A NOTE ON THE PASSING OF JUSTICE WHITING

 

[Posted September 18, 2012] The Governor announced yesterday the death of retired Supreme Court Justice Henry Whiting. The justice was 89. He ascended to the court in 1987, seven years after having been appointed to a trial bench in Winchester, served actively on the Supreme Court for eight years, and served on senior status for another seven before retiring in 2002.

 

Justice Whiting always occupied a special place in my memory, because he was the first Supreme Court justice I ever got to meet. It was at a reception of some sort, probably back in the late 1980s or early 1990s; I had probably argued a good, solid two appeals (if you count arguments before writ panels) in my career at that point, and members of the Supreme Court were still, in my mind, distant figures who made lofty pronouncements from far beyond the reach of mere lawyers. They were uniformly grim, and always knew that whatever you said, you were wrong.

 

And yet, here was this man, whom I had only seen before on the bench, standing next to me and chatting amiably, as though we were next-door neighbors. I felt nervous at first, as most adolescent lawyers (I had gone past the point of being a baby lawyer by then) would feel in such a circumstance. But his gracious manner put me at ease. Although the conversation lasted perhaps two minutes, and despite the fact that I can’t possibly recall the substance of it now, I have never forgotten the sense of, “Wow; I just talked with a Supreme Court justice. And he was pleasant

 

In the intervening decades, I have met many more justices. There have been no grim know-it-alls among them; I have found them to be uniformly gracious and pleasant people, just as Justice Whiting was to me. Remembering that brief meeting has, to a degree, colored my view of the justices, in what I hope is a positive way: I regard them as people, just like me. And just like me, they respond well to certain forms of persuasion and poorly to others. They prefer plain English; they appreciate it when you get to the point instead of starting with a long, elaborate wind-up; they don’t like being lectured to, or treated as visiting deities by lawyers. They really, really don’t like being deceived.

 

Applying that principle has made me a much more effective advocate than I would have been if I had persisted in the visiting-deity approach. In this way, my brief encounter with Justice Whiting indirectly made me a better lawyer, and probably a better person. I am where I am now, in part, because of the kindness of this man.