And the Walls Came Tumbling Down: Closing Arguments That Changed the Way We Live.

And the Walls Came Tumbling Down: Closing Arguments That Changed the Way We Live

Michael S. Lief H. Mitchell Caldwell Scribner www.simonsays.com 390 pp., $30

A notable flaw in traditional legal education is its single-minded focus on the language of landmark cases, to the exclusion of both the historical context and the personalities involved. In a bold departure from this case-method myopia, Michael S. Lief and H. Mitchell Caldwell's book, And the Walls Came Tumbling Down, brings alive past courtroom struggles for individual rights and civil liberties, infused with drama and human interest.

There is praiseworthy economy and editorial discretion in the presentation of the book's eight landmark cases, which cover the right to die, slavery, the 1950s McCarthy-era blacklists, women's suffrage, freedom of the press, free speech, access to health care, and forced sterilization. While some--such as the epic battle between Jerry Falwell and Larry Flynt--have been well covered elsewhere, in print and on screen, most of the others have not. Any one of these momentous cases is worthy of an entire book, but this compilation has the core details that matter most, each story intact and full of intrigue from the conflict of ideas and personalities.

This book ought to be required reading in every law school because it shows how lawyers have been critical to the development of our democracy. It does so not through syrupy self-glorification, but rather by promoting the realization that many of the rights in our country today resulted from the tenacity and skill of lawyers in the courtroom. This is a view of American history not well understood by either the legal profession or the public.

There are some surprises in this book. John Quincy Adams, whom I have never viewed as more than a stuffed-shirt tintype, comes alive in his argument to the U.S. Supreme Courtin the Amistad case on February 24, 1841, capturing the moral high ground on behalf of the African prisoners seeking their freedom. The former president eloquently skewers both the federal government and President Martin Van Buren's administration, exposing their "monstrous" alliance with a Spanish government seeking to re-enslave the prisoners as hypocritical and inconsistent with basic American ideals. Though many years have passed, Adams's words remain powerful, persuasive, and deeply moving, a notable peak in the art of closing argument.

The title focuses on closing arguments, but the book's scope is more inclusive. The oldest case presented, the trial of John Peter Zenger for seditious libel in 1735, captures the strategic genius of one of America's first great trial lawyers--Andrew Hamilton of Philadelphia, who represented Zenger.

The transcript shows how Hamilton's bold moves unfold, throwing the prosecutor and judge into obvious confusion. When the prosecution flounders in the face of Hamilton's superior skill, James DeLancey, chief justice of colonial New York's highest court, tries to rescue the government's case, with no better success. The wily Hamilton is many moves ahead of them both. By the end of the case, DeLancey belatedly realizes that Hamilton has consistently undermined his credibility with the jury:

   The great pains Mr. Hamilton has taken to
   show how little regard juries are to pay to the
   opinion of the judges, and his insisting so
   much upon the conduct of some judges in
   trials of this kind, is done no doubt with a design
   that you should take but very little notice
   of what I might say upon this occasion.

In fact, this is what happened. The jury returned a not-guilty verdict based on the law as they felt it should be, the first recorded instance of jury nullification in America.

There is also a memorable strategic contest between lawyers Norman Roy Grutman and Alan Isaacman in Falwell's civil lawsuit against Hustler magazine and Flynt, its publisher. The trial was shaped by Flynt's videotaped deposition, where Grutman got him to admit that he intended the crude humor in an ad parody of Falwell to hurt the reverend's reputation; it was a malicious attempt to settle a grudge.

Undeterred, Isaacman told the jury that this admission should not matter because the parody was so extreme that it could not be taken seriously. The jury agreed, finding that the ad did not constitute libel. The jury did award damages for intentional infliction of emotional distress, but this verdict was eventually overturned by a unanimous U.S. Supreme Court.

The last case in the book, the Supreme Court's 1927 decision on forced sterilization in Buck v. Bell, has a poignant lesson on the importance of the advocacy system. In 1924, Virginia passed a law allowing state officials to sterilize people who were considered "insane" and "feebleminded." The law was meant to reduce the tax burden associated with caring for the mentally ill.

Carrie Buck, a 17-year-old resident of a state insane asylum, was picked as the first candidate for sterilization. Opponents of the law mounted a legal challenge on her behalf. At trial, Buck was represented by an apathetic court-appointed lawyer, and the judge ruled that she should be sterilized to prevent the birth of other "defective" children. The Supreme Court upheld this ruling.

Buck later was sterilized against her will, along with many other Americans like her. In commenting on this tragic lapse in the American idea of justice, which expects that both sides are well represented, the authors conclude:

   It underscores the difference a lawyer,
   armed with his passion and intellect, and
   fighting for a just cause, can make. Without
   that courtroom champion, Carrie Buck and
   thousands of other Americans were deprived
   of an essential right.

That is what this book is all about--the importance of skilled, passionate lawyering in creating and expanding American democracy. All lawyers whose passion for justice called them to the legal profession will have that feeling rekindled by this worthy book.

WILLIAM S. BAILEY practices with Fury Bailey in Seattle.