It is a fine investment of time for a lawyer, or a citizen, to read the opinions of Justice Robert H. Jackson, whose brilliant legal career began with the Nuremburg trials. He went on to become the only person to serve as Solicitor General, Attorney General and as a Supreme Court Justice. Woven into his writings is the concept that the law, the courts, and the government in general must be embroidered with a little bit of sensible practicality, a little bit of intelligent restraint.
So, if it is simply not practical to exercise your right under the First Amendment to peaceably assemble because of the dangers of a pandemic and the suffering and death it can bring, then we have to bend to the practicality. There is nothing new about this. All of our constitutional rights are subject to constraints born of practical considerations of the human condition. You have the right to free speech, but you cannot defame your neighbor. You have the right to bear arms, but you may not fire them at someone who asks you to wear a face mask.
And simply because you have rights does not mean you should use them.
In these days of COVID-19 practicality and restraint are indispensable. I see it every day as I continue to serve my legal clients. I do it from my home office instead of the one in town, I do it by telephone, by mail, and through technology. Face-to face meetings are a rarity and are done only with extraordinary safeguards to protect my clients, our staff, and ourselves.
Yet life has not stopped for the legal profession. People are still doing bad things. People still need contracts written, wills drafted, appeals taken, estates probated and law suits brought. There is still domestic violence, perhaps even worsened by the crisis. Crimes are still committed. Marriages collapse. Economic pressures are bearing down on everyone and the law is still needed to order our society.
But the courts are closed. The courthouses are shuttered. And life goes on with more legal activity demanding attention than before the crisis. Justice Hugo Black taught us that the courts are havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are victims of prejudice or public excitement. They are essential. We need them to function and they are.
How is this being done?
To their credit, the state and federal courts in New Hampshire have reacted as Justice Jackson would have — with sensible practicality and intelligent restraint. Your case can still be filed, you can still obtain a domestic violence restraining order, courts are still mediating disputes, cases are being resolved every day. In the last several weeks I have obtained several emergency court orders. I have to do it by telephone, or with written pleadings. Business deals have been concluded in the same way. The staff of the New Hampshire judicial branch continues to be helpful and genuinely concerned with protecting the legal rights of our people. It has been a privilege to watch this happen. It re-affirms the faith I have had in the legal system during nearly 40 years of practice.
And I have noticed something else. Lawyers seem to be applying sensible practicality and intelligent restraint. This is good for our society and our future.
I have the privilege of representing a large electrical installation company. Last week I got a call from its owner who told me that COVID-19 had appeared at a multi-million dollar job site and he wanted to pull his workers off the job. His customer insisted that he not do so, that he had to finish on time or he would be sued for breach of contract. He removed his people anyway in order to protect them. In the tussle that followed the attorneys were able to find a middle ground. There will be no lawsuit. Instead, there will be some sensible practicality, some intelligent restraint.
Yesterday, a New Hampshire court conducted a contested hearing in a suit brought against a client of mine. It was done by telephone. Several days before the hearing, the attorney for the plaintiff called me to explore whether we could resolve matters without court intervention, using some sensible practicality, some candid discussions with our clients, and some restraint. We spoke clearly and genuinely with each other and with our clients. Slowly, over a few days, we came to an agreement. The court heard us, and the case was concluded.
I am seeing more of this as the pandemic puts pressure on the entire world. The disputes are real, they are important to people, and they need level-headed and orderly thinking. Lawyers are creating practical solutions to difficult problems and are bringing our society closer to normal functioning. They are doing it with courtesy, reasoned analysis, and genuine concern for humanity.
(Meredith attorney Robert E. McDaniel began his career as a federal prosecutor in Washington D.C. During his career he has represented clients from 21 states and more than a dozen countries.)