Civil Litigation: Howard Baker the Trial Lawyer

In the summer of 1925, just a few months before Howard Baker’s birth, hundreds of Tennesseans, as well newspaper reporters from around the country, descended upon the Rhea County Courthouse in Dayton, Tennessee. They packed the galleries to watch the trial of John Thomas Scopes, a 24-year-old football coach who agreed to be indicted for violating a Tennessee law that banned the teaching of evolution. Never mind that Coach Scopes was simply a substitute teacher who could not recall ever teaching evolution. Like football, it was just a game to Coach Scopes who had been recruited by the American Civil Liberties Union and several “progressive” leaders in Dayton to set up a heavyweight legal battle between legendary trial lawyer Clarence Darrow and world-famous orator William Jennings Bryan.

Thirty years after this “trial of the century,” folks in East Tennessee were still packing the courtroom galleries to watch jury trials. And the lawyer they came to watch was young Howard Baker.

After graduating from law school in 1949, Howard Baker returned to Huntsville and joined the firm of Baker and Baker, the law firm his grandfather had started in 1886. His father insisted the newest Baker lawyer start practice in General Sessions Court.

The young lawyer also took on a load of criminal cases. Years later he would recall, “My very best clients were in jail. Sometimes I was hired by someone who was yelling out the jail window as I was walking to lunch.”

After trying a few cases solo in the general sessions and criminal courts, Howard Baker Jr. joined Howard Baker Sr. as they tried a jury case together. Baker Senior deferred to Baker Junior to do the closing argument, and then Howard Henry, as his father called him, delivered a closing summation that was more classical oratory than East Tennessee common sense.

When the trial was over, Howard Baker Sr. gave Howard Baker Jr. a critique: “You were all right,” he said, “but the clarity of your words sometimes exceeds the wisdom of your thoughts.”

Young Baker took note and began to address juries with a conversational style he would later use on the campaign trail and even later on the floor of the United States Senate.

Soon the word began to spread through Tennessee courthouses. Howard Baker was emerging, in the words of the great trial lawyer Ray H. Jenkins, as “the outstanding young lawyer in East Tennessee.”

Howard Baker loved being in the courtroom. Decades later, even after his service as a United States Senator, White House chief of staff and ambassador, Howard Baker would say he enjoyed law practice more than any other part of his career.

Thanks in large measure to his grandfather and father he inherited some very rich and powerful clients, including the Southern Railroad, utility interests, coal and lumber companies.
But the clients he loved the most were generally those who could not afford to pay him a penny. They were clients who desperately needed him because they had been charged with murder.

Howard Baker loved defending capital cases. He tried 63 such cases over 17 years. When he looked back on these cases years later he would remember, “Til this day there is nothing I can think of that has a more riveting effect on your attention and is a greater challenge to your ability than to try to defend somebody in a capital case. It really is an extraordinary responsibility.”

Not everyone in Huntsville appreciated the young lawyer’s willingness to take on such extraordinary responsibilities. When Baker agreed to defend a local scoundrel named Bob Lambert, Baker got a visit from his best friend, Bill Swain. Swain was also Baker’s best client as he was head of Swain Lumber Mill. Swain pointed out to Baker that Bob Lambert was guilty as sin. He had shot a man in front of several witnesses, and after doing so had asked, “Is he dead?” And then rather than waiting for an answer he had shot the victim again.

When Bill Swain advised Howard Baker he should dismiss such an awful client, Baker responded, “Bill, in our legal system everyone is entitled to representation.”

Bob Lambert was not acquitted, but he was not sent to the Tennessee electric chair in Nashville, as the prosecutor sought. Not one of Howard Baker’s 63 capital case clients was ever given the death penalty.

One of Howard Baker’s favorite stories dated back to his days as a young trial lawyer. After the first day of a long and difficult trial, Baker and his client returned to the law offices of Baker and Baker, where they were greeted by Howard Baker Sr. “How is the trial going?” the elder counselor Baker asked his son.

Howard Baker Jr. knew it was not going well, but he did not want to say so in front of his client. Deflecting the question, he looked at his client and said, “Well, how do you think it’s going?”

“They are telling lies about me!” the client thundered. “And worse yet,” he added, “they are proving most of them!”

There were two keys to Howard Baker’s effectiveness as a trial lawyer. First, he got along well with opposing counsel, even the prosecutors in the capital cases. “We were fellow circuit riders,” Baker observed. Baker and his adversaries would battle each other in the court all day and then enjoy drinks and dinner together at night.

The other key to Baker’s success as a trial lawyer was his courtroom style. He was particularly effective at the art of cross-examination, using a style that appeared so friendly even to adverse witnesses that they ended up saying a lot more from the witness stand than they should have.

And jurors loved Howard Baker. “Juries just trusted him,” his law partner, Don Stansberry, recalled. “He was just so credible.”

In 1954, Baker briefly left the courthouses of Tennessee to go to Washington to serve as an assistant to Ray H. Jenkins, chief counsel for the Senate committee investigating Sen. Joseph McCarthy’s charges that Communists had infiltrated the United States Army. The assignment also renewed his friendship with Robert F. Kennedy, a fellow Navy ensign he had met during his service in World War II. Kennedy was the committee’s minority counsel. Baker was excited about the assignment until, as he later recalled, “I realized that my only duty was to read daily transcripts.” He quickly returned to his life as a busy Tennessee trial lawyer.

Baker’s effectiveness as a lawyer was based in large measure on what he believed the law is really all about. Baker felt that while cases and trials are by definition contentious, the real purpose of the law is to resolve conflicts, not to create them.

In a 2005 television interview, Howard Baker summarized his belief in the rule of law:

The rule of law is an interesting phrase. I don’t think it’s ever really been defined with exactitude. But to me, the law is the lattice work that civilization uses for ordering people’s relationships with each other and to govern their conduct. That is the law. The law is not statute law, the law is not precedent, it’s not Supreme Court decisions, or any other court’s decision. The law is an accumulation of the determination of mankind to find ways to get along, to respect each other, to have a decent respect for different points of view, and to translate disagreement into some sort of resolution. That’s what the law is. And without the law, we would not have civilization.

Howard Baker loved being a lawyer, and the very civil nature of his approach before judges and juries made him incredibly effective. While Howard Baker Sr. was in Washington serving in Congress, young Howard Henry was more than happy to be running the Baker family law practice, and he saw this as his life’s work.

On Jan. 7, 1964, Howard Baker was in Washington arguing a case before the Federal Power Commission. The proceedings were interrupted when Baker’s father-in-law walked into the hearing room. Senator Dirksen took Baker aside and broke the news that Howard Baker Sr. had suffered a fatal heart attack.

With the passing of his father, Howard Baker was about to enter a new era of his life. After 15 years in the courtroom he was about to enter a new and even more contentious arena, politics.

His stepmother, Irene, headed to Congress to fill out Howard Baker Sr.’s unexpired term. Howard H. Baker Jr. then made a bold move. On May 26, 1964, he announced he was a candidate for the United States Senate.

In the coming years, Howard Baker’s colleagues in the United States Senate, and indeed the American people, would see the same wonderful quality that had been witnessed by juries in East Tennessee courtrooms as they watched Howard Baker the trial lawyer:  Civility in advocacy.

Note

Howard Baker died on June 26, 2014. This column is excerpted from Bill Haltom’s book The Other Fellow May Be Right: The Civility of Howard Baker, which was published the week before Baker’s death. It is available on Amazon.com.

Read Sen. Baker’s obituary in the People section of this issue.


Bill Haltom BILL HALTOM is a shareholder with the firm of Lewis Thomason. He is a past president of the Tennessee Bar Association and a past president of the Memphis Bar Association. Read his blog at www.billhaltom.com.