, in their senatorial cam-paign, Douglas had arranged speeches atChicago and Springfield. His popularitybrought great crowds to hear him. Lincoln satin the back of the crowds both times, waitedfor Douglas to finish, and then, as the crowdstarted to leave, Lincoln announced from theplatform that in an hour, "so you can eat din-ner," he would answer Judge Douglas' speech.The crowd roared, "We'll be here."

Douglas publicly denounced this tactic.Then Lincoln proposed that the candidatesmeet jointly, one against the other, severaltimes in the future. Douglas' advisers urgedhim to refuse. Why should he provide the bigcrowds of voters to hear Lincoln? However, itappeared that it would be politically advisableto go ahead and agree to the debates. Douglasproposed meetings at seven small towns scat-tered over the state; Ottawa, Freeport,Jonesboro, Charleston, Galesburg, Quincy,and Alton. Lincoln accepted, and the timelimits were fixed.

Because the candidates, if only in a singlestate election, were excellent speakers on sub-jects of great national importance, the east-ern press, as well as the Illinois newspapers,was there to take down the exact words ofthe speakers. Telegraph lines worked all nightand nearly all of America read the nextmorning what the candidates had said andread greatly contradictory reports on whowon the last debate.

For example, as to one debate, Republicannewspapers said, "Honest Abe chewed up theLittle Giant and spit him out to the delight ofthe crowd." Of the same debate, Democraticnewspapers said, "Douglas knocked outLincoln's spindly shanks from under him andas he struggled for composure, the crowdroared at the spectacle."

At another debate, a Republican newspa-per said that after the debate, a torchlight pro-cession with 800 oil torches escorted Lincolnfrom the debating area to his hotel; whileDouglas' procession had eight torch lights and

16 FALL 2009

three of them ran out of oil.What did Lincoln and Douglas of Illinois

discuss that so captured the attention of thenation? They talked of a national bank. Theyargued over the location of a new railroad tothe Pacific to go in the North or through theSouth. They delved into individual rights ofstates under the Constitution. The primarytopic, however, which governed the thinkingof the other issues was the question of slavery.In several debates, Lincoln often quoted theDeclaration of Independence, which said thatall men were created equal. Lincoln remindedthe crowds that the Declaration said "allmen," not just white men. Douglas answered,"Are you willing to say that every man of ourFounding Fathers who signed that great doc-ument declared that every Negro was hisequal, but was hypocritical enough to go backto his home and hold his slaves?"

At the Illinois Republic Convention inSpringfield on June 16, 1858, Lincoln hadbeen nominated for the Senate race. At thattime, he made his famous "House Divided"speech. In his acceptance speech for theSenate race, Lincoln quoted from Scripture,"A house divided against itself cannot stand. Ibelieve this government cannot endure per-manently half slave and half free. I do notexpect the Union to dissolve. I do not expectthe house to fall, but I do expect that it willcease to be divided. It will be come all onething or the other." This Lincoln speechbefore the debates gave Douglas grounds forsubstantial attacks.

At Ottawa, Douglas used Lincoln's"House Divided" speech to bring scorn onhis adversary. Douglas told the crowd,"Lincoln says the Union cannot exist divid-ed into free and slave states. If it cannotendure thus divided, then he must strive tomake them all free or all slave, or be for dis-solution of the Union. Does he not know weare divided in many ways in culture, speech,and business? If we must all think, speak,and conduct our lives exactly as our neigh-bors, the Union must perish."

At Charleston, Douglas said, "When thisgovernment was established by Washington,Jefferson, Madison, Franklin, and the otherpatriots of the day, it was composed of freestates and slave states, bound together by ourcommon Constitution." In the actual debateswhich totaled 21 hours of speaking, certainstatements stand out as to what the speakerwanted to emphasize, even repeating at differ-ent towns. If one statement by Lincoln

evoked loud applause and shouts of "That'sour rail splitter!" and "Hurray for HonestAbe!" the speaker was astute enough to use itfor another audience. Douglas used the samestrategy with good results.

There seemed to be three basic rules:1. To explain your stand on subjects of

interest;2. To persuade your listeners to adopt your

position;3. To ridicule your opponent's stand as

being illogical, unattainable, and completelyunacceptable to the listeners.

Lincoln commented that the Declarationof Independence and the Constitution said allmen are created equal, not necessarily equal intheir ability or born in equal circumstance,but equal in freedom to work and eat thebread they earned by their labor.

It was at Charleston that Lincoln made thecomments that came back to haunt him infuture years. Apparently Mr. Lincoln observedthat even in free Illinois where the speecheswere being made, the people were not yetready for full equality of races. He said, "Iwant to make it plain that I am not in favor ofmaking voters or jurors of Negros, nor quali-fying them to hold office, nor to intermarrywith white people. (If this reference to Negrosnot voting seems unreal by today's standards,we might remember that until 1920, womencould not vote in the United States. It took anAmendment to the Constitution to give themthat right.)

In the debates, Lincoln kept emphasizingthe moral wrong of slavery. As in Alton, hesaid, "While we have no power through thefederal government to erase slavery where itnow exists, we must keep this great wrongfrom spreading. When Judge Douglas is invit-ing states to establish slavery, he is blowing outthe moral lights around us." Lincoln said atthe next debate that he had a line he wouldnot cross. He said, "I say upon this occasion Ido not perceive that because the white man isto have the superior position in our land, theNegro should be denied everything."

In all of the debates, the crowds loved toshout when a statement pleased them andto boo and hiss when a speaker brought upsome statement of the opposition, whichhe knew the crowd would dislike. BothLincoln and Douglas on several occasionssaid that they needed all of their allottedtime to cover the subjects and they askedthe crowd not to express its dislike orapproval until the end of the speech. The

crowds paid no attention to this.At a subsequent debate, the "House

Divided" speech came up again and Douglassaid, "Why cannot we act as our fathers did?In Washington's army, there was no sectionalstrife. These brave soldiers fought under acommon policy; they sought a common des-tiny, and no one was ready to forego a com-mon aim because he did not agree with his fel-lows on every idea."

With regard to the question of what theConstitution covered on slavery, it is interest-ing to note that after the Civil War had start-ed and Lincoln set out his EmancipationProclamation, he believed he had no right tofree the slaves except as a special power duringa war. His proclamation freed only slaves inthe Confederate States, those taking up armsagainst the United States. Some citizens ofPennsylvania, Maryland, Delaware, and NewJersey owned slaves, but they were not freedby Lincoln's proclamation.

A story on the 1858 Debates should notend with the last meeting in Alton. Naturalquestions would be: Who won the debatesand what happened to Lincoln and Douglasafterward?

You might say that Douglas won thedebates, because after the campaign, theIllinois Legislature voted 54 to 46 in favorof Douglas, and he returned to his senato-rial seat.

In 1860, Lincoln—a national figure fromthe debates—was nominated for president bythe Republican Party. Douglas was nominat-ed by the Democrats, but only by a splinteredparty. At the Democratic Convention inCharleston, South Carolina, disagreementsbetween northern and southern Democratsbecame so heated that several states withdrewtheir delegations and their people walked outof the convention. It was adjourned to pickup in Baltimore. Douglas became the favoritenominee, but John Bell was nominated by a"constitutional" group and John C.Breckinridge was nominated by the secessionadvocates. As a result, when the national elec-tion took place in November 1860, theDemocratic vote was split three ways and theRepublican Lincoln was elected.

After the election and the firing onFort Sumpter by Confederate forces,Douglas asked President Lincoln what hecould do to help preserve the Union.Lincoln stated that a number of border

C O N T I N U E D O N P A G E 3 0


18 FALL 2009

Some 133 years later, celebrating Lincoln'sbicentennial birthday, I acquired a renewedappreciation for the words of FrederickDouglas on that day in 1876. My task—orig-inally in a speech to the Mecklenburg CountyBar, and later in this piece for the Journal—was

to deliver an appropriate Law Day messageconsistent with the 2009 theme, A Legacy ofLiberty—Celebrating Lincoln's Bicentennial.Contemplating the issue, I struggled to devel-op a message, to offer some thoughts orinsights on our 16th president that would offer

a fresh perspective. In the process, I read and learned much

about Lincoln the historical figure. I reflectedon Lincoln, the man. Indeed, I quickly cameto believe that if one simply did some readingabout Lincoln, reviewed his writings and his

"Perhaps We Have Not Done SoBadly After All."Reflecting on Lincoln's Legacy for the Professionof Law

B Y J U S T I C E P A T R I C I A T I M M O N S - G O O D S O N

"In 1876, the celebrated orator,

Frederick Douglas, dedicated a

monument in Washington, DC,

erected by black Americans to

honor Abraham Lincoln. The former slave told his audience

that 'there is little necessity on this occasion to speak at length

and critically of this great and good man, and of his high mis-

sion in the world. That ground has been fully occupied. . . . The

whole field of fact and fancy has been gleaned and garnered.

Any man can say things that are true of Abraham Lincoln, but no man can say anything that is new of Abraham Lincoln.'"1

Kazu Nitta/Images.com


speeches, or read of his discussions anddebates, one would swiftly discern his occu-pation—lawyer. Lincoln was, in fact, a veter-an trial lawyer who handled contested wills,railroad tax entanglements, and even murdercases. Indeed, his experiences were not limit-ed to law. He remains the only president tohold a patent—a device designed to lift riverboats over shoal.

Ronald C. White argues that this breadthof experience taught him to appreciate oppos-ing points of view.2 He assiduously cultivatedthe skill of marshaling facts and arguments tosway people over to his point of view. He isreported to have had great interpersonal skills.John Nicolay, one of Lincoln's secretaries,noted his boss' uncanny ability to evaluate themeasure of people: "He knew men on theinstant."3

With the benefit of my reading and newlyacquired knowledge, I prayed for some inspi-ration. The inspiration came, improbablyenough, in that most unsentimental of places,the grocery checkout line. Since I am still old-fashioned enough to prefer cash to debit orcredit cards, I found myself staring at theimage of our 16th President on a five-dollarnote. His appearance on that currency puts

him alongside some of the true giants in theAmerican pantheon, folks like GeorgeWashington, Thomas Jefferson, AndrewHamilton, and Benjamin Franklin.

I can hear many of my readers thinking,"So what? Of course, Abraham Lincoln isevery bit as iconic, as much a piece ofAmericana, as baseball and apple pie." I men-tion this because today we take for grantedthat he was a "great" man. Not just the UnitedStates, but nations around the world fromParaguay to Liberia to Abu Dhabi have put hisface on their currency. At his death, Secretaryof War Edwin M. Stanton stood by the greatman and is supposed to have declared, "Nowhe belongs to the ages."4

Easily forgotten is the historical reality thatLincoln, the man, did not always inspire theconfidence, or the intensity, that Lincoln, theidol, does today. Indeed, some of the highestpraise that could be mustered for him at thetime of his nomination was the consensus that,"Perhaps we have not done so badly after all."5

That fascinating story is a chasm awayfrom our world of 24-hour news channels andblogs. Apparently, after he secured the 1860Republican nomination for president, inChicago, a group of party leaders rode the

train to Springfield, Illinois, to give AbrahamLincoln the formal notification. Most of theseparty leaders had never met, or indeed seenAbraham Lincoln. In fact, most had support-ed one of the other candidates. Many were dis-appointed by the eventual choice of Lincoln asthe Republican nominee. There was consider-able skepticism about the man and his abilities.About his physical appearance, it was said,"His pantaloons were very short, causing himto look very awkward."6

His contemporaries described him as"more or less careless of his personal attire."7

And those were the views of his friends!Unflattering remarks were made about hisHoosier accent, and his vocabulary wasdeclared "unrefined." Future Secretary of War,Edwin Stanton, the same man who was todeclare that Lincoln "belonged to the ages,"sang a very different tune early in Lincoln'scandidacy. At their first meeting, Stanton sav-aged the man who had brought Lincoln,declaring, "Why did you bring that long-armed ape here; he does not know anythingand can do you no good."8

It was against this background, in a smallparlor in Springfield, that these dignitaries—mostly from the great eastern cities—presented

this practically unknown mid-westerner,Abraham Lincoln, with the letter formallynotifying him of his nomination. "TheChairman, George Ashmun of Massachusetts,made a brief, formal speech. The lankystranger then lifted his head and made a short,dignified reply, thanking them, hinting at anawareness of the size of his responsibility,promising to write a formal acceptance, andexpressing a wish to shake each of them by thehand. After they left the house, the surprisedgovernor of an eastern state remarked: 'Whysir, they told me he was a rough diamond;nothing could have been in better taste thanthat speech.' And the dignitaries, conferring,said to each other: 'Perhaps we have not doneso badly after all.'"9

This story gives us an excellent templatefor measuring our own professional lives as wecelebrate Law Day 2009. So many of us arecalled to the bar for so many reasons, and yetall of us tend to be high achievers. Havingworked hard through preparatory or highschool, college, law school, and, finally, inactual practice, we not only concede to ourtype-A personalities, we positively revel inthem. We take pride in them. They becomepart of our identity and self-image.

Why is our drive for success an issue? Ibelieve it is an issue because this processinevitably sets up higher and higher hurdles forus until even the best must falter. So many ofus demand that we be kings of all creation, thebest of the best, the crème de la crème, that weinevitably set ourselves up to fail.

Perhaps this explains the results of a 2000American Bar Association survey which foundthat only 27% of the lawyers polled were verysatisfied with their professional life. Theremaining 73% described themselves as some-what satisfied, at best, or very dissatisfied, atworst.10 Lawyers have the highest rate ofdepression across a survey of 105 occupationsin the United States.11 According to anAmerican Bar Association poll, 84% oflawyers said their expectations about helpingto improve society were not met.12

After all, the best of us cannot win everycase, persuade every client, recover every cent,and rectify every wrong. However; as long aswe have accomplished something toward ourobjective, as long as we walk away with at leasthalf a loaf for a client who previously hadnone, as long as we conducted a trial free ofprejudicial error, we can turn and say, "Perhapswe have not done so badly after all."

Yes, a few of us are destined to achieve the

highest aspirations that drove many of us tolaw school: freeing an innocent man fromdeath row; winning a mass tort case like JuliaRoberts in Erin Brockovich; dismantling amajor crime organization; presiding over thetrial of the century; writing the seminal case inan important area of the law. The recognitionof the reality of our everyday professional exis-tence should not deter the rest of us from whatwe will accomplish. These are the small, con-tinuous victories we win every day, yet wedon't even recognize them as such. Maybe wecould not get an acquittal for the client, but wegot the client a lesser sentence. Maybe wecould not get the client custody of the chil-dren, but we got the client greater visitationrights. Maybe the debtor would not pay theirfull debt to our client, but the client got moreas a result of our efforts than they would haveotherwise. Perhaps we did not get that judicialappointment, but our practice contributes sig-nificantly to justice for all. By any of thosemeasures, we should be able to say, "Perhapswe have not done so badly after all." In fact, itis important to acknowledge this, because theclient likely will not. A client who is facing aprison sentence, loss of custody, or commercialdisappointment is likely to be hurting, and weare going to be the face of that pain.

Even successful litigation or successfulefforts may not gather much by way of grati-tude. The Gospel according to Luke recordsthat Jesus cured ten lepers, and only one thembothered to even thank him.13 Why wouldwe expect a better outcome than Jesus?However, it is entirely appropriate for us toacknowledge that, "Perhaps we have not doneso badly after all."

Perhaps it is not to our lot to argue casessettling presidential elections before theSupreme Court. Yet the outcome of ourclients' own cases will weigh in their minds farmore strongly than a dozen Supreme Courtcases. It is important for us to be cognizant ofthat fact, to be thankful for our small victories,and to remind ourselves again that, "Perhapswe have not done so badly after all." This iseven more important because, as we arereminded daily, we wear two hats: we serve ourclients, and we serve as officers of the court.

I have discussed what our work means toour clients. Now, let me briefly discuss that sec-ond hat. As Abraham Lincoln realized that thefuture of mankind and our country would beaffected by his policies and decisions, so mustwe, members of the bar, understand that thefuture of our profession will be affected by our

actions and our ethics. The very existence ofour profession is a tremendous tribute to thenation and world we have built. The existenceof the court system is an acknowledgment thatwe live in a time and place where we haveagreed to settle our differences with rules andlaws rather than bombs and bullets.

The importance of this cannot be overstat-ed. At the height of the blitz over Britain in1940, Winston Churchill is supposed to haveasked his staff at the start of his daily briefing:"Are the courts functioning?"14 The famouslyunsentimental Churchill's focus on the courtswith his capital in flames all around him is atestament to the functional importance of lawin a modern society. And a reason for its prac-titioners to say, "Perhaps we have not done sobadly after all."

In closing, as we celebrate Law Day 2009,let us celebrate the strength and vibrancy ofour laws and the rule of law. We must alwaysunderstand that the rule of law is only assecure, and as strong, as the persons that sup-port it. Lawyers make up the most vocal andcritical group of supporters. We, as lawyers,must stay strong and be vigilant in that sup-port of the rule of law. And in doing so, weremind ourselves "Perhaps we have not doneso badly after all."

Justice Patricia Timmons-Goodson is amember of the North Carolina Supreme Courtand is in her 24th year of service in the judici-ary. She serves as co-chair of the editorial boardof the ABA's Judges' Journal and is a memberof the Perspectives Magazine editorial board.

Endnotes1 Doris Kearns Goodwin, Team of Rivals, intro. at xv.

2 Ronald C. White Jr., A. Lincoln (Random House2009).

3 William Lee Miller, Lincoln's Virtues: An EthicalBiography, 10 (2002).

4 William L. Stidger, The Lincoln Book of Poems, 31 (1911).

5 Miller, supra note 3, at 10.

6 Id.

7 Id.

8 David Herbert Donald, Lincoln, 186 (1995).

9 Miller, supra note 3, at 10.

10 American Bar Ass'n, The Pulse of the Profession (Nov.22, 2000).

11 Patrick J. Schiltz, On Being a Happy, Healthy, and EthicalMember of an Unhappy, Unhealthy, and UnethicalProfession, 52 VAND. L. REV. 871, 874 (1999).

12 American Bar Ass'n, supra note 10, at 28.

13 Luke 17:11-19.

14 M. P. Bhandara, The Three-Year Itch, Dawn (Pak) at22 (Sept. 15, 2002).

20 FALL 2009


Because they can't pay a pet deposit, theyhave to part with their beloved Jack Russellterrier. But the dog keeps finding its way backto the teens' apartment and the housingauthority, saying the two disregarded publichousing rules, sues for eviction.

Ultimately, a pro bono legal services attor-ney is able to negotiate a settlement so thebrothers can stay in their home.

From unusual cases such as that one to theall-too-usual cases which involve protectingyoung mothers from abusive spouses and sav-ing older couples' homes, grants from theNorth Carolina Interest on Lawyers TrustAccounts have been there to help.

Since its first grants were awarded in1984, the NC IOLTA program has provid-ed more than $50 million for legal assis-tance for at-risk children, the elderly, thedisabled, and the poor in need of basic

necessities. In addition, the program hashelped lawyers connect with those whoneed their pro bono assistance.

"IOLTA funding is extremely important toPisgah Legal Services," said Jim Barrett, PLSExecutive Director. "PLS receives IOLTAfunding to serve six counties in western NorthCarolina. Stable IOLTA funding has helpedPLS grow to the point that it has 37 staffmembers, including 17 attorneys."

In 2008, through Pisgah Legal Servicesalone, those attorneys helped more than 700victims of domestic violence obtain or enforcecourt protective orders and helped preventhomelessness for 593 households under threatof foreclosure or eviction.

"The flexible IOLTA funds play a crucialrole in PLS' budget," Barrett said.

IOLTA funding is the only source ofmoney specifically to pay for PLS' admin-

istration of the successful Mountain AreaVolunteer Lawyer Program, which last yearprovided pro bono legal services in 827closed cases, valued conservatively at near-ly half a million dollars.

"Unlike the support of private founda-tions, which is often project-oriented, IOLTAfunds are generally used for operating sup-port," said Evelyn Pursley, executive directorof NC IOLTA.

In 2008, NC IOLTA administered justover $4 million in grants, compared to$200,000 25 years ago. (In addition, NCIOLTA now administers more than $6 mil-lion in state funds annually for legal aid thatpasses through the NC State Bar.)

"The largest annual grant goes out to LegalAid of North Carolina, the statewide programthat also receives federal and state funds to dothis work," Pursley said.

IOLTA Grants Support EqualAccess to Justice

B Y C L I F T O N B A R N E S

It reads like a movie script or maybe a modern-

day Lassie TV show. Teenage boys, whose

father is in jail and whose mother is homeless,

reunite from different foster homes. The older

teen gets an apartment in public housing, finds a job, and

wins custody of the younger teen, who is still in high school.

In celebration of the 25th anniversary of NC IOLTA, the NC State Bar Journal is publishing a three-part series on NC IOLTA during 2009. Thisfinal article highlights some of the program's grantmaking.

Though IOLTA administration costs are also paid from program income,almost all the interest coming from the IOLTA accounts goes to makinggrants. IOLTA expenses have consistently been under ten percent of incomesince its inception.

22 FALL 2009

Legal Aid of North Carolina, which pro-vides free legal representation in civil mattersto eligible clients in all 100 counties through24 offices and six statewide projects, receives52% of its funding through the federal LegalServices Corp.

"Some of that federal money is restricted,so we have to use other funding," saidGeorge Hausen, executive director of LegalAid of NC. "We would be severely and neg-atively impacted if we did not get thoseIOLTA funds."

IOLTA funds 11% of Legal Aid's budget."Not only is that substantial, but the supportthat IOLTA generates for Legal Aid throughthe bar association and the bar in general istremendous," he said. "IOLTA is the nexus forthe whole statewide justice community."

Hausen said the influence of the NCIOLTA Board of Trustees is significant.

"When we write our IOLTA grant appli-cation each year, it's like a validation of ourprogram," he said. "Does IOLTA agree withthe allocation of our resources and approve ofthe quality of the services we deliver? It reallyis a check on the direction and quality of spe-cific projects."

For instance, a call center with a toll-freenumber with attorneys providing advice, briefservice, and referrals has largely been fundedby IOLTA. "It's been a successful one-stopshop for clients to be able to talk to a lawyerimmediately," Hausen said.

In addition, IOLTA funded the tech-

nology for a web-based case managementsystem that "makes us a statewide lawfirm," he said.

"They have funded a great technologypackage that allowed us to expand ourservices," Hausen said. IOLTA grants fundvideo conferencing clinics where one per-son can do what it took 25 throughout thestate to do previously. In addition, LegalAid has been able to help clients with fore-closures, many in rural areas, as the resultof IOLTA grants.

Since 1992, IOLTA has funded theClifton W. Everett Sr. Fellowship, whichprovides attorneys to these underservedrural areas of the state. Everett played a largerole in creating the NC IOLTA programwhen he served as president of the NC StateBar. He later served as an IOLTA trusteefrom 1983 to 1990. IOLTA now funds twofellows every year.

The fellowships support entry-level staffattorney positions at Legal Aid so that theycan recruit interested recent law school gradu-ates and give them an opportunity to learnabout the legal services practice and developpractical lawyering skills under experiencedmentors. In addition, the fellowships providestaff assistance to rural programs that have dif-ficulty recruiting and retaining attorneys.

The first proactive grant-making done byIOLTA also came in 1992, when it offeredgrants to volunteer lawyer programs to ensurethat VLPs were established statewide. IOLTA

continues to provide about $500,000 eachyear for volunteer lawyer programs that putprivate practice attorneys together with clientswho need pro bono services.

Besides providing civil legal services toindigents, which historically accounts for87% of grants awarded, the NC IOLTA pro-gram is limited to making grants for theimprovement of attorney grievance and dis-ciplinary procedures, for student loans forlegal education on the basis of need, and forprograms designed to improve the adminis-tration of justice.

One administration of justice grant pro-gram is the IOLTA Public Service InternshipProgram, which has been in existence since1988. Stipends are provided for NorthCarolina accredited law school students towork summers in public interest organiza-tions approved by the NC IOLTA Board.(See the Spring and Summer 2009 issues ofthe Journal for descriptions of summerinternships by law students.)

"I think the trustees particularly like thesegrants because they feel as if there is a doubleor triple benefit," Pursley said. "They benefitthe law schools by giving their students goodsummer placements. They benefit the stu-dents by ensuring some payment for the sum-mer internship. And, they benefit the publicinterest organization by providing summerinterns who they could not afford to pay."

Carol Spruill, who started the Pro BonoProject at Duke University in 1991 and served

"Over the past 17 years, it has been my honor and privilege to work with the highly dedicated and selfless attorneys, paralegals andstaff at the various legal aid organizations throughout the state, including Legal Services of NC, Legal Aid of NC, Legal Services ofSouthern Piedmont, Pisgah Legal Services, and the Legal Aid Society of Northwest North Carolina. These dedicated individualsprovide much needed legal assistance for the poorest of the poor. I am always amazed at the dedication of the legal aid attor-neys…Sometimes I wonder why they do it, and then I see the people that they help and remember the overwhelming satisfaction Ihave received in helping those less fortunate resolve their legal problems.

Over the years, I have been involved in a wide variety of pro bono projects and have been very impressed with the outpouring ofsupport for these various projects among lawyers both in our firm and throughout the state. It is a tribute to our profession that peo-ple are willing to give so much of their time —including large blocks of time away from their families— to help a low-income per-son from New Orleans to New York and back to North Carolina."

Reid Calwell "Cal" Adams, Vice-Chair, NC Equal Access to Justice Commission 2007 Recipient Thorp Pro Bono Award

Womble Carlyle Sandridge & Rice, PLLC


as Duke's Associate Dean for Public Interestand Pro Bono until her resignation inDecember 2008, is an unabashed fan ofIOLTA. This intern program is one reason why.

She says the stipends enable students toexperience legal work in the public interestand, as a result, they often have transformativeexperiences.

"Many students have completed thesesummers determined to continue with theirdesire to serve those clients who face manyhard knocks in life," said Spruill, who was alegal aid attorney from 1975 to 1991. "Even ifthe law students do not continue public serv-ice as a full-time career, all of them come outof the experience with a heightened apprecia-tion of the need for more public service attor-neys, and all of them are prepared to make probono commitments a significant part of theirlegal careers."

Spruill said that students fear acceptinglower-paying public interest jobs after lawschool due to tuition debts that can grow to$100,000 or more. IOLTA has helped addressthat problem as well.

NC LEAF (Legal Education AssistanceFoundation) is the country's first nonprofitorganization dedicated to providing loanrepayment assistance to attorneys in exchangefor public service work.

"Simply put, NC LEAF could not func-tion without support from IOLTA," saidEsther Hall, NC LEAF Executive Director.

Over the years, the NC LEAF has received$667,000 in grants from IOLTA which havebeen used for operational support. "Thatallows all of our state funding to be disburseddirectly to public interest attorneys to assistwith the law school debts," Hall said.

Well more than $3 million in educationalloan repayment assistance has been providedto these public interest attorneys. "IOLTA hasbeen a steadfast supporter of the work of NCLEAF and has been a vital part of our pro-gram, enabling us to aid 404 attorneys sinceour inception in 1989," Hall said.

These attorneys have served as assistantdistrict attorneys, public defenders, legal aid,and legal services attorneys. "Their workensures the equal access to justice our societyprizes," Hall said.

Former NC State Bar President SteveMichael of Kitty Hawk agrees. "IOLTA grantscertainly help us fulfill our responsibilities out-lined in the Rules of Professional Conduct,"said Michael, who successfully worked formandatory IOLTA in North Carolina.

"Providing access to justice is one of the bigobligations we assume, and this is one methodof fulfilling those obligations."

Michael said that the IOLTA Board hasdone a good job over the years in selectingprograms that have the biggest impact in pro-viding access to justice. He said it is appropri-ate that the bulk of the grant money goes tolegal services for the poor.

"But there are also grants IOLTA has madeto start up programs that further the adminis-tration of justice," he said. "Once the pro-grams are up and running, the funds willcome to keep them going."

For instance, Michael noted IOLTA grantswere instrumental in getting the Equal Accessto Justice programs going, and now those pro-grams will receive funding from the State Bar.

"The NC Equal Access to JusticeCommission and the Equal Justice Alliancewould not exist without the leadership of andfunding provided by IOLTA," said JenniferLechner, executive director of theCommission and Alliance.

Pursley, the NC IOLTA ExecutiveDirector, and Michelle Cofield, director ofpublic service and pro bono activities for theNorth Carolina Bar Association, presentedinformation about the national trend of stateaccess to justice commissions to then-NCSupreme Court Chief Justice I. Beverly Lake,who, as a result, established the Equal Accessto Justice Commission.

IOLTA funded staffing and activities of thecommission. Cofield served as the first execu-tive director until 2008, when Lechner washired as a full-time staff person for the com-mission and the alliance. That position wasonly made possible through IOLTA funding.

"Our (IOLTA) program has been and isstill an active participant in determininghow the problem of providing access tojustice in our state should be addressed,"said Tom Lunsford, executive director ofthe NC State Bar. "The IOLTA Board andstaff are appropriately and usefullyinvolved in shaping policy and in rational-izing the delivery of legal services. Our phi-lanthropy is active and responsible, notpassive and disengaged."

For instance, Pursley, recognizing a needfor more collaboration, and was instrumentalin creating the Equal Justice Alliance as aforum for civil legal aid providers who receiveIOLTA funding to discuss coordination oflegal services and efforts to increase resources.That group now meets regularly.

One member of that group who is thank-ful for IOLTA is Vicki Smith, executive direc-tor of Disability Rights North Carolina. In2007, Carolina Legal Assistance became thefederally mandated "Protection and AdvocacyAgency" for North Carolina and changed itsname to Disability Rights North Carolina.But, had it not been for IOLTA, the programwould have died years ago.

"Beginning in 1998, our program waswithout any stable source of funding and, as aresult, the program lost most of its staff,"Smith said. "IOLTA funding, however, madeit possible for our program to continue.IOLTA funding allowed us to pursue newgrant proposals to secure a substitute fundingsource, continue our legal work, sustain anoperating budget, and allow the board todevote the time and energy necessary for des-ignation as the new Protection and Advocacyagency for North Carolina."

The purpose of a Protection and Advocacyagency is to protect and be an advocate for thehuman and legal rights of those with mentalillness or developmental and other disabilities.

As Jim Barrett of Pisgah Legal Servicessaid, "People would be amazed if they knewhow much good IOLTA funds do."

Still, Hausen says that Legal Aid, for vari-ous reasons, is only able to provide service toabout 30% of the people who contact them.More than two million North Carolinianscurrently qualify for legal services help—that's28% of the state's population.

The programs have to set priorities so theycan take the cases that will make the most dif-ference in people's lives. Though fundingsources sometimes affect priorities, the legalaid programs generally focus on helping clientswith the basic necessities of life—food, shelter,safety, health, employment, and education.Says Pursley, "I think this economic downturnin particular has made us all more aware ofhow important these basic needs are to all of usand how vulnerable we can be to their loss."

Hausen said he'd love to see expandedIOLTA funding through "comparability,"

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24 FALL 2009

which is in at least 25 other states andrequires that lawyers hold their IOLTAaccounts only at banks that agree to paythose accounts the highest rate available tothat bank's other similar accounts.

Some states that have gone to "compara-bility" requirements have seen income doubleor triple within the first year or two.

NC State Bar President John McMillanhas made exploring a comparability require-ment for NC IOLTA a goal of his presidency.

Spruill said that she hopes leaders willadopt comparability so that more low-incomeNorth Carolinians will have their day in courtwith an attorney by their side.

"Perhaps we will see fewer batterers getaway with abuse of their spouses, fewer fami-

lies thrown out on the street without a fairhearing, and more people getting all the ben-efits and medical care that our laws say shouldbe provided to them," she said.

Bill Womble Sr., an original member ofthe IOLTA Board of Trustees, has been anactive and well-respected member of the barin North Carolina since 1939.

"I don't know that we will ever have ade-quate financing to provide the kind of legalservices we'd like to provide to the poor of ourstate," Womble said. "But the goal of equaljustice for all is a good and noble one, forwhich we should constantly strive. IOLTA hasan important role to play in that effort."

Woody Teague, a founding IOLTA Boardmember echoes Bill Womble. "Back in

1978-79, Cliff Everett, Robinson Everett,and I had a hard time explaining the conceptof IOLTA to the satisfaction of the late ChiefJustice Joe Branch. But now Joe, Cliff, andRobbie would agree with me that this pro-gram, established by the North CarolinaState Bar, has negated the usual lawyer jokes.Over $50 million for equal justice is some-thing all of us lawyers should be extremelyproud of. So, I say, 'Long live IOLTA.'"

Barnes, who majored in journalism andpolitical science at UNC-Chapel Hill, served asdirector of communications of the NC BarAssociation from 1987-2002. He now runs hisown writing, editing, and web developmentbusiness named cb3media.com.

NC IOLTA supports NC LEAF, the firstloan repayment assistance program for publicinterest lawyers in the country. By using NCIOLTA funds to support operations, NCLEAF is able to use all state funds received tohelp young lawyers in legal aid, publicdefender, and district attorney offices withloan repayment assistance.

Ann Bamburger I attended law school at American

University with the idea that I wouldbecome an advocate for those who don'thave a voice in our society. I have alwayshad an interest in women and children'sissues. I knew that my goal after gradua-tion was to work in a legal services office.

When I first began working at PisgahLegal Services, I almost turned down thejob of representing clients fleeing domesticviolence because I was concerned aboutwhether I could afford to work as a legalservices attorney. When I learned aboutNC LEAF, I decided to take the job. I wasthrilled to be part of Pisgah's MountainViolence Prevention Project. I had theopportunity to represent clients fleeingdomestic violence and assist them inobtaining the legal remedies necessary to

break away from the situation.

Denise LockettNC LEAF's assistance has meant the

world to my family. Without it, my debtfrom graduate and law school would havemade it much, much harder to move toand stay with my dream job at Legal Aid ofNorth Carolina.

I went to law school with the goal ofworking in the nonprofit sector. It actuallytook a while to get there—primarilybecause I was initially so concerned aboutpaying back my loans. I was able to movefrom a private firm position to Legal Aidwith far greater confidence because of NCLEAF's assistance. I took a substantial paycut to move to this position. Without NCLEAF's assistance, I'm not sure I couldhave made the move nor stayed here. Weare now debt-free from my law schoolloan, and that's terrific. I'm doing the workthat I love and that our community needs,thanks to NC LEAF!

Pamela ThombsWith a 12-year history of working in

the nonprofit sector, I knew when I gradu-ated from law school that I wanted to serve

in public interest law. I had been workingin public interest law for at least three yearswhen I obtained information on the NCLEAF program. At that time, my familyhad two small children in day care, a housewith a mortgage that we were not able tosell in a city where we had lived previously,and a lease payment at our current home.All of this was in addition to our other reg-ular living expenses and my student loanpayment. I needed NC LEAF if I was tocontinue down this public interest road.

After NC LEAF approved me for theprogram and I had made payments forabout a year, NC LEAF staff memberArlene Summers helped me restructure mylaw school debt to get the maximum ben-efit from the program. I began to pay a lit-tle more, and NC LEAF assisted me with alarger amount. About three months beforeI was finished with my payments, LegalAid of North Carolina, my employer,began assisting employees through the NCLEAF program. These factors combinedallowed me to pay my off my debt muchearlier. I am extremely grateful to NCLEAF for allowing those of us who arecommitted to giving back to the commu-nity to do so without becoming indigent.

Three Public Interest Lawyers Pay Off Law School Debt in 2008 with Assistance from NC LEAF


With non-English material increasinglyprominent in US legal proceedings, thiskind of scenario has become more and morecommon—and not because of incompe-tence or negligence. For many attorneys,working with documents they cannot readis a headache, and managing foreign-lan-guage documents can be a challenge evenfor a well-organized law firm. The goodnews is that if you follow four common-sense guidelines—1) planning ahead; 2)using a professional; 3) setting up a realisticbudget; and 4) listening to your translator—you can handle non-English material moreeffectively, avoid disaster, and get the mostfor your translation dollar.

Plan AheadThe temptation to set non-English mate-

rial aside for later is perfectly natural, but—as in the real-life example above—yieldingto it can be dangerous.

Solution: inventory foreign-languagedocuments right away, especially if youdon't know what you have. Even if you andyour team are too busy to deal with them

early in the case—and almost everyone is—the right linguist can help. With a few back-ground documents and a quick briefing, anexperienced translator can get to work rightaway, reviewing and analyzing your foreignmaterial while you focus on other priorities.

Planning is equally important for the backend of your case. If you are a litigator, thinkahead to depositions. What documents willneed to be translated in advance? Will youneed to have an interpreter present? Be surethat your team's pre-trial checklist gives youplenty of time to stipulate to the other side'stranslations, prepare your own certified trans-lations, and—if any of your witnesses areuncomfortable testifying in English—book acompetent interpreter well in advance. Asmall up-front investment in planning willsave significant time, money, and stress later.

A Little Learning is a Dangerous ThingIt's natural to turn to a bilingual col-

league when non-English material surfaces.But "knowing some Spanish" doesn't neces-sarily qualify a paralegal or even an attorneyto translate or review foreign-language doc-

uments, says Thomas L. West III, owner ofIntermark Language Services and formerpresident of the American TranslatorsAssociation (ATA). "A lawyer I know got afax from his Latin American subsidiary andgave it to his Spanish-speaking secretary," herecalls. "Three words stood out: celebración,asamblea, and social. 'Relax, they're justhaving a party,' she said. It turned out to bean invitation to a shareholders meeting."

Go with a ProBottom line: translation errors can be

costly—even disastrous—so it pays to workwith a professional. But how do you find theright language services provider? The ATAoffers free, searchable online databases of itsmember translators and translation agenciesat www.atanet.org. With the AdvancedSearch function, you can tailor your searchto the language pair and subject area youneed, and even specify geographical dis-tances for in-person review.

Getting the right people is important:some "bilingual" reviewers are a waste ofmoney at any price. Marjon van den Bosch,a professional linguist with extensive experi-ence in document review, recalls several liti-gation matters involving thousands of pagesof Dutch. "A staffing agency was taskedwith finding competent Dutch-speakingreviewers," she recalls. "But in each case itfilled out the team with amateur bilingualsrecruited from social networking sites andtemp attorneys who had taken German inhigh school. Google Translate was their tooldu jour." Solution: if your linguists willcome from a staffing or translation agency,ask for specifics on its recruiting standardsand the credentials of the people who willhandle your documents.

Taking the Pain Out of ForeignLanguage Documents

B Y L I L L I A N C L E M E N T I

The attorney was frantic. With trial only days away, she had

just remembered that she had to stipulate to the other side's

translations of key French documents—and the material

filled several boxes. "I [messed] up," she said ruefully. "I sim-

ply forgot about the French."

26 FALL 2009

Bang for the BuckQuality translation does not come cheap,

but you can save time and money by thinkingthrough your needs. To draft a reasonablebudget, ask a few key questions up front.

Does all of your foreign language materi-al really need to be translated? A few hours ofreview time from the right translator or apass through the right computer translationsoftware can help you identify the docu-ments that matter most. Irrelevant docu-ments can be weeded out, and less importantmaterial can be gisted or summarized in afew lines or paragraphs—saving time, trans-lation costs, and document-handlingheadaches over the life of your case.

If you are managing a large litigation, it iscritical to determine how much non-Englishmaterial you have, and in how many lan-guages. Using a unicode-compliant reviewplatform to work with electronic documentssuch as e-mail messages and Microsoft®Word documents is one solid answer, says e-discovery expert Conrad Jacoby, founder ofefficientEDD. "One of the biggest challengesfor a litigation team is simply knowing whatthey have," he notes. "Fortunately, unicode—a computing industry standard that allowscomputers to encode and display most of theworld's writing systems—has made it dramat-ically easier to find unexpected foreign-lan-guage documents and treat them appropriate-ly during processing or review."

Size Matters

Once you know what you have, you candevelop a cost-effective strategy for reviewbased on volume. "If I have 200 documents ina given language, I'll likely have a linguist doa document-by-document review," saysJacoby. "If I have 5,000, I'll have the linguistwork with review software and use his or her

language and subject matter expertise to helpwinnow the material. A competent reviewercan tell very quickly if something is complete-ly irrelevant or needs further attention."

Scalpel or Bludgeon?How accurate do your translations need to

be? Fast and relatively inexpensive, computertranslation is often useful for brute-force gist-ing and first-pass review, but you will almostcertainly need specialized human review andtranslation for your most important docu-ments. "At best, computer translation willonly be about 80% accurate," says Joe Kanka,vice-president of corporate development foreTera Consulting, a litigation support firmbased in Washington, DC, "so we want a pro-fessional translator at the table from day one.That, to us, is absolutely critical."

And 80% accuracy looks a lot lessimpressive when you realize that you don'tknow which 20% of your translation isinaccurate. For sensitive documents, a qual-ified human linguist is usually the best solu-tion. "Once the material has been win-nowed down," says Jacoby, "a qualifiedtranslator or native speaker with the rightsubject knowledge will almost certainly do abetter job analyzing non-English materialthan a monoglot reviewer working fromcomputer translations."

Listening for Added ValueA good translator should also be able to

connect the dots, seeing each new documentas part of a larger whole. Your documents tella story, and if you are willing to listen, experi-enced linguists can help you piece it together.

Too few legal teams take advantage of thisadded value. To tap into it, simply providetranslators and foreign-language reviewerswith the background documents your attor-

neys and reviewers are using, and keep relatedEnglish-language documents with foreignmaterial when sending it out for translation. Ifyou are working with more than one linguist,make sure that everyone on the team is shar-ing background and terminology. Stayfocused on the big picture, and insist thatyour translators do the same.

Strong RelationshipsStrong relationships and institutional

memory generally help a law firm serve itsclients more effectively, and the same is truefor translation providers. In the case of thelast-minute stipulations, the frantic attorneycalled a translator who had worked on thelitigation for several years. She quickly pro-posed a damage-control strategy, and trans-lators, paralegals, and attorney were able towork together to complete the review intime for trial.

Surprises are inevitable in legal work, butthinking critically about your timeline andbudget and working closely with qualified lin-guists can make your project run moresmoothly. Veteran patent translator and ATAPresident-Elect Nicholas Hartmann has seenthis first-hand. "Ideally, the law firm, its client,and the translator work together, forming aneffective partnership that enables all of us tokeep our customers, earn their respect, andenhance our professional reputations."

A working linguist with more than 15 yearsof translation experience, Lillian Clementi pro-vides translation, editing, and document reviewfor Lingua Legal. An associate member of theAmerican Bar Association, Lillian is also anactive member of the American TranslatorsAssociation (ATA) and has served as president forits Washington, DC, chapter and is the coordina-tor of ATA's School Outreach Program.

PPrreessiiddeenntt''ss MMeessssaaggee ((ccoonntt..))

did a terrific job in appointing committeechairs this year, although some of the cred-it goes to Hank who originally appointed afew that I just asked to hold over. I amgrateful to all of the committee chairs fortheir dedicated work this past year. To themembers of the council who devote thebetter part of four weeks each year to StateBar business at quarterly meetings in addi-

tion to reading and digesting vast quanti-ties of materials and attending committeeand sub-committee meetings betweenthose quarterly meetings, I thank you forallowing me to serve with you and for allthe support you have given me over thesepast three years. Every one of you hasresponded positively and effectively whenasked to perform tasks.

Finally, to those six past-presidents whoserved as members of the nominating com-mittee and over three years ago asked me to

serve as vice-president, I am grateful to youfor your confidence and for giving me theopportunity to follow in your steps. I amproud to be a fellow lawyer in the NorthCarolina State Bar with all of you.

McMillan earned both his BA and JDdegrees from the University of North Carolinaat Chapel Hill. He was admitted to the practiceof law in 1967. That same year he joined thefirm with which he still practices—Manning,Fulton & Skinner, PA.


My given name is KeithCorbett Pridgen Marshall,but you can call me Casey.The name is a combina-

tion of all the family names, white and black,of all my ancestors who took up patents toclaim the lands between the Black and CapeFear Rivers in what is now Pender County.The lands are covered by gum, swamps,bays, pines, and Cypress trees covered inSpanish moss. The Yankees foisted town-ships on us after 1868 and made a townshipout of the lands and called it Canetuck, butsome outsiders call it Oblivion. I was born86 years ago on what was once called theFowl Foot Plantation according to the 1790Anders patent. The rice fields are all tupelogum and Cypress now, but I know where afew of the original drainage ditches remain. Iknow my time on this earth is short. I haveled a good life. The Lord has allowed me tobe born, work, raise my family, and hopeful-ly die on the same lands my grandfather'sgrandfather, William Sr., and his sons wres-tled from the bears, alligators, yellow flies,chiggers and cottonmouths to save from thetories, carpetbaggers, and tax collectors.

The incident of which I am to speak hap-pened almost 46 years ago. For many yearsafter the event, I puzzled over what hap-pened, hoping to find an irrefutable explana-tion. Only in my old age am I now able toput aside the conventions of my education tofind a satisfying answer. It was the answer Isuspected all along.

The mystery began after I renewed myassociation with Donnie Corbett, a distantcousin of sorts. After the ninth grade, Donniehad only gone as far away from Still Bluff asthe navy would send him, to Norfolk. Afterthe second war, he began to work as a boilermaker for Babcock and Wilcox inWilmington. He was a natural born mechan-ical genius. What broken machine parts he

could not repair, he could fabricate fromscratch using only homemade tools at hiswork bench in his home. A good union con-tract and 36 years on the job allowed him toretire well before he was 60. He determined-ly kept active and became the community fix-it man. He also made a few dollars farmingby selling his bottom land hay twice a year,just as I did. Small of stature and unusuallythin, his skin had a dark bronze sheen frombeing outside. While not impecunious, healways wore the oldest, most faded, barbedwire-ripped denim jacket and what lookedlike might have been a leather ball cap tocover his bald spot. Never without a Camelcigarette, he could talk rapid fire like aPridgen, with the butt stuck to his dry bot-tom lip flapping up and down like it wasglued on. Donnie was a most unprepossess-ing man, but was also one of the smartest. Healso had saved about every dollar he had evermade and invested wisely in the stock mar-ket. I settled his estate. I was amazed by thesize and scope of his holdings. Maybe Ishould have been a union man.

About the time I began a little farming,Donnie started to take more interest in thoseactivities, since he had no use for lawyers.Donnie was about ten years older than me.With my limited knowledge of farming andmy total lack of mechanical ability, Donnieknew that his lawyer neighbor would need alot of help. I was always tearing up my equip-ment; he was always repairing it. He used totell me, "I could give you a piece of stainlesssteel and you would give it back rusted."

Even though our home places sat on largetracts, our houses and out buildings were bothfairly close to each other on the same hill over-looking the bottom lands. In fact, the originalMarshall tract shared a long boundary linewith the Corbett tract. Our common deeddescriptions had been copied and recopied indeed after deed without anyone ever updating

the 1790 legal description. Both our deedsbegan at the same point. The legal descrip-tions started, "Beginning at a Cypress tree onthe Cape Fear River." It was a good thing weboth agreed on the location of the line.

Our houses were close enough that, whileyou could not see each other's buildings, youcould hear a tractor start up on the other sideof the hollow that barely separated the twotracts. When I lost or broke something on mytractor, I would turn off my engine while Itried to find or repair the part. That was downtime. That's when I could hear Donnie startup "Fat Alice," his tractor, which he wouldride to my rescue. Donnie would know thatwhen my tractor engine noise stopped for toolong, I had broken or lost something. Hewould swoop down from his hill and alightnext to me to tell me what to do, help me findthe lost part, and get me on my way. But thatmeant more down time since he'd talk for along time after he had completed his task. Hewas retired; I wasn't. In the beginning, Iresented Donnie's intrusions on my misfor-tunes. Eventually, I actually learned to lookforward to his appearance and could summonhis help without asking for it. All I had to dowas turn off my tractor engine.

He would never charge me for his time,even if he worked half a day fixing somethingit took me five seconds to break. There was

Donnie's HawkB Y T H O M A S K E I T H

F I C T I O N W R I T I N G C O M P E T I T I O N - F I R S T P R I Z E

The Results Are In!

This year the PublicationsCommittee of the State Bar sponsoredits Sixth Annual Fiction WritingCompetition. Eight submissions werereceived and judged by a panel of eightcommittee members. The submissionsthat earned first prize is published inthis edition of the Journal.

one thing he would charge me for, and thatwas his cutting and baling my hay since I soldit for cash. He cut my crop on shares usingsome ancient hay-making machinery that hehad gotten third-hand, from which he some-how managed to coax another decade of use-fulness. While he would let me borrow any ofhis newer farm equipment of the unbreakablekind, I never thought of asking to borrow hishaybine and baler. Only Donnie could makethe decrepit New Holland baler scoop up thelong lines of wind rowed, new mown grassand pass it through the cranking, clanking,whirling machinery to transform it into a per-fectly formed, rectangular, sweet-smelling, 60-pound bale of hay.

Not only did Donnie bale my hay andkeep my implements running, he was con-stantly policing my fields for lost parts whileriding on his Fiat-Allis tractor. He wouldeven go by my tractor barn and survey mymachinery to see what I had broken or losteach weekend that I allegedly farmed. Hewould make sure the lawyer was maintaininghis equipment correctly. One time he eventold me that he had seen some fuel drippingfrom my tractor and, without asking me,machined a new fuel line and replaced theone that had offended him. I never objected.

I had inherited the color blind gene fromthe Marshall family. Like my father, I amalmost totally red-green color blind. I can tellyou that primary red looks different than pri-mary green, but I could not find a red ball ongreen grass. My wife has always had to dressme in the mornings, especially if I had court.On the mornings I would have to get upbefore her, she would lay out my properlycolor-coordinated clothes the night before.On the few occasions that I woke earlier thanusual and had to dress without her supervi-sion, someone in the office would smile at mychoice of tie or shirt and remark, "Well Casey,it looks like you let your wife sleep in today."How did they know?

For recognition purposes, most farmequipment makers paint all their products adistinctive color; hence, John Deere green andMassey Ferguson red. Of course, there is aFord blue, but Ford only makes tractors andnot equipment anymore. My tractor wasorange, indicating a homemade paint job on apiece of machinery of indistinguishable ageand questionable paternity. Whenever you losea red, green, or orange part in the field, it usu-ally falls on green grass. This makes it invisibleto me. Not only could Donnie see orange

parts in green grass, but he had eyes like ahawk and the patience to go with the search.

On the occasions when he found one ofmy lost parts, he would either reinstall thepart on the appropriate piece of machinery,or, if I wasn't around, he would place it onthe tractor or implement close to where itshould be installed by me. On the latteroccasions, he would never tell me he hadfound the lost part. He would just let me dis-cover it on my own the next time I gotaround to using the piece of equipment. Iwould then thank him. It was a ritual that wefollowed for years, continuing even after hisuntimely death.

Other than Donnie, I ran the place prettymuch by myself with the exception of someoccasional help from some of my daughters'college-aged male friends who made the mis-take of trying to impress me by offering tohelp. One boy, Will, was willing to work hardfor me. The only other regular companion toour work was the red tail hawk who patrolledthe bottom land hay fields. Whenever thehawk heard my tractor in the hay field, hewould appear deus ex machina. He wouldclimb down from the sky and descend to thetop of the tallest and biggest walnut tree atthe most opposite end of the field where I wasworking. With each ten foot cutting swath ofthe bush hog, dozens of field mice would berevealed to the hawk and would be added tohis menu. However, under no circumstanceswould the hawk ever come closer than theopposite end of whatever field I was workingwith the tractor. After all, the hawk came toeat, not talk.

One week before a Christmas holiday,Will called to tell me he was home from grad-uate school in botany at State College andneeded to make some farm money for familygifts. I had put off repairing the line fencebetween Donnie and my farm hoping forsuch an offer from Will. I enjoyed fencingeven more while sharing the task with some-one like Will. One of his undergraduatemajors in college was philosophy. Unlike theusual type of farm help, Will was able to talkabout more than NASCAR and could dis-cuss even more complicated subjects such aswomen. Our work that week would have usreplace the old barbed wire along my com-mon boundary line with Donnie and chainsaw the ever encroaching, aggressive pinetrees that kept sprouting up on the fence line.Even though I failed botany in Chapel Hill, Ihad learned this invasion by pine trees was

called new field succession. Leave a field openand the pines will take over. That's all I recallabout plants, since I flunked the coursebecause in botany lab I could not see anycolor change to the green slide when I addedthe red dye to it. I told the professor my sin-gular results, but he just thought as usual Ihad not done the experiment properly. Inever told him I was color blind because Ididn't confirm the fact for another 25 yearsuntil my oldest daughter enlisted me in herhigh school genetics experiment on inheritedtraits. One trait was colorblindness.

Between drilling in a few new fence postsand stringing ten rods of wire at a time, therewas a continuous running banter betweenWill and I about the weightier subjects of thecosmos. Youth was more certain in its views.Every mystery could be accounted for by sci-ence. Life began when electricity hit two ele-ments which combined into a single cell toform life. Will's professor had repeated thisprocess in an experiment in chemistry lab.My only replies to Will were inquiries: "WellWill, I imagine that ants, who are an organ-ized and intelligent society, have their science,too. Do they know of Avogadro's Number,the Golden Mean, or the Unified FieldTheory? Maybe there are explanationsbeyond even our science we can never com-prehend any more than ants. We all have ourlimits." Will thought man was smarter thanants and dissented.

This Christmas Eve Donnie heard ourchain saw and, as usual, rode out to help. Hedid not like how we were stringing the wireand offered some better alternatives. Hethen sped off to get a rat-tailed file to sharp-en my chain saw which he could tell wasdull by the way it had scorched the recentlysawn pine stumps. Donnie spent the rest ofthe afternoon clearing the fence line withmy saw and supervising the fencing educa-tion of his two ignorant college-educatedlaborers. It was a bright, sunny day, about50 degrees. It was perfect weather to workand not sweat. Of course, winter is also theonly time to do fence work since the sumacleaves and poison ivy growing on the oldwire are not a problem.

Donnie pointed out two five-inch thicktrees he didn't want us to cut down, and re-routed the last leg of our fence line to avoidthem. That puzzled me since some futureheir might mistake the new route as the oldboundary line. Donnie volunteered the rea-son, "I saved these two young walnut trees for

28 FALL 2009


your girls, Casey. When they have children,you can cut them down and they'll pay fortheir college educations." Will had been pre-pared to cut the walnut trees down since theyhad snuck into the old fence line like thepines did. Will the botanist could tell you allabout the genus Juglans, but had never mettwo real walnut trees in the woods until then.I wonder if Will the scientist ever learned thatthe Latin name for the tree meant "Jupiter'sacorn," or a nut fit for a god.

We voted to take off Christmas day and toreassemble the day after to finish our work.Instead, I eased out of the house after presentson Christmas to continue the job myself withonly an ax. I enjoyed the simple tool. I didn'thave to pull my arm out of its socket to startit or add gas and oil. As long as I kept the axsharp, it would reward me with a quiet thudand fragrant flying wood chips. The neigh-bors couldn't hear the ax, and I hardly everbroke one. Donnie never heard the ax thatday or suspected I was working or he'd havejoined in the fun. The women at home weretoo busy preparing the gargantuan Christmasfeast to miss me either.

As I went to bed Christmas night, my wifeasked me, "Doesn't that sound like a firetruck?" I could hear the wail of a siren goingdown the dirt road toward where theCorbetts lived and the hurtful howl of theneighborhood dogs in response. "No, that'san ambulance," I said assuredly from a fewtimes riding in a rescue vehicle with myfriend, "Beefeye," an EMS driver. My friend,like everyone in Canetuck, also had a realname, but since he had a big head and eyeswide apart like a cow, no one ever bothered tocall him by his Christian name, Demetrius.

Arabella Corbett, Donnie's only daughter,had gone to the Canetuck school near theLyon Swamp Canal with my daughters. Ourfamilies usually exchanged some small gifts offood at Christmastime. Sometimes I boughtDonnie a tool for his previous year's manage-ment consultant work. This year I had doneneither. "Bell," as Donnie's daughter wasknown, called me the next day to tell me thather dad, Donnie, had a heart attack and diedChristmas night. The sirens were too late.

Will and I went back to work on thefence the day of the funeral and walked upthe hill to the Corbett graveyard forDonnie's service. We hung back from thecrowd since we were still in our work clothes.Donnie would have done the same; no rea-son to waste work time changing clothes. He

would not have been offended, and anyway,if he were, as he often said, "The dead are tooproud to speak." Bell had rounded up a newyoung preacher who, amazingly, did a superbjob eulogizing someone who rarely saw theinside of a church and whom the preacherhad never met. I told the preacher I wantedhim to do my funeral at the appropriatetime. The preacher thought my request wasa comment on his theology. I meant it as acomment on his imagination. After the serv-ice, Will and I went back to our fence work.Youth, yet unaccustomed to death, had ahard time understanding how someonecould be so vital one day and gone the next.Science now did not give him a satisfyinganswer to the subject of death. I only guessedit was the cigarettes that killed Donnie.

During the rest of the week we vowed tobuild a three stone bench between the twowalnut trees in honor of Donnie. We nevergot around to it; we had to finish the fence.Will had to go back to college. We stoppedat the top of the hill as we left the field thelast time and looked back to admire ourwork. At least we had erected some monu-ment to mark our existence. A large shadow

flashed over the hood of the Ford pick-upand landed in the tall fescue 20 feet away. Hewas some type of hawk. I have consultedprobably a dozen bird books over the yearsand have yet to identify this genus of hawk.He had the raptors' downward, curvingbeak; grasping, yellow talons; and piercing,yellow eyes. The breast was light coloredwith dark ticking. His wings were light anddark brown. Like all of the Buteo genus, hewas formed to float in the air with hollowbones, but he did not have the red tail norcharacteristic smooth crown of our localhawks. Instead, his head was tufted like anosprey, but the color of bronze. Unlike everyother hawk that kept a half mile out of rangeof man, this one deliberately stood in thegrass 20 feet from the truck. The hawkwatched intently and walked toward meafter I exited the truck. Neither of us spoke.Eventually, as darkness gathered up from theground, he got frustrated and jumped upinto a large dead poplar tree. He talked to usin a sharp, high cry, "Kee-ah," which I jok-ingly took to mean "Good job." "Thanks," Ilaughed and drove off.

That night I told my wife what I had

30 FALL 2009

seen. I was puzzled. Of purer Celtic ancestry,she quickly identified the hawk as Donnie'sspirit come to look after me henceforth. Shethen went back to her needlework. Whyhadn't I thought of that? My acceptance ofthe supernatural must have been bred out ofmy genes by all the German and Frenchwomen that had intermarried with myScotch and Welsh forebears. I've thoughtabout her revelation for years.

Will had to go back to college. I was nowalone to bush hog the back fields along thefence line anytime I wanted. I was threemonths behind in my work and the weeds Ihad hoped to cut down before their going toseed were still standing. In the too shortweekend winter days of January I tried tocover too much ground too fast with the trac-tor. Donnie had told me I should always goslow in order to get a good cut when I bushhogged. I had disobeyed his order and paidthe price for my impatience.

Somewhere in the foot-high fescue field Ihad just bounced over, I lost part of the liftarm assembly to the 3-point hitch of mybright orange tractor. The lift arm is the partof the tractor that attaches to whatever it'spulling. It is strong and big enough to pickthe entire 5,000-pound implement off theground. The vibration caused a lock nut toloosen and an 18-inch forearm-sized piece oforange-colored steel disappeared into thegrass along with two 6-inch long eye boltsand nuts that held the assembly in place.Even though it was winter, the grass was stilldeep green. I was unaware the parts weregone until I finished my outside-to-insidespiral cutting of the field. Upon trying toleave the field, I found I could not raise thelift arm assembly to pick up the bush hog. Itwas dark. I knew no one would ever findthose lost parts again, even if it were full day-light and even if the searcher were not colorblind; the grass was too tall, too thick. I knew

I would have to wait until the next Saturdayto go to the farm equipment dealer in townto look up the part numbers in his catalogueso he could order new parts. Who knowshow long it would take before I would get theorder. Who knows when I could get back inthe field to finish my work.

On Saturday I stopped at the tractor shedto make a list of all the lost parts I needed toorder. I did not have to make that list. Neatlystacked on the flat steel deck of the bush hogwere all the missing parts. No one wasaround. There was no note from any finder. Ihad no other neighbors but Donnie since thefarm was bounded on two sides by creeks andthe other two sides by roads. I did hear in thedistance the "kee-ah, kee-ah" of a hawk in thewind. I looked up and noticed there werenow two hawks in the sky where there hadonly been one on the farm for years before.One hawk had a bronze head.

Will got married many years ago andwent back to yet another university to changecareers again. He became an architect thistime. He never worked on the farm again.Bell married and built a house on the Corbettland overlooking the spot where I had firstseen the hawk by my truck. I never told herof these events. My girls are all grown andgone. They like the farm now. I continued tofarm after I retired from the law until I gottoo old to put the heavy machinery on andoff the orange tractor, but I still mow myfields twice a year to keep the weeds out. Evenafter all those years since Donnie died, I canstill hear his tractor approaching every timemy tractor stops, but that mystery would beunderstandable even to Will. I posed thatsame question to Will at his wedding, "If Ican hear Donnie's tractor, who is to say he'snot there?" Will replied, "It's just the windcarrying the sound from someone else's trac-tor up the hollow."

However, the deeper mystery would take

us more study. "Well then, Will," I asked,"Did the wind find the tractor parts, flythem half a mile, and stack them neatly onthe mowing deck?" Scientific theory was baf-fled and Will spoke no answer. He studiedon that conundrum a while and returned tohis philosophical roots. His half-joking the-sis began by his proposal that the hawk hadthe physical ability to find the parts, pickthem up, and stack the parts on the tractor,but Will couldn't accept the premise that itwas Donnie's spirit in the hawk that direct-ed the task.

"Well, young man, are you saying you donot believe there is such a thing as spirit?" Iasked. He hesitated, "Not yet, but what'syour answer, Casey?" he said, trying to putme off. My answer was a question back tohim, "How do you define, measure, or testlove?" "You don't," he replied. "You can't,you just know it's there." "Well then, son, ifyou know love exists, why not spirit?" I hadhim now. At least for a while he began tobelieve that Donnie's spirit was in the hawkand it was Donnie that directed the hawk tobring the lost parts back. I still believe it. Infact, I now know it.

I saw the second hawk for years thereafterevery time I would crank up my tractor."Hello, Donnie," I would say aloud, "thanksfor your friendship. I'll try not to lose any-thing today, but if I do, put the parts in theusual place. By the way, what do you think ofthe line fence?"

"Kee-ah."

Tom Keith of Greensboro earned his BAdegree from UNC-Chapel Hill, and his JDdegree from Wake Forest University School ofLaw. He has worked in private practice, and hasserved as a prosecutor including five terms assolicitor for Forsyth County. Donnie's Hawk isthe first story he has written since English 21 atUNC, circa 1962.

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states, such as Ohio, Indiana and Missouriwere openly discussing secession from theUnion, and he asked Douglas to use hispopularity in these states to hold them fromsecession. Douglas began making pro-Union speeches, several a day, in cities along

the disputed area. Exhausting himself, hedeveloped pneumonia and died in 1861.On his deathbed he was asked if he had amessage to send to his two sons, and he toldthem, "Obey the laws and support theConstitution." This is also the epitaph onhis tombstone.

R. D. Douglas Jr is a great-grandson ofStephen A. Doglas. He has practiced law in

Greensboro since 1936 and is still at it. For NorthCarolinians, it might be interesting to note thatSenator Douglas' oldest son was Robert MartinDouglas, who practiced law in Greensboro andserved on the North Carolina Supreme Court.His grandson, Robert Dick Douglas, was attorneygeneral of North Carolina and also practiced inGreensboro. Two great great-grandsons, M.Douglas Berry and Robert D. Douglas III, arecurrent Greensboro attorneys.

JOURNAL - North Carolina State Bar · 2016-04-12 · cials also applied to online marketing...

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