Clarence Darrow: A Real Lawyer Struggling Against Currents and Insolvency

Clarence Darrow is the sort of icon whose status guarantees that new biographies will be produced about him from time to time. Although dead now some 73 years, his presence lingers. He is on anyone’s short list as one of the nation’s greatest trial lawyers. Andrew Kersten’s, Clarence Darrow: American Iconoclast, is a welcome addition to the burgeoning literature on Darrow.

Kersten is an historian without legal training, and his work can therefore be maddeningly vague. A lodestar guiding Darrow throughout his career was a commitment to liberty, justice and equality for all, Kersten writes. I am not sure what value this adds to an assessment of Darrow’s life.  Watch the debate between right and left in this country today. Surely Ann Coulter and Glenn Greenwald both maintain commitments to liberty, justice and equality: their differing means of getting to that goal is what makes sparks fly.

I chose Coulter and Greenwald as examples because, like Darrow, they have legal training. Coulter attended the University of Michigan law school; Greenwald attended New York University law school. Coulter and Greenwald are, as was Darrow, public intellectuals, writing and lecturing widely on all manner of things. Yet unlike Darrow, neither Coulter nor Greenwald darkens the door of courtroom to try cases. They talk the talk, but neither attempts the walk. Darrow did both. That’s one of the things that distinguishes him the the law’s chatterboxes.

Kersten’s brief biography may lack the insight lawyers expect when discussing Darrow’s cases, but it does present both his legal and political career in a balanced and accessible manner, indeed, the author makes no bones about his interest in Darrow’s politics. Darrow, a one-term state lawmaker and failed congressional candidate, viewed the law as a means of advancing political ends early in his career. As he aged and became more skeptical he emerged as far more than a mere movement lawyer.

We learn that Darrow was an ambitious drifter as a young man, eager to make a name for himself, but lacking big-city connections. He moved to Chicago and cultivated the attention of such men as John Atgeld, a reformer and future governor of Illinois. Soon, Darrow was appointed to a job in the Chicago corporation counsel’s office. Thereafter, he was running the office as the city’s top lawyer. From there he migrated to a lucrative position as corporate counsel to the Chicago North Western Railroad. These are moves not just of a man with talent, but of a man with a plan and fiery ambition. Kersten makes no effort to understand what subterranean furnace fed Darrow’s ambition, a shortcoming a longer book might have addressed.

When labor unrest tore the country apart, Darrow walked away from the railroads and into the front lines of the struggle between labor and capital, representing Eugene Debs, then Bill Haywood, and then the McNamara brothers in the Los Angeles bombing case in which 21 works at the Lost Angeles Times were killed as a result of arsonist’s bomb. When Darrow was himself charged with trying to bribe jurors in the McNamara case, his labor support vanished. He stood trial twice on these charges, earning a mistrial as to one juror, and an acquittal as to a second. The state elected not to try him again on the mistried case if he agreed to leave California and never again attempt to practice law there. He agreed.

In his mid-fifties, Darrow returned to Chicago broke, disgraced and with few friends. I would argue that it was at this point that he became a real trial lawyer, putting aside loyalty to movements and interests beyond those of the client on whose behalf he was appearing. One cannot serve two masters in the well of the court. Whatever a movement may demand, a client’s interest remain the lawyer’s guide: a trial lawyer is Charon at the gates of Hell.

Darrow represented more than 100 men facing the death penalty; only one was sentenced to die and thereafter killed by the state. He represented Leopold and Loeb in the spectacular thrill-killing case in the Chicago, avoiding the death penalty for two wealthy assassins who killed for kicks. He represented Ossian Sweet in Detroit, winning an acquittal for a black man facing down a white mob in Detroit with lethal violence. And while he lost the Scopes trial in Dayton, Tennessee, he won the hearts and minds of many with his searing cross-examination of William Jennings Bryan. And while he did all this, he wrote and lectured. 

Yet time and again, Darrow’s fortunes foundered and his outlook darkened. He was ruined by the Great Depression. Hopes to retire were frustrated again and again by the topsy-turvy character of his law practice: he could make a fortune in fees, only to be broke again and soon once a case ended. Kersten does not dwell on the political economy of the trial lawyer’s life, but he teases with just enough details to be tantalizing. Can it be true, even Darrow was from time to time forced to resort to selling off possessions to pay his bills? Yes, the bibliophile sold first editions from time to time. Kersten approaches the fact that Darrow would take cases simply because he needed income with an almost morbid sense of wonder: oh, to live the life of a privileged tenured professor. I have yet to read either a fictional portrayal or a real life account of what it is like to keep the lights on while practicing law -- Michael Connelly comes close, but a client with oodles of cash always appears at just the right moment, a Deus ex machina with a credit line. At least Kersten acknowledged that fees are a reality for most lawyers.

Kersten’s biography would be a great gift to any young lawyer. Darrow described himself late in life as ”a pessimist with hope.” He’d seen enough of what mass movements and the herd-like tendency of any group could do to individuals: there is no mob quite so dangerous as a self-righteous mob. He preferred a solitary course, fighting in each battle for the right of individuals to be let alone, demanding that even the damned be given their full measure of justice. He remains, despite having now long been dead, a worthy icon and guide for any lawyer. Fight, always and forever, with pen and voice. Yes, write, lecture, and rally around your favorite cause: but never forget, if you are a trial lawyer, that you belong in the forum, in the well of the court, fighting not for the people, but for the person standing at your side.

We live in noisy times. Everyone has something to say. Few lawyers can do what Darrow did: by walking the walk even as he talked the talk, he became almost immortal. Hence the endless fascination of biographies about the man. Kersten’s brief biography is a good snapshot of a life of broken dreams, promises unredeemed, and defiant hope, in other words, a life lived to the fullest by a great lawyer who fought for individuals even as he wrote about generalities.

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Comments: (1)

  • Clarence Darrow
    Thank you for your Darrow blog of July 19. Andy Kersten is a friend of mine and like myself an admirer of CD. I am also the nationally renowned portrayer of Mr. Darrow and my Darrow programs good for CLE credits. Your remarks and observations were well worth the reading and I hope to revisit your blog in the future. Just one minor correction - Darrow's 1st trial for jury tampering was an acquittal and the 2nd was the hung jury.
    Posted on July 28, 2011 at 8:33 am by Gary Anderson

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