“Adorned usually with nothing more than an ashtray, a pack of Marlboros, and a single yellow pad, the desk of Donald R. Grant was perhaps the tidiest in Boston’s legal community.” So begins today’s obituary for Judge Grant, for whom I clerked from 1981-1982. After a stellar career as a litigator at Ropes & Gray (I was told, not by Judge Grant, that he appeared before the Supreme Judicial Court something like 34 times in his career and didn’t lose once), he was one of the initial six judges appointed to the newly-formed Massachusetts Appeals Court in 1972. He was the court’s workhorse, writing 1,152 decisions in his 16 years on the bench. Each year Judge Grant was usually the first justice on the Appeals Court to dispose of his assigned cases, after which he would lend his analytic skills to help other judges work through their backlog. He was an incisive thinker. Fresh out of law school I came to him with an expansive view of how to use judicial decisions in legal research. If the facts of the decision were analogous then any language in the decision that supported the point I wanted to make was fair game. That didn’t cut it with Judge Grant. I learned from him to define, research, and answer the precise issue presented by the facts. Most legal opinions (particularly at an intermediate appellate court) do not present, and are not intended to present, broad, grand statements of legal principle. They apply existing law to resolve a legal dispute arising from discrete facts and nothing more. In the early days of my clerkship I would sit before Judge Grant’s scarily-neat desk armed with a stack of cases and argue what I had decided was the correct legal answer. An imposing man, over 6 feet, his pale blue eyes would bore into me as I started to explain my analysis. A lit cigarette in his mouth spilling ashes down his blue oxford button-down shirt, he knew where I was going, why my path was wrong, and what questions I needed to resolve to bring my analysis closer to the heart of the matter. He would interrupt me–patiently–lay bare the flaws in my reasoning, and send me back to the stacks. As I left his office he would say something like “look at Commonwealth vs Smith–the SJC decided it in 1973, in April or May. Justice Cutter wrote the decision. The analysis you need begins about six pages in.” I would find Commonwealth vs Smith and locate, six pages in, analysis that was squarely on point. I asked him once why he needed me, since it appeared he knew all of Massachusetts case law by heart. He laughed hard, flicked ashes from his ever-present cigarette, smiled, and looked at me through twinkling blue eyes. He didn’t answer my question. I didn’t ask again.
He wrote in a clean, spare style and was a ruthless editor, to whom everyone deferred because he made their work better. The obituary quotes a former colleague on the bench: “judges who received drafts back from him full of editorial balloons grumbled that Grant would edit “The Lord’s Prayer” if you gave it to him . . . on one draft he wrote ‘I must have spent more time editing this than you spent writing it.'” He was absolute bloody hell for lawyers who appeared for oral argument unprepared. Judge Grant would stop lawyers in mid-sentence with a question that showed he had digested the lawyer’s entire case, reduced it to its essential legal kernel, and cross-indexed that with his encyclopedic knowledge of Massachusetts law. “Tell me, counselor, how you resolve your argument with the SJC’s decision in Parker vs Vallely.” God have mercy if the lawyer could not recall chapter and verse of Parker vs Vallely to Judge Grant’s satisfaction or–far worse–had not cited Parker vs Vallely in his brief. He was about the have the connection between his argument and that case seared into his gray matter. As this unfolded we clerks would wince at the sight of another poor bastard turned into a quivering mass of goo.
Judge Grant terrified the other clerks, but he showed a different face in chambers. He exposed my errors without making me feel stupid. Trying to beat him in argument, to get him to acknowledge that I was right, became a game. I learned how to read a case, how to build an argument, how to look for an issue that tipped the balance. We would argue about anything. If he recalled that the SJC had decided a case in May but they actually decided it in January I let him know that he was wrong. I wasn’t proud: a point for Team Randall was a point for Team Randall. These victories had the life span of soap bubbles. I lived the truth of the statement, “don’t engage in a battle of wits unarmed.” My job was to keep coming at him. Success was measured not by how many times I won, but how many times I tried.
I also saw Judge Grant at his most human. His wife became ill during my clerkship year. Cigarette smoke exacerbated her health problems. Overnight–literally–he went cold turkey from a three-pack-a-day habit. One day he smoked, the next the ashtray was gone from his desk. I never saw him smoke again. His wife died a short while later. A true Yankee in every positive sense of the word, he carried himself with reserved dignity, his eyes only occasionally betraying grief. His actions showed that he wanted me to continue as before, to do my best to keep up with his legal intellect. I tried to keep up and he worked through his grief. We never talked about it, but I felt his appreciation.
I learned then why Judge Grant hired clerks. He could do the job as well and probably faster without us, but we provided sport. He was like a fierce old lion who lets the cubs play with his tail while he basks in the sun. Every so often the lion swats them upside the head to remind them who he is, but there’s no malice in it. He lets them hang around because just maybe, one day, one of these cubs might actually learn something.
It was a privilege to be cuffed around by Justice Donald R. Grant.