LITMIR.BIZ

       CHAPTER 2

       Trial Lawyer

      MAKLAKOV’S DECADE as a trial lawyer developed his analytical and rhetorical skills, exposed him to facets of Russian life rarely brought home to a Russian intellectual, and gave him the opportunity to hone his powers of persuasion on countless juries of ordinary Russians. The simplest way to describe this period and highlight the features of Maklakov’s character that it reveals is through a series of vignettes and anecdotes. I postpone to later chapters discussion of his two most famous trials, which occurred after he had turned almost entirely to politics. One was the Vyborg Manifesto trial, where Kadet Duma members were charged with distribution of offensive material in a call for civil resistance to the tsar’s proroguing of the First Duma in July 1906 (see chapter 6). The other was the defense of Menahem Beilis, whose prosecution arose entirely out of Beilis’s being Jewish (see chapter 9).

      In principle a Russian could become a full-fledged lawyer—could move from “assistant” to “sworn attorney” (from pomoshchnik to prisiazhnyi poverennyi)—only after serving a five-year apprenticeship. Happily the apprenticeship rules allowed an apprentice to engage in independent representation of a client without reaching the position of sworn attorney. For the many talented Jews hoping to become lawyers, the rules had a more serious impact, often preventing them from even securing status as an apprentice. If they overcame that hurdle, however, the barriers to their becoming sworn attorneys were of largely symbolic effect—the regime’s way of expressing its attitude toward Jews.¹ Apart from these pointless obstructions, the apprentice rules did little to achieve their nominal training goals; in the words of one observer of patrons and their apprentices, “the first did not supervise, the second did not help.”²

      Maklakov’s apprenticeship was especially odd. In one sense, he had two apprenticeships; in another sense, none. A friend of his father, the very distinguished lawyer Fyodor Plevako, asked him to apprentice with him and even seemed to assume he would do so. But Maklakov declined because he thought that Plevako, awash in clients, had accumulated so many assistants that they included quite a few of “deservedly questionable reputation.” Consultation with his mentor L. V. Liubenkov, an elderly justice of the peace, confirmed his intuition and added an additional reason for avoidance. In choosing a patron, Liubenkov advised him, “Don’t go with a famous one; there you won’t learn anything. Don’t go with an unknown; there you won’t find enough work. Go with one who isn’t famous, but soon will be.” Liubenkov believed Alexander Robertovich Lednitskii met that standard, and Maklakov signed on with him. Events, in fact, made that apprenticeship a dead letter, but the two became good friends. When Maklakov set off from Russia for Paris in October 1917 to take up his post as ambassador, the Provisional Government’s wartime security measures kept his travel information largely secret; among those in the know, only Lednitskii came to see him off at the Finland Station.³

      Though Maklakov turned up at Lednitskii’s at the appointed time to start his apprenticeship, he never worked with him. Because of a chance case-scheduling shift, Maklakov stepped into the shoes of Plevako at the last minute as counsel for one of the defendants in a major trial. The client was acquitted. As Maklakov later recounted, “The defense went so well that it made my name. I became an independent lawyer.”⁴

      The trial involved a set of rather sensational swindles at the Northern Insurance Company. The newly appointed procurator for Moscow, Alexander Makarov, later to be Russia’s minister of internal affairs (indeed, the immediate predecessor of Maklakov’s brother Nikolai), handled the case himself rather than assigning it to a deputy. Just before the trial Plevako was called to the Caucasus to fulfill a prior obligation in another case. Talking up Maklakov with what Maklakov calls “typical Plevako hyperbole,” he urged his client to enlist Maklakov as his substitute. Because time was short, the client had little choice and acquiesced in the substitution.

      In the ensuing high-profile trial, Maklakov’s client, one Setkin, was only small-fry. He had used clients’ funds to gamble on the stock exchange and had lost. Maklakov’s strategy turned on an important idiosyncrasy of Russian law. It gave the jury the task of finding not only the elements of the crime, including “intent,” but also whether the defendant deserved to be held criminally responsible on a moral basis. Perhaps the most famous application of the principle had been in the trial of Vera Zasulich, who had indisputably attempted to assassinate General F. F. Trepov, governor of St. Petersburg. The defense was that years of deprivation and political oppression had developed in her “an acutely sensitive nature”; this provided enough of an opening to allow the jurors to acquit.⁵ Under Maklakov’s guidance, Setkin openly confessed his guilt, but to explain it he testified that he’d been led down that path by the atmosphere of easy profit on the stock exchange. He also undertook to compensate the injured.

      Although all the defendants were acquitted, Setkin’s case was special because he had confessed his guilt. Maklakov’s closing speech turned that seeming liability into a strength, arguing that in the circumstances a verdict of acquittal “would not whitewash Setkin’s acts.” A reporter covering the trial quoted that passage and wrote, “I congratulate the young advocate on his choice of words that were direct, truthful, honorable, and worthy of the highest justice.” Favorable publicity of this sort solved the standard problem of a young lawyer—how to find clients—and at least in that sense mooted Maklakov’s need to serve an apprenticeship.⁶

      Though the Setkin defense may have made Maklakov’s name, it was not his first case. That came to him through his friendship with Tolstoy and his family. Maklakov lived with his brother and sister in a small apartment on Zubovskii Boulevard, a few steps from where Tolstoy lived, on Khamovnicheskii Alley (since renamed Lev Tolstoy Street), and they were constantly over at the Tolstoys’. One day Tolstoy asked him if he would represent a member of a sect who had been found guilty of the crime of “inducement to schism” in the circuit court in Kaluga and had been immediately locked up.

      According to the client, all that had happened was that he had passed by a factory as the workers were leaving, and they, knowing him, started to make fun of him. He had evidently overdone his response, but he firmly denied any intent to stir up a religious schism. By providing bail for the defendant, Maklakov made it possible to get an immediate appeal to a Moscow court rather than a delayed appeal in Kaluga. “Appeal” here meant an opportunity for retrial in a higher court.

      The defendant had not testified at the trial, so the conviction was based simply on the evidence set out in the accusation.

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