Today, we here at Abnormal Use continue our series, “Abnormal Interviews,” in which we conduct brief interviews with law professors, practitioners, and other commentators in the field. For this installment, we turn to Rodney Smolla, lawyer and current President of Furman University right here in Greenville, South Carolina. President Smolla was Dean and Professor of Law at Washington & Lee School of Law before becoming President of Furman in July 2010. We will be running this interview in two parts. The first, published today, was conducted by Stuart Mauney, while the second, to be published tomorrow, was conducted by Frances Zacher. In today’s installment, Smolla talks about civility in the legal profession, tips for appellate lawyers, and his varied First Amendment scholarship and litigation.
ABNORMAL USE: Since you came to Furman University in July of 2010, you have emphasized civilized public discourse. In fact, that was the theme of your speech to the South Carolina Bar Annual Meeting in January 2012. How did that become a passion of yours?
ROD SMOLLA: I guess it’s the flip side of my interest in freedom of speech. Even though I am a strong defender of freedom of speech, which often means defending highly offensive speech, I really don’t like it. So I think part of it is that the notion that has become almost a cliché, but I think should not be a cliché, that the mere fact that we have freedom doesn’t mean we ought to exercise it irresponsibly. There’s a fundamental difference between having freedom and being a responsible member of our society. I think that’s one reason.
Another is what I absorbed as part of the value system of the legal profession. Although we have lawyers that practice in an uncivilized manner and we have episodes of incivility within the profession, overall, there is a strong consensus I think, and commitment among the best lawyers, to the notion of civility in the way we practice law. Many lawyers embrace that as a core value and is one of the principal meanings of professionalism. I think great lawyers realize you can be a very passionate advocate for your client, and a zealous advocate for your client, and still stay within the bounds of courtesy, civility, respect for the other actors in the system, and drawing the distinction between attacking one’s opponent on the merits, on the substance of the facts and the legal principles and policies, and hitting below the belt and making the attacks personal. I also think the very best lawyers don’t see it as their job to amplify the emotional intensity of their client but to filter and to absorb it and to seek conflict resolution that resolves controversy, if that’s not inconsistent with acting in the best interest of one’s client.
If that is true within the legal profession, it ought to also be true within the value system of most universities. If you think about it, we are committed to freedom of speech and wide open discourse and examining ideas and having a combat of ideas but also are committed to an ethos of professionalism in the way that we conduct ourselves in the combat of those ideas. Teaching students that it is possible to debate the issues of the day, to debate the fundamental issues of science, religion, politics, and the arts with intensity yet with respect to others, is a very important part of their education.
AU: How can Furman be a leader in the community on the issue of civility?
RS: I think Furman, or for that matter, any university, can play a constructive role within a community by convening discussion, hard issues that face the community, and in those discussions, using the prerogative of the convener, of the chair, to try to model and encourage and facilitate civility in those discussions. I think that’s something that Furman can do and contribute in our immediate environment and across the State of South Carolina and that any university can do within the community in which it resides.
AU: You have written several books, one of which is Deliberate Intent, which describes your involvement in the Hit Man case. You represented the families of murder victims in a lawsuit against the publisher of a murder instruction manual. At the time you were involved in that, you had already become a noted First Amendment scholar. How were you treated by your colleagues in the law after your involvement in that case?
RS: Well, it depends on which side they were on. (Laughter.) I think that that was a case that people were passionate about on both sides, and as any lawyer knows from your involvement in a case in which people have strong feelings, you will get passionate praise and passionate criticism depending on the side that the critique is coming from. I did maintain and I continue to maintain very good friendships and very good collegial relationships with the lawyers that were on the opposite side of me in that case, both as parties and friends of the court. I count them among my professional friends, and in some instances, personal friends notwithstanding the fact that we were on opposite sides. In some instances, I would later work with lawyers that were on the opposite side of that case as friends of the court, for example, but were on the same side as me in a different manner. So I think it was an exemplar of civility of discourse, and that best part of our legal tradition, which is we don’t take personally the fact that one is on the opposite side of an issue or represent clients that are on the opposite side of an issue.
AU: Deliberate Intent was made into a movie.
RS: It was made into it a movie and was the first FX television movie, I’m proud to say.
AU: And Timothy Hutton played Rod Smolla. How did he do?
RS: I wish I had his hair, I’ll tell you that. (Laughter.) I thought he did a great job, and the script writers did a great job. It’s not easy to take a complicated legal matter and reduce it to a movie and particularly a legal matter such as this, which has very complicated issues of legal doctrine. I thought that they did a great job of weaving in the murder mystery and the murder story, which was a good old fashion “Law & Order” style thriller, and the intellectual issues that were posed by the case. So I was pleased by the movie.
AU: You have argued before the U.S. Supreme Court, including the Virginia v. Black case, which involved the Virginia statute that banned cross-burning. One Supreme Court reporter described the advocacy in that case in this way: “When you have a good oral advocate doing a good job on a good issue, the place always arcs up like a tinfoil in a microwave.” I think she was describing you. What was it like to argue before the U.S. Supreme Court?
RS: It was what I imagined it’s like to be the quarterback in the Super Bowl. I would do it again tomorrow morning. I have a recurring fantasy that somebody scheduled to argue in the Supreme Court unfortunately gets sick and can’t do it and is looking for someone to come in as a substitute at the last second and calls me and I show up the next morning and take the case. And, of course, the person always turns out to be all right the next day, but I would argue a case in Supreme Court again in a heartbeat. If you are an appellate lawyer, it’s going to the Super Bowl. I savored every second of it as a personal experience. It was, in fact, a very fascinating, interesting case on its legal merit and in its emotional intensity and it was a dramatic oral argument. So I loved the experience and hope that I get to do it again some day.
AU: What advice would you give to lawyers who are preparing for an appellate argument at any level?
RS: I guess it’s the usual – I like to encourage appellate advocates to not bring anything to the podium. I am in that school of thought that you should have no papers with you at all, the entire case should be in your head, and that you should imagine the entire case as a grilling from the bench and so canned speeches – the idea that you have a set piece that you have to get through is the antipathy of effective oral argument. Rather, what you want to do is anticipate the questions you will be asked, according to ones you are most likely to be asked but also all the strange questions that might come out of what appears to be left field. What I liked to say to other appellate lawyers and to law students is you need to ask yourself if I lose this case, why would I lose it? If the most brilliant person in the world who is my worst enemy wanted to go for the weakness in my case, the jugular in my case, wants to write an opinion that’s going to cause me to lose, what will that do to my case, what’s my biggest vulnerability, what’s my biggest weakness? Think of all of the ways you can be pounded on that, all the clever ways that they can ask you questions on that. Then figure out what your answer is. Don’t have a mushy version of what your answer is. Figure out what your position actually is. Nothing frustrates an appellate court more than a fuzzy answer. Even if the answer you know will alienate a judge or two, or a justice or two, its better to at least know what you stand for and what your arguments are going to be, and have thought through your answers to all of those questions and welcome them. So that’s my first admonition.
The second is sort of the flip. If I’m going to win this case, how am I going to win it? What answers to questions will help me when it will give me a chance to win it?
Then the final thing I’ll say is be totally zoned on the judges and justices. Be looking at them, be feeling them, their body language, their eyes, their lips, the tone of their voice; be totally delved in on them and try to understand where they’re coming from, what their problem is, because if you sense somebody’s against you, if you sense somebody is not persuaded, you’re not helping your client if you don’t engage. You’ve got to try to figure out what’s bothering that judge and be almost conversational in not trying to avoid the judge’s question but coming back at it and looking for ways to get inside what’s bothering them so that you can start to say, oh now I see what your worry is about, as to “let me tell you judge why you should be worried.” I think you’ve got to do that, and I think if you do that, if you just treat it as the judge is a colleague, that they are not above you, they have a different role but they are trying to do justice, you’re trying to advance your client’s interests. This is your chance to get inside that judge’s heart or mind and let them know your reason for why they should rule your way and don’t be afraid of that, welcome that; it’s your chance to persuade, and if you approach it that way, which could be frightening to lawyers because that’s spontaneous, that’s not canned, that makes for a great appellate advocate. If you watch the masters, they get a chemistry going with the judges. Even the judges that are opposed to them, and there’s a feeling of honesty in the exchange, not trying to pull one over. You’re never going to persuade a person if they think you’re trying to pull one over on them.
AU: You have a busy schedule as a college president. Are you going to have time to practice law?
RS: Not very much. But, I have the permission as most college presidents do, to occasionally consult or take on a matter. If I had the opportunity to be engaged in a case and there was no conflict of interest with Furman in the strict sense, and no conflict in the larger sense, drawing too much of my time or putting me in the vortex of an issue that is just too controversial for one to be in, then I think I would probably be given permission. It’s in my contract that I could be and I’d ask for permission and would get it. My guess is that when that comes along, it will probably be some higher education case in which the advocacy I would be engaged in was in alignment with Furman’s position. So if there were a big battle over a Title IX principle or over a financial aid issue, or over diversity in education issue, or an academic freedom issue, and the University’s position was in alignment with the client, whoever that might be, then I think that would make logical sense.
AU: What do you tell high school students who are thinking about coming to Furman, like my daughter who is 17 and a senior? Why Furman?
RS: I think the first question is why get a liberal arts education. So the first answer applies not just to Furman but to any liberal arts university. And I always say that a student should look for the best fit so it may or may not be that it’s the best fit for any particular student. The beauty of a liberal arts education is the blend of the broad exposure to a number of different disciplines. The strong emphasis on discovery, creativity, the ability to see problems or multiple perspectives, the ability to solve problems, the learning to construct arguments, the learning of how to research a matter on your own, the learning of how to write well and articulate your position – that’s magical. It sets you up to succeed at many, many different callings and it also enriches you as a person, it makes your life more fulfilling, makes you a more interesting person, a more soulful person, a more engaged human being, and all of the things that make for a good life. Whether you’re interested in science and math and technology, engineering, or in art and music, or social sciences or politics, that blend is effective.
One of the most interesting things in the recent new Steve Jobs biography – he was a very complex and in some ways negative figure and in other ways positive figure – his drumbeat at Apple and at Pixar, the two companies that he was responsible for, constantly emphasized that the progress of the human race comes from the intersection of science and technology and the liberal arts. He saw that intersection as where human progress comes – where success and life comes – he saw that as Apple’s ethos. He wanted employees who were technically proficient but who also had a broad liberal education and understood the world; those are the kinds of folks he thought to hire because he believed they were the creative ones, the innovative ones. It is fascinating that a technology guru, who didn’t even go to college, would see the liberal arts as so critical. Whenever Apple would roll out a product, they’d put on the screen a street sign logo and the sign had science and technology on one street and liberal arts on the other street – a very fascinating story.
Furman’s unique case is wrapped up in the things that are wonderful about this particular university. Part of it is the commitment to the education of the whole student; we think your intellectual development is important, but also your development as a human being is important – your character, your sense of service, your sense of engagement, your sense of commitment to the community. We’re very open about that even though we are not a religiously affiliated university and we welcome students of all faith or no faith; we do want you to examine the important questions of life and the spirit and why you’re here and what you have to contribute to the world. This is part of what you should do when you come. So I think that for students that are looking for that, Furman’s a great place; a beautiful campus, 100 percent residential, on the make in many areas, a fantastic community. Greenville is one of the gems in the United States. You won’t find many medium-sized cities in this country that are more vibrant and exciting and interesting to live in, so you put that combination together, it’s a fantastic place to go to college.
BIOGRAPHY: Rod Smolla is a 1975 graduate of Yale University, where he was a member of the football team. He graduated first in his class from Duke University Law School in 1978. He is currently President of Furman University, in Greenville, South Carolina, a national liberal arts university founded in 1826. President Smolla previously served as Dean and Professor of Law at Washington & Lee School of Law and at Richmond School of Law. He also previously served as Director of the Institute of Bill of Rights Law at the College of William & Mary. He is a nationally recognized scholar, teacher, advocate, and writer, and is one of America’s foremost experts on issues relating to freedom of speech, academic freedom, and freedom of the press. President Smolla’s latest book, The Constitution Goes to College (New York University Press, 2011), describes the constitutional principles and ideas that have shaped American higher education.