71 Mass. App. Ct. 1129
A special sitting of the Appeals Court was held at Boston on May 12, 2008, at which a Memorial to the late Judge Donald R. Grant was presented.
Present: Chief Justice Rapoza; Judges Perretta, Lenk, Gelinas, Duffly, Cypher, Kantrowitz, Berry, McHugh, Cohen, Green, Trainor, Graham, Katzmann, Vuono, Grainger, Meade, Sikora, Rubin, Fecteau, and Wolohojian; retired Appeals Court Chief Justice Christopher J. Armstrong; and retired Appeals Court Judges Kent B. Smith, Frederick L. Brown, and George Jacobs.
Martha Coakley, Attorney General, addressed the court as follows:
May it please the court: As the Attorney General of the Commonwealth of Massachusetts, it is my honor to present, on behalf of the bar of this Commonwealth, a memorial and tribute to the late Donald Ross Grant, an original member of the Appeals Court of the Commonwealth.
Judge Grant served this court with great dedication and precision for sixteen years from his appointment in October 1972 by Governor Francis Sargent until his quiet retirement at age 65 on October 14, 1988.
The son of Robert and Rovilla Gertrude Ross Grant, Judge Grant was born on April 2, 1923 in Montclair, New Jersey. After attending Deerfield Academy, he entered Amherst College in the fall of 1941. He left Amherst in 1943 to enlist in the United States Navy. He served as an officer on the USS Baltimore in the Pacific and was discharged with the rank of Lieutenant in 1946. He returned to Amherst, was elected to Phi Beta Kappa and graduated in 1947. He then attended Harvard Law School, graduating with honors in 1950. For the next year, he clerked for Supreme Judicial Court Justice John Varnum Spalding.
He joined Ropes & Gray in Boston in the fall of 1951 and became a partner in 1961. During his more than twenty years at Ropes & Gray as a civil litigator, he argued eighteen cases before the Supreme Judicial Court and wrote, in whole or in large part, thirty briefs submitted to that court. When he was appointed to the Appeals Court in 1972, Massachusetts Lawyers Weekly headlined: "Appellate veteran to bench" and noted that "his specialty within [his] specialty has been municipal regulatory work."1
He married Ruth Chadwick on June 7, 1952. They had two children, Steven and Sally. The family lived in Lexington from 1953 to 1980. Judge Grant was a longtime member of the Lexington town meeting, chairman of the Historic District Commission, and member and chair of the appropriation committee. In 1980, the family moved to Concord. His wife Ruth died in 1982. Shortly before his retirement in 1988, he married Abigail Close Fletcher.
Judge Grant was one of three of the original members of the Appeals Court who came to the court without prior experience as a judge. Shortly after he retired, Judge Grant described the challenge he faced upon becoming a judge:
"You really end up a generalist with your finger in all sorts of pies, and become familiar with all areas of the law. It's a great learning process, because no matter what your experience has been, you're going to get your nose rubbed into a new area."
He was a quick study and a prodigious worker who arrived at the court at 6:30 in the morning. During his sixteen years on the Appeals Court he wrote more than 200 published opinions, over 300 rescript opinions and over 600 orders under Appeals Court Rule 1:28. During one twelve-month period, Judge Grant turned out 173 decisions, then a record for the justices of the Appeals Court. At the time he retired, he was the author of the longest Appeals Court opinion, Commonwealth v. Benjamin, 3 Mass. App. Ct. 604 (1975).
As one of the original members of the court, Judge Grant played a significant role in establishing the court's rules and procedures. He was also known as the court's most vigorous and productive editor. As Judge Armstrong noted during the memorial sitting for Judge Rose in 1996, Judge Grant "taught craftsmanship and precision in opinion-writing. As an editor [Judge Grant] had no peer."2 Judge Rose, upon his retirement in 1976, expressed his gratitude to Judge Grant "for sharing with me his reservoir of punctuation marks, particularly his wealth of commas."3
"[T]hrough his review of his colleagues' draft opinions, he helped guide the court to a unified decisional style."4 Judge Grant "demanded excellence from himself and expected it from those around him." While he could sometimes appear stern to the under prepared attorney, he was, as another colleague has put it, "charming in person." He loved a good joke and enjoyed sharing jokes with others. He was an avid pilot, an avocation he shared with Chief Justice Hale. He also loved his many summers spent in Wolfeboro, New Hampshire. Judge Grant said of his time on the Appeals Court: "I found it very worthwhile and rewarding. And I'd do it again."
He died on March 28, 2007 in Wolfeboro, New Hampshire; he is survived by his daughter Sally and his wife Abigail.
On behalf of the Bar of this Commonwealth, I respectfully move that this Memorial be spread on the records of this court.
John M. Harrington, Esquire, addressed the court:
May it please the court: I appear as a member of the bar in support of the motion before the court. I speak of Donald Grant as a practicing lawyer, and a fine lawyer he was. He was in practice for twenty-one years, all of it at the same firm. I had the good fortune to be his colleague for all of that time, except for a two-year interlude when I was at the office of the United States Attorney in Boston.
After serving for a year as a law clerk to Justice John V. Spalding of the Supreme Judicial Court, Don Grant became, on September 4, 1951, an associate at the firm which then was named Ropes Gray Best Coolidge & Rugg. He became a partner on February 1, 1961, a month after the firm had resumed its original name of Ropes & Gray. He resigned on October 5, 1972, to become one of the original judges of this court.
When he began at the firm he worked closely with two of its leading trial lawyers, Charles B. Rugg and Edward B. Hanify. I note that each of them was the son of a judge. Rugg's father had been Chief Justice of the Supreme Judicial Court, and Hanify's father was a judge of the Superior Court. Each of them was an example of fidelity to the best traditions of the bar and I like to think that his working closely with them was an omen of his future as a judge.
It was soon apparent that Don Grant was an extremely capable lawyer. He was very focused, strong in analysis. He concentrated on the essential issues of the matter at hand. He was devoted to full preparation and was a master of clear and forceful language. It was not long before he was taking charge of cases on his own. The matters were varied. He was involved in contract cases, lease interpretation, eminent domain and he participated in the defense of a few antitrust cases in the Federal courts. Many cases related to valuation of property, ranging from the local taxation of equipment used in the distribution of electric power, to the value of common stock of a manufacturing corporation in a statutory appraisal proceeding.
He was recognized as an expert in matters of procedure. All of his practice at the bar took place before the adoption of the Massachusetts Rules of Civil Procedure. During the time of his practice, there was a division between Law and Equity, special writs had not been abolished, and there was a variety of modes of appellate review.
He was outstanding with respect to Equity procedure. He was, for example, the person to consult concerning a plea in bar or a plea in abatement or a demurrer to a plea. Likewise, he was skilled in the use of extraordinary writs. An instance that comes to mind is his work on a writ of prohibition. It was obtained in connection with an election dispute with respect to the State Senate. The Supreme Judicial Court issued the writ, which prohibited the judges of the Superior Court from exercising jurisdiction, since the question had arrived before the Legislature.
Another example is a writ of audita querela. A case reported in Volume 354 of the Massachusetts Reports shows Don using it to set aside proceedings in a prior action where his client had not been served and recovering the amount paid in satisfaction of an invalid execution.
In appellate process he was equally skilled. He was the one to consult about what was known as a bill of exceptions, or a petition to establish the truth of exceptions or when you could proceed by an appeal in equity.
The range and type of his practice is well illustrated in one volume of the Massachusetts Reports, Volume 350, where he appeared as counsel in five cases. They involved Appellate Tax Board practice, a charitable exemption from real estate taxation, eminent domain, interpretation of a trust, an employment dispute, and a writ of mandamus. That writ of mandamus case was one of his favorites. It is entitled Massachusetts Port Authority v. Clerk of the East Boston District Court. Representing the Port Authority he obtained a determination that fines for illegal parking at Logan Airport would go to the Port Authority rather than the city of Boston.
Don did many cases for the Port Authority, some involved the expansion of the airport, others with respect to airport operation. He enjoyed the challenges those cases presented and he enjoyed working with the management of the authority. He in turn enjoyed their confidence and respect.
Don was a very good colleague. While he conducted many, perhaps most, of his cases alone, he was generous with advice when asked. He had created a wonderful book of forms -- and he shared it. And he also relished an interruption to exchange jokes.
He was meticulous in keeping track of his time. When you entered his office he jotted down the time and he did the same when you left. If it was a discussion of an office case, the file symbol of that case was entered. If it was merely sociable and thus not chargeable time, that was duly noted.
While Don enjoyed law practice, and was a very accomplished lawyer, he was born to be a judge. When the opportunity came to go to this court he seized it with enthusiasm.
He wound up his practice in the same meticulous way he had conducted it. He created a binder with a section for each of the matters he was handling. Each section contained a memorandum describing the case, what had been done and what remained to be done. There was for each case a copy of his withdrawal of appearance, the appearance of successor counsel, and a copy of the transmittal letter of the appearances to the clerk of the particular court. Nothing was neglected.
Also, he prepared a comprehensive memorandum on eminent domain practice, which he gave to the lawyer who succeeded him on those cases.
All this done, before he left to be sworn in he set about drafting the rules of this newly created court.
He was fortunate in becoming a judge of this court, to assume a role he so much enjoyed and for which he was so well equipped by his learning, his energy, and his intellectual power. He was devoted to his craft, first as a lawyer and then as a judge. We are fortunate to have known him, as a colleague and a friend. I respectfully request that the motion be allowed.
Paula Snyder addressed the court as follows:
I am deeply honored and grateful for the opportunity to participate in this tribute to Judge Grant, a distinguished jurist and a fine man.
The first time I met Judge Grant was on October 6, 1972, at a State House reception celebrating the simultaneous swearing in of the six original Appeals Court judges. I had been hired to work as Chief Justice Hale's secretary, and I knew Judge Goodman very well, but I had not yet met the other four men. The press was anxiously waiting to photograph the new court. All members had gathered except Judge Grant, so Chief Justice Hale quickly dispatched me to corral him. How will I find him in this enormous crowd, I asked. Smiling, the Chief Justice answered: "Just look for the biggest guy in the room."
Judge Grant was a towering man both literally and figuratively. Standing 6'4", and of impressive bearing, he seldom went unnoticed. Educationally, he had the bona fides -- Deerfield Academy, Amherst College, Harvard Law School. Professionally, he had earned his way to the apex, as the Attorney General described. Others here today have spoken and will speak further of his huge intellect, his work ethic, his clear mindedness and precision in opinion-writing, his pride of purpose. All this is high praise indeed, but if the only image which emerges is that of a learned and successful man who was serious, circumspect, and absorbed by his work, we have missed the mark because Judge Grant was a delightful human being with a great sense of humor.
Throughout his sixteen years at the Appeals Court, from October through April, he cheerfully gave over at least one day of the weekend to the work of the court, but when winter turned to spring, he wanted his weekends to be free so he could disappear to his vacation home in Wolfeboro, New Hampshire, on Lake Winnipesaukee. Built in the 1960's with the intention of being his retirement home, this was his place of enjoyment, where he retreated from the rigors of his duties, found solace and replenished himself. Upon arrival, he shed the title and the trappings of his office, wore his trademark blue cap, L.L. Bean corduroys and topsiders, drove a 1968 Willys jeep and was known around town simply as Mr. Grant or Don.
I need to say here that these remarks are a collaborative effort by Nancy Foley, who will speak in a moment, and me. This is entirely fitting because together we befriended Judge Grant and together we enjoyed a special relationship with him.
Our friendship had its roots in May of 1982, when Judge Grant's world was shattered by the sudden death of his wife Ruth. Ever the stoic, he kept to his usual workday schedule, arriving in the van room of the courthouse by 6:30 A.M. and staying at the office until after the evening traffic. Although he tried to portray normalcy, back then the Appeals Court was not very good for privacy as all personnel -- judges and staff, including the Clerk's office -- was crowded into the fifteenth floor of the Suffolk County Courthouse, and it was impossible for the judge to conceal the fact that he was struggling to find his way. Efforts by his colleagues on the bench and others to engage him were not working. By Christmas of that year, Nancy Foley and I decided it was time to bring some cheer to Judge Grant's home. By prearrangement, we and our husbands showed up at his home in Concord with dinner in hand. As a surprise, we had stopped along the way to buy a tree, but it being late in the season, ended up with a scrawny little thing. We also brought the materials with which to string cranberries and popcorn to decorate the tree. We drank eggnog while we worked on the garland. The house filled with the smell of lasagna baking in the oven and conversation and, for the first time in a long time, laughter. Judge Grant forevermore fondly referred to that tree as his Charlie Brown Christmas tree.
So began a friendship which was deep, loving, kind, and loyal and which lasted beyond Judge Grant's tenure at the court and beyond all geographical separation, right up to the end of his life.
Slowly, over time we formed a close and unbreakable personal bond and came to know a profoundly different side of Don Grant. He was a shy man of passion and generosity, laughter, unflinching courage and perseverance, and perhaps most admirable of all, a man who took life in stride in spite of some very difficult obstacles.
Particularly vexing was the degenerative neurological disorder with which he was diagnosed shortly after being appointed to the Appeals Court. Ironically, had he been a man of smaller stature, he never would have been so afflicted as this disease is unique to men over six feet in height. As the disease progressed, it forced him to abandon some of his greatest joys, including his antique wooden Chris Craft boat, his signature jeep, and most cruelly of all, his beloved twin engine Cessna airplane in which he had commuted for so many summers between Boston and Wolfeboro. Obviously, these were crushing disappointments, but you never heard that from him. He bore his cross and kept his own counsel.
Over a period of years, the worsening disease eroded his mobility and made it increasingly difficult for him to get around. Still, he steadfastly refused to let the disease define him or dampen his spirits, nor was it a topic for conversation. Even in later years he pursued life to the fullest extent he could by going on road trips, cruises and flights, sometimes against medical and friendly advice, always with fortitude and good cheer. He wanted to go wherever his friends were going, even if that meant risking injury.
Don Grant was modest, perhaps, to a fault. He scrupulously avoided the limelight and never wanted accolades. Apparently he felt that doing a good job was its own reward. When he retired from the court, by his choice, there was no corporate farewell, no speeches. Even the newspaper headline read simply, Stalwart quietly leaves the court. This is one reason why it is all the more gratifying today to see him receive the recognition he deserves.
Now, for some further personal testimony, I will turn it over to Nancy Foley.
Nancy Foley addressed the court as follows:
In order to understand the depth of our friendship with Don and the great fun we had together, Paula and I want to share some of our memories. To really know the kind, big hearted man took a great deal of time as each layer was revealed. We have many good memories. We consider ourselves fortunate to be able to talk to you about our friend.
We learned about Don from our shared experiences but also from his wonderful stories. He was a gifted story teller. His steel trap mind held images frozen in time that he could recall with great detail. We were treated to stories of his early days at Ropes and Gray and the practice of law way back when. In particular, we enjoyed the living history from his Grand Tour of Europe and his World War II naval experiences.
When he was 13 years old, he was sent on the Grand Tour of Europe as was the custom of the time. It was the summer of 1936. His detailed description of ocean liner travel, dress and dining was fascinating. Many of his stories were about his time in Germany, then hosting the Olympics. His first hand account of the success of Jesse Owens, an African American runner, beating German runners was amazing. He remembered the stories he had read in the newspapers and the German reports of astonishment that the Reich's finest had been beaten. His detailed observations, so clearly remembered, conveyed the sense of foreboding that each article in the newspapers held. He painted a picture of a cauldron, bubbling and frightening. What he witnessed, he knew was the beginning of a terrible time. He opened a window to history for us.
In 1943, when Donald Grant left college to join the war effort in the Navy, he became one of the citizen heroes Tom Brokaw wrote about in his 1998 book, The Greatest Generation. He shared the common values of his generation as delineated by Brokaw -- "duty, honor, economy, courage, service, love of family and country, and, above all, responsibility for oneself." He was very proud of his service. Judging from the emotion with which he told his war reminiscences, he considered it a defining episode of his life. He brought his experiences in the Pacific into clear view with his story telling.
Perhaps from his Navy days, perhaps drawing on his later experience as a pilot, Don was acutely aware of the weather. Frequently he would sit in his easy chair, in his New Hampshire uniform, as Paula described . . . buttoned down Brooks Brothers shirt, corduroy pants and topsider shoes, looking out toward the lake. He would accurately predict the day's lake weather.
Don was an accomplished small plane pilot with an instrument rating. Based upon their mutual love of flying, a strong friendship developed between him and Chief Justice Hale, his fellow jurist and pilot. Even after he was forced to give up flying, Don was so proud of the Wolfeboro airstrip that he would often take visitors there to share his memories. The views were amazing. The stories of daring even more so!
Most people would not think of Donald Grant as a naturalist, but he was. He embraced and enjoyed all that the lake and mountains had to offer. It was not unusual for him to climb into his jeep and explore country back roads. In fact, he considered it a bonus, if in the course of his exploration, he got lost. He was enamored of the water fowl at the lake, especially fascinated by the loons, watching for hours and never being bored. He knew their habitats, breeding groups and so many details. Don loved the trees of New Hampshire and their seasonal changes. His favorite tree was the buttonwood next to his house, but he knew all the New Hampshire trees. From a great distance, he could identify each species, whether in spring bloom or fall color. He worried over the levels of the lake, the fire dangers and the impact of humanity on beautiful Winnipesaukee. What ever the season, he embraced its own beauty and wanted to share that beauty with his friends. He wanted us all to love it as he did.
For more than a few years, we were present for the spring season kickoff with its traditional shopping spree at the local supermarket. This involved a parade up and down every aisle, filling at least two shopping carts full of provisions. Don had an epicurean curiosity for different tastes. So we loaded up the carts with all sorts of exotic and spicy ingredients. Tums also went into the shopping cart as a precaution. There were lots of favorite, less exotic meals. Don was especially fond of Swedish pancakes, which are made with a pound of butter, heavy cream and topped with maple syrup and lingonberries. There would also be pounds of crispy bacon. Don would have to have several pieces called "testers" just to make sure the bacon was being cooked crispy enough. As you can tell, our epicurean adventures tended toward the fattening. We would top off most evening meals with hot fudge sundaes made with home made ice cream from a local shop.
On visits during the summer, we often floated in the crystal clear water, sometimes chatting, sometimes just watching the clouds pass by, enjoying the mountains, and the peaceful beauty of the lake. At night, listening to the sounds of the lake, we played Monopoly or should I say Don toyed with us at Monopoly . . . he always won. He was a voracious reader, often reading a book a day. For Don, a book was always a good gift especially if it was a history or a biography. Don remembered what he read and was able to recall details long after he had moved on to something else. This made him formidable at Trivial Pursuit. One evening, he won the game with the answer Paavo Nurmi. We all just said who . . . never having heard the name before, we thought he had made it up. When Don stopped laughing, he went on to give us all the details of this famous Finnish runner who won Olympic Gold medals in Paris in 1924. He knew a lot and we learned a lot from him. To this day, we all use Paavo Nurmi as the answer for any question we do not know.
The end of the season meant the "closing up tradition" which began with pumpkin hunts through local patches in search of just the right ones to carve. It took serious effort and miles of exploration with lots of stops at antique shops. The cooler weather allowed for later starts. Sunday mornings were a bit more leisurely with time to read the paper in front of the fireplace. Autumn was also a great time to go "leaf peeping" as Don called our Fall adventures into the woods.
Whether playing Trivial Pursuit, searching for a pumpkin or enjoying a meal, Don had presence. When he laughed, it was boisterous, loud and free, tears rolling down his cheeks. I still smile at the thought of his big laugh. We are so grateful for the many laughs we shared, for his sage advice, for all we learned from him and for teaching us the Yankee credo ... use it up, wear it out, make do or do without .... certainly a credo to follow today.
We once thought that we were helping him after Ruth died, but in reality, we were the ones that were helped to see so much beauty, learn so much and share such a great friendship. Donald Ross Grant was a truly honorable man and a great friend. We miss him dearly.
Paula Snyder and I request that the Attorney General's motion be allowed.
David P. Angueira, Esquire, addressed the court:
In 1982 I was a law student with great dreams and aspirations as a young lawyer. Just as many judicial law clerks had done previously and since then we all aspired to become judicial law clerks. It had a nice ring to it and carried such distinction among law school classmates that it was a position sought by many law students after graduation from law school.
After three years of intense study of the law and after being grilled by some of the most brilliant legal minds in the academic field, the law clerks of Judge Donald R. Grant soon realized their legal education had just begun.
I will never forget my interview with Judge Grant. I am sure every law clerk felt the same enthusiasm and thrill that I did when I first met him. Within minutes you felt you were in the presence of a kind and gentle human being who really took an interest in you. Judge Grant was a mentor to many law clerks. The word mentor comes from the Greek word meaning enduring. It was made famous by Homer in the great epic poem The Odyssey. In essence a mentor is a person generally more senior with greater experience who is willing to share his or her knowledge and experience with younger people. A mentor becomes a role model, someone to look up to and someone to help guide you as you learn the ropes. It is someone who listens without criticism or cynicism and will never make you feel or sound ignorant even when your presumed brilliant legal analysis has little legal merit.
I can remember several occasions having reviewed legal briefs as a law clerk and having to study them in detail before presenting my thoughts to Judge Grant. He would sit politely behind his desk, listen to my analysis, lean back in his chair, and give me a stern and piercing look. Without saying a word he would lean back, pick a book out from the shelves behind him, open it to a particular page, and ask me to read it.
That is when a law clerk's real education began. That is when we became lawyers. Judge Grant had the ability to cite volume and page from our law books. If he disagreed with another judge he would respectfully let you know he did and why he disagreed. If he disagreed with your analysis he would reeducate you.
Judge Grant was respected and loved by his colleagues. There were many times when other judges and staff members would stop by simply to ask his opinion about many different matters. There were other times when staff members would simply stop by just to chat. He would never ask me to leave his office and always made me feel like I was part of the team.
Judge Grant would often have his Jeep loaded with legal briefs and work from home. Although other law clerks thought I was the lucky one because my boss wasn't always around, they had no idea how intense this can make you feel. I often read and reread legal briefs wondering when the call from Judge Grant would come, asking my legal opinion about an issue in one of the briefs.
Well that moment did arrive when, on a Friday afternoon, I was told by one of the court officers that Judge Grant was on the phone. He asked my opinion about whether the Commonwealth's arguments had any merit.
I cited him page and line of the brief and expressed my opinions. I could hear the joy in his response and felt such pride knowing I actually persuaded him with my legal argument. That is what a mentor does.
One final note. In 1982 the law clerks and staff had a softball team. We were pretty good. We played at the Boston Common. So one day I invited Judge Grant to come with us and watch our game. We were even known to bring a cooler with refreshments. No one thought he would come. Well guess what, Judge Grant came to the game. We walked to the park together and had a great time as we watched Judge Kass catch a fly ball with a glove that had to be at least 100 years old filled with horsehair. It disintegrated on impact and everyone laughed and had a great time.
Judge Grant, you will always be remembered, always missed, and always admired by all your law clerks. Thank you for your patience, your wisdom, and for being a mentor and a friend to all of us.
Retired Chief Justice Christopher J. Armstrong, speaking for the court, responded as follows:
There was never a doubt in the mind of anyone who was part of the original Appeals Court in 1972 that Judge Donald R. Grant was the dominant voice in setting up the procedures and forms and modes of operation which were to characterize the new court. There were never two ways to do things, except in the sense there was a right way and a wrong way. Judge Grant's way was the right way; any other way was the wrong way. However that may sound, it is not meant critically but admiringly. The reason was that Judge Grant's way was in fact the right way. He was, as Mr. Harrington has said, a recognized master of procedure, and he was, in addition, a master of writing style. His own writing was tight, terse and crystal-clear. There was no looseness, no prolixity, no ambiguity. He was, as Mr. Harrington confirmed, a consummate legal craftsman. He was also the best editor, bar none, I have ever seen in my life. He took his red pen to everyone's draft opinions, altering some so extensively that they seemed more red than black. Like any good editor, he preserved the judge's voice; but his editing made the draft tighter, less prolix, and clearer, so that the author's reaction would invariably be to agree that his (or, after the 1978 expansion of the court and the appointment of female judges, her) draft was enormously improved. Not one of the judges who had the good fortune to work with Don Grant would dissent on this point, that he was a superb editor.
When the Appeals Court was established in 1972, we were writing on a blank slate. We had six judges and nothing else, except a backlog of cases that had been accumulating since the statute was signed and a few dozen others transferred to us by the Supreme Judicial Court. We had no offices, no courtroom, no supplies, no law clerks. More important, we had no customs, no traditions, no established ways of doing our work, no internal procedures, no blueprint for how the court should go about its work. It is hard to imagine a more perfect setting for one who was himself an expert in both trial and appellate procedures and a highly disciplined legal craftsman. His appointment to the original court by Governor Francis Sargent was truly a ten-strike, one that had a profound influence on the establishment of the new court. I think that, before we were ever sworn in, Don Grant had developed in his head a blueprint for how we should organize ourselves, how we should go about our work, how we should conduct our sittings, and how our opinions should read. Somehow, a month after being sworn in, we heard our first arguments, and in six more weeks, our first opinions were being read by the bar. Every aspect of our work in those early years bore the imprint of Judge Grant. I find it hard to imagine how we could have gotten the new court off the ground without him.
Vast as were his contributions to the Appeals Court, no account of Judge Grant's work is balanced that does not touch on his foibles. The Attorney General mentioned that Judge Grant was a perfectionist, and he demanded perfection, or at least earnest dedication and hard work, both from his colleagues and the lawyers that appeared before the court. He did not trouble to sugarcoat his disappointment at slipshod work. Legendary in the annals of the court is a response he wrote on a draft opinion being circulated for comment by one of our judges: Judge Grant's red pen essentially rewrote the draft, and on the face sheet he began, "I have now doubtless spent more time editing this opinion than you did writing it." He was incensed when counsel appeared unprepared, and he did not suffer foolish arguments gladly. A Lawyers Weekly cartoon showed a lawyer meeting another outside a courtroom, the second being on crutches and heavily bandaged. "Were you in an accident?," the first asks. "No," the second replies, "I was arguing before the Appeals Court," and, through the open door, one could see on the bench Judge Grant with Chief Justice Allan Hale. There was the famous incident when Judge Grant, incensed by a particularly unprofessional argument, instructed a court officer to confront the lawyer after he left the courtroom to verify that he had a bar card. Appeals Courters still laugh over the pithy nicknames by which he would refer to judges whose work did not measure up to his high standards. It was quite immaterial to Judge Grant that his sternness and brusqueness left some bruised feelings behind.
Yet coexisting paradoxically with Donald Grant was the absolutely delightful companion of whom Paula Snyder and Nancy Foley spoke, the Don Grant with whom Judges Charlotte Perretta or Rudy Kass or I would have coffee in the early mornings, well before the staff arrived and the court opened for business, passing the time of day and the state of the world sharing funny and not so funny stories. It was during such an early morning coffee session on April 22, 1976, that Don and I heard the muffled sound of a bomb exploding on the second floor of the New Courthouse,5 where the Appeals Court was then located on the fifteenth floor. Don's office was located opposite of the elevator shaft, and smoke began drifting up the shaft and into his office. He calmly shut the door, saying we'd be told if it was serious, and we went on drinking our coffee and chatting until the courthouse was evacuated.
Both in public and in private, Don's language was direct and trenchant. I'll always remember his shorthand expressions: To a judge whose opinion was overdue, "Just lay an egg on it and move on." To a judge whose opinion is in the right area but slightly off the mark, "Right church, wrong pew", or "You've got the em-phá-sis on the wrong syl-láb-le." On an opinion of questionable correctness, "This will draw flies from the thirteen floor."6 Or on a judge whose whole professional experience was in criminal law, "Every civil case he gets is one of first impression."
In private, and in days before political correctness dominated discourse, his language could be colorful. Knowing this, he always selected male law clerks so he would not have to be careful in his language.
Parenthetically Judge Grant's law clerks showed another aspect of Judge Grant: despite his own pedigree, his selections were not at all elitist. He systematically rejected applicants who had been on law review, which he regarded as a frivolity. He preferred the solid B student who was a plugger and had to work hard for his grades. In the early court, I was the screener of law clerks, and I remember coming to the conclusion that of all the judges Don had the surest instinct for selecting law clerks.
For those who did not take pride in their work, Don Grant had no use. For one like myself, who came to the court green but eager to learn and willing to work, Don could not have been a better or more willing teacher. For the first three years we were under the old practice system of which Mr. Harrington spoke. Don Grant taught basics: that because an appellate court corrected only errors of law, not errors of fact, the prerequisite to a successful appeal was to separate the law from the facts; that the focus of an appeal was the judge's rulings of law, and the function of the objections was to require the judge to make a ruling of law and hence to preserve the issue for appeal; that there was no error unless the judge made a ruling of law; and so on into the roles of objections and exceptions and bills of exceptions: the whole choreography that put a premium on the skill of the lawyer and that no layman could hope to master. In the debate on the adoption of the Federal Rules, Don Grant readily agreed the same procedural system should be used in the State courts and in Post Office Square, but he stoutly favored the State system over the Federal. To him, fact pleading and the refusal to dismiss suits at the pleading stage and the wide open discovery and the elimination of the focus provided by demurrers and pleas and objections and exceptions and requests for rulings of law portended lengthy and costly litigation, a burgeoning of appeals, the encouragement of sloppy practice, and, almost unimaginably, opening the possibility of pro se appeals. His ideas ran counter to the vogue, but as all these things have come to pass, I cannot say he was wrong. Whether it is a better world is a different question all together.
Donald R. Grant will be remembered in the Appeals Court as a man of brilliance, formidable professional skill, and insistence on high standards. He could not tolerate incompetence and sloppy work. He was not diplomatic; he always spoke his mind. In the Navy in World War II, where he served as the damage control officer on a heavy cruiser, his only brush with being court-martialed was for speaking his mind in the presence of an incompetent senior officer. He was proud of the legal profession, and he held practitioners in it to his own high standards. He never reconciled himself to the gradual development in criminal appeals of lawyers having to argue dubious propositions because their clients insisted. To him this was an insult to the lawyer's professionalism and indirectly to the court. The same pride he felt in the profession and in his own work he was determined to extend to the Appeals Court and to its work output. He aspired to excellence not only in his own work but in the work of the court in which he invested so much of his professional career. The goal was aspirational, but I hope our court never stops aspiring to attain it. In that way, and in that way only, can we truly honor the memory of our late colleague, Donald R. Grant.
On behalf of Chief Justice Rapoza and all of the judges of the Appeals Court, both on the bench and in the well, it is my honor to allow Attorney General Coakley's motion to spread these proceedings on the records of the court.
1 Massachusetts Lawyers Weekly, October 24, 1972.
2 40 Mass. App. Ct. 1151, 1166 (1996)
3 4 Mass. App. Ct. 875, 878 (1976).
4 Massachusetts Lawyers Weekly (1988) (Editorial: A Retirement Without Fanfare).
5 See Narine v. Powers, 400 Mass. 343 (1987).
6 The Supreme Judicial Court was then located on the thirteenth floor of the New Courthouse.
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