Les Whitten is another about whom you might well ask, "who?" He was the kind of reporter then known as a "muckraker," before that became the norm for all reporting. Whitten was an associate of Jack Anderson, a journalistic nemesis of Richard Nixon, whom J. Edgar Hoover once called "lower than the regurgitated filth of vultures." Name-calling had a certain panache back then; today he'd just be one more enemy of the people. But I digress. Les Whitten wrote a number of books to go with his muckraking. One of them was a vampire novel that no less than Stephen King named one the essential works of American horror. Another -- his only biography -- was about F. Lee Bailey. I read it when it came out, and at the time (other than TV lawyers) that was all I knew about what lawyers did for a living.
Whitten begins his tale with Bailey flying his own Learjet over Kansas. Bailey had been a Marine fighter pilot, and flying was his first love. But law was his second. He dropped out of Harvard and finagled his way into Boston University Law School without an undergraduate degree. He graduated at the top of his class, and started right off taking the most difficult, impossible, criminal cases he could find. His breakthrough was with Dr. Sam Sheppard, convicted of killing his wife. Bailey won him a new trial, and then an acquittal, and also made new law that to this day governs pretrial publicity in criminal cases. Sheppard became the basis of the TV series and later movie, The Fugitive. Bailey became the country's premier celebrity lawyer, flamboyantly flying around the country and handling his own press -- it was no accident that Les Whitten wrote his biography even though his career had barely started. Over the years Bailey rose for the defense in most of "the trials of" the late 20th century, from the Boston Strangler, to Patty Hearst, to, finally, OJ Simpson.
According to Whitten's book, Bailey was inspired to become a lawyer by reading The Art of Advocacy" by Lloyd Paul Stryker. Who?? Forgiven, again. Stryker was one of the old-style trial lawyers who haunted the New York City courts in the first half of the 20th Century. His book was a lament, subtitled A Plea for the Renaissance of the Trial Lawyer. Stryker argued for a style of advocacy grounded principally in oral argument -- literate, elegant, incisive oratory -- that now seems deader than Latin. But even when he wrote it in 1954, Stryker knew he was up against it. In his preface, Federal Circuit Judge Harold Medina noted that "the procession of some of the ablest men [naturally] away from a career in the courtroom was already well underway." Judge Medina didn't do Stryker any favors, for he identified the reasons, still inexorable 65 years later: law schools that aim for "the development of the legal mind and the mastery of legal techniques and craftsmanship" but give short shrift to a "dedication to the cause of justice"; a need for income that renders whoever "just out of law school who has the fortitude to hang out his shingle and weather the storm alone [to be] regarded . . . as slightly out of his mind;" but mostly a growing tendency to over-try cases, so that "none but a professional racketeer will possess the funds necessary to employ a lawyer for his defense."
It was Bailey's representation, in 1994, of a professional racketeer that did him in. Bailey's flamboyance was expensive, and he was always in debt. He took possession of a block of stock owned by his client, a drug dealer, and insisted on keeping as his fee rather than turn it over to the government as a forfeiture. Then he insisted on keeping the $14 million profit it earned while he had it. When the court ordered him to turn over the stock, he couldn't because he had pledged it for loans that he couldn't repay. For that, he spent 6 month in jail for contempt, and was disbarred. He never practiced law again, but spent the rest of his days broke and bankrupt as a litigation consultant operating above his girlfriend's beauty shop in a small town in Maine. https://www.townandcountrymag.com/society/a10284185/f-lee-bailey-oj-lawyer-interview/. His website still boasts his laurels though: "He has been a trial lawyer and advisor to trial lawyers with respect to their trial plans and ammunition, a private investigator, a recognized expert in polygraph testing, a military and civilian pilot, an aircraft manufacturer and fleet operator, and a yacht captain and manufacturer." https://fleebaileyconsulting.com/. With all that, he still flew into a wall.
Judge Medina was foresighted. The days of Lloyd Paul Stryker, Martin Littleton, Louis Nizer, Gerry Spence, and Edward Bennett Williams may have ended with the death of F. Lee Bailey. President Trump was reported to have pined for a celebrity lawyer like Roy Cohn. They are gone. Trump had to settle for Rudy Giuliani, who embodies the celebrity lawyer refashioned as farce.
In 1985, Bailey wrote his own version of The Art of Advocacy, which he titled To Be A Trial Lawyer. By then I was a fledgling trial lawyer myself struggling to avoid flying into my own walls, so of course I read it. Its points are still valid, even to those of us who, despite being pleased to call ourselves "trial lawyers," spend most of our trial days in arbitration rooms, and not enough of them to ever let us rival the old trial lawyers. Much of the book's advice can be found in many another "how-to-try-a-case" treatise, but I credit it with imparting on me one concrete skill that none of my other mentors nor any other book said as clearly. To be a trial lawyer, Bailey wrote, you must "learn to speak without notes" [emphasis his]. This was a rare skill then, and even rarer today when every speaker's notes are shared with the audience in PowerPoint slides. But I learned to do it, it made me just a little more persuasive, and I personally owe that to Lee Bailey. So thanks for that Lee, and may you finally fly free.