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Editorial


Front Page - Friday, January 11, 2013

Carving a legacy of her own




Pamela O’Dwyer, an attorney, recalls a moment from her past. She’s with her sister, Kem, in the Florida Keys, the two of them dressed to swim in the shallow blue waters. Although born eight years apart, they have lived like twins, so they’re in one accord as they pick a point and begin to make their way across the shimmering expanse. They entertain no thoughts of how long it will take them to reach their destination, but simply enjoy moving in that direction until they arrive.

“We couldn’t tell how far away it was, so we had to find the strength to keep going,” she says.

O’Dwyer is sitting in her downtown apartment, the elegant Benwood Foundation visible through the front window. Outside, wet leaves cling to the sidewalk, unmoved by a chilly December breeze. From her seat in her small living room, she turns her head toward a nook that offers a view of 5th Street, but her eyes don’t look through the window. Rather, they land on a relic, a tall writing desk built when attorneys put pen to paper rather than fingers to a keyboard.

“That’s where I wrote the most important legal brief in railroad law of its day,” she says. “I worked on several cases that went to the Supreme Court [of the United States], but that brief was mine alone.”

O’Dwyer’s eyes refocus slightly, as though she’s shifting her gaze. She sees something not visible to anyone else, a memory with substance only in her mind. But she’s not ready to stir that ghost, so she draws a breath and says something many attorneys must think on days when the intrigues of law and justice weigh heavy on their shoulders:

“I probably never should have been a lawyer.”

A singular flame

O’Dwyer certainly isn’t dressed like a lawyer. Her long, dark locks fall over the shoulders of a black swallowtail coat, which she’s buttoned over an ordinary red plaid dress. Fixed to her lapel is a black and silver pin bearing the words “Illinois Central.” A hand-tooled leather gun holster is wrapped around her waist, providing a snug confine for her cell phone. Inspired by a bareback rider she met, she wears it everywhere she goes – including court.

Judges tolerate the holster, but on one occasion, the coat nearly got her booted out of the highest court in the land.

“I wore it to the Supreme Court arguments in Easterwood,” she says, referring to Easterwood v. CSX Transportation, a wrongful death action that arose out of a railroad-crossing incident. “But only the Solicitor General of the United States is allowed to wear the swallowtail coat. Who knew? Not me. So I’m making my way to my seat when one of the court officers, who are relentless in their strict enforcement of decorum, takes me by the elbow and escorts me to the counsel table, where the Solicitor Generals are seated. I put up a good struggle as they explained the rules.”

They let O’Dwyer wear the coat. Although unsettling, the incident failed to pinch out the candle of nonconformity that burns within her. Since a child, O’Dwyer has swam against the tide, and expressed herself in ways that might seem eccentric to some people but make sense when cast in the light of her reasoning.

“I used to refuse to drive a car,” she says, offering an example. “I’d ride a bike in pouring rain to dance class. I was making a statement: our vehicles are destroying the world.”

O’Dwyer lives aggressively against the grain, so one can be forgiven for wondering how she wound up practicing law. But while a legal career might have been an uncomfortable fit for her, it was in her blood.

Family legacy

O’Dwyer is the daughter of attorney Selma Cash Paty, whose name inspires a nod of respect from those who know of her groundbreaking work. In practice since 1949, Paty is a Chattanooga legend and a role model for female lawyers. O’Dwyer calls her “one of the greatest legal minds.”

“She’s incredible. She’s brilliant. She’s beyond description. Were she not deaf, she’d be on the Supreme Court of our state, if not higher,” she says.

Although Paty never pushed O’Dwyer toward the law, she was a powerful force in her daughter’s life. So when people asked O’Dwyer if she was going to be a lawyer, like her mother, she said yes. “By age 5, I was committed. I was going to be a lawyer, whether that was me or not,” she says.

O’Dwyer hastened through her education without giving any thought to what else she might do. She attended B’nai Zion Hebrew School as a child, graduated from Brainerd High, and by 16 was taking classes at the University of Chattanooga. O’Dwyer earned her Juris Doctorate at the University of Tennessee College of Law and was then sworn in to the Supreme Court of Tennessee at the age of 21.

Foreshadowing the waves she’d make as a lawyer, O’Dwyer arrived at the ceremony pregnant with her first son, David. This didn’t sit well with one of the men in charge.

“He said, ‘She can’t be sworn in in that condition.’ So, William L. Brown, who’d been in my class, said, ‘If she can’t be sworn in in that condition, then I won’t be sworn in.’ The man said, ‘Fine, but she’ll have to stand in the back row,’” O’Dwyer says.

O’Dwyer settled in at the family firm, although she found no comfort in the shade of her mother’s legacy. Rather, as she went to work, a single, frightening thought scraped at the inside of her skull, like a beetle trying to burrow its way out: “This is not me, and that scares me to death.”

The Law v. O’Dwyer

O’Dwyer has a simple answer for why she and the law make poor bedfellows: “Because it’s hard.”

By “hard,” O’Dwyer doesn’t mean, “beyond her mental grasp.” Like her mother, she’s intelligent, articulate and able to illuminate the darkest corners of a case, where the truth sometimes hides. But she’s not a concrete, sequential thinker, and she lacks the “win-or-lose” mentality of many of her peers. “I’d rather muck out stalls on my farm and ride my mule,” she says.

O’Dwyer is also sensitive, some would say to a fault. “I cry myself to sleep. I grind my teeth. And I weep in courtrooms. That’s puts off some of the judges, but I’m devastated when my clients aren’t treated fairly,” she says.

Despite her qualms, O’Dwyer wanted to help people, so she developed a practice similar to her mother’s: she represented people going through a divorce, workers who’d been injured on the job, and employees who’d suffered discrimination. Years later, in a bid to find an area of the law on which her mother hadn’t made her mark, O’Dwyer turned to railroad work when a case fell into her lap.

“A client wanted lights and gates put up at a crossing. I called the railroad and talked with Mr. J.R. Williams of CSX,” she says. “I said, ‘The family is really upset. They’d like to save lives. Could we arrange to put up crossing gates and lights?’”

The man’s response chills O’Dwyer’s blood to this day. “He said, ‘Lady, that’s a private crossing, and we can kill as many people as we want,’” she says.

O’Dwyer argued the case to the Supreme Court, but in the end, CSX defeated her. Although crushing, the loss sharpened O’Dwyer’s resolve like a grindstone, and since 1987, nearly everything she’s done has been related to railroad work. “At that time, a train hit someone every 60 minutes, so it was the right topic for me,” she says.

Years of arduous tooth-and-nail legal work followed, adding bulk to O’Dwyer’s statement about the law being hard. From where she sits, a bitter brew of propaganda, prejudice and unfair laws makes railroad cases nearly impossible to win.

“We can barely beat them under any circumstances,” she says, her jaw tensing. “No one believes you can be hit by something as big and as loud as a train. And the railroads know how to use that preconceived notion to their advantage.”

Perhaps nothing is more responsible for O’Dwyer’s teeth grinding than a federal law known as preemption, which shackles her arguments in cases dealing with railroad crossings at which the government has spent money on warning devices. She cannot challenge their adequacy, she says, regardless of what happened after they were installed.

Even when O’Dwyer beats a preemption argument, she sometimes faces still higher hurdles. In Jones v. Illinois Central Railroad Company, a man driving a fertilizer spreader was struck by a train, and sustained head injuries so severe, he lost all memory of the accident. O’Dwyer beat the preemption argument, but because evidentiary exclusions based on federal protection prevented her from presenting proof that the state had found the crossing warnings to be inadequate, she was unable to say Illinois Central should have installed lights and gates at the crossing before the wreck. “We couldn’t even say vegetation at the crossing blocked the driver’s view,” she says, indignation evident in her voice.

To arm herself for battle, O’Dwyer immersed herself in railroad science, to the point of learning the smallest minutiae that affected her cases. “Did you know the horn wasn’t made to warn someone in a modern automobile of an approaching train? It was designed to alert a railroad worker standing on the track 100 feet away,” she says.

Like the outcomes of some of her cases, a thread of irony snakes its way through O’Dwyer’s career. If fighting a railroad is hard work, then fighting a railroad when you’d rather be mucking stalls on a farm drains the soul. However, O’Dwyer found, in two wellsprings of strength, the ability to continue raising her fists.

Unexpected inspiration

Doing something against one’s nature isn’t easy. But O’Dwyer has shown it can be done, to considerable success. Although not a concrete, sequential thinker, she relies on her ability to draw mental pictures in the minds of jurors. Where she lacks the “win-or-lose” mentality of her opponents, her outrage at the injustices her clients have suffered inspire her to enter the fray. And, until nearly a decade ago, when a thorny dispute had cut into her skin and emptied her reserves, she wrote poetry.

O’Dwyer didn’t even know she had a heart for poetry until attorney Jack Chambliss enlightened her. Circumstances had brought her to his desk, where she was spending several days taking hundreds of testimonies relevant to a case on which she was working. To remember each plaintiff as an individual, she sketched caricatures on the blotter. Chambliss saw the drawings and wrote her a note.

“It said, ‘This is wonderful. Write me a poem.’ I wrote back, ‘I don’t know how.’ And he wrote, ‘Yes you do,’ and he gave me some words: horseshoe, nail, and owl,” O’Dwyer says. Through the experience of writing her first poem, she fell in love with the process, and each time she tried a major case, she’d self-publish a book of poetry.

Then came Shanklin v. Norfolk Southern Railway Company, a grueling case that started in 1996 and stretched across several years, taking her from the trial level, where she won; to the U.S. Court of Appeals for the Sixth Circuit, where she won; to the U.S Supreme Court, where she lost. Undeterred, she started over at the trial level.

As she discusses Shanklin, O’Dwyer sees a ghost stirring in the corner of her eye, and turns to look at her writing desk. She explains how she raised four boys, and how three of them were unimpressed with her status as an attorney of distinction. “They treated me like I was only their mother, not a lawyer,” she says.

But Charlie was different. He was proud of her and supportive. He also looked out for her. As his mother worked into the thin hours of the morning, he’d come out of his room to coax her away from her writing desk. “It’ll be here in the morning,” he’d assure her, and he was always right.

Then, one morning in 2004, Charlie was suddenly no longer there. He’d come to Chattanooga to attend a wedding, and died in an early morning wreck. He was 27.

O’Dwyer can’t describe the loss. To understand the grief a mother feels upon the death of her child, one must likewise lose a son or a daughter, something O’Dwyer would never wish on anyone. She’s learned to keep the anguish at bay, and even smile at the memory of Charlie, but discussing his passing still brings tears to her eyes.

“My son’s death changed me,” she says, her voice choking. “I was weak, but Charlie made me strong. There was a time when I would’ve said, ‘I’m not good at anything,’ but he wouldn’t have tolerated that, so now I can take a compliment, and I believe I’m good at what I do.”

In the wake of her son’s death, O’Dwyer stopped publishing poetry. For a while, she wrote for herself, and found healing in the lines, but eventually, the demands of work stilled her hand. Today, O’Dwyer’s job nearly consumes her, but she’s as strong as ever, and has allowed her passion for safe motoring to take her in new directions.

On being Jewish

One side of O’Dwyer does fit snuggly with the law: her Jewish heritage, which says the world is broken, and each individual must labor to repair it. “Every human being must live well now, and do well by people every day,” she says.

O’Dwyer takes this philosophy with her when she leaves her office. Her civic contributions includes the formation of a victims’ group, serving as chair of the American Trial Lawyers Railroad Litigation Group, and teaching safety seminars put on by the National Safety Council, among other volunteer efforts.

All of this, plus her job, adds up to a busy schedule. O’Dwyer wants to spend more time tending to her farm in Bradley County, and would like to “be a better grandmother,” but her job holds sway over her time.

“I’ve stood up to railroads, and I’ve not backed down, even when they’ve beaten me. The most important thing I can do is continue to try railroad cases and draw attention to the appalling situation that exists under the law,” she says.

Winning cases, which translates to saving lives, is always on O’Dwyer’s mind. Even when she sleeps, she dreams about the cases on which she’s working. She’s focused on finding the errors, painting a picture, and swimming the miles so she can prevail.

Each time O’Dwyer takes on a new case, it’s as though she’s stepping into the waters of the Florida Keys. She’s rarely able to judge the distance to her destination, but instead of entertaining thoughts of how long she’ll be struggling against the tide, she draws resolve from her zeal and righteous anger. And if she begins to feel weak after the shore has receded from sight, the strength Charlie gave her carries her across the shimmering expanse. The journey is always hard, but she welcomes the challenge.  



Tennessee Press