Bar News - December 14, 2012
Fred Upton’s Passion for Justice Was a Family Affair
By: Dan Wise
At 93, retired lawyer Frederic K. Upton still has a passion for justice.
Fred Upton makes remarks at a reception to celebrate the creation of a Bar Foundation Justice Fund in his name. Behind him, at left is NHBF Board member William Glahn and attorney Robert W. Upton II, one of Fred Upton’s sons and a member of the firm.
Returning to his Concord law firm last month to celebrate the creation of a Bar Foundation Justice Fund in his name, Upton spoke modestly and humorously about his career. But he spoke most movingly not about his own cases but about the passion for justice that his late father instilled in him, citing a decades-long legal battle his father fought on behalf of a railroad worker who suffered a crippling on-the-job injury.
Colleagues say Upton is one of a vanishing breed – a true generalist who in his day was both an outstanding trial lawyer and transactional lawyer.
The new Bar Foundation fund and Upton’s career were spotlighted at a reception held at the firm’s Concord office last month. The fund and an initial gift of $10,000 will be dedicated to promoting and supporting law-related education.
Attendees included retired Supreme Court Justice William Batchelder, NH Bar Foundation Chair Jack Middleton and board members William Glahn, Jaye Rancourt, and retired Probate Court Administrative Judge John Maher. Also attending were NH Bar Association past presidents Russell Hilliard and Marilyn Billings McNamara, who are Bar Foundation board members and members of the Upton Hatfield firm.
Upton, a Concord native, practiced his entire career with the firm started by his father, the late Robert Upton. He joined the firm after Navy service in World War II, where he earned two Bronze Stars for his role in helping to sink two German U-Boats while aboard a destroyer escort in the North Atlantic. Upton likes to joke about his distinction as one of only a handful of lawyers who were admitted to the NH Bar without taking the bar exam. Upton had left Harvard Law School in his third year to enlist in the Navy. In 1943, while back in Concord on leave, the Supreme Court waived the bar exam and admitted Upton and Hugh Gregg, who also left law school without graduating to serve in the military.
At the event in his honor last month, Upton recalled one of his first courtroom experiences after joining the firm. "It was the fall of 1945. By that time, I had forgotten half the law I had learned. The firm sent me to the Supreme Court to argue for a new trial. I did not know what kind of error could constitute the requirement for a new trial. I jumped up to the lectern and started my argument. In a minute or two, my mouth had run dry and I was barely audible. Chief Justice Oliver apparently took pity on me and asked to take a brief recess. I was so thankful to him that I was able to compose myself. And I won the case."
Another notable case for Upton had a permanent impact on New Hampshire’s landscape. In the late 1960s, he represented the Society for the Protection of NH Forests in opposing the construction of Interstate 93 through Franconia Notch. Federal highway funding dictated that all segments of the interstate highway meet certain minimum standards for number of lanes, medians, etc. that conservationists felt would destroy the beauty of the Notch. Upton used the recently created environmental impact statement process to challenge the extension of the highway, which by then had been completed up to Lincoln and, coming from the north, stopped at the Connecticut River near Littleton.
"I had a lot of fun trying that case," Upton said, recalling how he grilled state Highway Commissioner Robert Whitaker, a friend, on the stand. Upton and the Forest Society argued that a narrower, less elaborate parkway could be built through the notch to minimize the impact, both from the construction and on the scenery. "The key to winning our case was hiring an expert witness who said seismic disturbances might bring down the Old Man of the Mountain. We produced evidence of a rock slide trigged by earlier road construction that had occurred 10 miles from the notch."
With the help of Senator Styles Bridges from NH, a fixture on the US Senate Public Works Committee, legislation passed allowing federal highway funding for parkways, and the compromise for the Franconia Notch section of I-93 became a reality.
Upton was the NH Bar Association’s first president after the Supreme Court granted the Bar’s petition to make membership mandatory for licensed lawyers. Upton, working on the petition with attorneys Stanley Brown and David Nixon, said the Bar Association was not much more than a social organization.
"Its function should be to keep lawyers educated and abreast of the law," Upton said, adding that a more inclusive, unified bar, would better enforce standards of practice and civility. "The malefactors weren’t members of the bar. We needed to bring them in."
As president of the newly unified bar association, Upton led in drafting the constitution and bylaws for the organization and ramping up education and other efforts. The Bar, unified by a split vote of the court for a three-year test period, passed the test, an achievement that Upton clearly treasures. "We demonstrated that we were worthwhile," Upton said, noting that the 1972 opinion that made the bar’s unification permanent included the vote of Judge Laurence Duncan, who had voted against unification in 1968.
Upton’s colleagues, including secretary Barbara Brown, who has worked at the Upton firm for 50 years, say that in his prime, Fred Upton was an intense, dogged litigator, and in Brown’s word, "tough." Russell Hilliard was among the attorneys at the firm who learned about litigation from Upton.
"Fred was relentless in a very professional way. If he wanted to get something out of a witness, he would just keep at them like a dog that won’t give up on a bone." At the same time, Hilliard marveled, Upton also was immersed in merger and acquisition work and complex estate planning, and he was able to master it all.
The Upton legal tradition continues. Two of Fred’s six children, including Robert, who practices in the firm’s North Conway office, are lawyers; and one of Upton’s grandchildren, Martha Fulford, is a lawyer for the new federal Consumer Financial Protection Bureau. She turned down offers to practice in the private sector, Upton said, to follow her desire to represent the public interest.
That triggered a memory – and a funny story – from Upton, about his own career decision. He recalled an event he attended as a student at Harvard Law School where retired Supreme Court Justice Louis Brandeis urged students to "go back to your hometown and benefit the local area and your people." Upton grins as he recalls one law student responding: "But Justice Brandeis, have you ever been to Fargo, North Dakota?"
Upton said he was glad he followed Brandeis’s advice. "I was awful glad I came back to New Hampshire to practice."
Of all Fred Upton’s cases and clients over his more than 50 years in practice, the case that really fascinates him wasn’t his case at all.
In remarks at the reception, Upton continued to marvel at the tenacity and dedication to justice exhibited by his late father who persevered in a crippling workplace injury case for railroad worker Arthur Watkins that began in 1918. Despite his client’s lack of resources, going up against the most powerful private employer in the state, and repeated reversals (there were six formal decisions by the NH Supreme Court and three jury trials), the elder Upton fought for more than a decade to secure a judgment for Watkins. Fred Upton wrote about the case in the December 2003 issue of the NH Bar Journal.
Fred Upton inherited his father’s client and secured a victory for Mr. Watkins years later in another kind of case. Watkins, hobbled by his railroad injury, nevertheless loved to go hunting, Upton recalled. "He had a wonderful rabbit hound. Mr. Watkins would lean himself up against a tree, and that dog would go out and chase rabbits until he got the rabbit to run by the tree, and Watkins would shoot the rabbit. That was a very valuable dog to him."
Unfortunately, the dog barked at night, and Watkins’ neighbor repeatedly complained about it. One day, Watkins found the dog shot to death and immediately blamed his neighbor, Mr. Paresso. He enlisted Upton to sue the neighbor for the value of the dog.
"At trial, I put the neighbor’s nephew, a brash young man, on the stand," Upton recalls. "I asked him, ‘Did the dog make a lot of noise?’" The witness went on at length about what a disturbance the dog caused. Noting how the witness warmed to the subject, Upton then asked him to imitate the sound of the dog’s bark, which he did, to the amusement of all in the courtroom. Upton said he wanted to put the witness at ease by having him do something that was familiar and comfortable to him.
"At that point, he leaned over to me, confidentially, and said, ‘If my uncle hadn’t shot him, I would have!’ It was an awful moment. He realized he had let the cat out of the bag. He looked at me and said, ‘Go to hell, Upton.’ And he turned to his lawyer and said, ‘You go to hell, too!’ And then he looked at the judge and said, ‘But not YOU, judge!’"