by B. Lawrence Theis
Larry Theis, with the firm of Perkins Coie LLP, was a friend and colleague of Mary Allen at the Colorado Attorney General’s Office from 1977 to 1981. He gives specials thanks to Philip and George Allen for the recollections they shared for this article.
A woman born into affluence who dedicated virtually her entire career to serving the indigent and underprivileged; a quiet, self-effacing, ascetic personality who belied a sharp-witted, keenly sensitive, and devastatingly intelligent mind—these are just a couple of the paradoxes that personified this giant of a lawyer who has been called the finest appellate attorney ever to practice in this state.
As former U.S. District Judge and Justice of the Colorado Supreme Court Jim Carrigan once said to a group of young lawyers, "If you want to learn how to write as a lawyer, go read Mary Allen’s appellate briefs." Mary’s ability to relate, concisely and authoritatively, the substance of her arguments stood her apart from the crowd as an appellate lawyer. One of her colleagues, Denver attorney Robert Hill, recalls that Mary could say more in fewer words than any person he has ever known. As the highly respected defense attorney, Harold Haddon, often put it, "Mary is the best paper around."
Indeed, it is the consensus of all who knew and worked with Mary Allen that she was one of the most effective appellate advocates ever to appear before the Colorado courts and was the quintessential drafter of persuasive briefs. She was so demanding of herself and so disciplined that she simply worked each thought in a brief until she reduced it to its absolute essence. Mary excelled particularly in the area of criminal law, where her career as an attorney with the Colorado Public Defender’s Office blossomed. Thoroughly knowledgeable about how to isolate critical issues and win appellate arguments, Mary had, at the time she left the Public Defender’s Office, the highest appellate success rate of any criminal defense lawyer in the state.
The firstborn of Jane and Anthony Nicholas Brady Garvan’s seven daughters and one son, Mary was born in New Haven, Connecticut, on January 28, 1942. Her father served for twenty-seven years as a Professor of American Civilization at the University of Pennsylvania and as an associate curator of the Smithsonian Institution. Mary was the granddaughter, on her father’s side, of Francis Garvan, one of the original partners of the legendary New York law firm of Davis Polk & Garvan (now known as Davis Polk & Wardwell).
Mary attended Germantown Friends School in Philadelphia and graduated in 1959 as valedictorian of her class. When not hitting the books, Mary was on the tennis court where she became a ranked junior player in high school, playing on the East Coast Junior Circuit—she once played a match against the legendary Billie Jean King. On graduation, Mary matriculated at Radcliffe College where her major field of concentration was government. She graduated cum laude in 1963. During the next year, she taught fifth grade at Park School in Brookline, Massachusetts, while her husband, George Allen, completed his undergraduate degree at Harvard.
The young couple moved to Colorado in 1964 and while George began his law school career at the University of Colorado School of Law, Mary, who was fluent in French and German, translated scientific treatises at the National Center for Atmospheric Research in Boulder. In the fall of 1966, Mary began her own law school career at CU. Her law school colleagues remember her as studious and quiet, but with an acid wit. She graduated from law school at the top of her class.
On graduation, Mary interviewed with the most prestigious local firms, but, as she was told by one firm, no offer would be made to her because her reserved demeanor was inconsistent with their "aggressive" practice. Instead, she chose to join the staff of Colorado Rural Legal Services in its embryonic stages. There she began a long career of providing assistance to the underrepresented citizens of Colorado society.
Following a brief period as an associate with a civil litigation law firm in Westminster, Mary was persuaded by Rollie Rogers, the patriarch of Colorado’s public defender system, to join the ranks of the strong cadre of trial lawyers who had signed on with the inimitable Rogers in the early, golden years of that office. While she assisted in preparing the defense in numerous appointments to the Public Defender’s Office, her colleagues learned very early that Mary’s acuity in legal analysis and quiet personality were better suited for brief-writing and oral argument than the intensely public role of a jury trial advocate.
After several years of work with the Colorado Public Defender’s Office, Mary was persuaded by her CU law school classmate Robert Hill to join the fledgling Antitrust Section of the Colorado Attorney General’s Office. This core group of young prosecutors was formed when J. D. MacFarlane, likewise one of the pioneer Colorado public defenders, was elected Colorado Attorney General in 1974 on a platform that focused on economic crime.
Hill, then First Assistant Attorney General in charge of the Antitrust Section, reminisces: "Mary was not only extraordinarily bright, but she was modest to a fault and hated the spotlight with a passion. I remember in law school that I once asked to look at her answer to an exam question after we received our exams back. She handed me what was probably five short paragraphs, so I asked if I could have the entire answer. She looked surprised and responded that it was the entire answer. I suspect that everyone in the class wrote an answer at least three times as long with far less substance. That concise and direct style writing never changed. She was one of the finest brief writers I have ever known."
Mary’s gift for legal analysis was now turned toward securing, through a number of important prosecutions, a legal framework for the interpretation of Colorado’s then virtually dormant antitrust statute. In 1978, in an article analyzing the antitrust laws and programs of all fifty states, the University of Iowa Law Review recognized that Colorado’s antitrust prosecution unit was an extraordinarily successful one, putting to shame much larger state programs. Mary’s guiding hand was once again successful in a very different milieu.
The spring of 1980 brought an unexpected and menacing event to Mary’s life. Believing for some time that she was suffering from ulcers, a diagnosis unfortunately confirmed by physicians, Mary suddenly collapsed at her desk and was rushed to a hospital. It was discovered that she had a large and deadly tumor that had engulfed the wall of her stomach and virtually surrounded her liver. That evening, she underwent emergency surgery, during which a substantial part of her stomach and liver were removed. The prognosis was dismal. The surgeon spoke of having accomplished "all that could be done," but he was not optimistic.
It is obvious he did not know Mary Allen. Applying the same quiet, intense, militant passion to her recovery as she had to the defense of her clients at the Public Defender’s Office, Mary fought back from what many believed to be certain death, to live and practice law for another ten years. Astonishingly, Mary was an "exercise freak" and could virtually always be found once a day throughout the 1970s and 1980s at the downtown YMCA running or participating in an aerobics class. She vowed that her recovery from cancer surgery would not be complete until she had run her first marathon. And she did it, just two years after the surgery, finishing in four hours and fifteen minutes in the Honolulu marathon. On multiple occasions thereafter, she participated in other grueling races. Her commitment to this Herculean effort to complete marathons was a paradigm for the intensity with which she applied herself to the law.
This intensity was likewise reflected in her unstinting commitment to the raising of her only son, Philip. Everyone who knew Mary was keenly aware that her first priority was Philip. She rarely took extended vacations, lived frugally, and dedicated virtually all of her free time to being a single mother. Philip is now a nationally known sound design engineer in the entertainment business. Although they divorced in 1969, Mary and George Allen remained friends and worked on several cases together over the next two decades.
During Mary’s remarkable recovery, her professional life took another turn. Joining forces with two of her former colleagues in the Colorado Public Defender’s Office, Norm Mueller and Susan Cardenal Foreman, Mary ventured back into the private practice of law. At the firm of Allen, Foreman & Mueller, in no time Mary developed a strong private appellate practice, briefing both criminal and civil appeals to the Colorado Court of Appeals, Colorado Supreme Court, and Tenth Circuit Court of Appeals. She was regularly consulted by some of the finest trial lawyers in the region who tapped into her acumen and experience to preserve victories at the trial court or seek reversal of adverse judgments. The dollar value of many of these appeals was often substantial, and no one hesitated to trust their appellate fortunes to Mary’s deft judgment.
Toward the end of the 1980s, after Norm, Susan, and Mary dissolved their firm for other pursuits, Mary moved from her long-time Denver residence in Park Hill to a comfortable bungalow near downtown Colorado Springs. She continued her private appellate practice with the law firm of Tegtmeier, Sears & Mika. During her last years, in addition to continuing her appellate practice, Mary developed an unusual expertise—appointment to the defense of individuals who had been charged with issuing threats to sitting chief executives of the United States.
Mary allowed herself one "extravagance" during this time period: the purchase of a dark blue, turbo-charged Mitsubishi Starion sports car. She altogether enjoyed the perception that the car’s sportiness contrasted with her seemingly "bookish" character. Those who knew her well were not fooled. One of Mary’s endearing traits was the thrill she took in shocking those who viewed her as simply a diffident Radcliffe-trained intellectual, and not as the fun-loving connoisseur she also was of good food, fine drink, and rock music (especially Fleetwood Mac and Tom Petty).
Throughout her career, Mary’s friends and colleagues constantly urged her to apply for openings on the Colorado Court of Appeals and Supreme Court, positions for which she was extremely well suited. Consistent with her modesty and underestimation of her virtually unmatched appellate skills, however, Mary did not apply for the appellate bench until shortly after her illness struck in the early 1980s, at which time she was candidly told that concern about her continuing health was the only roadblock to serious consideration. After just one application, she decided not to pursue a judgeship. It is a loss to the Colorado bar and bench that she did not. But little did the decision-makers know at the time she applied that Mary’s health would remain strong until late 1989. In that year, however, the cancer that had hardly slowed her earlier in the decade came back with a vengeance.
Day after day, and month after month, through hours of difficult treatment for which she had to drive to Denver at least weekly, Mary continued to work diligently at the Tegtmeier law firm, at times falling asleep late at night at her word processor from weakness and pain. Knowing the end was near, Mary did not escape to an exotic island or sit at home feeling sorry for herself—she continued working diligently for her clients because, to the end, she always placed the welfare of her clients above her own.
Lance Sears, one of her colleagues, remembers the simplicity of Mary’s brief writing: "Abraham Lincoln was once asked by a group to speak at their convention and they discussed how long he should speak. He said, ‘Well, if it’s an hour I can be ready tomorrow, but if you want me to speak for five minutes that will take me several weeks to prepare.’ Mary was the same way. I recall her asking me to review a brief she had written in response to a complex and detailed argument which had led me to believe that there was an ‘error somewhere.’ Mary’s brief was one-third the length, yet it distilled the focus so perfectly and succinctly that it left me questioning the credibility of the appellant’s position. Abraham Lincoln would have loved Mary Allen!"
Lance Sears also remembers the devastating stare Mary would give him when, with a deadline facing her, he suggested that she should go home and rest. On February 13, 1990, Mary died at the age of 48.
Not to be Forgotten
In an extraordinary and unprecedented arrangement, the Colorado Supreme Court permitted its courtroom to be used for a stirring memorial for this extraordinary lawyer. This was done at the urging of former Colorado Supreme Court Justice Jean Dubofsky and then Associate Justice (now Chief Justice) Mary Mullarkey, who had worked with Mary at the Colorado Attorney General’s Office in the late 1970s and early 1980s. Scores of her family, friends, colleagues, and admirers attended the memorial, many of them offering tales of Mary’s genius, wit, and courage, both personal and professional. Chief Justice Mullarkey says, "Mary Allen was one of the most effective appellate advocates ever to appear before the Colorado courts."
Later that year, Mary was awarded posthumously the prestigious Jonathan Olom Award by the Colorado Criminal Defense Attorneys Association. This award, which is given for "personal sacrifice on behalf of the accused," has had few more deserving recipients. Mary’s dedication to her clients, her fierce defense of the American criminal justice system (her former partner Norm Mueller reminds us that whenever another lawyer talked of a defendant’s conduct, Mary always interjected that it was "alleged" conduct), and her genuine unselfishness with her time and patience were sans pareil.
Unlike many of those venerated in these pages, Mary Allen did not create a dynastic law firm or toil for fifty years as a giant of commerce. Instead, in hundreds upon hundreds of appeals—in which her clients had virtually always lost at the trial court level—Mary dedicated her superior intelligence, love of the law, and her tragically abbreviated career to the downtrodden, the forgotten, and society’s lost souls. She could have used those skills to amass a fortune in her lifetime. She did not. The choices she made, the inspiration she provided to every lawyer who had the privilege of working with her, and the high plane of advocacy that she attained are what make Mary Allen "one of the greatest."