Litigators Shouldn't Idolize Richard Nixon
Nixon’s “trial tactics” did this country a huge disservice.
One of my fellow columnists, Matthew Schmidt, has suggested that litigators could take a page from former President Richard Nixon as to how to litigate.
The subheading is that Nixon could be considered as the patron saint of litigators. I couldn’t disagree more. I can only hope that his tongue was firmly in his cheek, but give that he graduated from law school in 2009, I’m not sure.
Schmidt notes that throughout Nixon’s life, “…he held on to the litigator’s instinct to keep fighting, no matter what. If you’re a litigator and don’t have that instinct-or don’t have it enough-you may want to spend some time trying to be more like Nixon.” Really?
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I don’t think that anyone of dinosaur vintage would think that Nixon did himself or the country any favors by how he handled Watergate, nor should he necessarily be a role model for litigators, since Nixon had great difficulty knowing when it was time to leave the building.
I think one of the hallmarks of a good litigator is a sense of timing. Nixon didn’t have that, nor did he have any humility, also a hallmark of a good litigator.
Nixon was overconfident, which is a characteristic of well, overconfident litigators, who think they know how a court or a jury will decide. How many times have we been surprised? Just like Icarus, who flew too close to the sun, Nixon’s hubris contributed to his undoing.
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For all those of you too young to remember, and that includes all millennials, Watergate was a historic and traumatic event in the early to mid-1970s. It started with what was called a “third rate burglary” of the Democratic National Committee headquarters at the Watergate in Washington, D.C. in 1972 and morphed into a constitutional crisis that ended, finally, with then President Nixon resigning in disgrace two years later. Nixon’s holding on by the fingernail responses to ever mounting smoking guns gripped us in the throes of a constitutional crisis until he finally saw impeachment proceedings looming and so he resigned on August 8, 1974.
For us dinosaurs who lived through those times, it was a difficult time for this country, regardless of political affiliation. For those of us who were in law school, it was a time where we learned a lot about the Constitution and how government actually worked in practice. It was better than any casebook or con law lectures.
In fact, even non-lawyers were riveted by the events that dominated the print media (newspapers for those of you too young to remember) and network television (no cable news then). Many of us would-be lawyers (and many in the rest of the country as well) were glued to the broadcasted hearings. By the way, a fair number of the lawyers involved in Watergate were from Nixon’s home state of… you guessed it… California. He went to law school at Duke, but he grew up in SoCal.
From White House John Dean’s testimony about a “cancer on the presidency” to Sam Ervin’s “country lawyer” encyclopedic knowledge of the Constitution, from United States District Court Chief Judge John Sirica ordering the White House to turn over the tapes that no one had previously known about until Alexander Butterfield testified to their existence, to the United States Supreme Court’s unanimous decision written by Chief Justice Warren Burger telling Nixon he had to turn over the White House tapes, denying his claim of executive privilege, from Rose Mary Woods and the “eighteen and a half minute gap” (she must have been a contortionist in a prior life) to the Washington Post “following the money,” to the “Saturday Night Massacre,” to Republican Senator Howard Baker’s question: “what did the President know and when did he know it?” this country was mesmerized but also paralyzed by Nixon’s intransigence and unwillingness to face facts.
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I don’t think that the unwillingness to face facts is the hallmark of a good litigator.
As a former litigator, trial lawyer, and now mediator, I think that Nixon’s “trial tactics,” if you will, did this country a huge disservice. Vice President Gerald Ford, who became President when Nixon resigned, subsequently pardoned Nixon, rather than having him and the country dragged through trial, Ford saying that “our long national nightmare is over.” Amen to that. For most, whether one agreed with President Ford’s decision or not, the relief was palpable.
Had Ford not done so, and he was roundly criticized (perhaps that was the reason he lost the Presidency to Jimmy Carter in 1976), Nixon would have put this country in litigation for years, an unwarranted and selfish distraction. Just like clients who know when it’s time to settle, President Ford, also a lawyer, knew when it was time to put the “long national nightmare” behind us. I think almost everyone was grateful to him for making the right, albeit highly controversial, decision.
I would be the first to say that it’s important for good litigators to fight the good fight, to be tenacious and thorough, but in the most important battle Nixon fought, he was not a winner, but a loser of what mattered most to him.
The winner in Watergate (although some would question that there was any winner) was the putting aside of partisan politics. Democrat Sam Ervin of North Carolina and Republican Howard Baker of Tennessee headed up the Senate committee investigating Watergate. Among other collaborations between the parties, that committee unanimously voted to subpoena the White House tapes, which was the beginning of the end of the Nixon presidency. Senator Ervin’s comments about Nixon’s refusal to turn over the tapes, is telling, even all these years later.
Keep fighting, no matter what, may not be always the best tactic.
Schmidt was spot on that Nixon might have been “…much happier if he’d stayed as a litigator.” Many dinosaur lawyers who lived through Watergate would agree.
Jill Switzer has been an active member of the State Bar of California for 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.
