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February 12, 2004

A Lincolnesque Law Practice?

Filed under: pre-06-2006 — David Giacalone @ 8:59 pm

Kevin O’Keefe just left a Comment asking if I knew what Abraham Lincoln did as a trial lawyer.  Kevin says:


I always assumed he was championing the cause of the little guy.  Within the last week I read somewhere that Abe’s days of riding the circuit to courts around Illinois and the Midwest were as a trial lawyer for the railroads. If that’s true, he certainly was not championing the cause of the underdogs while he was a lawyer. He would have been in the business of using every trick in the book to make certain that those with the money got their ‘justice’ and that the little guy received no justice.

It’s a most intriguing question, but I had not a clue to the answer.  So, I just spent 30 minutes with Mr. Google, and learned a few things:

 

From an Atlantic Monthly article by the Lincoln biographer Benjamin Thomas (Feb. 1954):



[On the circuit, Lincoln left] home and family for nine or ten weeks at a time, driving over muddy or dusty roads, now under a hot sun and again through pelting showers or all-day rain, putting up with the scanty comforts and monotonous fare of cheap hotels and boarding houses, where the lawyers slept two in a bed and six or eight in a room, and spending long hours in court for the ten, twenty, or fifty dollar fees, occasionally supplemented by larger ones, which, along with the more substantial fees he earned in the State Supreme Court and the Federal Courts in Springfield and the interest he received from a few notes and mortgages, added up to an annual income of some $2500.


For more detail, here are excerpts from John A. Lupton’s valuable The Law Practice of Abraham Lincoln: A Narrative Overview:



Abraham Lincoln practiced law for nearly twenty-five years in the Illinois courts. . . . Lincoln handled cases in almost all court levels: justice of the peace, county, circuit, appellate, and federal. . . . Like many of his colleagues at the bar, Lincoln was a general practice attorney and represented clients in a variety of civil and criminal actions including debt, slander, divorce, dower and partition, mortgage foreclosure, and murder.



Lincoln handled many different categories of litigation during his career. Debt-related issues filled the court system during the antebellum period, and the majority of Lincoln’s legal cases consisted of debt collection. In this type of litigation, he represented both creditors and debtors. As plaintiff attorney for creditors, he won the majority of cases because many defendants failed to appear and defaulted. As defendant attorney for debtors, he lost the majority of cases because the legal system favored creditors over debtors. He also handled cases relating to land titles, inheritance, patents, and railroads. 

In the 1850s, the Illinois legislature chartered railroads, and many of them began construction. These events increased litigation over issues of right of way, stock subscriptions, fencing, and damages to real property. Lincoln generally supported the development of railroads all over the state, but that did not prevent him from opposing the railroad companies in the courtroom. He became involved in railroad litigation and represented individuals nearly as often as railroad corporations. The Illinois Central Railroad secured his legal services more often than any other railroad, and Lincoln opposed them in only a few cases. 


Office Practice


Lincoln’s legal career did not consist solely of litigation. He maintained an office practice that included writing deeds, registering land, paying taxes, receiving money, and giving legal advice.


Legal Fees



time money abe

 

According to entries in their fee book, Stuart and Lincoln generally received $5 to $10 for legal fees, but in People v. Truett, an 1838 murder case, they received $500. Stuart and Lincoln generally divided fees equally. On average, Lincoln and Herndon charged a typical client $5 to $20. However, there were several occasions when Lincoln either charged his clients nothing or charged them a substantial amount. . . . Lincoln’s federal practice probably supplied him with much of his income. A case could not be heard in the U. S. Circuit Court unless it involved a dispute exceeding $500. As a result, Lincoln charged his federal clients higher fees. He probably charged clients less while practicing in the state circuit courts because disputes involved lesser amounts.

Go to Lincoln Legal Papers, for an outstanding documentary history of his law practice from 1836 to 1861 (Ill. Historical Society)

 

I like Lincoln’s advice to aspiring lawyers:


“Always bear in mind that your own resolution to succeed, is more important than any other one thing.”

 

“If you wish to be a lawyer, attach no consequence to the place you are in, or the person you are with; but get books, sit down anywhere, and go to reading for yourself. That will make a lawyer of you quicker than any other way.”


 

His Notes for a Law Lecture are also wise and inspiring.  Here are some examples:


The leading rule for the lawyer, as for the man of every other calling, is diligence. 

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.

penny sm  The matter of fees is important, far beyond the mere question of bread and butter involved. Properly attended to, fuller justice is done to both lawyer and client. An exorbitant fee should never be claimed. .. . Then you will feel that you are working for something, and you are sure to do your work faithfully and well. Never sell a fee note — at least not before the consideration service is performed. It leads to negligence and dishonesty — negligence by losing interest in the case, and dishonesty in refusing to refund when you have allowed the consideration to fail.

There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief — resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.


Finally, for the young lawyer-storyteller or poet, who sometimes can’t quite find the right word to express a feeling, some parting lines from Benjamin Thomas in the Atlantic Monthly:


“A man of deep emotions, Lincoln craved the power to put his feelings into words. Of a commonplace poem he had once declared: ‘I would give all I am worth and go in debt, to be able to write so fine a piece as I think that is’; and, unsatisfied with the clarity and fluency that are the lawyer’s tools, he had attempted to write poems of his own.” 


  • Thanks for taking me on this tangent, Kevin.  Now, back to my Repairman Jack novel.

11 Comments

  1. What a great answer David! You have a flat out incredible gift in being able to write as well as you do. As you know, writing is more than sitting down at the key board. There is focused investigation, assembling the information gathered and then weaving it together in a way that engages your audience. You are truly wonderful at it.

    Bottom line for us lawyer folks is that we should have no reservation using Abe as a role model.

    Comment by Kevin O'Keefe — February 12, 2004 @ 10:44 pm

  2. Kevin,
    Ditto about Abe.
    As far as the rest of your Comments:  You are way too kind.  Blush.

    p.s. Mama: Are you using Kevin’s identity again?

    Comment by David Giacalone — February 12, 2004 @ 11:12 pm

  3. Great overview of Lincoln as lawyer. Because Lincoln practiced in my neck of the woods, I’ve always enjoyed reading about his days as a lawyer. For anyone interested in reading more about Lincoln, the recent biography “Lincoln” by David Herbert Donald is a great place to start.

    Comment by Evan — February 13, 2004 @ 9:41 am

  4. Wow! Excellent research and writing on Attorney Lincoln. A few other trivial tidbits your readers might identify with:

    * Mr. Lincoln sometimes traded his services for whatever tangible good his client might offer. Due to the current ethics rules, that practice is probably discouraged now. But, I know of at least one lawyer who was offered cars and wedding rings in lieu of dollars.

    * On at least one occasion, he had to sue a client for non-payment of fees. He obtained a judgment, but, of course, never collected on it.

    Comment by Marie Carnes — February 13, 2004 @ 10:16 am

  5. Thanks for the interesting info, Marie. I just looked at Model Rule 1.5 to check on taking property, and here’s what a relevant Comment has to say:

    Comment to Model Rule 1.5
    Terms of Payment [ http://www.abanet.org/cpr/mrpc/rule_1_5_comm.html ]

    [4] A lawyer may require advance payment of a fee, but is obliged to return any unearned portion. See Rule 1.16(d). A lawyer may accept property in payment for services, such as an ownership interest in an enterprise, providing this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation contrary to Rule 1.8 (i). However, a fee paid in property instead of money may be subject to the requirements of Rule 1.8(a) because such fees often have the essential qualities of a business transaction with the client.

    [ you can find Rule 1.8 at http://www.abanet.org/cpr/mrpc/rule_1_8.html ]

    Comment by David Giacalone — February 13, 2004 @ 10:54 am

  6. Thanks for a great post. I have just one question . . . Did Honest Abe practice value billing?

    Take another look at:
    >According to entries in their fee book, Stuart and Lincoln generally received $5 to $10 for >legal fees, but in People v. Truett, an 1838 murder case, they received $500. Stuart and >Lincoln generally divided fees equally. On average, Lincoln and Herndon charged a typical >client $5 to $20. However, there were several occasions when Lincoln either charged his >clients nothing or charged them a substantial amount. . . . Lincoln’s federal practice >probably supplied him with much of his income. A case could not be heard in the U. S. Circuit >Court unless it involved a dispute exceeding $500. As a result, Lincoln charged his federal >clients higher fees. He probably charged clients less while practicing in the state circuit >courts because disputes involved lesser amounts.

    Admittedly, it’s hard to tell. But it does make me wonder!

    Comment by Ann M. Byrne — February 14, 2004 @ 8:48 am

  7. Ann, if somebody would help me understand what “value billing” means (other than a fancy slogan to hide a rate increase) when done by lawyers, it would be a lot easier to attempt an answer.
    I’m pretty sure you don’t want a deeply serious response.  However, you’re right that it’s hard to tell how Lincoln was billing — the “value” and the reasonableness are in the particulars of each case and client situation.  Before we indict or disbar old Abe, let me point out that he surely would have spent a lot more time on a murder case than a simple debt collection, and the federal cases were also probably a lot more complex or time-consuming (e.g., fights over railroad rights of way) than the under-$500 local matters.   Given Abe’s reputation, I bet he was a bargain.

    Comment by David Giacalone — February 14, 2004 @ 1:05 pm

  8. Did I say anything about disbarring Honest Abe??? NO WAY!! I was just trying to figure out how he calculated the amount he billed people.

    Your point about how value billing is defined is well taken. All I have heard is that it represents the value to the client. I have no idea how to measure that or how to set a fee with that in mind.

    It does not appear that Honest Abe used an hourly billing format. I wondered how his charges compared to what people earned. I tried to see if I could find out was per capita income was in 1850, but that information does not appear to have been tracked in the census then. I did stumble onto the fact that wage rates were tracked in 1850, but I could not find out what those rates were. I’ll let you know if I uncover any further information.

    I did also wonder whether lawyers of Honest Abe’s time were governed by the same type of ethical rules or guidelines and what they said about fees. Maybe I’ll look into that when I get more time. My guess is that there may not have been rules, but there were probably standards. I would also guess that those standards have probably changed over time.

    Thanks again for a thought-provoking post!
    Ann M. Byrne

    Comment by Ann M. Byrne — February 14, 2004 @ 4:43 pm

  9. I knew you weren’t suggesting disbarring Abe.  Sometimes, hyperbole (especially the humorous type) is difficult to transmit in writing — and I try not to use too many emoticons.
     
    The courts were purportedly protecting clients in equity mode prior to codified rules for lawyers.  The Model Code’s Canon on fees was first set down, I believe, in about 1908, and was basically adopted intact by the Model Rules folks (in the 1970s?).  My understanding is that the profession was facing threats of more statutory regulation when they decided to try some Model Rules and more explicit self-regulation.  Some of this history can be found in Brickman’s recent article, The Continuing Assault on the Citadel of Fiduciary Protection: Ethics 2000’s Revision of Model Rule 1.5 (2003 U.Ill.L.Rev. 1181 [Number 5]) around p. 1197.  More I shall not ferret today.

    Comment by David Giacalone — February 14, 2004 @ 5:26 pm

  10. Great entry! Fascinating!!

    One thing that is interesting is that Honest Abe’s $500 fee in 1836 becomes $9,434 in 2003 dollars. He’s still a bargain.

    Using: http://oregonstate.edu/Dept/pol_sci/fac/sahr/cv2003.pdf

    And as far as his desire to convey strong emotions with words, I think he clearly accomplished that at Gettysburg.

    Comment by John W. — February 19, 2004 @ 10:38 am

  11. […] You can learn more about Abraham Lincoln’s lawyering (including what kind of fees he charged) at f/k/a, in the posting A Lincolnesque Law Practice? And see, Lawyer Lincoln Was a Bargain […]

    Comment by shlep: the Self-Help Law ExPress » Blog Archive » Lincoln’s message to lawyers and litigators — February 11, 2007 @ 4:10 pm

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