A lesson from Souter
“Never be afraid to concede when it’s right to do so.”
That was a lesson taught to me more than a decade ago, back when I was 2L at a law school in Boston. And the man who said those words to me was the now newly-retired Justice David Souter.
At the end of Monday’s session, which was Souter’s last, both he and his fellow justices used the words of Robert Frost to express their feelings about him leaving behind life on the U.S. Supreme Court and returning to the tranquility of his beloved New Hampshire home.
But Souter’s retirement makes me think of the day I met him back in law school. He was kind enough to agree to serve as a judge for the final round of my law school’s moot court competition. True to his unassuming nature, he declined an offer by school officials to put him up in a fancy Boston hotel and provide transportation to and from the school. Instead, Souter opted to drive his own car down from his New Hampshire home, and he simply asked school officials where he should park.
When he arrived in the building, there was no “Do you know who I am?” moment. He walked up to a student who was standing in the hall and asked where the moot court competition was. The student - obviously oblivious to the fact that he was speaking to a member of the nation’s highest court - directed him the moot court office.
Souter boarded an elevator, navigated the halls and walked into the office - startling school officials who had intended to meet and greet the legal VIP at the door.
As for the actual competition, to say that my moot court team partner and I were nervous to argue before a panel that included not only Souter but also esteemed federal appellate Judges Bruce Selya and Guido Calabresi was an understatement.
But during questioning on one subject that was the Achilles heel of my particular legal position - after having tried in the previous rounds of the competition to distinguish and explain away the precedent that was dead against my argument - this time I gave it up. I conceded that I lost on that point, and focused instead on my stronger arguments.
By doing so, Souter said, I earned the award for Best Oralist of the competition. “One of the qualities of a good advocate is knowing when to concede,” Souter told me. Souter also announced that my teammate and I won the competition.
It was one of the most thrilling moments in my life. The engraved silver bowl I received commemorating the Best Oralist honor still sits on my desk.
I’m sure Justice Souter has no recollection of that day, even though it was so monumental to me. But over the last two years, each time I sat in the courtroom’s media galley watching attorneys argue before the High Court - particularly when they faced Souter’s tough interrogation - I always thought to myself: I know what that feels like!
It will be sad for me to return in October and not see him seated on the bench.
