Years ago, I agreed to brief and argue an appeal in a criminal case another attorney had tried. When I read the trial transcript there didn’t appear to be much hope for my client. The only issue of possible merit, fortunately preserved by the trial attorney, was whether my client’s conviction violated the constitutional proscription against double jeopardy. My client’s conduct had been the subject of a previous conviction for another offense. Since our law firm was new at the time and had only a small library, I visited a larger library nearby.
Ever since law school, law libraries have been indescribably attractive to me. The long rows of shelves containing cases and comments in handsomely-bound books are a fitting repository for the majesty of the law. The long wooden tables, at one of which I selected a seat, invite critical thinking and interesting work. As I sat down I noticed across the table a pile of books, some open to particular pages, on top of which was a note saying “DO NOT DISTURB.”
It didn’t take long to determine that the controlling authority in the double jeopardy question was a Supreme Court opinion (Blockburger v. United States, 284 U.S. 299 (1932)). The Supreme Court had held that the double jeopardy prohibition is not violated by a second prosecution if each of the two offenses requires at least one fact not required by the other. Although it was difficult to understand the reason for the second prosecution of my client, a reading of the two statutes clearly established a separate fact in each offense. The progeny of Blockburger, which included an opinion by Justice Felix Frankfurter (Gore v. United States, 357 U.S. 386 (1958)), which I searched in vain, provided no safe harbor for my client. I was confronted with every lawyer’s recurrent dilemma: a position in which I believed, but as to which the law showed no generosity.
An hour or so into my work the person using the pile of books across the table returned. He was a lawyer I had encountered once or twice, but did not know well. We exchanged greetings and my colleague quickly got to work, continuing his notes on the yellow legal pad he extracted from his attaché case. In casual remarks over the next half-hour, my colleague and I learned what the other was working on. His matter concerned a summary judgment motion with an interesting twist in one of the supporting affidavits. We exchanged comments about our respective projects and about our practices. I explained that I was working on a double jeopardy case where both prosecutions grew out of the same situation but each offense contained a separate factual requirement.
After a while I said, “Can I run this by you?” To be honest, I was more interested in learning how my argument sounded to another lawyer than in receiving his opinion. “Isn’t it implicit in Blockburger that the separate facts be empirically meaningful in the incident that took place?” Although I didn’t at first realize it, the argument I would ultimately make was taking shape. I suppose I was following the old adage that when the facts are not good you argue the law, and when the law isn’t good you argue the facts. I decided to argue the facts, and it worked! (Thomas v. State, 277 Md. 257 (1976)). We had added a new wrinkle to the Blockburger “required evidence test.”
I cannot dissect the things that affected the evolution of my thinking in this case. Surely the environment in which I was working contributed in some way. Surely the assemblage of books in front of me played a part. My exchanges with my colleague contributed as well. I am sure of only one thing: no one sitting in an office alone pushing buttons and watching a computer screen could be in an environment as hospitable to legal research as I was that day.
Readers must be thinking by now that there isn’t much to this story. But for one thing, I would agree. Going to a library to do research and chatting with a colleague is certainly not a plot for the next John Grisham novel. The only notable thing about this story is that most lawyers who embarked upon their practices less than 10 or 15 years ago will never have such an experience. Computerized research has obviated the need for books and libraries. Although not intended to do so, it has also largely foreclosed serendipitous research discoveries and casual encounters with colleagues. Many of us have a storehouse of legal knowledge we acquired turning the pages of lawbooks and in banter with other lawyers. Sometimes turning pages you will pass by a case that relates to a matter for another client. Sometimes a case will catch your eye simply because it interests you. Even in the laborious process of Shepardization you may learn something by seeing how seminal opinions have radiated to other courts.
We live in an age where the advantages of technology are celebrated to a fair-thee-well, and legal research certainly has advantages. A single practitioner in the smallest town in North Dakota can now perform the same legal research as a lawyer in a large firm in Manhattan. Lawyers with computers are able to do legal research virtually anywhere at any time. Computerized research eliminates the cost of law books (which I can remember purchasing from a retiring federal judge), floor space and structural requirements of law libraries, the necessity for librarians and the inevitable delays installing supplements. I doubt if anyone will miss hearing people walking through the halls shouting things like, “Does anybody know where I can find 283 F.2d?”
But the case for law books does not rest on notions of efficiency. By its parameters the case for lawbooks is lost. In a profession that increasingly measures itself in quantifiable terms – salaries, expenses, billable hours, cut-to-the-chase time requirements – the values of books and libraries are disregarded. In the process, we are losing the best things about practicing law: the richness of the terrain it covers, its endless intellectual stimulation and the opportunities it provides for rewarding interactions with colleagues. There are professions in which such losses may be regrettable, but not devastating. In the practice of law, however, technology seems to have streamlined the architecture of our work by performing a brilliant operation in which the patient has died.
James M. Kramon is Of Counsel, Kramon & Graham, P.A., Baltimore.