Who was your favorite boss?

If you exclude the array of “bosses” that I had in part-time jobs through college and law school, I have only had five “bosses” in my life – three of whom were at the Cravath law firm. They all had one thing in common. They gave me substantial latitude in performing my work for them. For the last 32 years of my career, I was my own boss (although some of the “bosses” earlier in my career might have asserted that I was always my own boss). That said, the award of “best boss” goes to my first boss at Cravath, Ralph McAfee.

          I met Ralph McAfee in the summer of 1968. He was the first person with whom I interviewed. Ralph was in his mid-fifties and at around 6’3” was an imposing presence. Within the first minute, he obliterated the stereotype of an Ivy League educated Wall Street lawyer with which I had entered the firm’s office. I had known from my review of Martindale Hubbell’s short biographies of all the partners that Ralph had received both his undergraduate and law degrees from Columbia. What had not been disclosed was that McAfee had grown up in a very small Texas town (population less than 1,000) as the son of a preacher and had graced the front page of The New York Times being carted away from a bar fight as the first volunteer in New York City for World War II following Pearl Harbor.

        I discovered later that Ralph had insisted on being the first to interview me. I was told by another partner – Ralph’s protégé in his late thirties – that McAfee had read two of my comments in the Tennessee Law Review. (A comment in a law review is an essay in which the author addresses an area of the law positing some view as to how the issue covered has been dealt with by case decisions and how it should be resolved in the future.) Based on his review, Ralph had arranged with the recruiting partner to be the first to interview because he believed I was “a born litigator who wrote as convincingly as any ‘kid’ from Harvard or Yale law.”

         After about five minutes of “chit-chat” in our interview, Ralph launched into a summary of a case he was about to try in Buffalo, New York. The Justice Department was suing Bethlehem Steel for discrimination against blacks in violation of the Civil Rights Act of 1964 by assigning them primarily to the lowest hourly paying jobs in the Coke Ovens and Blast Furnace. He laughed when my response was to express curiosity at what possible defense his team had come up with. I asked why he laughed and he said he would tell me, but only after he heard my reason for skepticism that there might be a defense. I responded that I would bet a lot of money that, if you reviewed the hiring practices of most U.S. companies, you would be able to prove some form a systemic discrimination – not because of some evil intent on the part of employers, but because of the nature of a workforce impacted by differences inherent in our society between blacks and whites from the lower middle class and poor economic strata – the probable potential workforce for a steel mill.

         McAfee responded that his advice to the Board of Directors of the company was that it settle for precisely the reason I was trying so inartfully to articulate. The company had agreed and a settlement involving substantial “affirmative action” by the company had been agreed to by the Justice Department. The union, however, had refused to agree and without the union’s agreement there was no way to do anything other than try the case. The inevitable loss in the upcoming trial would lead to a Court judgment to which the union could not object. McAfee had won me over in 20 minutes. If offered a job by the firm, there was no question with respect to my acceptance.

          Looking back, there were far too many important interactions between us through the years to relate here. Previous chapters probably have caught some of our golfing episodes. There were many of those. However, there are three episodes relating to work that are representative of McAfee’s importance to my development as a litigator. I will add a couple of episodes I recall with a wry smile.

          Within the first 2-3 months of my employment, I was called into McAfee’s office. He held a legal memorandum that I had written and spent the first 4-5 minutes profanely criticizing my work. At some point I began to laugh. He asked why. I explained that I was not God’s gift to the world as a legal scholar, but that I was confident that what I had written was not nearly as bad as he was making it out to be. Accordingly, I assumed that both the tone and the nature of the criticism was his way of giving me a halftime speech propelling me to improve my game. He launched into attack mode somewhere muttering that I was a “f__khead” and instructing me to rewrite  the memo consistent with his muttered, incoherent objections.

        When I relayed the episode to one of the more experienced non-partners in the firm, I was informed that reaching the level of “shithead” was a sign that McAfee liked you but it usually took years to reach that level with him. He was unaware of anyone that had achieved the higher level that I had achieved in so little time. Ralph’s unexpressed affection for me began to show when he invited me to play golf at Sleepy Hollow that summer.

            After about a year and a half, I asked for a short meeting with Ralph. I explained that  although I was confident I would be fairly judged with respect to partnership, the odds were not favorable and I needed to be prepared to sell my services. I had observed that not one of the associates had appeared in court, either to argue a motion or try a case. I did not see why anyone would hire me 5-6 years from the time of our meeting with no courtroom experience. I may have addressed this meeting in an earlier chapter, but McAfee’s reaction was to assign around thirty cases to me with a note stating: “No one of these cases is worth more than five minutes of my time. Use your five minutes to report (1) you won the case, (2) you settled the case in a manner that left the client happy, or (3) you are resigning because you are incompetent.

            Those cases had me in courtrooms for at least three trials and scores of motion arguments before the courts. McAfee’s faith in me provided the environment for me make my mistakes early and to develop the confidence I needed later in courtrooms throughout the U.S. when faced with more complicated cases of much greater significance to my clients.

          Near the end of my assignment to McAfee, I was called to report to Judge Bromley’s office. Judge Bromley was widely viewed as the “Dean of Wall Street lawyers.” He was in his mid-seventies at the time having been exempted from the partnership requirement of retirement at age 70. I am sure I mentioned him in an earlier chapter regarding my interview with the firm, where he cinched the deal in my heart.

          I walked in to Bromley’s office to find McAfee (Bromley’s protégé) and Tom Barr (McAfee’s protégé and currently heading the defense of IBM in several courtrooms). A significant client of the firm had clearly violated New York law and I was being tasked with cobbling up a defense. I recall this meeting primarily because of the delight I took at watching McAfee deference to Judge Bromley. All his gruff criticism was left at Bromley’s doorstep. All I witnessed was obsequiousness in the presence of a truly brilliant and entertaining man. It also did not escape my attention that Barr was just as cowed in the presence of both men.

             By the time I was observing this wonderful show, I knew that these three men were the only partners to ever try a case. None of the five other partners were trusted with the chaos of a trial where you actually lose and thereby embarrass the firm. Each was roughly twenty years younger than the other, whereas I was only ten years younger than Barr. While I had the theoretically impossible task of erecting a plausible defense to acts that clearly violated a statute, I could not get too excited in their presence. There was not enough of an age gap with Barr for me to be the next “courtroom” partner.

          I was given 48 hours to find a solution. I worked without sleep and came up with a French Law concept – not followed anywhere in the U.S. except Louisiana – that a law that goes unenforced for a sufficient period of time loses its vitality as a law. I cloaked it in a due process of law robe in order to assert that, while the law when passed was appropriate, the failure to enforce it over a significant period made it unconstitutional to enforce given our constitutional right to due process of law.

          I turned it in and waited to be fired for incompetence. Instead, I discovered why Judge Bromley was so beloved. For three straight days, Bromley dropped a case book earmarked to a case and asked me to read it and come to see him. In each case, I reported to him that I had considered the theory presented by that case and had rejected it as noted in a particular footnote in my memo. With the third such response, Judge Bromley raised his voice for the first time in my presence and said, “God damn it, Davis. Footnotes are for bullshit academic works. When arguing to a court, address everything in the damn text so the reader is aware why arguments that appear better than the one you are making are not.” I nodded my understanding and as I was leaving the room Bromley added, “And by the way, brilliant job – but don’t tell McAfee or Barr I said so.”

          In my fifth year at the firm, I was working for my second “boss” at the firm. Because the IBM antitrust litigation had pulled about 75% of the litigators, I was in high demand by corporate partners with clients facing securities fraud litigation. I had completed one case for PriceWaterhouse and was in the midst of another as lead associate. I was lead associate in 4-5 other securities fraud cases on behalf of the corporate client who issued the securities, or the investment banker client who had handled the securities offering finance.

          McAfee claimed an emergency need for me to handle a major deposition in a case being brought against a subsidiary of the Royal Dutch Shell Company by the State of New York. He claimed that the senior associate in the case was going to be out of town carrying out responsibilities that were important and could not be delayed. It turned out to be a guise to pull me in for the trial which was scheduled to start in three months.

         Two weeks before the trial, McAfee announced that he was taking a ten-day vacation. When I pointed out that there two pretrials before the Court scheduled during his vacation, he informed me that I should handle them and that the client had agreed to my trying the case. (I had successfully tried a $6 million case and handled two or three other smaller cases for this client when McAfee deluged me with the 30 plus cases.) I was surprised that the client agreed to my trying the case since it was first page news in The New York Times and Wall Street Journal. There had been a significant oil shortage in the early seventies and the Attorney General of New York sued various oil companies claiming the shortage were artificially manufactured to allow price gauging. Ours was going to be the first to hit the courtrooms.

          On the first day of trial, the judge called us up to the bench to ask if there had been any settlement discussion. The assistant attorney general responded that there had been. The judge asked why it had failed. The assistant attorney general said that I approached him “to provide the Attorney General an opportunity to save face by settling the case before I kicked his ass in public for seeking publicity before the next election by bringing a completely baseless claim.”

          The judge asked why the talks failed. I explained that I had assured the State that my client would accept a compromise ending the case – although I had not yet checked with the client – in which it agreed (1) to provide the State with information that it already provided the Federal government regarding oil availability and (2) to offer for sale home heating oil in June rather than in September – the State alleged that Shell kept the home heating oil in tanks in New Jersey during the summer (when prices were lower) rather than offering it for sale at the time).

          The judge asked how I was so sure that my client would agree. I responded that Shell knew what everybody except the Attorney General knew – none of the businesses that buy the home heating oil from Shell and then sell it to the public have facilities for storing the product. Accordingly, Shell could offer to sell it in June, but none of the local buyers would purchase any of it because they could not store it until public demand for it began to arise in the colder months of the year.

          The judge then asked the assistant attorney general why he had not accepted the offer. His reply was that we refused to pay a fine in the amount of $10,000. Before I could respond, the judge blurted out, “How could you demand a fine or penalty? Shell did nothing wrong. Go back to your tables while I recess to call the Attorney General and hear his explanation for this debacle.”

        At our table, we asked if the bench conversation could be heard. My concern was that the front row of seats in the gallery were occupied by news people. The only reason I had given the State a chance to settle was so the news reports would not humiliate the Attorney General by explaining that the lawsuit had achieved nothing on behalf of the people of New York because the very premise of the lawsuit was nonsense – but nonsense that most of the public would not divine because what should be common knowledge was not.

           People tend to read or hear a news report and stop there. Very few read such a story; pause to think about it; check how home heating oil is distributed; learn that the middlemen who supply the oil to the consumer lack tanks for storage of reserves; and accordingly, middlemen cannot purchase home heating oil until the middle of fall in New York – when consumers quickly take it off their hands. Today, Google makes such research quickly available, but I doubt that most people are sufficiently curious to utilize it.

           In the ride back to the office after the judge had called us into chambers to hear the Attorney General accept our offer without any financial penalty, McAfee pointed out that it was unethical for me to make a settlement offer without consulting the client. I pointed out that I had not made the offer. I had told the State that it had to come to me and make the offer. I was clear that my client had not approved such a settlement, but I believed if the State made the offer my client would accept.

           When Ralph responded that I was making a distinction without a difference, the client’s general counsel (who was riding with us) interjected, “Quit pulling his chain Ralph. Let’s celebrate the win.” Later, back in the office, McAfee talked about trials being for the young and energetic with nerves for dealing with the uncontrollable and that he had realized that he was no longer up to it. I laughed and said, “Bullshit! You knew that this trial was a piece of cake and you were just handing me a gift for letting you win bets at golf.” I may have been right, but in fact Ralph never tried another case although he continued to handle significant cases until his death.

          I believe that, because Ralph allowed me significant discretion as I developed my skills, such as they were. When I became the boss, I provided the same latitude to young lawyers. I hope Ralph McAfee enjoyed observing the fruits of his beneficence as much as I did observing the increasing competence of young lawyers in my firm over the years.

         One last story about Ralph. It had been seven to eight years since I left Cravath. McAfee had passed the age of mandatory retirement at the firm but was being kept on as “counsel” because he was handling a significant litigation for the firm. I received a call from his secretary informing me that Ralph would be in Honolulu for three days two weeks from the call and expected to play golf with me on the third day of his trip.

          I quickly arranged a reason for going to Hawaii related to the big case I was handling there. The day before we were to play golf, I left a message at his hotel noting that I would pick him up for golf at 9 in the morning. For that day, I rented a Lincoln. I arrived at his hotel slightly before nine and stood outside the drivers-side door in navy slacks, a white shirt and black tie, a blue blazer, and a tam (with my golf shirt and shorts underneath). He approached me in his bright red shorts (forever his golfing attire choice) and a white golf shirt. He simply smiled when I took his clubs and put them in the trunk. When I entered the car with a greeting, “Good morning, Mr. McAfee. How has your visit been so far?” Ralph laughed and responded, “Take me to the golf course, f__khead.” He died of a heart attack on a plane traveling from Seattle to New York City three weeks later.

Post Views : 14