Sullivan & Cromwell v. Cravath: There Was That 1861 Case…

Cravath, Swaine & Moore and Sullivan & Cromwell are the city’s elite law firms, the Yale and the Harvard of the barrister set. Their institutional names turn up on many major cases, and often as opposing counsel on the same ones–as in the on-hiatus Microsoft antitrust trial in Washington, D.C., where Cravath alumnus David Boies, representing the Federal Government, is said to be eating Microsoft counsel Sullivan & Cromwell’s lunch. In private, members of the rival firms engage in boasting and sniping befitting their mutual fixation on a chimerical pre-eminence. Occasionally, they cluck out in the open, as when Sullivan & Cromwell partner Philip Graham Jr. told The American Lawyer in 1988, “We produce the best written work of any law firm in America. Better than anything I’ve ever seen from Cravath.” His partner, John Merow, chimed in, “We really don’t think that, all in all, Cravath … has quite the range of strengths that we do.” Mr. Merow, claiming he was misquoted, promptly apologized to Cravath’s managing partner.

Unbeknown to almost all the Cravath and Sullivan lawyers who fuel this pretentious and ritual jousting, there’s a genuine 138-year-old beef behind this–one with allegations of political wrongheadedness, overreacting and, of course, claims of superior understanding of the law.

In 1861, not long after the Civil War broke out, Algernon Sydney Sullivan was working solo out of an office on William Street. He took on an assignment representing the crew members of a Confederate warship called the Savannah who had been captured and sent to New York for trial on piracy. Sullivan argued that they were actually prisoners of war.

Not long before, William Seward had taken over as Abraham Lincoln’s Secretary of State. His bust today rests in Cravath’s main reception area, as he was a name partner from 1823 to 1850. (Cravath’s name wasn’t added until 1901.)

The rest of Sullivan’s tale is told in a 1979 Sullivan & Cromwell history that John Warden, a lawyer of the firm working on the Microsoft defense, was kind enough to read to N.Y. Law over the phone. “He was threatened, warned to leave New York, and denounced to the Federal Government, which went so far as to arrest and imprison him,” Mr. Warden recited. Not noted in the account: William Seward, an ardent abolitionist offended by Sullivan’s trafficking with Confederates, signed the imprisonment order himself.

Seward’s act put Sullivan into custody at Fort Lafayette in New York Harbor for six weeks, until another lawyer convinced a judge that Seward had overestimated the Government’s wartime power to suspend habeas corpus. (The judge concluded that the Government could only do that in Washington, D.C., not in the rest of the nation.) Sullivan returned to court, won a hung jury, and soon thereafter his clients were exchanged as prisoners of war for captured Union fighters. Sullivan moved on to other clients and other partners, eventually grooming William Nelson Cromwell to be his final name partner.

The case, however, drastically altered the founding father’s career, according to Sullivan & Cromwell’s senior counsel Robert MacCrate. “He was something of an outcast after that. He had been discussed as a candidate for Mayor before the war, but having represented the South, that went out the window,” said Mr. MacCrate. The other burghers in town didn’t invite him to join the founding of the Association of the Bar of the City of New York. The experience left him terminally ill, too: He contracted disease in Fort Lafayette that he never shook.

A Cravath guy throws the firm’s founder into jail simply for defending his client. Good feud material, no? “That connection seems to have escaped most people,” said Mr. MacCrate.

But on his way to a meeting of the Lawyers Committee for Civil Rights, Mr. MacCrate found himself in front of pictures of Cravath’s founders in the hallway of the firm. With civil rights on his mind, he decided to bring up the incident. “Which one of these guys threw Mr. Sullivan in jail?” Mr. MacCrate said he asked. A Cravath partner had no idea what he was talking about.

John Warden, who said he was enjoying his hiatus from the Microsoft trial (“You bet”), downplayed any possibility that the Sullivan & Cromwell team would use Algernon Sullivan as inspiration for his current Cravath-tinged face-off or other modern-day cases. “Look, the firm didn’t even exist then, much less have any kind of friendly rivalry with Cravath,” he said. Maybe so, but Sullivan at least beat the Cravath guy in the courtroom then.

Rehnquist Joins N.Y.C. Bar, Denounces City Life Style

When Chief Justice William Rehnquist arrived at the Association of the Bar of the City of New York to become an honorary member the afternoon of April 13, he was wearing stripes. They were on his gray tie, though, as were four diamonds and a lot of dots. Nobody stood up when he entered the hall for lunch.

Speaking on the day after the nation’s President was convicted of contempt in Federal court, before a crowd of 100, Mr. Rehnquist chose to discuss perjury. A car thief on the witness stand in Phoenix in the 1950’s had lied to someone, and that helped Mr. Rehnquist get a “certainly guilty” client off. That was as close as he got to discussing the President’s legal plight.

The Chief Justice did have a message to deliver to his new colleagues that afternoon, and it was that the city’s law firm associates are entitled to a life, or at least some fresh air. “Surely some of the sense of being in control of one’s own life is lacking in large law firms today. The demanding hours required leave little time for family or outside activities. The financial rewards are enticing, but some of the professional independence, some of the lawyer’s role as an active citizen–things that seem to me, at any rate, to be part of the reason for being a lawyer–have been totally lost or greatly diluted in exchange for the financial rewards.”

The audience of 100 gave him three standing ovations even though the picture he painted was in 1950’s black-and-white and prominently featured illustrations from the Phoenix legal scene. “There was something of a community of lawyers revolving around the two courthouses which led to a feeling of congeniality and camaraderie among all but the most confirmed loners,” he remembered fondly. “Most of us did not feel the breath of Mammon breathing down our neck every time we took a break.”

Not here, he insinuated. He recited some lines from Longfellow’s poem “The Building of the Ship”: “The heights by great men reached and kept/ Were not achieved by sudden flight/ But they while their companions slept/ Were toiling upwards in the night.”

Then he quoted a comment by Louis Auchincloss, the lawyer-author. “He had as an office a small cubicle which looked out only on a ventilation shaft. When he was asked whether he did a lot of his work at night, he responded, ‘I don’t know.'” He closed by saying the profession had changed but lawyers themselves were still the same admirable characters.

His former clerks–taking a noontime pause from their Mammon-fixated, soul-grinding jobs at Cahill Gordon & Reindel; Sullivan & Cromwell; Davis Polk & Wardwell; and the Federal District Court in Brooklyn, undoubtedly in exchange for work late into the night–greeted him afterward to say hello and to mention that they would be coming to the reunion in June.

New York lawyers shouldn’t take the criticism personally, said Robert MacCrate of Sullivan & Cromwell, a former president of the New York State Bar Association. “He delivered the same speech in Indiana 20 years ago,” recalled Mr. MacCrate.

Ted Kheel, Victor Gotbaum Negotiate Shelf Space

The book party on April 13 at the new New York Press Club conference center on 42nd Street celebrated labor lawyer Theodore Kheel’s new book, The Keys to Conflict Resolution . In it, he describes techniques that will give one success in negotiations, and intersperses throughout reminiscences of some of the big-time negotiations in which he’s participated.

On hand to congratulate Mr. Kheel, 85, were veteran New Yorkers like newscasters Gabe Pressman and Ralph Penza, and former labor leader Victor Gotbaum. Mr. Gotbaum, 77 years old, was also keeping an eye on book-party etiquette. His new book comes out next month. In it, he describes how to win in negotiations, and includes reminiscences from the major battles in which he has participated.

Despite the similarity, neither man viewed the other as competition. “Ted doesn’t fashion himself as a negotiator, I didn’t fashion myself as a third-party mediator,” said Mr. Gotbaum. The two of them never worked together, so picky readers get to shop between two different sets of bargaining sessions. Mr. Gotbaum’s include his divorce talks.

Mr. Kheel’s book, his third, was published by the small press Four Walls Eight Windows, and he took payment for it. He is donating royalties to a not-for-profit foundation he started to promote conflict resolution, and is advertising the book by including the entire text on the Internet.

Mr. Gotbaum, in contrast, was given a $75,000 advance by Simon & Schuster. Not bad for a first-time author. Must be a pretty good negotiator, huh? “No, they just offered me $75,000 as an advance. I never negotiated it. I didn’t ask for $80,000 or push them up. They just offered the advance and that was it.”

Mr. Gotbaum, who negotiated several multimillion-dollar contracts for city workers during his heyday, suggests in his book that one size up one’s adversary across the table. He did that with Simon & Schuster. “I was a little flattered, why the hell are they advancing that kind of money? Then I realized it’s only an advance, you make it up. I really don’t even know how it works, to tell you the truth. I’m assuming it goes towards profits or something like that.” Maybe author Mr. Kheel will explain it to him.

You can reach N.Y. Law by e-mail at mfleischer@observer.com.