The Lincoln Lawyer

Before Abraham Lincoln became our greatest president, he was a great corporate lawyer.  And before he was a corporate lawyer, he was a brilliant trial lawyer.

In the 1840s, Lincoln represented a Revolutionary War widow who had been bilked out of most of her pension.  The widow had retained a claim agent to help her collect the $500 pension.  The agent then kept half the pension for himself, claiming it was part of the contract. 

Here are Lincoln’s notes for his closing argument:

“No contract.  Not professional services.  Unreasonable charge.  Money retained by defendant – not given by plaintiff.  Revolutionary War.  Describe Valley Forge privation.  Ice.  Soldiers’ bleeding feet.  Plaintiffs’ husband.  Soldier leaving home for army.  SKIN DEFENDANT.  Close”
 
From the notes, it appears Lincoln made scrambled eggs of the traditional closing points set out in Aristotle’s Rhetoric. 
 
Aristotle wrote that a great speech should begin with ethos, which means basically establishing a rapport with the audience, assure them that you have something worthwhile to say.
 
Next, the speech should move to logos, appealing to reason and logic to explain why your argument is fair.
 
Finally, the speech moves to pathos, appealing to emotion to sway the audience toward your argument.
 
Lincoln appears to have left ethos out altgother, but maybe that was because he was Lincoln.  Instead, Lincoln started out with a cold reading of the law.  It is not a contract, and not a valid payment, he pointed out.
 
Only then did Lincoln pour on the pathos, pointing out the sacrifice the war veteran had made for his country and the outrageous conduct of the agent.  It is interesting to note that Lincoln held back on the scorn until the end of the argument, so that the audience is more likely to remember this injustice, rather than the moral debt owed to the widow.
 
Lincoln shows us that rules are merely guideposts, and we should trust our own judgment before we blindly follow two thousand year old outlines.
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About Timothy Cornell
Timothy Cornell is of counsel at Perry, Krumsiek & Jack, where he co-chairs the litigation group and has a significant internet law, healthcare and litigation practice. Mr. Cornell graduated from the University of Chicago, where he studied philosophy. Before he became a lawyer, Mr. Cornell was a journalist at the Boston Herald, the Philadelphia Inquirer and other newspapers. An investigative story he wrote for the Tennessean in Nashville uncovered a series of radiation experiments done on poor pregnant women during the Cold War that led to a class action lawsuit and a $10 million settlement with Vanderbilt University. He then went to Cornell Law School, where he graduated cum laude from Cornell Law School in 2002, and was editor-in-chief of the Cornell International Law Journal. He has litigated a wide range of commercial, securities and antitrust cases. Working for the famed lawyer David Boies, Mr. Cornell litigated a whistleblower case against the pharmacy benefit manager Medco that resulted in a $166 million settlement and was recognized as The Case of the Month in the June 2006 issue of American Lawyer magazine. He also defended a major telecom against claims of securities fraud, and successfully sued Genzyme and other pharmaceutical manufacturers under IP, antitrust, securities and other causes of action. He was part of a team of Boies, Schiller & Flexner that sued Visa, MasterCard and the ten largest banks in the nation on behalf of American Express. The case resulted in a $4 billion settlement, the largest in antitrust history. Mr. Cornell focuses much of his practice on helping third party payors discover overcharges and reign in their spending on healthcare, while continuing to advise startups. He currently represents a large municipal health plan in its claims of consumer fraud against a major pharmacy benefit manager. He also represents a range of internet law clients and is a network lawyer for the Berkman Center for Internet & Society at Harvard Law School.

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