ARTHUR H. NIGHSWANDER, 93 years old and still an active member of the New Hampshire Bar, has much more than longevity to his credit.

He succeeded in establishing a law practice in Laconia in the midst of the Depression. Elected president of the New Hampshire Bar in 1955, Nighswander stood against the political paranoia sweeping the country, defending a man jailed for refusing to provide information about alleged "communists" who attended meetings at a North Conway conference center. The case of Willard Uphaus, a Connecticut minister, was argued all the way to the US Supreme Court twice, but on the second appeal the high court upheld the conviction on contempt charges. Uphaus spent two years in jail before he was freed.

In the 1970s, Nighswander, along with several other New Hampshire attorneys, sued the state of New Hampshire on behalf of 28 school districts in Jesseman v. New Hampshire, a precursor to the Claremont school-funding lawsuit. John L. Tobin Jr., one of the lead attorneys in the Claremont case, calls Nighswander the "grandfather of Claremont ."

After years of research and pre-trial motions, the Jesseman case was remanded by the NH Supreme Court back to the Superior Court for work on several factual issues. At the same time the Legislature enacted a plan to fund property-poor districts, known as "Foundation Aid." Rather than endure more years of expensive litigation, the plaintiff school districts decided to drop the suit. Subsequently, the promise of Foundation Aid proved to be an empty one: In only one year, Nighswander said, was Foundation Aid ever fully funded according to the Augenblick formula, guidelines established by an independent consultant.

"The state fought the case at every step," Nighswander said. "They didn’t want the case to come before a judge on its merits. The state wouldn’t even agree to its own figures. To this day, I don’t understand why the NH Supreme Court didn’t decide it then."

Today, Nighswander expresses irritation and indignation undiminished by many years of distance from the issues. He believes the case for state responsibility for funding an adequate education for students in all districts has always been clear-cut: "If you look at Article 83 of the New Hampshire Constitution, it talks about the ‘encouragement of knowledge and learning,’ and that it shall be the duty of the state to ‘cherish’ education. Look it up in a dictionary from that time and you’ll find that ‘cherish’ means to ‘nurture’ and ‘nurture’ means ‘support’."

Despite his advanced age, Nighswander continues to work part-time. He lives in his own apartment at the Kendal at Hanover senior citizens complex and two or three days a week, works at his office at the Bradley, Stebbins & Wood law office in Hanover, where he maintains a limited probate practice. On the day he was interviewed, however, Nighswander was in the assisted living facility at Kendal, recuperating from cardiac problems that had temporarily sapped his energy, but not his mental faculties.

Meeting his interviewer, Nighswander’s handshake grip is firm and his gaze is steady. The ensuing conversation is replete with anecdotes from his long and distinguished career, but what energizes him during the visit are topics of current concern—many of which have roots in past causes he has espoused.

Recently, Nighswander met with a group of Dartmouth College students to discuss his experiences with defending unpopular defendants during the Red Scare of the 1950s. When asked if civil liberties could again be threatened by something like the Uphaus case, Nighswander responded, "Of course it could happen."

Contemporary politics disappoint him. Nighswander expressed anger at President Bush’s decision to end the pre-nomination screening of federal judicial candidates by the American Bar Association, as well as the new administration’s stances on environmental and social issues. "Bush is turning the clock back on many issues," said Nighswander. "It’s nonsense that the American Bar Association can’t have anything to say about qualified judicial candidates. This wasn’t a partisan process—it was started by the Eisenhower administration."

Nighswander also is concerned about the legal profession, which he sees becoming increasingly commercialized. "You read about these attorneys in the big cities starting at $100,000 a year and being required to bill 2,500 hours. That’s no longer a profession and it scares people away."

Hourly billing is a particularly sore point. It’s a trend he decried long ago, even during his tenure as Bar president, contending that it wasn’t fair to clients and didn’t reward performance.

"Every hour you spend on a case is not equal," he declares. "I used to charge the client what the work or the advice was worth. If I gave advice that meant a lot, I charged them for it. But if you are sitting around in the courthouse, waiting for a case to be heard, you can’t charge the same amount. I never worried about my fees. I always figured that a satisfied client would tell someone else and I would benefit from it."

Nighswander tells a joke about a farmer who brings a surveyor to his property to help find a property-marking pin. The surveyor takes off across the field and returns in 15 minutes with the information. When he presents the farmer with a bill, the farmer complains about the amount. The surveyor responds, "You aren’t paying me for working for 15 minutes, you are paying me because I knew where the pin was." Nighswander offers a country lawyer’s simple advice: "Ask yourself, ‘How would I feel if I were getting the bill?’"

Safeguarding the integrity of the legal profession has always been important to Nighswander. During his tenure as Bar president, he set a precedent by filing a petition to suspend an attorney for misappropriating client funds in the days before the court created the Professional Conduct Committee. Several years later, Nighswander helped establish the Client Indemnity Fund, a voluntary program started before the Bar was unified that provided restitution to clients wronged by dishonest lawyers. (That fund was depleted by claims from victims of John Fairbanks in the early 1980s and has since been succeeded by the Supreme Court’s creation of the Public Protection Fund, to which all attorneys contribute.)

The current judicial reform movement hasn’t escaped Nighswander’s notice. He opposes the elimination of lifetime tenure for judges proposed by some lawmakers, fearing it will jeopardize judicial independence. "I can’t see what’s wrong with the present system," Nighswander said. "You can’t tell me that a judge who is up for reelection [or reappointment] isn’t going to decide a case without his continued tenure being a factor in his mind."

Nighswander is disappointed that the important role of lawyers in safeguarding individual rights is often overlooked, and he admits that he was most proud when receiving a lifetime award from the NH Civil Liberties Union. Advocating the causes of unpopular or vulnerable people is part of what every lawyer should do, Nighswander believes. In his day, there was no organized pro bono program or legal aid agency in New Hampshire. While he admires the work they do, he fears that the existence of such resources detracts from the obligation that every lawyer should feel to do such work.

It’s difficult to hold onto the concept of lawyering as a profession, Nighswander acknowledges, and he has no answers. "I’ve always been proud to be a lawyer, and I feel bad about those articles that say the public thinks we are no better than used car salesmen. "

Nighswander had the tragic experience of outliving his son, Warren, who practiced with the Sulloway & Hollis law firm in Concord and who died suddenly of a heart attack two years ago. When prompted, the elder Nighswander said he was proud that in many ways his son, a well-respected trial lawyer who also was active in civil liberties cases, shared his view of the law. "He looked at the law as more of a profession, like I do," Nighswander said.

But what also shines through in Nighswander’s conversation is that he is a trial lawyer first and foremost. Unfortunately, he sees trial practice becoming too rules-bound. "It’s lost some of its romance," he said. "I liked the challenge of the law. We used to have fun. We did our own investigating, and our own research. And there wasn’t so much pre-trial discovery. I liked the surprises," he said with a grin.

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