An Address to the Louisville Bar Association and the University of Louisville Inn of Court
Aristotle famously made the claim in Nicomachean Ethics that humans are political animals—by which he meant that human beings are social. They seek each other out, long to be in each other’s company—not just, as Thomas Hobbes thought, to contract with one another for the purposes of protection. People live in community because they desire to flourish. In fact, Aristotle said that any person who can live without a community is either a beast or a god. That humans need to live together seems to be a commonplace that needs only to be asserted. However, it seems to me that what is fascinating about humans is not just that they live in community, but how they devise ways of doing it so that friendships are made, families thrive, and the disadvantaged and the stranger are protected.
Protection, of course, seems to be the purpose of the judicial system—at least as an ideal—the pursuit and the dispensing of justice. People, when they order their common life, need to feel a certain security about the arrangements that they’ve made: Are the rules fair? Do they offer protection? Do they allow for redress of grievances? People want justice. What, though, is justice on this reading? Justice, according to Aristotle, is whatever produces and fosters a flourishing community (EN 1129b19). But justice is a kind of hedge, a boundary that protects us from ourselves, from our penchant for overreaching. In order to flourish, we need something more. Aristotle calls this something more “friendship.” In order to create a community where people can flourish, we need not only strict protections against venality; we need an atmosphere that encourages friendship. In fact, Aristotle said that “if people are friends, they have no need of justice” (EN 1155a29).
It occurs to me that what Aristotle was getting at with respect to political communities, is very nearly what we’re here today to valorize by holding up Lively Wilson’s life and character. Because Lively, a man who sought to ensure justice and to represent his clients with skill, cared about more than just following the rules. He cared about justice, courtesy, trust, and friendship. He cared about, in short, helping to create a world worth living in. And I know this because he honored me by calling me his friend.
Some people—to be around them for much time requires a great capacity for patience and endurance—if only because of the endless drama that makes up the fabric of so many people’s lives. On the other hand, there are some people who bless you just to be in their presence—if only because of the stability and confidence that marks out their identity. There are some people who know who they are, who are comfortable in their own skin, who when you are in their presence, rarely take from you, but who give to you, who restore your spirit, knowing that what their lives offer you is grace and mercy—a chance yourself, to be who you are, to be comfortable in your own skin. Lively Wilson continually offered that gift to any who had eyes to see it, and the courage to receive it. In his presence you felt special—as he himself was special. He was a man who knew that he had nothing to prove to God, and therefore knew that he had nothing to prove to anyone else either.
Lively was an important man in so many worlds, in part I think, because he was one of those rare men who made you feel that there was no situation that could overmatch him. He was one of the most confident, self-possessed, in control men I’ve ever met. He was a man, as one of his daughters told me, who in a rainstorm could see the road through a windshield out of which no one else could see. Lively Wilson, in short, made the world feel like a safer place. And that, my friends, is a rare and wonderful gift—especially if you’re an attorney and most especially if you’re the father of four daughters.
The irony, of course, is that he was also a humble, unassuming man, who did not call attention to himself. In fact, when told he had been elected the president of the American College of Trial Lawyers, Lively leaned over to one of his daughters and said in all sincerity, “I never thought they’d choose me.” I find it ironic, and not just a little inspiring, to know that Lively came by his humility honestly. That is to say, he was born just prior to the Depression, a man (like so many) of humble beginnings, but who saw in his early life a source of strength, an occasion for celebration. Humility ought to be more widespread inasmuch as most people have a great deal about which to be humble. Lively Wilson, on the other hand, was a paradox—a man who had claims to greatness, but who embraced humility instead.
He was a man who, I think it can be fairly said, was characterized by his integrity. He placed great stock in being able to look himself in the mirror every morning, living his life in such a way that he could own it all … such that he would never have to run from it because he’d failed his own principles of decency and justice. In fact, integrity occupied such a seamless and transparent part of Lively’s life that he assumed everyone shared those commitments—and seemed shocked and hurt to learn when they didn’t. Søren Kierkegaard said that when you’re young you spend your time trying to change the world. When you’re old, however, you spend your time trying to make sure the world doesn’t change you. I think Lively succeeded on both accounts.
It goes without saying, I suppose—owing to the fact that we’re here today—that Lively was an exceptional lawyer. I never saw him in court, but I suspect he was an imposing presence. And since the nature of the court’s business is adversarial, I further suspect that he was an imposing adversary. But it is possible to be imposing, zealous, without being a jerk. All of which leads to this discussion of civility and professionalism in the law. Two words that ought to leap immediately to mind when speaking of Lively Wilson’s practice of law ought to be civil and professional.
When I was asked to be here today, the first question that popped into my mind centered on the issue of what, if anything interesting or insightful, I could possibly have to say about the civil and professional practice of law in such distinguished company. So I started doing a little research on the issue of civility and the law. Modern appeals for civility in the legal profession are generally traced back to a speech given by, then Chief Justice, Warren Burger, to the American Law Institute in 1971, in which he observed that “overzealous advocates seem to think the zeal and effectiveness of a lawyer depends on how thoroughly he can disrupt the proceedings or how loud he can shout or how close he can come to insulting all those he encounters.”1 Apparently, he felt that strenuous advocacy need not prescind the civil practice of law. The thinking goes that there are guild practices among attorneys that a certain standard of considerate conduct ought to characterize the way attorneys interact with one another, with clients, and with the court. And while to an outside observer of the legal community this seems self-evident, it would seem as though not everyone has gotten the civility memo—or if they have, they’ve filed it with the memos on public duels, cleaning up after horses on public thoroughfares, and Sunday blue laws; which is to say, under the heading, “Hopelessly out of date and just overly fussy.”
Now, I want to say a word about civility. Everything I found on the issue of civility and professionalism with respect to the law, the different codes adopted, the entreaties for an increased practice of these social virtues—as far as I could see, all boiled down to something like this:
If you are an attorney, please go the extra mile and also act like a grown-up. Don’t hit; don’t kick; don’t bite. Show up on time. Keep your promises. No cheating. Fight fair.
And it is fitting that we are holding up Lively Wilson as an example, because he was nothing, if not a grown-up. And as a set of guild practices, I think the admonition to civility makes for a legal community in which the interests of justice can be pursued in a collegial fashion. These are rules that set a hedge or a boundary on acceptable conduct that preserve dignity and expedite the often difficult process of advocacy.
But it occurs to me, that what Inns of Court are about is a desire for more than just justice in the Aristotelian sense of preserving social equities in the legal community. What I think you’re after, what I think Lively Wilson embodied was the potential to foster an environment in which friendship is possible. Now, by that I do not mean a situation ought to exist in which everyone claims to be pals. Instead, I am speaking of an atmosphere in which the legal community clings to some larger ideal than the instrumentality of advancing one’s own interest and the interest of one’s client at any cost—an atmosphere that is bounded not just by rules but also by character.
One judge, lecturing on the issue of civility and professionalism, cautioned that it ought not be confused with the issue of ethics. I want to challenge that claim for a moment, because I think that the way one comports oneself is a moral issue—and not just a matter of politeness that greases the social gears. Civility and professionalism are matters for moral reflection, just to the extent that they have to do with the formation of character—the kind of character that helps the community to flourish (both the legal community, as well as the wider community). Because this is not merely an issue for attorneys, but for society—since attorneys help to shape and form society’s conception of justice. This is something about which Lively Wilson was keenly aware—that character is the only stable platform upon which to build community. One lives with civility and professionalism not just because doing so serves to keep the legal machine humming along with fewer hiccups, but because doing so helps to build the kind of character in which a community of justice can flourish.
And if Aristotle is correct about character being a necessary condition for a flourishing community, then, I would suggest, he’s also correct about the way character gets formed. One learns a skill, one builds character by habituation—which is to say, by practice. Knowing the rules is never enough. One has to see them embodied; one has to look over the shoulder of a master craftsperson to learn how to be civil and professional, no less than to learn how lay brick, or to play a violin. All of which leads me to my point: Lively Wilson’s life and the way he practiced law ought to be emulated—not just the rules he followed or the abstract ideals about justice and civility and professionalism he proclaimed, but the way he embodied those ideals.
People don’t learn the moral nature of any practice by signing off on a code of conduct. Instead they learn by watching someone live it out faithfully, consistently, and with conviction. I can’t tell you how many attorneys have told me that when they were new in the law game, it was Lively Wilson who reached out and mentored them. He wasn’t just an exceptional lawyer; he was an exceptional human being. I think, at its heart, that’s what you ought to be concerned with as a legal community—how can we produce more people who look like Lively? The title of this lecture is “The Importance of Being Lively,” not “The Importance of Believing the Things Lively Believed,” or “The Importance of Winning the Kind of Cases Lively Won.” It is about being like, emulating Lively—and all of the other lawyers whose lives and practice are worth emulating.
One of my favorite theologians, Stanley Hauerwas, tells the story about an enthusiastic young man who found himself strolling the streets one day trying to do his evangelistic duty. He came upon an old Amish farmer. Not wanting to leave any stone unturned, he approached the old man and asked, “Are you saved?”
The Amish man tucked one thumb in the band of his pants, and put the other to the corner of his mouth, obviously in deep concentration. The young evangelist waited expectantly. The old man knitted his bushy brow for a moment, took out a piece of paper and began to write. Now, it was the enthusiastic young man’s turn to puzzle. When he finished writing, the old man handed the paper over.
“But I asked you a simple question: Are you saved? What’s this list for?”
“It’s a list of five people who are my friends, and five people who are my enemies. Ask them.” And with that, the old man turned around and walked away.
It occurs to me that both Aristotle and Lively Wilson would have liked that old man.