Recalling Tom LambertDecember 15, 2016
RECALLING TOM LAMBERT
Joseph A. Page*
One would be hard-pressed to find a more apt exemplification for the term “a hard act to follow” than in the replacement of Roscoe Pound by Thomas F. Lambert, Jr. as Editor-in-Chief of the NACCA Law Journal in 1955. Pound was a giant who stood astride the landscape of global jurisprudence, the recipient of some 200 honorary degrees in this country and abroad, for two decades the dean of the Harvard Law School, and in his post-retirement years an adornment at the top of the masthead of a legal journal published by NACCA, a bar association of lawyers who brought tort claims on behalf of accident victims. Lambert was the young torts professor at the Boston University Law School NACCA tapped to be Pound’s successor.
The choice of Lambert turned out to be providential. In the late 1950s and the 1960s, tort law would undergo dramatic changes, as courts across the country recognized new common-law duties, cut back on rules that they found imposed undue restrictions on liability, and gave substance to the principle that monetary damages in tort cases should provide adequate compensation for accident victims. And Thomas F. Lambert, Jr., would play a key role in educating and galvanizing the lawyers who brought and won the cases that produced these results.
Although Lambert was not a nationally known figure when he replaced Roscoe Pound, his background contained subtle indications that he came to the job with a unique skill set that prepared him for the particular challenges he would face. He was a star debater at the University of California at Los Angeles, where he would also perform before large crowds as a football cheer leader for the UCLA Bruins. He was the college’s first Rhodes scholar, which enabled him to spend three years at Oxford, where he earned a degree in law and enjoyed travel opportunities that put him in contact with Europe on the brink of World War II. After doing graduate work at Yale, he entered academia in 1940 at the Stetson University Law School in Florida, and soon became its dean. This made him, at the age of 26, the youngest professor ever to lead an American law faculty.
Enlisting in the Navy as an ensign, he joined Justice Robert H. Jackson’s staff on the Nuremburg international tribunal that was bringing Nazi war criminals to justice after the cessation of hostilities, and made the oral presentation of the case against Martin Bormann, the head of the Nazi party. Upon his return to the United States, he taught part-time for two semesters at the New York University Law School, and then secured a tenure-track position at the Boston University Law School, where his professorial portfolio included torts, conflict of laws and legal history.
Trading his academic robes for the editorship of the semi-annual NACCA Law Journal, Lambert assumed responsibility for writing and editing comments on recent developments in the Association’s delineation of the field of personal-injury law, which covered accidents in the workplace, at sea, in the air and in the operation of railroads, as well as in all other situations that might give rise to a tort claim. He also contributed to each issue an essay that often sought to place in a broader perspective the case law discussed in each volume.
To produce two weighty journals a year (and a recently created monthly newsletter), even with the aid of a small editorial staff, was a daunting task. Yet the leaders of NACCA also realized that to keep him desk bound would have wasted his prodigious talent as a public speaker. So from the very beginning the Association encouraged him to go out on the hustings and address regional, state and local meetings of trial lawyers who represented accident victims, and on occasion gatherings of judges. Before long he was in great demand as a platform performer. In his decades as Editor-in-Chief, he managed to lecture in all 50 states, as well as Puerto Rico.
The impact of this outreach by NACCA cannot be understated. This was a period of explosive growth in the history of tort law, and Lambert was instrumental in both spreading the word to appellate litigators across the country and providing them with precedential support and argumentation that would keep the pro-plaintiff trend moving forward. His highly successful transition, from an academic who taught torts at one law school to a law professor with a national classroom, helped create a trained group of attorneys who would eventually become a force on the national political scene.
If all Lambert did was to transmit information, analytical methodology and techniques of persuasion to legal practitioners seeking to expand the scope of tort liability, he would have been deemed a brilliant success. But there was much more to him. In his public speaking, he adopted a unique style that served to entertain, enlighten and energize his audiences. His talks were flowery, persuasive, and leavened with gentle wit. He delivered them without the aid of notes, after hours of meticulous preparation.
They were most memorable in their coinage of phrases and use of epigrams. Thus, plain-speaking on behalf of accident victims became the use of “shirt-sleeve English” by trial lawyers (or “princes of the trial bar,” as he was wont to call them); the adjuster was an employee of the “Holy Grail Insurance Company” who could “enter a revolving door behind you and exit it ahead of you;” a professor “smelled of the lamp” and “would look like a foreigner in any country;” an editor is one who “approaches all questions with an open mouth;” the purpose of personal-injury law is to “comfort the afflicted and afflict the comfortable;” and the underlying principle of torts is that “it is better to build a fence at the top of the cliff than to keep an ambulance parked at the bottom.”
Since this was a time when the expansion of tort liability would require that many state courts overrule precedent, Lambert often applied his rhetorical magic to the tension between continuity and change, as embodied in the doctrine of stare decisis, and cabined by his predecessor Roscoe Pound’s Olympian pronouncement that “The law must be stable yet it cannot stand still.” Accepting as a given that “We ring the bells of the future with the rope of the past” and that “There is a time for cement and a time for ferment,” he placed tort law squarely in the latter category, and called upon NACCA’s “stalwarts” to convince courts to change outmoded tort doctrines (such as “the barnacled and baneful contributory negligence rule”) that kept tort law from fulfilling its lofty goals (“the urge of the acorn to become an oak”), or that perpetuated error (“In 1491 the world was flat, Columbus, J., dissenting”).
His legion of admirers dubbed him the “Poet Laureate of Tort Law,” which might not have done full justice to the oratorical virtuosity that made him an exceptional “Great Communicator.” But because he lived in a pre-YouTube era, when audio and audio-visual recordings of the kind of talks he customarily delivered were seldom made, his reputation has faded, as those among us who personally experienced his magic grow fewer. One can but hope that those who believe in the cause he espoused (a common law of torts that is always improving and in the process of becoming) will make every effort to rekindle his spirit and adapt it to the needs of the twenty-first century, with tort law under siege and new technologies presenting new risks requiring some measure of public control.