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Transcript on deposit at The Southern Historical Collection, The Louis Round Wilson Library
Citation of this interview should be as follows:
“Interview C-0092, in
the Southern Oral History Program Collection #4007,
Southern Historical
Collection, The Wilson Library,
University of North Carolina at Chapel
Hill”
Ellen Gerber grew up in Brooklyn, New York, during the 1930s and 1940s in what she describes as a "typical middle-class Jewish American" family. Gerber explains that she was influenced by liberal politics and the expectation that she would have a career despite her gender. In the 1960s, Gerber received a doctorate in physical education and spent a number of years teaching in northern colleges and writing books about the history of physical education and women in sports. In 1972, following the passage of Title IX, she toured college campuses to speak about implementing this measure for women's athletics. In so doing, she became increasingly convinced that legal change offered the most viable route for achieving gender equality, and in 1974 she enrolled in the School of Law at the University of North Carolina at Chapel Hill. Gerber describes what it was like to be an "older" woman in law school during the mid-1970s and talks about her goals to help women with her law degree. Following her graduation, Gerber was hired by Legal Aid, where she worked for fifteen years before retiring. She describes how her own role evolved in Legal Aid after she became the managing attorney in 1980, and she discusses the impact of federal budgeting on legal service for the poor in North Carolina under the administrations of Richard Nixon, Jimmy Carter, Ronald Reagan, and George Bush. In addition, Gerber speaks at length about women's issues, ranging from her own motivations for advocating for women's equality and her participation in such organizations as the North Carolina Association for Women Attorneys.
Originally from Brooklyn, New York, Ellen Gerber received her doctorate in physical education and taught in northern colleges before attending the School of Law at the University of North Carolina during the mid-1970s. After her graduation, she accepted a job with Legal Aid. She describes her careers in physical education and law and discusses in detail her advocacy of women's issues.
[START OF TAPE 1, SIDE A]
Good morning! It's February 18th, 1992. I'm Kristen Gislason of the University of North Carolina School of Law, and I'll be interviewing Ellen Gerber of High Point.
All right, it's moving. It's doing something.
Well, we have to start off with background information, so do you want to just take it from there, where you were born, what your parents did for a living, and siblings, family life.
I was born and brought up in New York City. My parents were both public school teachers, and I had a very conventional middle-class Jewish childhood. I think the only thing's that's remarkable in retrospect is that with both of my parents teaching, they both as Jewish families tend to do, helped in the housework. My father did his share, just as much as, again, Jewish men do. And so I grew up not even knowing what the proper role of women was in life. I grew up being expected to go to college, being expected to have a career, and this was, you know, I was born in '36 so, you know, that is remarkable.
That is, that is. My parents aren't that much, I mean they're in your generation and I know my mom was not that encouraged to pursue a career, but I was expected to.
I was expected to. My mother worked, and of course it didn't occur to anybody that that wasn't just part of life. I went to college in Boston, Boston University, at this point it was called Sargent College which is the school of Physical Education, and I became a physical educator.
Were you involved in sports when you were in high school?
Some, some, yeah. I, ah, you know it was just a weird choice for me you know when I look back on it. My father wanted me to be a lawyer but at that time I didn't want to be. And so I became, when I graduated from Sargent College I began teaching at the University of Pittsburgh, so my first job was at the college level.
Physical education?
Physical education at the college level. And I did that for about 17 years at various colleges and universities. Along the way I got a PhD, a masters in English and a PhD in …
Right, yes, right, in sport, the history of sport and the philosophy of sport. And so I worked in that area for all those years. I had one break in that time and that is I went to Israel and lived in Israel. When I went I went with the possible intention of living there forever.
What year was this?
That was '60-'61. And that was, in those days and probably still today you could go down to the south of the country and see enemy territories to the south, to the north, to the east, literally see three enemies' countries from one spot in the desert.
What prompted you to go over there?
Well, it's a search for your roots, you know. It was the Alex Haley
story, but I was a Jew. It was like, why was it that my grandparents had
bags of sand from the Holy Land that they were to be buried with, you
know. Every year Jews recite a prayer that says next year in Jerusalem,
Did you have any family in Israel?
I had turned out to have a cousin, one cousin. Most of my family, my extended family, was wiped out during the World War II concentration camps. There was one cousin who escaped and went to Israel.
What part of Europe was your family from?
My mother's family came from Hungary and my father's
My grandmother competed internationally in track and field—
And when was that?
In the 30's. She was married and my grandfather was a professional soccer player in Czechoslovakia. Unfortunately, their atheletic genes have not been passed down to me at all.
Well, that's interesting. There was not much going on for women in those
days.
When did they start giving equal money to, you know athletes…
In 1972 Congress passed what was called Title IX, it was an amendment to the Higher Education Act. From '72 to '75 Title IX mandated sexual equality in the school systems, and of course that affected sports more than anything. From '72 to 75 they spent three years wrangling over what the regulations would be, but that department, well, in those days education was in HEW, Health Education and Welfare. And so they spent all that time wrangling, and I knew the woman who was working on that and that whole process, I followed it. When '75 came and the regulations were published and HEW started enforcing that, that is when they began to get equal money. Now, remember, I, from '72 to '73 and a half so to speak, was when I was running around, '74, that I was running around the country. Most of the women in the colleges teaching, who would be doing the coaching and running these sports programs, were opposed to this, to doing it. They were opposed because they had been brought up in an era that said this was no good. And they kept, their main theme song was this is like we don't want to be like the men, we don't want to have our sports programs to be these horribly distorted, overly competitive programs like the men.
Did you find that frustrating, that kind of attitude that you were going to cross, have to in turn battle women who were supposed to be…
Right, ah, I don't think I found it frustrating. I found it, I thought of
it more, I understood where they were coming from, but I felt they
hadn't thought it through carefully, and that's sort of what I was
doing. I would go to a university, they would invite me to make a
speech, I would stay, spend two or three days there, I would often meet
with a department, I'd have a newspaper interview, and I would try to
urge them to see that first of all 90% of men's sports were wonderful. I
mean, you know, what they were picturing were these football teams or
And then I knew there was a story behind there.
And so I, so largely because of my interest in the rights of women, which was very strongly a part of my philosophy and way of thinking, and for some other personal reasons, I decided I would go to law school. And so I left physical education and I was on a leave of absence during that time I was doing that speaking, and I left physical education and I started law school at …
And your father was happy.
My father was happy, yes, my father was very happy. So I started in the fall of '74.
How did you choose Carolina?
Well, during all this period starting in 1966 I was living with a friend and sharing her home; and she took a time at UNC-G in '71, and so we moved our home down here.
Did you find it difficult going to law school as a, I imagine you were probably not the only older woman in your class, but …
Well, in my class we were approaching 25%, and I
Well, you're certainly not old.
Well, that's fair. At that time I was only in my mid-30s I guess.
Which is not old, but I think, somebody, I actually believe 24 is the average student.
Well, I wasn't the oldest person in my class; there were a few older people, but yes, but, yes I was amongst the oldest. And no, I did not feel strange doing that. For two reasons. First of all, I liked school. Remember I was an academician so it wasn't as if I had to worry about, "Gee, how am I going to succeed? You know, it's been so many years, is my mind too rusty?" and all of that. I didn't have any of those worries. As a matter of fact, it was completely the reverse. It was such a pleasure to take the time to study and read. You know, I used to say during exam periods … my friend, who is still teaching at UNC-G, she spends that time period grading papers, and grading papers is the most miserable experience you can have. You see totally what a failure you are.
You're right … and what they write is such dribble, and so wrong, and you
see yourself misquoted and misunderstood, and so that's a depressing
experience. And I used to say, gee you're sitting there, you know, I'd
much rather spend an exam week thinking through, organizing my thoughts,
outlining my course materials, learning, you know in order to take
exams, than to be grading them and at the end all you have is depression
and a bunch of letters that you've given out that everybody's going to
be unhappy with, you know. So I sort of like that freedom to go to
school. And I also liked getting up if I was down or tired, so what, I'm
going to sit in the class. As opposed to when you are teaching you have
to get up for that class somehow. So it was much easier for me in many
ways. I commuted between the law school and Jamestown where I was living
at the time. It was a long commute but I didn't have to worry. Basically
I
Did you have a definite goal in mind with Legal Aid, did you know exactly what you wanted to do?
No. Actually I wanted to open what I had in mind as a southern women's law center, and I was going to emphasize women's law. I had this whole vision of it. That changed for a couple of reasons. One of which is, I think every law student must go through this; you suddenly realize there's no way in the world you know how to practice law. And you know you're coming out of law school and you're totally incompetent. And that was even worse for me. That was probably one of the biggest negatives of going back to school and having a second career. You have a certain standard of competence that you expect of yourself; you know you see yourself as a knowledgeable person who knows what to do about things, and suddenly you're an utter idiot and you can't find your way to the court house. You go to the court house to file a complaint and you realize you need two checks, not one check; one for the sheriff and one for the file. And you know, you have a bunch of papers you're carrying with you and you don't know where to take them, you don't know which ones to leave with the clerk and which ones to take back. You know it's one of those sort of stupid little things. But those kinds of trivial things bother me, and so I, I, you know, I tell new students as they come out now because I've had a lot of dealings with law students over the years in the clinic programs; you will not feel competent for at least two to three years, so don't worry about it. You know, you have to accept it, you're not going to. And so that's easier for a 24-year-old who has never had a job. It's much harder for an older person who really hates feeling stupid.
Were you involved in the clinic program at Carolina?
I was involved in helping to get a clinic program —
Oh, I see.
I was amongst the group of rebellious students that
Why were they opposed?
Well, they just didn't believe; the major reason was they didn't believe in a clinical program. Now you have to understand this was before Dean Broun, this was when Dean Byrd, and he was not in favor of it. And there was in those days a faculty alliance between Dean Byrd and Dan Dobbs, who was a fine torts professor and remedies professor and had been around a while, very intelligent.
He wrote the textbook.
Also wrote the textbook and was a very intelligent man and very close to Dean Byrd because he too taught torts, and they were very close. And they just were opposed. On the, again on the grounds law school was the place where you learned and studied the scholarly aspects of the law. And not learned the practitioners' way of doing …
Getting back to the competency — it seems just like clinic would be the most obvious way to get that experience.
Ahm, yes, it should have been. But they were worried. They had Duke in
mind. And they were worried, that was the model of a law school. Oddly
enough Duke had a clinic thing. But they were not the kind of clinic I'm
talking about, they had a different sort, but they, they were looking to
make a law school second to none intellectually. And they, to them the
clinical part, and to them, to everybody, to this day clinical programs
are the stepchild of a law school. I mean, you know, you're probably not
aware of this because it wouldn't concern you, but you know most
clinical faculty are not tenure track faculty. They're treated like
second-rate faculty. And I recognize this because that's how physical
educators are looked at by the university. Clinical experience is the
practical side; that's not the real life of the university. And so
that's where the
He left while you were there?
He left when I graduated, that year I graduated, and never came back.
What do you think helped bring it about?
I left, I graduated in '77 and I think it was formed in either '78 or '79. The change in the law school, Ken Broun became the dean sometime about then and he was a big clinic supporter, and that was probably what brought on the whole change.
What other classes did you, or what things did you enjoy to …
I did take trial advocacy, yes. That was one of the first years that they
had it and that was excellent; it was really a wonderful course. And I
had Ken Broun for evidence. And that was just a treat, really a treat.
Unfortunately Dan Pollitt was on leave my second year, which is the year
you get to have him if you're going to have him for a course on labor
and common law, and so I got to my third year and I had already had
those courses, and I had no way to have a class with him, and so then I
asked him if I could do an independent study with him, because I knew he
was the one professor in the law school I really would like to know. And
he at that time had come back and he was getting all these requests from
prisoners for some assistance. And he said what you can do is, you can
answer these
The other thing was, Susan Lewis; do you know her? She came to the law school as a faculty member the same year I started. She had graduated from the University of Texas two or three years earlier, and she taught contracts and family law, because of course you had to give the woman the family law course when there weren't very many on the faculty at the time. And I was her research assistant my second year when I did a research scholarship or something. So I wrote memos on family law for the next couple years. And that was helpful to me in learning that area of the law. And I had thought that's what I wanted to do because I was so interested in women and those issues; but when I came out and started to practice I realized what a miserable area of the law that is.
We've already found that out.
Well, there are no winners, there are sort of only losers. You know, if you have a couple and they're living together and they have children and they're going to divorce, by definition they're going to be worse off economically. Your children are going to be worse off, separated — I mean emotionally they may feel happy because they have finally separated from each other and they don't want to be there, but basically …
It's not a positive experience.
That's not a positive experience in any way, and even if the guy is a
drunk and violent bum, you recognize that
Was there a consumer law class at the time?
No.
That's one of those classes of the 90s.
That's one of those classes of the 90s. I didn't even know you had one. Yeah, consumer law was always a stepchild. You have to understand that law schools go by what the Bar tests, and that was even more so in the 70s.
Did you feel obligated to take, I found myself last semester taking a lot of classes that were on the Bar, and …
Sure, you have to take the Bar courses. I waited till my third year to
take most of those for what I thought was a smart reason, that if I was
taking them so I could pass the Bar, I should take them as close to the
Bar as possible, and so I took most of those courses in the third year
and passed. As it turns out, the UCC course that we had, which was the
hardest and most miserable course in law school, turned out to be the
most valuable one. And the one professor I have ever called at the law
school for assistance, and I still do to this day, is Don Clifford,
because the UCC informs all of consumer law and when you take it you say
I'm not interested in this at all because who cares about commercial
law, who cares about how these widgets are sold and not sold, and
whether the bills of lading are whatever, and you know whatever is in
the UCC, and so it's hard to understand to begin with but you're totally
uninterested in it
What did you do in the summertimes between those school years; did you do research?
No, I was very fortunate that because I did have a reputation in physical education, I was invited each summer to teach at various campuses. So one summer I taught at the University of Texas at Austin, and one summer at the University of Houston, and some of these were concurrent, like I would do two places in one summer. I taught at the University of Minnesota, the University of Iowa, and up in Strasbourg, PA. So I did that and I was able to earn enough money to fund my way through law school. Because even though tuition was next to nothing at Chapel Hill, I still had to pay my share of living expenses, so I was very fortunate. So I did that, I therefore had just about no practical experience; I mean I had hardly been inside a law office when I graduated. That did not add to my confidence.
So when graduation rolled around did you have a legal …
A job?
Those are questions people are asking now with the recession and everything.
Right. No, I actually didn't have a job when graduation rolled around. I had a job interview the day after graduation, which was the job I got eventually. But I did not have a job.
The legal aid position?
Yes, I had applied for that in December; well, in December they had
posted it, and it was, oh gosh. It was April probably before they even
got around to it. What they did was send someone to the law school who
interviewed 20 people or whatever, went around to two or three law
schools, and I was
Did you do the big firm interviewing?
I did the big firm interviewing on campus. It was clear to me that they didn't want me, and I didn't want them. Now one of the reasons they didn't want me, was because in those days those firms still were not hiring women very much. If they had one woman, they thought they had done their duty. They had no blacks and one woman per large firm. And the one woman they would hire would be young and cute, not an old lady who was a former physical educator and who boldly proclaimed on her resumé women in law, women's rights, and so forth. And I must have had enough …
Spelled trouble to them -
Right, spelled trouble to them and at every interview virtually they
would say things like, "Well, now, some of our clients we represent are
employers. Suppose some women sued these employers, our clients, on a
Title VII law suit? Could you represent the employer?" And I would say,
"Of course I could; if they were my client I would do what I had to do."
And this went on for months it seemed like, and finally I said to
myself, what am I doing? I didn't go to law school to sell out my
sisters. Why am I saying this? As if I want jobs with these firms that,
where I'm going to wind up representing the employers in a Title VII
suit. This is ridiculous. You know, so I sort of, you know, I was very
depressed about the whole thing. I was wondering how am I going to get a
job, how is this going to work out, you know I've gone through this big
career turnabout and maybe it's not going to work. And then, as I said,
I got, I finally had this interview and it was probably not until April
when they came to the law school and the director of the office, a
senior attorney,
Did you know anything about them?
Really, very little, practically nothing. Today I couldn't have gotten it. We wouldn't hire somebody like that. We would expect someone to have demonstrated commitment to the poor, but in those days, you know people weren't so eager to work for legal services. And I, the pay was not very good; but anyway, I just knew this was the kind of work for me, and I was right. So, fortunately, so what I did is then after that short little interview, I used all the skill and knowledge that I had about how employment works because you remember I had had plenty of experience on the other end of it and I knew about things like that. And I did everything that would have pleased me to get that job, you know, writing, sending things. That's one of the famous, I was telling Dan Pollitt about this interview and how I wanted that job, and he said, "Oh, I know Thorns" (Craig, that was the director of the office), and he said, "Here, I'll write him." He took a piece of paper out and he wrote: "Thorns, hire the bearer of this note. Dan Pollitt."
That's a Pollitt maneuver.
Isn't that a Pollitt maneuver?
So were you offered the position right after the graduation?
No, no, and what happened is I had the interview and then I, then after
that I went up north to Ithaca and along the
Did you take the Bar that summer?
Took the Bar that summer.
So when did you begin work?
In August. End of August, middle of August.
Was it overwhelming at first, I mean since you did not have that much practical legal experience?
Oh, terrible. Just terrible. As I said, you know, you feel so incompetent. So unable to deal with whatever it is. I knew nothing. I mean it was just amazing. I mean because you study for the Bar, and you take the Bar review course, and that doesn't teach you anything, and I didn't take the practical skills course. As you know in the big firms they pay for those; that course is very expensive. I now teach the practical skills course and have for the last several years. But at the time, you know, I hadn't taken it, so I knew nothing. But my colleagues at Legal Aid were wonderful and they understood that. They had gone through it themselves and they were very helpful.
What about the other people that were hired in your class? I mean the other attorneys that were hired at the same time; had they had it?
In my office?
Right.
I was the last. There was one other that started work the same time I
did. And he, as it turns out, was a Brooklyn boy, another Jew who had
gone to Rutgers. And he had had a career in city planning, a masters in
city planning and a career in city planning and again was a little
older. We became like
Oh, how long had it been since you'd seen him?
I see him from time to time, you know.
Sounds like a nice surprise.
it was a nice surprise, you know. But, anyway, so he and I started together with the same lack of experience, but he was a very bright guy. We stumbled through things together. That helped to have somebody else who was sort of similarly situated.
What kinds of assignments were you given, I mean initially, the first few months there?
Well, the way our office worked, you sat down and, about every two weeks,
and did what we called intake, and it still works that way. And they
interview clients on a first-come first-served basis, maybe you would
see 17-20 people in a day. And then with the help of the group you make
some sort of group decisions and some individual decisions. You might
take five to six cases out of that. And they will be your cases. So
whatever the areas were that we covered, if you took the case it was
yours. Now in the first couple of intakes that I did, someone sat with
me and assisted me. After that I was on my own. And you know you could
get help by going around the office and saying, can you help me on this,
can you show me how to do this? For example, we had a man in the office
who had graduated Carolina a couple years before me; his name was Jim
Gulick, and he is now the Assistant Attorney General who heads the
Consumer Affairs division, and he knew a lot about consumer law even
then, and you know, I would go to him about consumer cases, go to
somebody else about some other kind of cases. So I got help in doing
them. And in that first intake, the first case that came in the door was
a juvenile driving, some kind of driving problem case. And I tried that
little trial to a judge, and in fact the
Right before, last day before you retired, oh.
Last day, that's right. And that was almost 15 years later. And the second case I had that day turned out to be my first jury trial. So I had a jury trial the next summer, within one year of working, and that was my first jury trial. It was pretty exciting to do those things.
Did you get a real high off going - I mean, I know you're a very well respected trial attorney. I mean, what was it about that trial that…
Oh, jury trials are the cream, is the cherry, the cream and everything else.
That scares me to death!
Well, you know, it is scary. And it's not for everybody. I mean if you
don't like to think on your feet and if you don't like to, if you're not
liking to be confrontational, then there are other aspects of the law
that are fine. You can be a negotiator; you know you can negotiate, you
can do a lot of things that don't require this confrontation. But trying
a jury trial is performing. And the first time I got up and started to
voir dire the jury and and I was scared, I mean I was dying. I lost
about eight pounds. You have to understand, I mean it wasn't like it was
duck soup for me. I got up and I asked the jurors a question, and I
remember the question: "Have you ever served on a jury before?" And this
one guy raises his hand, and he must have been about 75 years old, and
you are taught the follow-up question is "What kind of case was it,
civil or criminal?" You know, you're trying to find out if they went for
the plaintiff or not, because if you're representing the plaintiff you
certainly don't want people who served on a jury recently and who have
found for the defendant, right? So I looked at him and he said, I asked
him that question, and he said, "I don't remember; it was so long ago."
And a quip came to
Oh, by the way, I wore then and I still do to this day, pants. I've always worn pants in court, every place. I have not worn a skirt but once in 20 years. And so there I was, not only the New York Yankee Jew but I was in pants, in 1977; 78 was this jury trial. And it worked. And I won. And then I knew I could be myself and do, and that that was part, that would be part of my success in being a lawyer. I didn't have to be somebody else. And so that was wonderful, and that was very, very freeing. And after that, juries, like I say, they're like performing, they're like teaching. You know, you work, you're literally teaching the jury. You're teaching them about the case, about the law, and I've developed a style and taught it to the people in my office, of being a teacher. And so, in our voir dires, for instance, you always do a voir dire that's aimed more at teaching the juries about the law and about the case than it is at weeding out people. Because, weeding out, you can't do a whole lot. I mean you're not talking about million dollar cases where you have jury panels and experts.
How much latitude are you usually given with a potential jury?
Depends on the judge. But what I've been saying to trial ad groups, if
you don't get objections, you haven't asked enough questions, you know.
There's no reason not to go right up, tiptoe up to the line and if you
get stepped on, you get stepped on. If you don't, you don't. I don't
think you should ever knowingly ask a question you know is offensive. In
my view,
I had a jury trial once where the real estate agent would go to the courthouse, look up people who were in foreclosure, write them a letter and say, I can help you. And then do something that I now know is an equitable mortgage; say I'll get you a loan, process papers where the house is actually deeded over to the investor and then you supposedly pay the investor back over about 18 months, and then the house is supposed to be deeded back over to you. There is an actual transfer of the property, but the law would regard that as a mortgage. Anyway, I did a voir dire on such a situation, "Did you any of you know that someone could do this? That someone could go to the courthouse and look through the records, find out that you're in trouble and contact you? In other words, your personal business is in this courthouse?"
I didn't know that.
"And it's available to the public. Anybody could walk off the street and
find out this stuff. Did you know that? Did you know that?" And you know
by the time you're finished educating them about how, you know, you've
got them. You've taught them something. People are very fond of people
who teach them something. Jurors respond to learning. They want to.
They're interested in the experience. And so if you teach them, reach
them in that way, you really can connect with them. So I
Were there any particular cases that come to mind that were very, very frustrating, or that you were lost, or you felt that you weren't able to hit the nail on the head, or connect, or whatever, that still to this day just stick in your mind?
Right, well, the most frustrating loss I had was at the Court of Appeals.
And to this day, that just bugs the heck out of me. I feel that I
somehow missed the boat although it was, I, it was also I thought
politically a problem. There is a law called the Consumer Finance Act in
North Carolina. And it allows creditors to charge enormously high
interest, as much as 36%; Sherlock would have been jailed for that; but
36%. The idea of that act was to allow people who were very risky
credit, not creditworthy at all, to borrow money. And so there were high
penalties on the creditor if they didn't get a loan and very strict
regulations within the statute, but it did allow this high interest
rate. Well, at some point along the way, they put a section in that act
called Motor Vehicle Lenders, and they put a maximum interest rate of
16% on motor vehicle lenders within this act. And to me, and to this day
I still believe, the act requires that if you take collateral in a motor
vehicle as the statute points out, you cannot charge more than 16%
interest. And the reason for that is that that's good collateral. So
even if the person isn't creditworthy, the creditor is well protected.
But it doesn't say it explicitly … the Court of Appeals, anyway, I took
a case up to the Court of Appeals. We had won it a summary judgment at
the trial level, and the motor vehicle industry really fought this, and
the Court of Appeals eventually said a creditor lending under this motor
vehicles section can only lend at 16%, but they could lend under a
different section of the statute that allowed 36% interest, and there's
nothing in that other section which is a prior written section that says
that if you lend under this section you can't take motor vehicles as a
collateral. So basically they said a creditor could choose to lend under
this 36% section, take a motor vehicle for
Which they would all do …
Which they would all do then, so that was the end of Motor Vehicle
Lenders. You know, it didn't matter, you know, so I thought that was
ridiculous interpretation, because that rendered nugatory that Motor
Vehicle Lenders section, and the legislature couldn't have put it in
there for no purpose. And it was written afterward and they didn't go
back and amend the other one, and it just makes it evident, self-evident
it seemed to me, that if you took motor vehicle out, it said so in the
statute, you were limited by the 16%. But the Court of Appeals disagreed
and the Supreme Court refused to take review, which is probably the next
most frustrating aspect of the law. The Supreme Court does not review
very many civil cases. And they can't. I understand their case loads are
so huge; but that means if the Court of Appeals rules wrongly, you don't
have another shot with a civil case of getting it overturned, because
you can't get review. So sometimes that has happened to us. But the most
frustrating is this one case, it is called Riddle v.
Barclays American, and it's annotated in the statutes. And it's
a terrible case.
What about a bad client, or a good client?
Well, this equitable mortgage circumstance I was telling you about, I had
one of those cases where I got my client back all the money, you know,
back about $18,000 and that went all the way up to the Supreme Court.
And in the process, we also had to pierce the corporate veil, and that
issue was the issue the Supreme Court considered, that was in Glenn v. Wagner, and they came up with a decision that
made us one of the most liberal states in piercing the corporate veil.
It was a terrific decision on that issue. That was my case and it was
kind of fun to have a Legal Aid case be the piercing the corporate veil
case.
Would you say that most of your cases help individuals resolve their small problems, or were they usually more broad cases that affected…
Well the cases …
[END OF TAPE 1, SIDE A]
[START OF TAPE 1, SIDE B]
Collectively I have in my office a number of cases in the area of landlord-tenant law. In 1977 the legislature passed the Residential Rental Agreement Act, Chapter 42, and that was the year, remember, I started practicing law. And so since then we have developed the law in that area, and of the, oh I don't know, six or eight or so published opinions on Chapter 42, most of them, not all, but several of them come from our office. Some of them were my personal cases. Now that collectively we've established a good interpretation. The Court of Appeals has bought our arguments and we've put a great spin on that statute, and we've been, you know I feel as if I have made a real contribution in helping to have that statute become a very important and strong tool for the tenants.
Prior to that time there was no warrant of habitability in this state. A case, also out of our office as it happens, had established that, you know the great Washington, DC case that everybody learns about in law school, Judge Skelly Wright's case; you know that just wasn't so in North Carolina. And so until the legislature enacted Chapter 42 there wasn't any warrant of habitability. The rain could come in on the tenant's goods in the middle of the house and the tenant had no right to require repair. And so, you know, I think that's probably one of the biggest impact type thing we've done.
The other statute that was passed then in 1977 was the unfair debt
collection act statute. We, again, we had a number of cases, not so much
at the Court of Appeals level, although we've got one right now waiting
for a decision, hasn't been argued, but we've used that a lot in cases
and managed to leverage very, very good negotiated settlements. And
sometimes the trial court wins on using that statute which has now a
$2000 statutory penalty. Those are, those are two areas that were, you
know, virgin when I started practicing because the legislature
How did Legal Aid grow while you were, over the 15 years that you were…
Our office or as an institution?
Both.
Well, let me start with our office. In 1980 I became the managing attorney. Now, at that time we hadn't had one. We had somebody who was a litigation coordinator and he had not done that good of a job because of his personality; he left. And then nobody wanted any leader, any boss to supervise their case. Everybody was doing their cases, walking around and saying give me some help here or there to their colleagues, but there was no effective system for supervising.
Did your colleagues come to you and appoint you, or did see a need and fill it?
Well, what happened is we had a fellow there who was going to take
another job, and he was made the managing attorney briefly, sort of a
half-time position. And he held it for about a half a year or so, and
then he left anyway, a year maybe. And he was a black fellow and at that
time we had a lot of racial tension in the office and he was wonderful
at resolving that and getting us all together; again you're talking
about the end of the '70s and there were a lot of issues going on. And
then so the office said, well we want to have a managing attorney; we
like that, that worked well and we want to have one. And people urged me
to apply. And we had an affirmative action plan that required the office
to consider women or minority applicants internally, and if they took
one, fine. If not, then they had to advertise the position, which meant
that males or white males could not apply for the position internally.
So I was urged by my colleagues to apply. My first instinct was no. I
don't want to, I don't want to get it this way. If I get it I want to …
and I really wasn't ready for that. I had only been active eight
As manager
As manager. And so at first my colleagues were people who were my colleagues. So it was a very soft approach. And as they left and I helped to hire people - our office hired people very democratically, and new attorneys would come in and I took on the role of supervisor. And within a few years I had developed a very strong supervision system in the office. And over the next decade I developed a system where I supervised every case. And I mean by that that every pleading that left that office had crossed my desk — I mean every pleading. That includes sometimes a 20-page; a 20-page package of discovery, interrogatories, request to admit, request to produce. It includes all briefs. It includes all complaints and answers, counterclaims, case strategizing. I worked on every case in that office; I supervised them. And I feel it was successful because after a while I never had to urge people to come to me. Even to this day I've retired and I went to the office and they said, "Oh, you're here, could you sit down with me and strategize on this case?"
I see, so it's like old times …
"Could you look at this pleading that I've written?" And people want that
help; you need it. And as I was finally saying to sort of more senior
people who might feel, hey I don't need to have somebody looking over my
pleadings, I am gonna submit everything I write to someone else. The
only difference is I have to go find someone in the office who will look
at them, whereas you have as a right somebody, and whom you're not
bothering. And so I became a full-time managing attorney although I
maintained a caseload, a small caseload over the years, and continue to
co-counsel, try cases and do things. For
We have form books that are unbelievable. For example, we have a discovery package. It's divided into one section definitions; you know there might be 100 definitions in there, or whatever, because nowadays you have to put a lot in definitions because you can only ask a single question, because you're limited to the number of questions you can ask. And on landlord-tenant law, for example, we have it divided into condition of the unit, the lease agreement, and other sections. There might be 20 questions under each section; maybe 200 landlord-tenant questions. So then when you're doing a case and you want to do discovery, you pick up the dictaphone and say, give me question 2, 5, 9, 11; modify question 12 in the following way; here's one that's not even in there, add it. And you can do a whole thing in 15 minutes that comes out that's 10 pages long, because we have every conceivable thing. What I had to do then was make sure that people didn't go overboard, and so when I would review these things I would have to say, "Why are you asking this question? That's not an issue in this case." You know, I had to teach people that even if a question sounded good you still had to keep them focused on the case.
But then I did the same thing with pleadings, just pages and paragraphs
of pleadings. And you just have to pick'em. Pick the issues: I have
facts, I have defenses, I have counterclaims, and each one has case and
statutory citings, all divided by category, prayer for relief, the whole
thing is in there. Now what that, what that does is first of all it sets
a standard and allows people to trace things and do things at a pretty
high and consistent level. Second, it reminds people of things they
might have forgotten as they're working on a pleading. They say, oh
yeah, that's an issue here I hadn't even thought about that. It sort of
jogs their memory. Third, as a supervisor it saved me a lot of time
because I didn't have to work on that rewriting, grammar, you know,
awkwardness. And so when someone is creating
And again, remember, Legal Aid often has new lawyers. You get a fair amount of turnover, although in our office less than a lot of places. But even experienced lawyers, they may not have worked on this kind of case or that kind of case. So by having these "go by's", it's sort of taking these "go by's" to a higher level and putting them altogether in some organized fashion. By everyone having this on their desk, they were practicing on a higher level and focusing on the substance rather than "how do you do this, how do you say this?" And it's like, you know, it's like computers in public schools; it frees the teacher, it doesn't replace the teacher, it just frees the teacher to concentrate on what she needs to be concentrating on. And that's what these form books do, and I developed them for the office. My God, they have three of them; by the time I left each one more monstrous than the next. But you know, our office grew. And that way we were able to focus on litigating. And everybody, I liked jury trial so then we would, everyone would get onto jury trials. And, that's, in our office we kept hearing, all you care about is when we're doing our first jury trials. Everybody's scared to death of it, but it's one of those things that one should do to see how much fun it is. And when we do do a jury trial, everybody comes down and watches and cheers you on and learns, and people say "I wanted to see cause I've got one on the calendar next month, I want to see how you do that voir dire, see how you do that opening argument."
What type of people when you are about to hire do you look for?
Well, first of all we look for people who have a dedicated and demonstrated commitment to the court and nowadays that means we look for people who have either worked in a clinic or did some things for the poor or worked for organizations, you know something that shows that you care, that you just don't want this job because your girlfriend lives in Winston-Salem…
Or it looks good on a resume.
Right. Secondly, we look to people who are well recommended by people we know. I wouldn't think of hiring someone who went to Carolina without talking to Dan Pollit, for example, and you now, Dan Pollit over the years has been very candid, you know about, this person is not for you, good person, lovely, not for you, not up to your standards. Walter Bennett, Alice Ratliff, those are people we know, and you know these are people we trust. And if they come here from the law schools in this state, its easy enough to find that, we've got a connection. We try to find to find people who has had some prior legal service and experience, during the summer or in a clinic situation or as a volunteer. You know if someone is applying from Wake Forest, for example, and we've never seen that person, never seen them, they never showed up, they never called our office to volunteer, we hire summer clerk, I am very skeptical. If you're so dedicated to legal services, why didn't we see you in three years? So we look for people who have shown a commitment either to the clinic or coming to us.
You said that there is a high turnover rate, do you know what that is attributed to? Is it easy to burn out?
Well, in some offices that's what it is, burn out, not our office, our
office is real careful about that for the most part. I think the real
reason there is a high turnover, there are two basic reasons. First of
all, everybody who is coming, pretty much, is taking their first job,
and people don't stay in their first job forever. You know there is no
reason to beat yourself over the head, you know about, why are we
failing to hold on to these people. It's natural to move on, and its
particularly natural if their first job is a job that pays less than
other jobs and that has no basic promotions because in most offices
there is no place to go but doing more of the same. Now, over the years,
since I became that managing attorney, other offices have had managing
attorneys. They've seen that that's a good system, around the country,
so that's a slot. But that
In 1977, when Jimmy Carter was, in the years leading up to Jimmy Carter's presidency, legal services was in its heyday so to speak. I don't know that you know this, but it became what it is today, the Legal Services Corporation Act, it was literally the last act signed into law by Richard Nixon of all people. It just shows you how far to the right the country has moved in some ways, because, in those days, even though Richard Nixon didn't begin to match the conservatism of a Ronald Reagan or George Bush, and you know, there were reasons he was forced into it but regularly never signed it.
But still it got done.
It got done. O.K., so Congress began to mandate at some point in the mid 70's, '76, Congress mandated that there should be access to legal services for the poor for everyone in the United States. So they upped the budget, increased the budget in order to provide for them. They set an arbitrary and very funny figure of $7.00 per poor person. The sort of formula by which they appropriated money. But at any rate, that was Congress' idea, and so at that time then in the late 70's, well, it must have been about '76 or so, that we got legal services in North Carolina. The bar worked on and founded it. So in the late 70's legal services of North Carolina opened offices all over the state under their auspices so that there were the three original offices that had been funded even before the corporation act, under the old OEO, Charlotte, Winston-Salem, the Office of Economic Opportunity and that was under one of the original antipoverty programs and legal services fell under that in the Johnson era. We were and the bars were able to apply and that's how the bars of each of those cities applied for a grant, started a legal services office in their city. So those offices have to this day remained independent in the sense that they are funded directly from Washington.
Legal Services of North Carolina is the fourth grantee of the state, and
it's funded, and then it funds and oversees all
In 1980 when Reagan was in office, Reagan and Meese, collectively and
individually, hated legal services. They hated them because when they
were out in California, trying to do their dirty work in California, and
to cut programs for the poor, legal services, CRLA, California Rural
Legal Assistance, which is what legal services was called out there,
legal services out there fought them bitterly and won in the courts and
prevented them from doing these cuts. And the net result was that they
were implacably opposing legal services when they came to Washington. I
read an interview with Ed Meese in the American
Lawyer and the chief said, in his view, legal services offices were
run by lesbians who used their power to recruit so they could seduce
young women attorneys. That was in print, that's in print. Those guys
were really something. So from Reagan's first budget on, they
recommended zero funding for legal services. When Jimmy Carter left
office, the funding nationally was something around $316,000,000. It was
cut back in 1982 to $277,000,000 nationally. You're talking about
inflation, think of inflation. It just reached in 1991 the level it was
when Jimmy Carter left
In addition to cutting the funding, they also installed in Washington, a
corporation board that was opposed to legal services, hated us. And so
they restaffed the office with people that hated the programs and they
changed their focus, instead of assisting programs by providing training
and publications and you know you'd have a monitor visit, the monitors
would come down and check you out, and they were there to help you, to
make your program better. Under Reagan and now Bush, the monitors were
out to sabotage you, their whole focus was how they could dig up dirt to
hurt you. They never had any helpful suggestions. Just the most awful
stuff like the tax IRS fund while they would pick a program that was
particularly effective, like a farm workers program and they would
monitor them to death, hoping to reduce their effectiveness. They hated
farm workers most of all. This is again the hangover from what
California did against the farm workers. The farm workers are the most
vulnerable minority in this country, this little group of migrant
workers. You know, they were minorities to begin with and secondly
they're "vagrants" in a sense. You know, they have nobody to speak for
them, so legal services all over the country where there are a lot of
farm workers, including North Carolina, is very effective in enforcing
laws that Congress and the states have passed to protect these people,
which always went unenforced because of such difficulty. And legal
services would go to court and have the farm workers plan to be slaves
and that they're not getting the minimum wage. That sort of thing, the
housing doesn't meet the standards of the state, the drinking water
isn't, you know there are all kinds of those things and so if there is
ever a hot spot that the critics focus on is its farm workers. So you
have all that sort of problem going on and in '82, '83 our office, like
every office all over the country, had to face the fact that
How did that affect your office? Did you have a hiring freeze?
A hiring freeze would have been wonderful, that didn't work. In a lot of offices, people quit, Reagan was very, very successful. What happened was the top staff bailed out while the bailing was good, you know they said, "I've got to get a job, this is going down the tubes," and so even though the offices wouldn't have had to cut those staff out necessarily, they left and our ranks were decimated, nationally, of the most experienced people and our back-up all was gone. To this day, you don't get much in the way of regional training, national training anymore. But, what happened is, in our office, for some reason or another, people didn't do that. We have always had a very good office and a very tightknit staff, and they just didn't do that, and so we had a difficult problem, we actually had to fire people, and there was another reason why we had to do that. A lot of offices in the course of this expansion, to provide access to the people, established satellite offices, so, you know, Charlotte has one in Gastonia and, you know, each of these offices, Raleigh has Smithfield, and at some point they had a lot of them, they had more satellites than you see now. So, one of the first ways they could cut back on their budgets was to close the satellite offices. We never had any satellite offices, our director didn't believe in it, he said the people who serve the satellite offices were the youngest, least experienced attorneys and paralegals because nobody wants to be there, one or two people in an office.
What is your territory?
North-West North Carolina. So the satellite offices idea was sort of
poo-pooed in our office and we just provided by going and driving
around. Anyway, so we didn't even have that efficiency, we were
efficient, we were lean and we were hard and we were mean and we didn't
have any place to cut and so the place we had to cut was salaries. You
know, in an office like that 80-85% of your budget is salary. We had to
do what was called,
What if you reduced the level of pay to save money?
No, no we had to lay them off, and in our office, we did something that was unbelievable, we did a paired comparison in each of the categories in which we compared each person with each other person and then basically one, you know you say, as between Lenny and Gwen, who would you retain, as between Gwen and Kristen, as between Kristen and, and you compare each person with each other person, each lawyer with each other lawyer and then, so, you add them up. And then, what we did, we brought in a consultant who did it all, consulted with us, and helped us through that process. That was pretty depressing, but we worked our way through it, we lived through it, and Reagan is gone and Bush, while hostile, is not as hostile, he doesn't have an ideologically negative bent. And with Meese gone from the justice department, it isn't as bad. And then, in the meantime, the Corporation has been unbelievable, they have acted like such fools. They have had one executive after another and one was caught with Twinkies and Spam in his back pocket, he was shoplifting and he was supposedly a respected attorney. And one scandal after another, and, you know, they've tied themselves up in knots up in Washington. They haven't been such a bother.
How do you determine what people are eligible?
Well, of course a client at legal services has to be eligible, meet certain financial criteria, and that's the bottom threshold.
How are they informed about legal services in these civil cases?
That's something the community knows these days. Of course, judges, and
social workers, and even sheriffs will send people, if they don't think
to come on their own. And they come to a legal services office, the
first thing they have to do, they
Really shock them.
Right, and that's the kind of nonsense. But anyway, they pass those laws, as fast as they pass them, we figure a way around them because basically all they can do is say what you can do with your Legal Services Corporation. Because they've been so stingy, because they've been so difficult, we have had to find other sources of funding. Fund raising has become a part of legal services today, it never was when I first started. The state starting two years ago and the legislature has actually appropriated a million dollars for legal services in North Carolina in each of the last three budget cuts and we hope it continues to do so. Now that money has its own restrictions, y