Louisville Law Examiner Serving the University of Louisville School of Law Community
Volume 12, Number 5 Louisville, Kentucky - April, 1987
William Read Retires
After 22 Years
by Tom Lukins
"He is one of the finest intellects on
the faculty. He has set a very high
standard, not only for his students, but
also for his colleagues."
So commented Dean Barbara Lewis
on Professor William E. Read, as Read
nears his retirement in May after twenty­two
years at the University of Louisville
School of Law. ·
Professor Read was born in western
New York state, grew up in Michigan, •
and in 1938 received an A.B. degree
from Hunter College. He went on to
Harvard Law School, earning an LL.B.
degree in 1941.
After basic training, Read switched to
the Air Force and became a navigator.
Read said that his legal work while in
the service was limited and not very
satisfying. "I represented a few people
in court martial cases. It didn't give me
a very good opinion of military justice,
though, because I didn't get to see my
clients until just before the trial."
Circulation 5,400
Within a month after taking the New
York bar, however, Read was drafted.
Read recently recalled the "special treat­ment"
given lawyers in the military:
Following the war, Read went to
work at the Wall Street law firm of
Hughes, Hubbard, Blair and Reed,
where his career in corporate law began
to take form . "I worked mostly in litiga­tion,"
said Read. "Most of my clients
were corporations. That's when I began
to learn about the corporate structure
and atmosphere.'' Professor William Read
"Most of the group with me at the
reception center were sent off to
quartermaster school, the Signal Corps,
or to chemical warfare. But to lawyers
they said, 'We're going to save you for
something really good - a special
category.' Do you know what they did?
They put all the lawyers in the
infantry.''
After ten years at Hughes, Read left
for the Campbell Soup Company. Read
explained that at that time the company
was in the process of becoming more
public. This created "a whole new set
of legal problems. That's the main
reason I was hired." Read stayed for ten
years as corporate counsel and served as
secretary of the corporation. Read said
that the secretary position enabled him
to gain an intimate knowledge of
corporate operations. "I. learned the
most about corporations while at
Campbell Soup."
How does Louisville fit into this
picture? "Louisville wanted me at the
time I wanted to start teaching,'' said
Read. "Jim Merritt (Dean of the Law
School in 1965) was at Harvard when I
was there. That was my connection with
Louisville." Also, "Louisville seemed to
be a very pleasant place to live - a
manageable city."
Looking back at his years at
Louisville, Read noted how the student
body has changed. "For one thing, there
are so many more women now, and so
many more older women. This has
changed the balance quite a bit," Read
said.
As for student attitudes, Read said
that at the beginning students seemed
(Continued on Page 8)
Ellen Ewing Addresses Career Management
Judge Ellen Ewing
by Brian E. Clare
The Honorable Ellen Ewing, Jeffer­son
County Circuit Court Judge from
the 16th District, was on campus on the
second day of March as a guest of the
Women's Law Caucus. Judge Ewing
spoke on "Career Management" to a
moderately-sized crowd of both men
and women in the Allen Courtroom.
The Judge began by apologizing for
her lack of preparedness inasmuch as
she was expecting a very informal
gathering. Speaking about her own
career, the judge emphasized the fact
that it is not absolutely necessary to have
a "master plan" by which to guide your
career. She alluded to the various events
in her own life that provided the impetus
for change in her career direction. In the
late 1960's she was working as a social
worker in the juvenile justice system.
She enrolled in the University of
Louisville Law School in 1969, and
graduated in 1972. Her decision to
attend law school was not a pre­determined
one; after a few years as a
social worker she felt she could have a
more positive impact on the children as
an attorney. In the mid-seventies she
was appointed a Juvenile Court Judge
by Todd Hollenbach, who was County
Judge at the time. In 1978, when the
judicial system was revamped, her
position was transformed into a District
Court Judgeship. At that point she had
to enter politics to keep her job, as
District Court Judges are elected
officials. She won her race for District
Judge and in 1982 she ran for a Circuit
Court Judge's position and also won.
The judge addressed a few points on
stress management, then opened the
discussion for questions. The majority
of the questions posed were not related
to "Career Management" in the least.
In closing, the judge advocated
participation in the internship program,
either with the Judges, the
Commonwealth Attorney's office, the
Public Defender's office or the County
Attorney's office. It was her belief that
the exposure gained through these
programs would better allow a student
to make a career choice.
2 Louisville Law Examiner April, 1987
Louisville Law Examiner
EDITORIAL BOARD
Thomas Ransdell
Editor-in-Chief
Paula Douglas
Ron Hines
Tom Lukins
Associate Editors
Todd Bolus
Photography Editor
Benjamin Johnson
Bill Wilson
Managing Editors
Ron Brumleve
Night Associate Editor
Sandra Carroll
Brandeis Brief Editor
Brian Clare
David Fuller
Keith Kamenish
Douglas Moore
Karl Truman
Randall V. Head
STAFF
Jennifer G. Miller
Jennifer Miller
Bart Darrell
Todd Seaver
Kristin Dawson
Rosemary Lane
Greg Catron
Mason Trenaman
Theresa Brown
Vince Heuser
Randy Strause
Professor LAURENCE W. KNOWLES, Consultant
The Louisville Law Examiner (ISSN 0890-8605) is published six times
during the academic year in the interest of the University of Louisville School
of Law Community.
Articles are invited from faculty members, students, and members of the
bar who wish to do freelance work. Any proposed article should be cleared
with the Editor as to topic and length.
Address all communications to The Louisville Law Examiner, School of
Law, University of Louisville, Louisville, Kentucky 40292. Phone: (502)
588-6399.
Letter:
acuity-Sho-uld Aoopt -New Policy
To The Editor:
As the President of the Law Forum,
I am not inexperienced with the
administration or faculty of the law
school. Regardless of my past
experience, I had the opportunity to
attend the regularly scheduled faculty
meeting on March 9, and, much to my
utter dismay, was totally up prepared for
what I was to observe and learn. It is for
this reason that I have chosen to write
a letter to the editor.
As you may or may not know at the
(February) faculty meeting, a faculty
policy was proposed for adoption which
would prohibit reimbursement of
faculty, administration or students for
monies expended in private or public
facilities which to the knowledge of the
applicant discriminated on the basis of
sex, race, handicap, religion, national
origin or sexual orientation. This would
only prohibit reimbursement to anyone
from any of these classifications if they
were using such facilities in conjunction
with their university position or univer­sity
activities. This policy was not
adopted by the faculty in a 10-7 vote
against adoption. It was sometime fol­lowing
this meeting that I became aware
of the faculty's actions. Because I could
not believe that a state-supported uni­versity
could have failed to adopt such
a policy, I felt the proposal should be
reconsidered and that other students
should be made aware of this. A peti­tion
was posted for student support
urging the faculty to reconsider their
position and to adopt the policy as a
moral imperative of the law school.
One of those who had voted against
the proposal as a favor to a minority
member of the faculty, placed the
proposal back on the agenda for recon­sideration
at last month's meeting, the
meeting I attended.
The proposal was reconsidered and
followed by a circular debate at which
time the only apparent reasons for not
adopting it were an argument concern­ing
the meaning of the wording and a
concern that faculty might have to turn
down invitations to various meetings
held at facilities which they knew
discriminated.
In an obvious effort to avoid confron­tation
of not adopting the proposal, a
substitute motion was proposed
whereby the faculty would vote on
adopting a substitute policy, defined as
broader, which really claimed they did
not favor discrimination, they chose to
adopt a policy which stated merely that
they did not favor it rather than to stand
behind their alleged convictions and
perhaps be penalized, by not receiving
reimbursement when they used facilities
knowing they discriminated. The
blanket statement opposing discrimina­tion
which was proposed as a substitu­tion
was adopted by a majority vote
forever laying to rest the possible
adoption of the previously proposed
policy.
As a person, and white senior law
school student, I was appalled at the
apparent lack of moral conviction which
JFL Announces 1987-88 Editors
The Journal of Family Law is pleased to announce the selection of the following
members as Editors for Volume 26 of the Journal:
Denise S. Kaiser ................ . ............ . ....... Editor-In-Chief
Lucinda C. Shirooni ................................ Executive Editor
Bonnie Campbell Kittinger ....................... Lead Articles Editor
Carole Douglas Christian .................. International Survey Editor
Rose Duggan ........... . ................ . ............. Notes Editor
Michael R. Engleman ................................ Research Editor
Carrie J. Cozzens .............................. Administrative Editor
H. Eugene Harmon ............................... Manuscript Editor
Jane M. Yocum .... ............................... Manuscript Editor
Shannon L. Antle ................................. Manuscript Editor
J. Terell Mann ................. . .................. Manuscript Editor
Bill Goetz Wins SBA Election
by Paula DeMuth Douglass
Bill Goetz was elected President of the
Student Bar Association (SBA) for the
1987-1988 school year. He now adds
another intricacy to his already
consuming schedule which includes law
school, clerking for Franklin & Hance,
owning an insurance company, and
making regular appearances at home.
One of Goetz's goals for the
upcoming year is "to break down the
barriers between day and evening
students." An evening student himself,
who takes some day classes, Goetz is
particularly aware that "both have equal
things to offer.'' Goetz believes the
distinctions between the two are
unnecessary and to a-significant extent
the label "night student" is denigrating
because the day students are not called
"day students."
A step towards recognition of the
attributes of each is Goetz's reorganiza­tion
of the vice-presidential duties of the
SBA. The SBA vice-presidency is
co-chaired by a day and an evening
student; however, "the day vice­president
has traditionally had tremen­dous
responsibility, while the night
vice-president has helped out," says
Goetz. He plans to divide the
commitments more evenly so as to
provide both vice-presidents with the
same exposure.
SBA obligations include professors'
evaluations and interviewing of new
the faculty displayed by acting as such.
Here is an institution and faculty
which has taken on the responsibility of
educating all peoples and who readily
accepts money for doing so, who has
failed to actively support any efforts to
keep from using facilities which
discriminate against many of these same
people.
As an institution whose responsibility
it is to provide leadership and to set an
example in the community, as well as
among the student population, I am
extremely disappointed that the faculty
of this school feels that they need not
take a firm stance against discrimina­tion.
As was stated by a member of the
faculty at the meeting, the adoption of
a mere blanket statement against
discrimination as a substitute for the
original policy proposed, which was
professors, assisting with planning of
orientation, graduation, and honors
banquet activities, funding and support­ing
other law school organizations, and
promoting student interests before the
faculty.
''The SBA also serves an important
social function, but sometimes I think
that function has overwhelmed the
SBA," suggests Goetz. He would like to
see the SBA get more involved in
academics.
Goetz intends to encourage student
involvement in legal competitions by
·making the students more aware of the
competitive opportunities. He also seeks
to spur membership in the American Bar
Association Law Student Division. Me
feels that, as a student in professional
school, "it is imperative to back the
professional organization that
represents your profession."
Goetz was unable to comment on any
efforts of the SBA to modify the much
debated three absence rule. He did say
that a committee of students and
professors is working on it and a new
policy, which he expects to be more
liberal, will be out by fall 1987.
The other officers elected for the
1987-1988 school year are: Vice­President,
Dennis Howard and Gary
Gooch; Secretary, Tess Russell;
Treasurer, Ann McCormick; ABA/LSD
Representative, Jennifer Brown; and
SGA Student Senator, Chris Sanders.
accompanied by a penalty, while the
substitute is not, in no way takes the
sting out of discrimination by those who
have felt it - nor has it relieved the
faculty of their responsibility as leaders
to take a firm stance.
In essence, our faculty has failed to
"put their money where their mouths
are," which always calls into question
just how serious one's convictions are.
In a day and time when discrimina­tion,
particularly racial, has again begun
to raise its ugly head, at least more
blatantly, the faculties' Pontious Pilate
act in not adopting a firm stance is a
great disappointment to myself, the
community, and particularly should be
to the University of Louisville and the
School of Law.
Kristin Dawson
April, 1987
Todd Hollenbach has served as
Commonwealth Attorney for the 30th
Judicial District since November, 1984.
From 1970 to 1978, he was Jefferson
County Judge. Mr. Hollenbach
graduated from the University of
Louisville School of Law in 1965. He is
a member of the Board of Directors of
the Kentucky Trial Lawyers Association
and is a member of the National District
Attorneys Association.
by L. J. Hollenbach, III
The Kentucky Supreme Court is being
asked to decide the fate of one of the
most significant changes in our criminal
justice system ever enacted: Truth in
Sentencing.
At issue is whether the law - which
affects criminal sentencing in nearly all
felony cases - constitutes a legislative
encroachment on the judicial power of
the Kentucky Supreme Court.
Truth in Sentencing (KRS 532.055)
became law on July 15, 1986. It requires
that all felony trials (other than death
penalty cases) be conducted in two
stages: a verdict phase and, if necessary,
a sentencing phase. During the new
sentencing phase, juries are authorized
to hear evidence concerning the
defendant's prior convictions.
In all felony cases except capital
murder, Truth in Sentencing allows
juries - for the first time in the history
of our Commonwealth - to be given
information regarding the length of time
a defendant must serve in prison before
becoming eligible for parole. And,
Truth in Sentencing permits the trial
judge to impose a sentence if the jury
is unable to agree on the sentence.
Truth in Sentencing was enacted in
response to a growing realization that,
under the old law, juries in Kentucky
were routinely asked to do the impossi­ble:
to determine a proper punishment
without the most rudimentary under­standing
of the actual length of the
sentences they could impose. Juries -
intended by our constitutional
forefathers to provide the "voice of the
people" - could not speak effectively
on behalf of the people. The true
consequences of the sentences they
could impose were, by law, hidden from
them.
Having won the approval of the
people of Kentucky, Truth in Sentencing
now faces its most important test - the
approval of the Kentucky Supreme
Louisville Law Examiner 3
Brandeis Brief:
Should Kentucky's
Supreme Court Uphold
Truth In Sentencing Law?
Court. The Justices now must decide
several crucial issues: whether the law
violates the separation of judicial and
legislative powers; whether the law too
severely limits the ability of the defen­dant
to introduce mitigating evidence;
and, finally, whether the law ' s
allowance for judicial sentencing is
unconstitutional. In deciding these
issues, the Supreme Court must
ultimately determine whether the law
should be upheld in the "spirit of
comity'' prescribed in Ex Parte Auditor,
Ky., 609 S.W. 2d 682 (1980); or,
whether the statutory procedures
enacted by Truth in Sentencing conflict
sufficiently with court rules to prohibit
such legislative action.
It has been argued that Truth in
Sentencing constitutes a legislative
encroachment on the judicial power of
the Kentucky Supreme Court, especially
on the Court's power (granted by
Section 116 of the Kentucky Constitu­tion)
to establish rules of procedure for
the court system.
The principal Kentucky decision in
determining whether a law violates the
separation of powers between the
legislature and the judiciary is Ex Parte
Auditor, supra. In that case, the Court
issued the opinion that:
... the legislative function cannot
be so exercised as to interfere
unreasonably with the functioning
of the courts, ... unless it can be
determined by the court that (the
intrusion) can and should be
tolerated in a spirit of comity.
The essential test , therefore, is
whether a statute affecting court pro­cedure
is found by the court to pose no
interference with the orderly administra­tion
of justice.
The sections of Truth in Sentencing
most often cited as legislative
encroachments are those requiring
bifurcated trials for felony cases, and
those allowing juries to be informed of
a defendant's prior record and parole
eligibility. Statutes enacting bifurcated
trials for persistent felons, and in death
penalty cases, have already passed the
Supreme Court's test of constitution­ality.
In Smith v. Commonwealth, Ky.,
707 S.W. 2d 342 and 343 (1986), the
Court expressly stated that the decision
whether to require bifurcated trials for
persistent felons was "a matter of public
policy which addresses itself to the
General Assembly of Kentucky.''
Whether the provision of Truth in
Sentencing which allows juries to be
instructed on prior convictions and
parole eligibility is an encroachment
must still be decided by the Court. The
constitutionality of this prov!Slon,
however, has already been tested by the
United States Supreme Court in
California v. Ramos, 463 U.S. 992
(1983). In that case, the Court upheld
a death penalty conviction even though
the jury had been informed that a life
sentence without the possibility of
parole could still be commuted by the
governor of California. The Court ruled
that injecting the concept of parole
eligibility into a death penalty case was
simply another method of determining
whether a defendant is beyond
rehabilitation through a sentence of
incarceration.
Another issue facing the Kentucky
Supreme Court is whether Truth in
Sentencing too severely limits the defen­dant's
ability to introduce mitigating
evidence. The Truth in Sentencing
statute defines such evidence as only that
which indicates ''that the accused has no
significant history of criminal activity"
(Para. (2) (b)). It is argued that the
defendant should be permitted to
present any type of mitigating evidence
within the broader definition established
by the United States Supreme Court for
death penalty cases. Lockett v. Ohio,
438 U.S. 586 (1978). In at least two
cases, however, the Kentucky Supreme
Court has ruled that restrictions may be
applied to the introduciton of mitigating
evidence. In White v. Commonwealth,
Ky. App., 611 S.W. 2d 529 and 531
(1980, cert. denied), the Court decided
that the defendant was not entitled to
present character evidence during the
trial of a persistent felony charge, ruling
that the defendant could present only
such evidence negating his status as a
persistent offender. In Hampton v.
Commonwealth, Ky., 666 S.W. 2d 737
and 742 (1984), the Court again rejected
the defendant's argument that he was
entitled to present any type of mitigating
evidence.
Finally, at issue, is the Truth in
Sentencing provision which authorizes
judicial sentencing when a jury fails to
agree on a sentence. The United States
Supreme Court has ruled decisively in
Spaziano v. Florida, 468 U.S. 447
(1984), that a defendant has no right to
jury sentencing under the U.S. Constitu­tion.
The Kentucky Supreme Court has
ruled, on numerous occasions, that a
defendant has no right under the
Kentucky Constitution to jury sentenc­ing,
Holcomb v. Commonwealth, Ky.,
501 s.w. 2d 264 (1973).
The Kentucky Supreme Court has
never adopted a pre-emptive approach
which automatically holds unconstitu­tional
any and all statutes which conflict
with court rules. The Court has applied
a case-by-case determination of
legislative encroachment. The "spirit of
comity" prescribed in Ex Parte Auditor,
Supra, should prove to be a major
factor in determining whether the
Kentucky Supreme Court will uphold
Truth in Sentencing. Truth in Senten­cing
reforms do not interfere with
justice, are desired by the people of the
Commonwealth, and the changes
brought about by the statute should
stand.
Truth in Sentencing has finally made
it possible for the people of Kentucky,
through the jury, to render
knowledgeable decisions regarding the
punishment of those who violate our
laws.
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4 Louisville Law Examiner April, 1987
The Socratic Method: A Motion Against
by Ron Hines
and Kristin Dawson
Ralph Nader, while delivering a
Louisville Law Forum Lecture, defined
the Socratic method as "a dictatorial
game that only one can play, which is
useful only for the first day of law
school and becomes boring after the
second." Webster says it is "the method
of inquiry and instruction employed by
Socrates as represented in the dialogue
of Plato and consisting of a series of
questionings, the object of which is to
elicit a clear and consistent expression
of something supposed to be implicity
known by all rational beings."
Since entering freshmen have
absolutely no understanding of the law,
the pedagogical method utilized in their
first semester and labeled the Socratic
method of teaching will only be a
bastardized form of it because by defini­tion
the true form of Socratic question­ing
requires inherent or previously
learned knowledge of the- subject being
interrogated. ·Thus the intensive
questioning of petrified students who
lack this fundamental and requisite
foundation serves only to waste valuable
classroom time and furth~r cloud the
issues. It is ludicrous to expect students
to intelligently discuss and analyze the
issues when they don't have even an
inkling of what the issues are; nor can
they be expected to, considering the
foreign nature of law.
An alternative approach which would
be more beneficial to the student and
allow for the successful utilization of the
true Socratic method would be to first
teach the foundation, i.e., the elements
of the subject. Once the elements are
clearly and concisely enumerated by the
professor, the various applications can
then be demonstrated and/or inquired
into by drawing on case law. Therefore,
blackletter law should be taught first
with the theoretical concepts secondarily
introduced via case studies. For
example, it would be easier and much
more enlightening to read a series of
assault cases if the professor had first
taught the elements of assault. Other­wise
the student is groping without
knowing what it is he is looking for.
Furthermore, under the current
methods, she may not find out for the
duration of the semester until she begins
studying for finals; and then, only by
resorting to outside sources of
blackletter law such as Emmanuels,
Gilberts, Legal Lines, etc. Ironically
then, after spending countless hours in
classroom banter, the student must then
depend on these outside sources to really
learn the law at the expense of
additional time and money.
This cramming of information in a
relatively few short days creates a
"bucket-memory" phenomenon. The
mind and memory is filled to capacity
with specific information to take tests,
but once the facts are poured out on the
final, the bucket is virtually empty
again; inviting the next barrage of facts
Sex Discrimination
In The Work Place
by Jennifer G. Miller
Professor Gwyneth Pitt gave the
University of Louisville law students a
thought-provoking speech on "Sex
Discrimination in the Work Place,"
Monday, March 28. The lecture was
part of the Women's Law Caucus
Spring Series.
Professor Pitt brought out some basic
problems and suggested innovative
solutions to sex discrimination at work.
Professor Pitt explained that the
prevailing idea in the United States as
well as the United Kingdom is that there
should be "equal work for equal pay"
among men and women. However, with
women in the U.S. still making 400Jo to
50% less than men and in the U.K.
making one-third less for the same job,
this ideal is not working.
Instead of "equality of treatment"
between women and men at the work
place, Professor Pitt suggests there
should be "equality of opportunity."
However, this may require differences
in treatment.
Present day society dictates, and most
women choose to be the parental unit;
they are the ones to care for children at
home when it is needed. Furthermore,
women must take some sort of mater­nity
leave when children are born.
Professor Pitt indicated that when it is
time for promotions or raises, factors
like seniority are almost always
considered. The man who has had no
interruption in his work pattern gets an
edge over the woman who has taken
maternity leave or has missed days to
care for a sick child. This, Professor Pitt
says, creates "de facto discrimination."
The United Kingdom has tried to
implement the idea of "equality of
opportunity" by granting up to 40
weeks unpaid maternity leave to women
with the promise that they can have their
job back and uninterrupted seniority.
Presently, there is litigation in the courts
of the U.K. where a woman compares
her job to that of a particular man to
see whether discrimin · n in pay exists.
The work does not have to be the same.
However, the responsibilities, skill and
training must be equal. For example, a
beautician and a b ber can be
compared. An impartia expert witness
states whether the work is of equal
value. If the court holds that the work
is of equal value and the woman is
getting paid less, then the discrimination
is remedied. Professor Pitt suggests that
this type of litigation could break down
prevailing attitudes that jobs held tradi­tionally
by women are of less value than
jobs traditionally held by men.
in preparation for the next final. This
phenomenon also has a more serious
and deleterious long-term effect. Upon
completion of law school, the student is
again without a solid foundation which
necessitates the relearning of blackletter
law in order to survive the real world.
One common comment heard from
practicing attorneys is that "you don't
learn the law in law school." Another
is, "the most cummulative amount of
law you'll ever know is just prior to
taking the bar exam."
Unfortunately, since this quantity of
law was also learned and retained in
bucket form due to lack of an adequate
foundation being taught in law school,
it is also immediately dumped following
the bar exam. Had blackletter law been
carefully taught throughout law school,
the " bar review would merely be
reinforcement of embedded concepts
rather than a short-term memory
marathon. The bar exam might actually
become something of a learning tool. "
Besides forcing a student to develop
"bucket memory," the adulterated
Socratic method now used also has other
inherent "benefits." There is less
responsibility upon professors to
respond appropriately, accurately and
factually to probing questions. This type
of one-sided discussion also has the
advantage that far less pre-class prepara­tion
time is necessary. In addition, such
lectures teach students, early on, to cope
with exasperation. Finally, it helps
perpetuate the "C" curve. If students
are not given the law and are made to
glean it from diverse and sundry sources
it is virtually impossible for everyone to
understand every subtle facet. Thus it is
easy to justify giving C's because
nobody really feels like they got all the
information available. There is,
therefore, no system of checks and
balances.
Since the current method does, in
many ways, intimidate, exasperate,
confuse and limit students, it may in fact
be fair and accurate to say that it
acclimates law students to adversarial
skills and attitudes. The resquisite intent
is certainly present. However, to claim
it develops objectivity, quick thinking,
or assertiveness is preposterous. That's
the proverbial apples and oranges com­parison!
These three qualities are
more a result of an arsenal of facts than
a collection of ambigious soliloquies.
The quality of lawyers can only
improve in direct proportion to the
quality of instruction. If a blackletter
foundation was clearly taught
throughout law school, the student
could enter the legal world well-prepared
and able to apply his knowledge
practically. In addition, he could begin
to build upon such foundation as he is
confronted with a variety of factual
situations. The result, a better attorney
and a higher quality of legal service and
skills. "Nothing is so powerful as an
idea whose time has come." Victor
Hugo.
April, 1987 Louisville Law Examiner 5
The Socratic Method Teaches Us To Become Advocates
by Keith Kamenish
I remember back two years ago when
I was a freshman in the law school. I was
sitting in Torts class listening to
Professor Eades discussing the elements
of battery. I was taking notes profusely
when suddenly I heard, "Mr. Kamenish,
give the facts of Fisher v. Carrousel
Motor Hotel, Inc." When I completed
the facts, he asked me to discuss the
holding and rule in the case. As I recited
about one-half of what I intended to
say, Professor Eades interrupted me and
changed the facts, asking me to apply
the rule in Fisher to the new set of facts.
After hesitating for what seemed to be
about two hours, I answered his
question. He then turned away from me
and discussed the "real" holding in
Fisher v. Carrousel Motor Hotel; Inc.
As I left class, I felt about two inches
tall. It felt as if I had just been pulled
through the wringer and hung out to
dry. This was my first real experience
with the so-called "Socratic method" or
"Kings field technique."
For the remainder of my first year of
law school many freshmen in my class
(me included) complained angrily about
being drilled continuously in class by
professors or having professors act
rudely and obnoxiously toward them,
like they were nobodies.
Now I am a third-year student and I
still hear the same complaints from all
students, freshmen through seniors. One
law student said, "I was talking to a
friend of mine in medical school. He
said that the professors were friendly
and act like they care about you
becoming a doctor. Here, the professors
act malevolent toward you and show
little interest in your graduating and
becoming a lawyer." In a recent meeting
with the Laison Committee, another
student said, "In most post-graduate
programs, the professors treat a student
with respect, but here they treat you like
a little kid."
The above events and quotes bring
out the issue of whether the Socratic
method and apparent apathy on behalf
of professors while in class is an absolute
necessity to becoming a successful
lawyer.
The Socratic method develops four
characteristics which are important in a
student's development as a lawyer. First,
it creates an adversary atmosphere in the
classroom. From the first day in class to
the day of graduation, the student
competes in an adversary situation. As
one advances through law school, he
becomes accustomed to the pressure
created by the adversary situation; he
becomes relaxed io adversary
proceedings. Then, when he actually
begins to practice law, he is ready to
bump heads with another lawyer in an
adversary relationship.
I am enrolled in the Criminal Justice
Internship here at the law school. On
October 14-15, I tried my first real case
for the Commonwealth of Kentucky.
The attorney for the defendant had been
a criminal defense lawyer for 14 years
and was well known in the community.
He wasted no time letting me know that
we were not friends in the courtroom
and that he was out to win. As I recall,
he said the following before the trial:
Defense Attorney: I hear you are
going to try the case.
Kamenish: Yes sir.
Defense Attorney: Good!!! (with a
smile on his face). Do you think you will
actually win?
Kamenish: It's not a matter of
winning; it's a matter of how badly.
Defense Attorney: Don't count on it.
The adversarial relationship began
before we ever entered the courtroom.
However, once I overcame the
nervousness of my first trial, I relaxed
within the familiar adversary relation­ship
I experienced in law school.
A second advantage to the Socratic
method is that a law student learns to
remain objective after receiving criticism
and not to take comments personally.
When I was a first-year law student a
professor said to me in class, "If you
don't understand this, then you did not
read the case." I was embarrassed by
her remarks, especially since I had read
and briefed the case. For the next two
weeks, I did not ask her a single
question.
Since that time I have learned not to
take negative comments personally, but
to stay objective as much as possible.
Objectivity is very important, especially
when a young lawyer begins practice.
In my trial on October 14, the defense
attorney commented several times on
my youth and inexperience, presumably
to upset me and break my concentration
and train of thought. In his closing
argument he told the jury that I was a
third-year law student who wanted no
more than to tell my classmates that I
obtained a conviction regardless of
whether justice was served. Instead of
taking his comment personally and
objecting so as to magnify his statement,
I merely remained silent and let his
comment lose its sting as he finished his
closing.
In my closing, to combat the reference
to my ideas of justice, I said that,
''There is no greater injustice than when
a guilty man goes free." By remaining
objective at the time of his comment and
indirectly touching on it in my closing,
I took the bit out of his statements. This
objectivity is something I developed
after repeated experiences with the
Socratic method.
The most important advantage of the
Socratic method is that a student learns
to stand up for his beliefs and becomes
less likely to be intimidated by his
professors. As stated above, after the
one professor said that I had not read
the case, I failed to participate in class
for two weeks. I was scared to talk for
fear of being humiliated again. I was
intimidated. However, as time went on
and I became more exposed to the
criticism, I began to fight back, stand
on my beliefs and refuse to be
intimidated by professors.
This attitude paid off in my trial on
October 14. At one point, the defense
attorney told the judge the following
after I objected to a question during an
avow, "I believe I know more about
conducting an avow than a third-year
student."
I replied: "Your honor, he may think
he knows more, but that's not the issue.
The issue is whether his question is
proper for avow. His question is an
attempt to badger the witness and has
no real relevance to preserving error for
appeal." I refused to be intimidated by
his comment and sought instead to
explain my grounds for objecting while
poking fun of the implications of his
remarks.
Once the jury retired for delibera­tions,
the defense attorney and I began
to talk. He said, "You've got a lot of
---- for getting up here and presenting
your case before the judge and jury
while still in law school. In fact, I tried
to rattle you several times, but you
played the statements right off."
The fourth benefit of the Socratic
method of teaching is that it trains the
student to think on his feet. During my
first year when Professor Eades changed
the facts of the case and asked me to
apply the rule to new facts, I could
hardly think straight much less quickly
and correctly. After several of these
drillings by professors I developed the
skill of recognizing issues, distinguishing
facts and being able to apply rules
quickly and correctly.
The ability to think on your feet is
extremely valuable when you are stand­ing
across the bench from a judge or
next to another lawyer. For example, the
defense attorney in his closing argument
said the following: "In my 14 years as
a lawyer, I usually see two or three
reasonable doubts in a case, however,
in this case I see ten reasonable doubts."
He then listed and discussed each
conflict in fact which he believed
represented a reasonable doubt.
As soon as he began to list each
reasonaple doubt, I remembered what
Nick King, a professor of trial practice
at the law school, said in his trial prac­tice
seminar. Mr. King said that if
opposing counsel begins listing dozens
of things which he alleges you have not
proved or which prove his client was
telling the truth, he is trying to pull a
trick on you known as the "Red
Herring." The "Red Herring" is a trial
trick whereby an older more experienced
attorney bombards the jury with dozens
of issues which make the younger less
experienced attorney appear as if he has
not proven anything considerable in the
case. Most young attorneys will grab the
bait and on their closing argument try
to combat each issue raised by opposing
counsel.
When the young attorney begins to
take on each issue, he will hurt his case
tremendously for four reasons:
1. In trials, the judge will set a specific
time for each counsel to give his closing
argument. If the young attorney tries to
combat each issue raised by opposing
counsel, he will use up all his time on
closing argument and never have an
opportunity to summarize the case and
tell the jury his thoughts as to damages,
penalty, etc.
2. If the attorney combats each issue,
his postion changes from accusatory to
denial and from offensive to defensive.
An attorney never wants to take a defen­sive
stance on closing. If he does, the
jury will be left with the impression that
he (the young attorney) is losing the
case.
3. By combating each issue, the
attorney magnifies the conflict of facts
in the eyes of the jury and makes small
insignificant conflicts seem more signifi­cant
than they really are.
4. The attorney using the "Red
Herring'' trick would have usually
reserved two-five minutes for rebuttal of
young attorney's closing. He would
have included enough issues in his list
that the young attorney could not
possibly attack each one within the time
alotted in his closing. Then in his two­five
minute rebuttal he will pull out each
issue not addressed and tell the jury
something like this: "Counsel has spent
his entire closing try to reconcile the
issues I set out for you earlier. However,
he did not address these issues ...
Therefore, he must not be able to
resolve them, and knows that they are
true."
To avoid the pitfalls of the "Red
Herring" trick, Mr. King said take a
minute of your closing and explain to
the jury that opposing counsel had
attempted to play a trick on them and
you, known as "Red Herring" and
discuss with them the objectives of the
trick. After doing this, the young
attorney should tell the jury that he is
not ging to fall for the trick and address
the insignificant issues set out by
opposing counsel. Then, he should sum
up the case, make his accusations and
explain and ask for damages or penalty.
On my closing, I did just as Nick King
told me to do. After the jury rendered
its verdict and was dismissed, I had
occasion to talk with three of the twelve
jurors. One of the jurors said the follow­ing:
"I'm glad you told us about the Red
Herring trick. When we began discuss­ing
the case, I brought up the fact that
the other attorney tried to trick you and
us with his ten reasonable doubts. We
all agreed that the trick was unfair. In
fact, we disliked the trick and admired
you for filling us in on what was going
on. You see, none of us are lawyers and
we wouldn't have known about the trick
unless someone told us."
By thinking quickly and applying
what I had learned in law school, I
turned the "Red Herring" around on
the defense attorney and made him look
less credible.
The Socratic method is adually
beneficial to a student's development as
a lawyer. He becomes accustomed to
being involved in an adversary situation,
he is able to stay cool and objective
under fire, he is hard to intimidate and
finally he learns to think quickly and
recognize what opposing counsel is
trying to do. We must remember that we
are becoming lawyers. We by the nature
of our work must defend our clients
vigorously and are continuously in­volved
in an adversary relationship with
opposing counsel who is vigorously
defending his client.
We must learn to be tough and
forceful in our positions because the
courtroom is a battle ground and the
strategies used on us in law school and
then by us in the courtroom are war
games and necessary for our success.
6 Louisville Law Examiner April, 1987
An American W ordwolf In London
by William Campbell
Recently, I traveled to Great Britain
on a debate team representing the
United States. There were two of us -
Bob Hunt from Butler University
(Indiana), and myself. We were selected
by the Speech Communication Associa­tion's
Committee on International
Discussion and Debate, after try-outs in
Chicago. (The Committee sends teams
to Britain, Japan and the Soviet Union.)
The English Speaking Union arranged
our itinerary. The debate unions we
visited were responsible for hospitality,
and they chose debate topics and sides.
In "Parliamentary style" debate, there
are usually two to five speakers on each
side of the motion. During lhe main
speeches, any speaker or member of the
audience can try to intervene with a
"point of information." (Audiences
aren't shy about voicing criticism.) After
the main speeches, the audience is given
time to speak, and at the end, each side
makes a summation speech.
In a short article, it is impossible to
describe all of the sights and events of
a six-week tour. What follows,
therefore, is a sampling of my verbal
slide show.
January 25: They say the longest
journey begins with the smallest of
steps. Instead, they should say that the
longest journey begins with packing the
luggage. (Despite my best intentions, I
never manage to "pack" my luggage.
Instead, I have a ten minute stuffing
session before I sprint out the door to
catch my plane. Today was no
different.)
January 26: After an eleven-hour
flight, we arrived in London at 11 :00
a.m. (6:00 a.m. "real time"). When I
got off the plane, I was pleased that I
had no problem with the accents. Then
I realized that I was walking with the
Americans who had just gotten off the
plane.
January 27: Rose from the dead
about noon. First debate was today at
Lloyd's Bank, in the central banking
district. (With a name like "Lloyd's
Bank," I envisioned a man named
Lloyd out front, welcoming everyone:
"Hi, I'm Lloyd and this is my bank."
In fact, Lloyd's Bank is the fourth
largest bank in London, dating back to
the seventeenth or eighteenth century.)
Is England
really an
advanced country?
January 28: I wonder, is England
really an "advanced" country? It has
only four or five television stations.
(Withdrawal is setting in.) Showers are
hard to come by. And, of course, the
British drive on the wrong side of the
road. The British also use "foreign"
money. (I am going blind squinting at
the little numbers on the coins. I don't
try to give correct change. "That's one
pound, two shillings? Here, take a
twenty pound note.")
This afternoon we took the train to
Scotland. They say that there are only
three vegetables in Scotland: potatoes,
boiled cabbage, and second helpings of
potatoes. Not true: on special occasions
they serve little yellow things they call
"corn."
January 30: Great Britain is in the
midst of a telephone strike. (Oddly, the
weather seems to be such that a number
of telephone cables have been shorn in
half, like someone cut them.) Phone
service is minimal, and as we are out of
contact with the English Speaking
Union, we are heading to Northern
Scotland.
January 31: Northern Scotland is
magnificent. (I am assured that the
sunshine is a quirk of nature.) Took a
five-mile hiking tour to Loch Ness. Sat
at water's edge, next to a camp fire, and
watched the sun slip behind mist­shrouded
hills (at about 4:30 p.m.)
February 4: Attended a lecture by Neil
MacCormick (professor of
Jurisprudence). In Britain, law is an
undergraduate degree. Attending
lectures is optional. (Professor
MacCormick's lecture was well­attended,
despite the knocking water
pipes and creaking chairs.) British law
students have lectures and "tutorials."
In tutorials, small groups meet with the
professor, answering questions and
handing in essays.
At the end, the
audience sang
the school song.
February 5: Walked up the beach at
St. Andrews, picking up shells, and
wandering up onto the famous St.
Andrews golf course. The wind was so
strong that I could hardly stand straight.
Undaunted, a chap teed off, and put the
ball in the center of the fairway . The
golf gods smiled.
We debated this evening at St.
Andrews University. The debate union
dates back to the 1760's, and the debate
began with a procession led by the
Sergeant-At-Arms into the main hall.
The audience, clad in robes, rose as we
proceeded in, and the Sergeant-At-Arms
unsheathed his sword and laid it on the
table. The audience was boisterous
throughout, and, at the end, the
audience sang the school song (in
Latin), and we led the procession out.
Afterwards, dinner (and festivities)
lasted until 2:00 a.m.
February 6: The day began early, as
the train left at 9:00a.m. Before we left,
I took a walk and looked at an old
church. It was surrounded by a fence
and the gates were closed, but through
the bars I could see the rising sun pierce
a large, broken tower. Pressed against
a pale blue sky, the tower whispered of
man's hatred and destruction, and, as
it did, a chorus of crimson clouds joined
in. Worn tombstones dotted the court­yard,
each a shadow of a life departed.
I thought of my worries of the week,
and, like the morning shadows, they
slowly disappeared. I thought of the
lives marked by the stones before me,
and how every person there had worried
about the future, money, friendships,
and self. Despite their worries, their lives
moved along. Some made the most of
time, and others cried out for more,
having wasted theirs on things that never
came or didn't last. In silence, I watched
the rising sun warm those countless
stones. For the people there, their lives
were done, but for me, another day had
just begun. With one last glance, I set
off to catch my cab - and hopefully -
to live a fuller life.
February 7: Got up late. Went to
Stratford Upon Avon, but didn't get
there until about 4:00 p.m. After a
whirlwind tour, I had dinner at the local
It was the
Royal Queen Mother
and she almost
hit me.
Pizza Hut, in a building built in the
sixteenth century.
February 8: Visited Coventry
Cathedral, which was bombed during
World War II. At the altar there still
stands a cross made of two charred
timbers, a symbol that God prevails over
the horrors wrought by man.
February 9: Dinner at an Indian
restaurant. We were the only customers
(made you wonder). On the radio, they
played Indian versions of Western songs
(including a song by the Bee Gees!)
February 10: Walked in the rain
through part of London. When I got to
St. Paul's Cathedral, the sun peeked
through, causing an enormous rainbow.
The debate at the London School of
Economics wasn't so inspiring; at the
same time the chairman introduced us
to the audience, he asked if anyone
could put us up for the night.
February 11: The central hall in the
Law Courts resembles a great cathedral,
with ceilings vaulting a hundred feet in
the air. Upstairs, we heard an argument
before the High Court, and yes,
barristers and judges still wear white
wigs. In Great Britain, lawyers are either
barristers (arguing cases in court) or
solicitors. Barristers must belong to an
Inn (like a bar). One becomes a member
of an Inn by invitation, after a
"pupilage." Pupilage is like an appren­ticeship,
after law school. (As part of the
pupilage, one must eat twenty-some
dinners at the Inns of Court.) The first
term of pupilage (six months) is unpaid,
and the second term brings a percentage
from the cases handled. Few become
barristers, partly because of a problem
of Biblical proportions (no room in the
Inn).
February 12: Almost died today. We
were looking at the Royal Queen
Mother's house, and I was walking in
the middle of an alley. A policeman told
me to get out of the road, but I didn't
see why, so I kept on walking. He yelled
at me again, and just as I was stepping
onto the curb, a car came whizzing
around the corner - it was the Royal
Queen Mother and she almost hit me.
I had to get
an usher who
doubled as
a matchmaker.
February 15: In Bristol. At church,
there were scores of empty pews, but I
had to get an usher who doubled as a
matchmaker (and not a very good one).
February 16: Cambridge University is
what you'd expect: splendid architec­ture,
ducks on the river Cam, and lots
of smart people cracking jokes about
ancient Roman municipal law. Saw the
Wren Library, with its tremendous
collection of rare books (including an
original manuscript by Issac Newton
and an original of Winnie The Pooh).
Attended evening song at the Kings
College Chapel. The "chapel" is more
like a great cathedral, with carved stone,
ancient stained glass, and ceilings 100
feet in the air - all of which I was sure
would tumble to ruin from the power of
the choir. Oh, we also debated in front
of a couple hundred people at the
Cambridge Union.
February 19: Learned a valuable
lesson today at Nottingham. Bob and I
debated on opposite sides, and after my
first speech, my side was clearly win­ning.
(Only one person in the audience
spoke against us.) To me, the summa­tion
speech was a mere formality. To
Bob, it was a chance to taunt defeat.
Only after he sat down did the fat lady
sing. My side lost.
February 20: Saying the audience at
Manchester was hostile is like saying
Adolf Hitler had an unpleasant disposi­tion.
All was not lost, though. One
person stood up, attacking the theory of
nuclear deterrence, and shouted: "This
is crazy. It's like surrounding your house
with dynamite."
"Would you go in that house?" I
shouted back.
"No," she said .
"Thank you very much. "
February 25: People stereotype
Oxford University, saying it always rains
there. Well, it rained today.
February 26: Over 300 people
attended the debate at the Oxford
Union. The question was whether
American military spending has made
the West safer. Speaking against the
motion were notables such as Denzil
Davies (Member of Parliament and
Shadow Secretary of State for Defense),
Michael Hall (world debating
champion), Congressman Robert
Torricelli (of the U.S. House Foreign
Affairs Committee), and several Oxford
debaters. On our side were Kenneth
Adelman (Director of the Arms Control
and Disarmament Agency) and John
(Continued on Page 7)
April, 1987 Louisville Law Examiner 7
Debate Tour Journal
(Continued from Page 6)
Stanley (Member of Parliament and
Minister of State for the Armed Forces),
and an Oxford debater. As was the case
in nearly every debate, American
foreign policy proved unpopular.
February 27: Rain. There was racing
on the river, but I missed it. Missed
dinner, too. And I missed the party.
Then I got lost downtown. A good day.
March 2: Traveled to Christ Hospital
School. The school has 850 students
(from 8 to 17 years old). The students
still wear knickers and long, blue coats.
At noon, a band plays in the center
quad, and all the students march into
the dining hall for lunch.
March 3: Our last debate is at the
English Speaking Union. Bob is paired
with Dan Smith, vice chairman of the
Campaign for Nuclear Disarmament in
Britain, and I am paired with Ken
Aldred, secretary-general of Peace
Through NATO. For once, the audience
votes for American foreign policy.
March 4: Fought through
demonstrating pensioners to get into
Parliament to see Prime Minister's
Question Time. Unlike a Presidential
press conference, Question Time is a
time for Parliament to ques.tion the
Prime Minister - and a time for
shouting and carrying on. (When the
Labour Party predicted what would
happen under a Labour government, the
Conservatives broke out into wild, mock
laughter.)
March 5: Deathly ill. May be my last
entry.
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•
8 Louisville Law Examiner
Professor Read Reflects
On His Teaching Career
(Continued from Page 1)
passive. "They accepted what you said
without questioning. Then, in the
sixties, you had students who were upset
about the system and were looking for
ways to attack it. They would argue with
you over whether the law made sense at
all." Then Read saw another change.
"There was a switch to neither being
very interested in the substance of law
nor very interested in changing it.
Instead, students saw law school as
something they were doing to get their
tickets punched, so to go on their way
to something else. They viewed law
school as instrumental for accomplish­ing
other goals. There's still some sense
of that, but not as much as years ago."
Read also sees a difference in the
caliber of students applying to law
school. "I think that the popularity of
legal education has gone through a big
arc. In the late sixties and seventies, we
were getting the cream of the crop,
because students felt th_at becoming a
lawyer was the way you changed the
system. Those who might otherwise go
on to get a Ph.D. in history, sociology
or economics instead decided to go to
law school. Now, the top people have
gone back to those disciplines, and law
schools are not getting as many of
them."
"But I don't want to exaggerate these
things," Read continued, "because in
many ways law students have not
changed since I was in law school. They
are still reading many of the same cases
and arguing the same points, and it's
still the same Constitution. And in many
ways law school has gotten better in the
sense that the law has developed and the
facilities and books have improved."
Early in his teaching career, Read
experimented with oral exams. "I tried
it with some of my early jurisprudence
classes. I remember one very good
student got so uptight that he said, 'I'm
just going to have to stop and ask you
to give me a written exam.' So I did. But
I still think it's a good idea, because
frequently your big confrontations are
not in writing. The ability to respond
orally is a skill that lawyers need. Also,
selfishly, you don't have any blue books
to grade."
David Leibson was one student who
survived Read's oral exam. "It was
nerve-wracking," said Leibson. "We
went into his office one at a time. I have
never felt more pressured."
As his student, Leibson recalls Read
as being "very thorough, very
businesslike, and such a hard worker.
He always brought an outline to class
listing the points he wanted to make. He
encouraged open class discussion, but he
always got back to his outline."
"It was a big thing for me to become
his colleague," Leibson continued.
"I've tried to incorporate his style. He
is a very impressive man, an imposing
figure. He has been a great role model
for us younger professors."
Read's plans for the future include a
move, traveling, and writing. "My wife
grew up in Vermont," said Read, "and
she has kept her parent's house. We'll
Louisville Law Examiner
School of Law
University of Louisville
Louisville, Kentucky 40292
April, 1987
probably settle down there. And we're
talking about a trip to New Zealand next
spring, but that 's still 'iffy'."
Read's second book, Legal Thinking:
Its Limits and Tensions, was published
last fall. Read calls it "a very
jurisprudential book," unlike his
Corproate Officers and Directors Desk
Book, published in 1980.
"What I'm wrestling with now,"
Read said, "is how we choose whether
to be law-abiding, a thought left over
from my Legal Thinking book. The
insider trading flap presents this
question quite dramatically in the
corporate context. If there's enough at
stake, would most of us break the law?"
John M. Harlan Louis D. Brandtis , .
t~i . . .
Louisville~,---
Law Examiner
Volume 12
William
Read
Retires
Page 1
Truth
In
Sentencing
Page 3
Socratic
Method
Debate
Page 4-5
Campbell's
Britain
Journal
Page 6
April, 1987 Number 5
St•fl photo