Confessions of a South Georgia Lawyer

By James Edward McAleer, Jr.

A white male's perception of the changes in the practice of law in Southeast Georgia caused by the increase in the size of his community, and also, the vast increase in the number of female and black lawyers from 1953 until 2005. He shares some of the many interesting, humorous and sometimes tragic events that occurred in the courts in his more than 50 years of practice.

• Language: English
• Publisher: Lulu Publishing Services
• Release date: Nov 21, 2017
• ISBN: 9781483474441

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Jr.

Copyright © 2017 James Edward McAleer, Jr..

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ISBN: 978-1-4834-7443-4 (sc)

ISBN: 978-1-4834-7444-1 (e)

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Lulu Publishing Services rev. date: 11/14/2017

Another book by this author:

Out of Savannah, Dog Company, USMCR

This book is

dedicated to the memory of Richard Cowan, Frank Zeigler, Frank Oliver Downing, and Ray Gaskin, my partners, and four of the finest men I ever knew.

Thanks to my wife, Grace, whose help made this book possible.

Preface

When I first started putting these notes together my only purpose was to reflect on some of the more interesting events that had occurred during my legal career and to satisfy my curiosity as to other happenings doing that time. In seeking information to satisfy my curiosity, I found that I had to impose on others’ time and also review records if I was going to get a full picture. While doing this, some of those whom I talked to expressed a desire to see the finished product if I ever finished it.

Realizing that the product may be reviewed by others, I have been careful to avoid relating any conversation told to me in confidence as an attorney unless the same information was disclosed in a court hearing, the pleadings, discovery or the public media. Having said that, I do often give my opinion as to the innocence of an individual, the justice of a ruling or even the character of the individuals involved. While naming some individuals in events that reflect poorly on their characters, and even commenting and not naming others, was not to protect the parties involved, but in consideration of those connected to the perpetrator; time was also taken into consideration.

No effort was made to be politically correct. I have avoided using certain words unless I found them necessary to convey a meaning. The restrictions on language has reached a state of absurdity. We have people whose sole aim in life seems to be offended, and the talking heads on TV strive to see who can come up first with a new no-no. I am sure that someone will find something in these statements to be offensive.

Facts were presented and comments made that were totally unconnected to the court system; however, the courts do not operate in a vacuum. They often reflect the broader culture and sometimes act to restrain it. To understand what goes on in a court, we have to have some knowledge of what is happening outside of it and the people who use it and run it.

I realized that in writing this, I was like the three blind men and the elephant; each had a different perception of what an elephant was. While my subjective experience could be true, there were others who would have seen it differently. For the first ten years of my practice and for all of my life up to that time, I had lived in two cities, whites and blacks occupying the same area. Of the over 170 lawyers in Savannah when I came to the Bar, only five or six were females and we had one colored lawyer. The colored who live in my town and the females and blacks who came later might have a different perspective than me. However, I have tried to be as objective as I could and told the truth as I saw it.

Oliver Wendell Homes, Jr. said, Lawyers spend a great deal of time shoveling smoke. I tried to avoid this as much as possible, but some did seep in.

In writing this, I had no ax to grind, no individual to strike at, and no program to advance unless it is to show some of the mistakes that I felt were made and to express my gratitude to God for letting me practice law in Savannah, Georgia, the greatest city in the greatest country in the history of the world.

For over 50 years I had the privilege of practicing law in Chatham County,Georgia. During those years, the county, the city, the state and the country all changed, but then, so did I, sometimes for the better, but not always. The following is my perception of the practice of law in the Free State of Chatham. Whether it was the same, similar, or totally different from other parts of the country, or even the state of Georgia, others will have to determine.

In writing this book, no effort was made to be politically correct. If this is going to disturb you, I suggest that you stop reading right now.

As Thoreau says, In most books the ‘I’, or first person, is omitted; in this, it will be retained; that, in respect to egotism, is the main difference. We commonly do not remember that it is, after all, always the first person that is speaking. (Henry Thoreau On Walden Pond)

We all have our prejudices, social and religious beliefs, and gender positions, and try as we might, these will invariably color how we see the events occurring in our society and to whom or to what we attribute the cause. Therefore, I think it’s only fair that I should tell you who and what I was in 1953, the year I started practice, and who I am now.

For those who accept that our ancestors have an effect on how we act and what we believe, some of my mother’s people had arrived in this country in the 1600’s in Virginia; others had arrived in Georgia as early as 1734; all were in the state before the end of the Revolutionary War in 1783. In this line were English, Scots, Austrians, and Germans. All were Protestant. When we speak of going back to the old country, we mean Virginia. Some had fought in most of this country’s wars on our side; that is, if you are a native of Georgia, from the Revolution through Vietnam, including the War of Northern Aggression. My great-grandfather had enlisted in the Confederate Army at the age of 17 and served until wounded. Another ancestor had not only refused to serve, but had forbidden his sons to enlist. He was rewarded by the Union when Sherman’s Army came through. The Yankees burned his barn, stole his livestock, and raped a free colored girl living on the place.

My father’s people were latecomers, getting here in the 1800’s from Ireland. They were all Roman Catholics. The Irish who came to Savannah moved either into the Old Fort section located in the northeast part of the city or in Yamacraw, a section of the city west of West Broad Street. When you asked a McAleer where he or she was from, we said Yamacraw.

As to religion, I am a Christian of the Methodist persuasion. As to other denominations within the Christian faith, I accepted them as forms within the same faith. Non-Christians have a right to believe as they feel called; this includes all of the religions known to me, with the exception of Islam. As to that group, I agree with the Ayatollah Khomeini, who once remarked, Islam is politics or is nothing. Like many people, I failed to live up to Christ’s command to Love thy neighbor as thyself.

Looking back 55 years and trying to remember just what my feelings as to race were taxed my honesty as well as my memory. My feelings as to race were a series of conflicting positions. I would like to believe that even back in the ‘50’s, I had tried to practice the principle of equality of rights, opportunity, and treatment regardless of race, gender or religious persuasion. However, it just isn’t true.

Like Jefferson (who was opposed to slavery, but owned slaves), I did not live up to my principles. At one time, like many others, I felt that this principle of equality could be maintained with segregation. Many of us who supported segregation were blind to the lack of equality in my country. I had no problem with segregated schools, restaurants, restrooms, public transportation and theaters, in fact gave it little or no thought.

Legal segregation had existed in Georgia since 1905. I had never lived under any other system, and as my Irish cousins say, Other people’s troubles touch me lightly. The fact that the law requiring segregation by race took away the individual’s right to choose with whom he or she would contract did not enter my mind. My beliefs and feelings were not consistent. While believing that all government jobs, federal, state and local, should be awarded according to merit, I believed at the time that both races were better served by a separate, but equal, school system. When I was about 12 years of age, my father, a strict segregationist, pointed out to me that we had a separate, but far from equal, system. He also told me that we would regret that we were providing colored children with inferior schools, in essence giving them the leftovers from the white school system. As a young adult, I felt that system could and should be fixed. The way I remember it, many white people and some colored in Savannah felt that way, but I must be mistaken. Because most white people and all blacks now say that they knew that such a system was wrong, and they shouldn’t have done it.

As many others in the South, I felt no animosity toward individual colored people, liked some, disliked others and hated none. There was a feeling that the colored race was years behind the whites as to civilization, and there was a question in my mind as to whether they would ever catch up; yet, there were some individuals that I not only liked, but respected and admired. At the time there was a saying that, Southerners like the individual Negro, but hate the race, and that Northerners like the colored race, but hate the individual Negro. I don’t say that this proverb applied universally, but I do say that it applied to me.

By nature I am, and was, a Jeffersonian Democrat. I believed then, and I believe now, that the best government is the least government, and that all rights except those reserved in the Constitution for the federal government should be left to the state. Having said that, I realize that evils did exist in our great country that would not have been cured by the states for many years, if ever.

Thurgood Marshall said, What you have to do—white or black—you have to recognize that you have feelings about the other race, good or bad, and then get rid of them. But you can’t get rid of them until you recognize them. I recognized that I had feelings about the other race, but wasn’t sure that I wanted to get rid of them. Most enlightened people today, including me, if I may include myself among the enlightened, accept the fact that ‘separate but equal’ rests upon a concept of the inherent inferiority of the colored race or any group that is segregated by law. However, I acknowledge that this is hindsight on my part.

Another of Justice Marshall’s comments on race, I agreed with then, and I agree with now, when he said, Malcolm X and I never got along, because I just don’t believe that everything that’s black is right, and everything that’s white is wrong. Of course, for me it is reversed, I don’t believe that everything that’s white is right, and everything that is black is wrong.

As to gender, I accepted the fact that a woman was not paid the same wage as a man, but then, a single man was not paid as much as a married man. There were male and female jobs and positions, with a few that overlapped. Unlike segregation, the limiting of certain jobs to males was a matter of custom rather than law, except as to the military, and that would change as society changed. The basis of my feeling as to females came from Genesis 1:27 (NIV), God created man in God’s own image, in the divine image God created them, male and female God created them. We are all children of God and equal in his sight; our roles in society are a different matter.

As to my entire position on race and gender today, I’m not totally sure where I stand. I do know that my feelings on both subjects have changed over the years.

I had returned from the Marines two months short of my 19th birthday at the end of World War II and went back to high school. In 1947 Savannah High School had more than 200 veterans attending, most having left school as young teenagers, some as young as 15 or 16, to go into the service. Most would go on to college; others upon graduation entered the work force. One of those returning was Emory Findley. At the end of the war, the Army was downsizing with many officers leaving, and Emory had made 2nd Lieutenant while still in his teens and before completing high school. Emory would go on to college and law school and end his career as a Superior Court Judge in the Ogeechee Circuit.

Due to my family’s finances, it was necessary for me to use some of my GI Bill to finish high school. After high school I went to work at the Union Bag in the printing department to help out at home. In time the family finances improved, and I was able to pursue my own goals.

I can’t remember when I first decided I would like to be a lawyer. It seems the law had always fascinated me. I had read the life of John Marshall (who some consider the greatest Supreme Court Justice the United States has ever had) at the ripe old age of 17, while on a ship going to the Pacific. One of Marshall’s most important decisions was in Marbury vs. Madison, decided when he first went on the bench in 1803, which established the Supreme Court’s right of judicial review, that is, its ability to declare a law unconstitutional. While many considered Marshall great, Thomas Jefferson and other Republicans of his day believed that, through his rulings, he was destroying the republic by placing too much power in the Federal government at the expense of the states. There are many today, not only in the South, who believe that Jefferson may have been right. For as Thomas Paine said, Government, even at its best, is but a necessary evil; in its worst state, an intolerable one.

To become a lawyer in 1948, the requirements in Georgia were, Any citizen who has been a bona fide resident of Georgia for eighteen (18) months or more next preceding his or her application to stand the State Bar examination, and is of good moral character and at least 21 years of age, who has the educational qualifications provided in this section and who has undergone a satisfactory examination as hereinafter prescribed, may practice law. An applicant for such examination shall have either a high school education or its substantial equivalent. An applicant for such examination shall further have either successfully completed two years of legal study in a law school or shall have read law for a period of two years in the office of one or more practicing members of the Bar in Georgia or under such practitioners. (Section 9-103 of the Code of Georgia of 1933)

There was no limit to the number of times you could take the exam. There were no standard requirements throughout the 48 states to become a lawyer, but Georgia’s requirements were similar to most other states.

There were three accredited law schools in Georgia at the time: the University of Georgia Law School, which was and is located in Athens, Georgia, Mercer in Macon and Emory in Atlanta; there was also two non-accredited law schools in the state that held night classes, John Marshall and Woodrow Wilson, both of which were located in Atlanta. Each of these unaccredited schools had programs similar to the University of Georgia Law School; however, the entrance requirements were less. In fact, I don’t remember if they had any. Both schools had more than one instructor, the students moving from one class to another for different subjects. At the end of the two-year course, if you had passed, they gave you a diploma. Then, if you could pass the Bar exam, you were a lawyer. There were a lot of folks in Georgia who never passed the Bar who had law degrees from either the unaccredited schools, the three accredited law schools, or who had studied under a lawyer.

Not having enough GI Bill left to complete college and an accredited law school since I used some to complete high school, I went to see Mr. Gilbert Johnson, who taught law at night. Mr. Johnson told me to come back in three months as he would be starting a new class. He also suggested that, since I still had some GI Bill left, I enroll in Armstrong Junior College if I could live on what the government would pay me. I never knew if Johnson put me off because the class he had at the time was too advanced to enter, or if he wanted to see if I was serious about the study of law.

In telling of my impressions of the practice of law in Savannah, Georgia for the 52 years between1953 and 2005, it is necessary to introduce numerous individuals. Should one write the law as it existed in Georgia in 1953 and include all of the changes through today, it would make a very large but boring book, and would not give one much of an understanding of what occurred. As Emerson said, There is properly no history; only biography.

Gilbert Johnson had been teaching law for many years by the time I went to see him. There were more than a hundred lawyers and several judges who had passed the Bar with no other legal training than studying with him, and there were others who had gone to accredited law schools for various periods of time. A few had graduated before coming to him. Not all of the lawyers who had studied with Gilbert were in Savannah, or even Georgia; however, the Savannah Bar had a good representation.

I quit my job at the Union Bag and went to Miami, got a job washing dishes in the Saxony Hotel on Collins Avenue in Miami Beach, and got a good look at a different lifestyle. At the end of the three-month period, I returned to Savannah, enrolled at Armstrong Junior College, and went to see Mr. Johnson at the appointed time and date.

Mr. Johnson held classes in his law office, which was in the Morel Building at the southwest corner of Bull and Bay. In the class I was in, there were about ten to twelve people, both men and women, with one colored man. The law of Georgia at the time prohibited integrated classes. Johnson got around the law by having the man sit in a doorway between the room the rest of the class was in and the next room in his office. If anyone ever complained about it, I never heard.

The class was divided about half and half between those who were serious about becoming lawyers and those who were taking the class as you would take an art class, a dance class or some other self-improvement subject. There were one or two who thought this would be an easy way to become a lawyer; these lasted only a week or two. Others came only for certain titles such as contracts, torts or bills and notes and felt that this knowledge would help in their business careers. It didn’t take long to tell who was serious about becoming lawyers and those attending for other reasons. Those who were serious were there every class for the entire class and had studied the questions for the week.

Johnson had turned out several female lawyers; however, while there were a couple of females in the class I was in, all of the serious students were men (mostly veterans of World War II), who for one reason or another were not able to pursue their career goal through the college route. Some had married and had children during or right after the war; others lacked the money and didn’t have enough G I Bill to get through an accredited law school. The formal education level of the students varied greatly; some had college decrees, others some college, some had attended law school, but had to drop out for some reason, others had only high school. The ages ranged from the 20’s to the 60’s.

Our books consisted of the 1933 Georgia Code, a law dictionary and, later, a Georgia Form Book. The office had a large law library, and the students were welcome to use it any time the office was open. Later in the course, we ordered a Bar review course from John Marshall Law School in Atlanta.

Johnson started the course with a title of the Georgia Code and would go through it, section by section, then on to the next title, until he had covered all of the Code that he felt we needed. A title such as Contracts, the title he started the course with, would take several weeks to go through. The class consisted of Mr. Johnson reading a section of the Georgia Code, explaining it, and asking for questions. He was very good at keeping the conversation on the topic. While the classes were not stiff, they were all business. In the discussion after the reading of a code section, Mr. Johnson would give an example of how the section would be applied. At the end of the week, we were given a list of questions that we were to study and be prepared to answer the following week. The questions consisted of situations between parties that required the proper application of one or more code sections to answer. This was as close as we came to case study. There would be a sheet with five questions, usually on the same subject. A typical question would be, The X Bank loaned money to the firm of A & B, taking a firm note endorsed by A and partially secured by a pledge of securities owned by B. Upon the bankruptcy of the firm, what are the rights of the bank?"

By the time we had gone though the Code, which took about two years, if we had applied ourselves, we were well-grounded in the laws of Georgia. At times we had visiting teachers, one of whom was Victor Mullings, the blind Judge of the Municipal Court of Savannah. The visiting teacher was not brought in for any particular subject; the program went on as usual.

Victor Mullings was one of the most intriguing characters I have ever known. Mullings was born in Tattnall County in 1916. At 11 years of age, he had suffered an injury that left him totally blind. Victor had graduated from high school at the Georgia Academy for the Blind in Macon, Georgia. He got an A.B. Degree from Mercer University and up to that time, was the only blind person to ever receive a Master’s Degree at the University of Georgia. He had studied law under Mr. Johnson and passed the Bar in 1944. Two years later he ran for, and was elected, Associate Judge of the Municipal Court when Judge Emanuel Lewis resigned to go back into private practice.

When Victor announced for Municipal Court, the headline for the article in the newspaper said, Women may also run. and run she did, as well as another candidate. The woman was Phyllis Kravitch, fresh out of the Pennsylvania Law School, but she had two things she couldn’t overcome: she was running against a blind man, and her father was Aaron Kravitch, one of the most admired, yet distrusted, men in the city. Victor would beat Ms. Kravitch and the other candidate and became the Associate Judge. Two years later he would run against B.B. Heery, the Chief Judge, and lose, but would retain his Associate Judgeship.

Mullings was a mystery to me from the day I met him until the day he died… I would respect and admire him, he would help me get started in the practice of law, he attended my wedding, yet I would end up filing a writ of prohibition against him to stop his abuse of another judge who was also a friend. Mullings would baffle me with his willingness to help colored people, but refuse to afford them the dignity of being human.

In class no roll was called, no tests were given, no one checked to see if you studied or answered the weekly questions, or if you were doing any reading. We did discuss the weekly questions, with Mr. Johnson giving the right answers and explaining those misconceptions we might have, but you could participate or not. I was usually amazed at just how much I didn’t know about what we had studied when Gilbert explained the answers.

We studied no federal law. Occasionally, Johnson might comment on the U.S. Constitution, but seemed to assume that we were all familiar with it. This was before the Warren Court, after which no one, including lawyers, would assume that they knew anything about the U.S. Constitution. Nothing was taught about the court system or method of appeal in the state or federal system. No time was spent on judicial philosophy, such as judicial restraint, original intent or strict construction; however, this might have been due to the times we studied rather than the method of instruction.

After class several of the single students going to Johnson would gather at one of the local establishments downtown, drink coffee and discuss what we had gone over and talk about the law in general. After all these years, I still remember a question raised by Harry Silverman, A is starting on a trip across the desert by camel and B, unknown to A, pours the water out of his water jugs and fills them with sand. C, not knowing about B’s actions, comes along at night unknown to A or B and pours the sand out thinking it is water. A then tries to cross the desert, but about halfway across, dies of thirst. Who, if anyone, is guilty of murder?

I went to Armstrong five days a week and to law classes three nights a week. The law classes lasted two hours. With limited funds and very little time, my social life was limited, very limited. Which helped with the studying.

While attending Armstrong, which at that time was located on Bull Street immediately north of Forsyth Park, during a break in classes, a young lady, a buddy and I walked to the courthouse and sat in the balcony to witness part of a trial. This was my first time in a courtroom. Mr. Joe Ryan was the prosecuting attorney, defending was Mr. Julian Hartridge, and sitting on the bench was Judge David Atkinson. Both Mr. Ryan and Mr. Hartridge were capable and colorful attorneys. The subject matter was interesting, and I was fascinated by the process.

Sitting in the balcony, I recalled that when I was about 13 or 14 years old, I lived on the east side of Savannah in a subdivision known as Ingleside. It was a quasi-urban area which was serviced by a streetcar. One day an elderly white man came to my home looking for my grandfather, who was not at home at the time. The old fellow had ridden the streetcar out from downtown. For reasons unknown to me at the time, he was not invited into the house, but waited with me in the swing on the front porch. He informed me that he had just returned from the west where he had lived for many years, and told me several fascinating stories about lynching and gunfights he had witnessed. After several hours, he left before my grandfather returned.

The next day the same individual walked into the Chatham County Courthouse with a paper bag and took a seat in the balcony of the Superior Court. The man withdrew from the bag several parts, assembled a shotgun and fired the weapon toward the Judge, wounding the Judge and several individuals participating in a trial. The morning newspaper reported that he was upset about a decision made many years before involving some land owned by his family. This was the only act of real violence I ever heard of that occurred in a courthouse in Chatham County. It would be 50 years after this event before we got judges nervous enough to put guards on the doors of the courthouse to check for weapons. Today, there are more people guarding the entrance to the courthouse than the entire staff of the three Sheriff’s Departments in 1953.

After attending class for a little under two years, Johnson suggested that I take the Bar exam in December of 1950. Before this could happen, I was called back into the Marine Corps for the Korean Conflict. Upon my return, Mr. Johnson let me sit in on both the advanced and beginners’ classes, giving me a chance to catch up. None of the people with whom I had studied before I went back into the Marines were still there. Several had passed the Bar and were practicing law; most had drifted away. This was not unusual. I don’t have any idea what percentage of the people who started classes with Mr. Johnson passed the Bar or even stayed long enough to take the exam. The percentage who passed the Bar would be very small.

When I returned from Korea, I felt that I could no longer impose on my aunt and uncle, Inez and George Scudder, with whom I had been living since my parents had moved out of state. I felt I should contribute more to the household if I was to remain living there. After working several jobs, I was lucky enough to get a job as a junior clerk at the Central of Georgia Railroad. While I was paid fairly well for the early 1950’s, the job description for junior clerk had not changed since the 1930’s when the job was filled by young male teenagers. Most, if not all, of the clerks and executives had started as teenagers. The job was not stressful; in fact, I had very little to do. We went to work at the same time every day, never worked a minute overtime, and I was usually able to get in at least an hour or two of study every day. It was the ideal job for someone going to night school. With half the homework and over twice the money, my social life improved considerably—which was a mixed blessing. Savannah was then, as it is now, a fun town.

After a couple of months back in class, it was suggested that I might want to take the next Bar exam to familiarize myself with the exam, with a goal of passing on the second try. Along with others from Mr. Johnson’s classes, including a very pretty 17-year-old young lady, I went to Atlanta and took the Bar examination on June 25th and 26th of 1952. How the young lady got by the age requirement, I have no idea, or I have forgotten. When taking the exam, I realized how much I had lost while away, and also the effect the nightlife was having on my study. I wasn’t too surprised when I failed.

Realizing that I couldn’t work, play and study, and knowing that I would play if I stayed in Savannah, I decided that I would move to Atlanta and take the Fenster’s Bar Examination Review Course. With no source of income other than my job, it was apparent that I would need to work if I was going to eat while in Atlanta. Being from Savannah I knew someone who knew someone who might be able to help with getting a job. Leroy Cole, a fellow worker at the railroad, took me to the law office of Frank Oliver Downing. While we didn’t know each other, we knew who each other’s family was. Frank took about 20 minutes telling me how well he was doing in his law practice, and then pounded out a very strong letter of recommendation for me. At the time I had no idea that I would spend at least five days a week and many nights with him for over 40 years and remain close friends for life.

Another Johnson student and I moved to Atlanta. I got a job in the Layaway Department at Rich’s Department Store and enrolled in the Fenster’s Bar Examination Review Course given by the John Marshall Law School. John Marshall held classes at night and was operated by Mr. Fenster, a very fine teacher, and his son. The first night in class, Fenster explained to us that he was not running a cram course, but a review course, that his purpose was to remind us of what we already knew. Mr. Fenster stated that if we didn’t already know enough to pass the Bar, we were wasting our time in taking the course. While the course was very helpful, he was right.

The course began on Tuesday, October 14th, and concluded on Saturday, December 6th, just prior to the Bar examination, which took place on Wednesday and Thursday, December 10th and 11th. Sessions of the course were held from 7:00 to 9:00 p.m. on Tuesdays and Thursdays, and from 2:00 to 4:00 p.m. on Saturdays; the final session, December 6th, was a double session extending from 1:00 to 5:00 p.m. The cost for the entire course was $50. The class was made up of people like me who had studied under a lawyer, others who had gone to an unaccredited law school, and people who were attending or had gone to one of the accredited Georgia law schools. In my class was Ed Lee from Savannah, who was going to the Law School at Emory University, and those who had attended a law school out of state. Some members of the class had failed the exam, including several who had graduated from accredited law schools.

Along with several hundred others, I paid the $30.00 for the privilege of taking the Bar exam; the year before, the cost had been only $15.00. We gathered in the Capital Building on the 10th and 11th of December, 1952. The exam consisted of four parts. We were given a part in the morning and one in the afternoon on each day. You turned in your answers at the completion of a session. There were adequate monitors so that no one could pass because of a long neck. It was my understanding that a different person would judge each part of the exam.

One of the questions was, "A and B, two young busboys, were working in the dining room of a hotel cleaning dishes which had been left by departing guests. It was after midnight, the dining room was closed, and the boys were throwing hard rolls at each other. There were no hard feelings between them, and they were merely engaged in ‘skylarking’ or ‘horseplay.’ One of the rolls thrown by B and aimed at A missed him and, continuing in its flight, struck Miss C, a waitress, in the right eye. At the time she was busily engaged in the performance of her duties in a recessed portion of the room. She did not know what the boys were doing, did not know what object had struck her, nor the source from whence it came. The hotel manager had given orders that there should be no horseplay during work hours. As a result of the injury, Miss C suffered 75% disability in her eye, and subsequently applied for Worker’s Compensation. After a full hearing at which the entire facts were developed, the Compensation Board denied compensation to her. She appealed to the Judge of the Superior Court, who reversed the Board and held she was entitled to compensation. The employer appealed the case by Bill of Exceptions to the Court of Appeals.

(a) State your conclusion as to whether the case should be reversed or affirmed.

(b) State and discuss the underlying principles and rules of law applicable to the question and the basis for your conclusions."

There was no way to tell how you had done when you completed the exam, and it would be months before you found out. For many, seven years of college, for others, days and nights of study and sacrifice, and for all, a lifetime of dreams depended on the results of these two days of exams.

One of the monitors was Ex-Governor, John M. Slaton. He was a very nice man. When taking the exam, most of us knew nothing of the abuse he had taken for commuting the death sentence of Leo Frank from death to life imprisonment. Leo Max Frank, a member of the Atlanta German-Jewish aristocracy and Superintendent of the National Pencil Factory in Atlanta was convicted of the murder of Little Mary Phagan, a well-developed 13-year-old employee of the factory in 1913. Frank had been sentenced to death. The verdict had been appealed all the way to the U.S. Supreme Court and upheld. There was nationwide interest in the case; many people questioned the guilt of the defendant. Newspapers in Georgia and around the country, many Jewish groups and powerful politicians were urging the Governor to commute the sentence to life imprisonment or pardon the defendant. Feelings were running high through Georgia, with most people insisting that Frank die.

Governor Slaton knew that if he pardoned Frank or commuted his sentence to life, his political career was over and his very life would be in danger. In spite of that danger, he commuted the sentence to life imprisonment. Slaton’s political career was then over, and there were threats on his life for several years. Some of our people, including some leading citizens, said Frank will not live. In 1915 a well-organized group of men executing a thoroughly planned break-in went to the Milledgeville prison, took Leo Max Frank out, brought him to Atlanta and lynched him. Inside help was suspected, and some of Atlanta’s leading citizens were involved in the planning. This had not been one of Georgia’s finest hours.

Those who took a more formal method of becoming a lawyer went to either one of the accredited law schools in Georgia, to one of the two unaccredited schools which held classes at night, or to an out-of-state school. Typical of those at the time would be Joseph Saseen. Joe went through the local parochial schools, graduated from the University of Georgia, and was then called up with the 117th Air Force Reserve Unit during the Korean Conflict. As Joe says, the unit did a superb job, he was stationed his whole tour in Tennessee, and according to Joe, no North Korean ever got past Tennessee. According to my Marine buddies, the 117th’s fight song was the Tennessee Waltz. Upon his discharge he enrolled at Emory Law School. Emory’s law course was three years, the same as Georgia and Mercer. You had to go two years before you could take the Bar exam. They studied case law. The first year had several required subjects, one of which was legal research. Only one test on each subject was given, and that was at the end of the quarter. With that test, you either passed or failed the quarter. On contracts there was only one test, and that was for the entire year. The students did not study the Georgia Code or Georgia law as such. What they learned of the Code or Georgia law was through case study.

After the Bar exam, I returned to Savannah, went to work for the C&S Bank as an outside adjuster, and returned to class with Mr. Johnson. When I was hired, the officer of the bank doing the hiring told me the job paid $175 per month, but that he could pay me $200 per month if I was married. This was not unusual at the time. For the same job a married man would be paid more than a single man, a man more than a woman, and a white woman more than a colored man. Of course, no colored men or women were working in a bank run by whites in Savannah, Georgia at the time, except as a maid or porter. My boss was Mr. Joe MacAvoy. Mr. MacAvoy had been an outstanding pitcher in the semi-pro baseball league. We were talking about it on one of the trips to check on out-of-town customers, and he told me about the time that Connie Mack of Philadelphia had offered him a tryout after seeing him pitch. Mr. Joe went to see Mills B. Lane, the president of the bank, and asked for a leave of absence to see if he could make the team and play in the major leagues. Mr. Lane said, Young man, I think this is a good time for you to decide if you are going to be a ballplayer or a banker. Mr. Joe decided he’d better stay where he was.

On February 17, 1953 I received a letter from Judge David Atkinson, advising me that I had passed the State Bar Examination and was entitled to be licensed to practice law in the State of Georgia. There had been five from Savannah who had passed. The others were Edward T. Brennan, a graduate of the Virginia Law School, Edward Henry Lee, a graduate of Lamar School of Law at Emory University, Bart Shea III, who was also a graduate of Emory, and Paul A. Stein, who had a bachelor’s degree from the University of Alabama and had studied law under Mr. Johnson; three graduates of accredited law schools and two the product of night study. This group had a higher percentage of lawyers who had studied at night, as opposed to accredited law school graduates, than the Savannah Bar that we were joining. The percentage of night school lawyers had been decreasing each year in Savannah, as well as over the rest of the country for a number of years.

On March 3, 1953, along with three others, I took the oath of an attorney.

There was a persistent rumor that the Bar was limiting the number of applicants who passed to keep the number of lawyers in the state down. Whether this had any basis or not I have no way of knowing, but ‘kinda believe’ that the rumor was started and kept alive by those who had not passed. (‘Kinda believe’ is a local colloquialism used by whites and colored in my area of the world.)

I had passed the Bar, been admitted to practice, yet it would be several years before I quit expecting a call telling me it was a mistake.

When I was admitted to practice, there was some real concern on my part that I would not be able to compete with those who had gone through college and then law school; however, I found that the biggest advantage the law school graduates had were the contacts they had made in school, and if you were looking for a job, a degree helped. After three or four years of practice, sometimes it was hard to tell who had gone where. The saddest thing for the Bar, the individual and for the general public are those who quit studying after they passed the Bar, no matter where they went to school. Will Rogers once said, Even if you are on the right track, you will get run over if you just sit there.

The country was just entering its love affair with formal schooling. Prior to World War II, a very small percentage of people in this country went to college; most didn’t graduate from high school. As was pointed out, the majority of the clerks and the executives in the Revenue Department of the Central of Georgia Railroad had started working there as young teenagers, never graduated from high school, and had gotten their education on the job. This was true in many large and small businesses. The passing of the GI Bill by Congress and the improvement of the economy made it possible for many veterans and others to pursue a college degree, but the percentage of the general population doing so was still small.

In 1950, even after the passing of the GI Bill with its help to veterans going back to school, only 15 % of the 18-to-21 age group in America attended some college degree credit program. It is hard for a person born after 1970 to realize the difference in attitude that has occurred toward formal education in this country in the last 50 years. By 1970 after Lyndon Johnson passed his Higher Education Act, (Flawed Giant–Lyndon Johnson and His Times, 1961-1973), the percentage had jumped to 54% of the 18-to-21 age group who had attended some college credit program. Today, a college diploma puts a person on the educational ladder about where a high school diploma did in 1950.

George E. Sokolsky had an article in the Savannah Evening Press in 1954 which pointed out that the beginning of formal education in the United States was a simple matter, locally controlled, directed mostly by parents, and conducted principally by clergymen and unmarried women. The boys and girls were taught to read and write and some arithmetic. If they wanted to go further, they read Greek and Latin, memorized a vast amount of literature, learned some French, German and the basics of science. Some went on to specialize in some profession. We produced a remarkable lot of scholars that way.

While Sokolsky was primarily addressing the education of children in colonial days, he, in quoting Nicholas Murray Butler, who had been the President of Columbia University and a scholar in his own right, stated, Education must mean a gradual adjustment to the spiritual possessions of the race, with a view to realizing one’s own potentialities and to assist in carrying forward that complex of ideas, acts, and institutions which we call civilization. In other words, education in a true sense has to do not only with the individual to be educated, but with the environment into which, and for which, he is to be educated. If we accept Mr Butler’s definition, it appeared that the massive educational establishment being built by society in an effort to give everyone a chance at an education, even back in 1953, had lost sight of its purpose and established rules and requirements that had little to do with realizing one’s own potentialities to assist in carrying forward that complex of ideas which we call civilization. This included the accredited law schools. The main thrust seemed to be, and is, standardization.

There was no question that a student going to an accredited law school had the opportunity to get a better education than one forced to pursue his or her career goals after work in a night school. There was also no question that some who went through night school were betted educated than many who had gone to accredited schools.

President James A. Garfield once said this of Professor Mark Hopkins, one of Garfield’s teachers, The ideal college is Mark Hopkins at one end of a log and a student at the other end.

Thomas Jefferson, John Marshall, James Monroe and, 30 years later, Henry Clay, all studied under George Wythe of Virginia (the state, not the school). All four of which make a very good argument for President Garfield’s point of view. The products of Wythe would also confirm Nicholas Murray Butler’s definition of education. Wythe was a populist and champion of religious liberty and toleration long before it was popular, as were each of his students.

No matter what system is used, you can’t mass-produce scholars, nor good lawyers. It is up to the individual’s use of the opportunities offered. Most subjects can be taught by the tutor system if one has the proper equipment. The advantage would be the small number of students in a class; the downside would be the cost should the instructor charge what his time was really worth on the open market, and also the inability to have a teacher specialized in each area of the subject.

The country was full of success stories in the 1950’s and ‘60’s, and still is full of people who have not completed high school, or those who have gone no higher than high school, but are well educated under Butler’s definition.

Charles E. Whittaker quit high school to work on the family farm; after some tutoring, went straight into an unaccredited law school at night, and became a lawyer while still in school. Whittaker had a very successful legal career in Kansas City, Missouri, was made a Federal District Judge in 1954, apparently did a good job, went to the U.S. Court of Appeals for the 8th Circuit in 1956, and was appointed to the Supreme Court of the United States on February 25, 1957 by President Dwight D. Eisenhower. Unfortunately, the last step was one too many on the ladder of success. Whittaker was not, to say the least, a star on the Supreme Court of the United States.

Alexander Lawrence was by far the best U.S. District Court Judge I ever practiced before. His knowledge of the law and his ability to apply it was outstanding. Lawrence had graduated from college and then studied law in his father’s law office.

Harry Truman was elected to the U.S. Senate, as Vice President, then President, of the United States of America without spending a day in college. He did attend an unaccredited law school for a short time; in fact, the same one that Judge Whittaker had attended in Kansas City.

Lincoln Steffens in his autobiography makes the point that businessmen were prejudiced against a college education. He was talking about the late 1800’s to the early 1900’s, but things had not changed a lot by the 1950’s.

A friend of our law firm who was a maintenance supervisor for a large plant was sitting with a group of engineers, all graduates of accredited colleges. After his failure to make them understand the simple solution of a problem they were having in the plant, he told them that if you have a son who is too dumb to get a job, send him to college and get him an engineering degree. There was a saying that it was all right to go to college if you had the time to go to college and also get an education.

Over the 50-plus years of my practice, I represented at least four men who came from blue-collar backgrounds who became multi-millionaires. Two of these had completed high school, two had not, all four were heavily involved in the community, gave of their time and assets to improve society, and all four were kind, giving people. According to Butler’s definition, all four were highly educated.

To understand what went on in 1953 in our court system and in the day-to-day practice of law or what goes on now, we have to have some knowledge of the social, cultural and physical surroundings which have a greater effect on our behavior and the behavior of others than we like to admit. While my entire career was based in Savannah, Georgia, I felt that I had practiced in at least five different cities due to the changes in the size of the population, the differences in the culture and the evolution of the law.

I give my view of the prevailing social order and culture as I understood it in 1953 and the changes that have occurred over time. The purpose is to show the effect on our court system. The making and enforcement of the law, both civil and criminal, does not occur in a vacuum, but is part of and reflects our society as a whole. All people have law and some method of enforcing it. For as Lord Mansfield said, To be free is to live under a government by law.

I also give my understanding of the law and the changes, both in the substantive law, which is that part of the law which the courts are established to administer, such as murder, robbery, fraud, and the rights to contract, and the objective or remedial law, which prescribes the method of enforcing rights or obtaining redress. Most lay people have a basic understanding of the substantive law; few are familiar with the objective or remedial law, which is often referred to by the public as technicalities.

While I discuss the law and some of the changes in the law over the last 50 years, this is not a law book, per se. The only reason a lawyer would cite it in court would be to get a laugh.

From 1953 to 2012 the laws of the United States and Georgia, the ordinances of the city and county, and the rules and regulations of the various departments of the federal and state governments have been in a constant state of adjustment. Which is as it should be to meet the changing needs of a changing society. The one consistent thing about the law among civilized people is change. Only the Ten Commandments were written in stone. And we have decided that God’s law has no place in an American courthouse.

Even the Constitution of the United States of America, the basis for our legal system, has been legally amended 27 times so far, and the Supreme Court has made some rulings that amounted to an amendment. The Constitution of Georgia has been changed so often that at times we didn’t give the ink time to dry.

The 1933 Code of Georgia that I studied to pass the Bar exam and practiced under for 18 years came into existence under Governor Eugene Talmadge, who appointed a Code Committee to consolidate the existing law into a new Code, since the last official Code had been adopted in 1910. From 1910 until 1933 the state government had been reorganized, a number of new departments had been created, and several others materially changed. There had been complete revisions of many topics of the law; and new enactments superceding whole titles as they appeared in the Code of 1910 had been passed. While much of the substance law would remain the same, one would have gotten a very poor idea of the law of Georgia from the original 1910 Code in 1933. The Committee had a real job compiling the mass of legislation passed by the 20 regular and five extraordinary sessions of the General Assembly that had occurred since the 1910 Code had been issued. Each session of the Legislature would have passed, repealed or amended a number of statutes in some aspects. There were more than10,000 sections of the old Civil and Penal Codes.

The Law is divided into two basic groups, civil and criminal.

CIVIL

Under the 1933 Code, the remedial law on civil matters was controlled by the Pleading and Practice Section of the Code and by the Court Rules. The Pleading and Practice Statutes set out how long you had to bring a suit, how to commence an action, what the petition had to contain to establish a claim, when a general or special demurrer would apply, when a motion was to be filed or made, how long after the petition was served on the defendant that he, she or it had to file an answer, what it must contain, in what order motions or demurrers were filed in relation to the answer, who has the opening statement in a trial, how long you could address a jury, things of that nature. The Pleading and Practice Statutes were statewide and applied to all of the courts of a given class in the state, such as Superior Court or City Courts. City Courts are now known as State Courts.

The terms, City and State Court, as used in the preceding paragraph, are to designate the class of the court, not the venue it covers. The term State Court is also used at times to identify a court that enforces the laws of a given state, as opposed to a Federal Court. For the State Court that is located in Savannah, the venue is Chatham County.

The Court Rules in 1953 were made by the judge or judges of that particular court or circuit and covered the behavior he (there were no she’s) expected in his courtroom. At times they overlapped with the Pleading and Practice Statutes. The court rules varied from court to court and circuit to circuit. The Pleading and Practice Rules set by statute were uniform throughout the state and could be learned by rote, but the court rules were a different matter. A Georgia lawyer could practice in any State Court in the state and had ready access to the statutes, but not to all of the Circuit Courts’ rules. They were not always easy for lawyers to obtain from another circuit, and when he did obtain them, some seemed to say, We don’t like out-of-town lawyers. They could be changed at the pleasure of the judge and, at times, seemed to be selectively enforced.

Under the Pleading and Practice Statutes, the parties were required to include all the necessary facts and legal conclusions in the pleadings when an action was brought. The material issues were fixed by the pleadings in the case. If the pleadings did not show clarity, demand could be made for a clearer statement, or the pleadings could be attacked by demurrer, general or special. A general demurrer went to the substance of the pleading, and if sustained as to the petition, brought the action to a close, or if directed to the answer, removed whatever defense an answer was raising. Or if more than one defense was being raised, the defense that was addressed by the demurrer. A special demurrer usually attacked some part of the petition or answer. With young, or not so young, unskilled lawyers, sometimes demurrers were used to a ridiculous extreme, such as filing a special demurrer because the petition was headed with "In the