Letters to a Young Lawer Read online

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  Praise for L E T T E R S TO A YO U N G L AW YE R

  “Dershowitz does an often flavorful job of letting neophytes know what they’re in for.”

  — T H E WA S H I N G T O N P O S T

  AlanDershowit

  “Quintessential Dershowitz: fast-thinking, fast-talking, and unapologetically opinionated.”

  — K I R K U S R E V I E W S

  As defender of the righteous and the not-so-righteous, Alan Dershowitz has become perhaps the most renowned and outspoken attorney in the land. A dedicated cham-pion of civil liberty and the rule of law, he has earned the respect of admirers and critics alike for the way he has chosen to live his life and pursue a truly unparalleled career as teacher, lawyer, author, and scholar. In Letters to a Young Lawyer, he eloquently distills the wealth of his experiences and the passion of his beliefs into essays about life, law, and what it means to be a good lawyer and a good person.

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  ALAN DERSHOWITZ is the Felix Frankfurter Professor of Law at Harvard Law

  “Trenchant …

  School, as well as a columnist, lecturer, book reviewer, and prolific author. His books thought-provoking…

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  include Supreme Injustice, Sexual McCarthyism, Reasonable Doubts, Chutzpah, and, most recently, Rights from Wrongs. He lives in Cambridge, Massachusetts.

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  L e t t e r }s

  ers

  Praise for A L A N D E R SH OW IT Z :

  cliché-ridden paeans

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  “The nation’s most peripatetic civil liberties lawyer and one of its most distinguished to the majesty of the

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  Yo u n g

  defenders of individual rights.”

  — N E W S W E E K

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  profession that

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  “The iconoclast and self-appointed scourge of the criminal justice system.” — L I F E

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  decorate most works

  Lawyer

  Dershowit Lawyer

  “[An] impassioned civil libertarian [who has] put up the best defense for a in the genre.”

  Dickensian lineup of suspects.”

  — F O RT U N E

  THE WEEKLY STANDARD

  “The country’s most articulate and uncompromising protector of criminal

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  defendants.”

  — E S Q U I R E

  US $14.95 / $17.50 CAN

  ISBN 978-0-465-01633-4

  C O V E R D E S I G N : R I C K P R A C H E R

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  Alan

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  young lawyer

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  0465016332-FM-OSX.qxd 2/1/05 11:04 AM Page iii The Art of Mentoring from Basic Books

  Letters to a Young Lawyer

  Alan Dershowitz

  Letters to a Young Contrarian

  Christopher Hitchens

  Letters to a Young Golfer

  Bob Duval

  Letters to a Young Conservative

  Dinesh D’Souza

  Letters to a Young Activist

  Todd Gitlin

  Letters to a Young Therapist

  Mary Pipher

  Letters to a Young Chef

  Daniel Boulud

  Letters to a Young Gymnast

  Nadia Comaneci

  Letters to a Young Catholic

  George Weigel

  Letters to a Young Actor

  Robert Brustein

  0465016332-FM-OSX.qxd 2/1/05 11:04 AM Page iv Also by Alan Dershowitz

  Rights from Wrongs: A Secular Theory of the Origins of Rights America on Trial: Inside the Legal Battles that Transformed our Nation The Case for Israel

  America Declares Independence

  Shouting Fire: Civil Liberties in a Turbulent Age

  Why Terrorism Works:

  Understanding the Threat, Responding to the Challenge Supreme Injustice: How the High Court Hijacked Election 2000

  The Genesis of Justice: 10 Stories of Biblical Injustice That Led to the 10 Commandments and Modern Law

  Just Revenge: A Novel

  Sexual McCarthyism: Clinton, Starr, and the

  Emerging Constitutional Crisis

  The Vanishing American Jew:

  In Search of Jewish Identity for the Next Century

  Reasonable Doubts:

  The Criminal Justice System and the O.J. Simpson Case The Abuse Excuse: And Other Cop-Outs,

  Sob Stories, and Evasions of Responsibility

  The Advocate’s Devil: A Novel

  Contrary to Popular Opinion

  Chutzpah

  Taking Liberties:

  A Decade of Hard Cases, Bad Laws, and Bum Raps

  Reversal of Fortune: Inside the Von Bulow Case

  The Best Defense

  Criminal Law: Theory and Practice

  (with Joseph Goldstein and Richard D. Schwartz)

  Psychoanalysis, Psychiatry, and Law

  (with Jay Katz and Joseph Goldstein)

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  letters to a

  young lawyer

  A Member of the Perseus Books Group

  New York

  0465016332-FM-OSX.qxd 2/1/05 11:04 AM Page vi This book is lovingly dedicated to

  my departed mentors who gave this lawyer

  needed advice when he was young:

  Judge David Bazelon

  Professor Alexander Bickel

  Justice William Brennan

  Leonard Boudin

  Bernard Fischman

  Justice Arthur Goldberg

  Professor Joseph Goldstein

  Professor Telford Taylor

  Lewis Weinstein

  Copyright © 2001 by Alan Dershowitz

  Hardback edition first published in 2001 by Basic Books,

  A Member of the Perseus Books Group

  Paperback edition first published in 2005 by Basic Books

  All rights reserved. Printed in the United States of America. No part of this book may be reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles and reviews. For information, address Basic Books, 387 Park Avenue South, New York, NY 10016–8810.

  Designed by Rick Pracher

  A CIP catalog record for this book is available from the Library of Congress.

  ISBN 0-465-01631-6 (hc); ISBN 0-465-01633-2 (pbk)

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  0465016332-FM-OSX.qxd 2/1/05 11:04 AM Page vii C o n t e n t s

  Acknowledgments

  ix

  Introduction

  xi

  Pa r t I : L i f e a n d C a r e e r

  1 Pick Your Heroes Carefully

  3

  2 Live the Passion of Your Times

  15

  3 Have a Good Enemies’ List

  19

  4 Don’t Do What You’re Best At

  21

  5 Don’t Have Deathbed Regrets

  25

  6 Don’t Follow “Off-the-Rack” Advice

  29

  7 Don’t Limit Your Options by Making a Lot of Money

  33

  8 Don’t Risk What You Don’t Have Enough of

  to Get More of What You Have Plenty Of
r />   37

  9 Is There an Absolute Morality?

  41

  10 Should Good Lawyers Defend Bad People?

  47

  11 Defending Yourself from Legal McCarthyism

  57

  12 How to Balance Idealism, Realism and Cynicism

  65

  13 Your Last Exam

  69

  14 Self-Doubts

  73

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  0465016332-FM-OSX.qxd 2/1/05 11:04 AM Page viii Contents

  15 The Perfect Is the Enemy of the Excellent

  77

  16 An Honorable Profession?

  79

  17 Blowing the Whistle

  83

  18 The Good, the Bad, the Honest and the Dishonest

  87

  19 Your Client Is Not Your Friend

  95

  20 Stop Whining, Start Winning

  99

  Pa r t I I : W i n n i n g a n d L o s i n g

  21 Where Can You Learn Advocacy?

  105

  22 Winning Before a Jury: The “Aha” Theory

  111

  23 Winning Before a Judge: Political Justice

  119

  24 Arguing in the Supreme Court

  125

  25 Who Is Your Client?

  129

  26 Losing

  133

  27 Don’t Underestimate Your Opponent

  135

  28 The Prosecutor’s Blind Spot

  137

  29 The Difference Between a Prosecutor and

  a Defense Attorney

  147

  30 Lawyers’ Morals—and Other Oxymorons

  151

  31 Know When to Fight—and When to Give In

  161

  32 Dealing with Criticism

  163

  Pa r t I I I : B e i n g a G o o d Pe r s o n 33 Can a Good Lawyer Be a Good Person?

  169

  34 Can You Pass the “Fluoridation” Test?

  177

  35 Graduating Law Students

  181

  36 Graduating University Students

  187

  37 Why Be a Good Person?

  193

  Notes

  201

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  This book could not have been written without input from

  the generations of students who have sought my advice

  and then told me, years later, whether it was useful.

  My appreciation to Maura Kelly for typing the man-

  uscript, to Peggy Burlet for organizing the effort, to my agent Helen Reiss for persuading me to undertake it, to

  John Donatich for suggesting the idea, to those who al-

  lowed me to borrow from previously published works, to

  the nice people at Basic Books who facilitated the copy-

  editing and other important aspects of publication.

  Finally, a word of love and appreciation to my family

  for reviewing the manuscript and for all the free advice

  they give me all the time.

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  0465016332-FM-OSX.qxd 2/1/05 11:04 AM Page xi I n t r o d u c t i o n

  Giving advice is among the most hazardous of undertak-

  ings. I know because I have received much bad advice and

  because I have almost certainly given some. During the

  thirty-seven years I have been teaching law at Harvard, I have probably been asked for advice thousands of times.

  Most advice turns out to be a series of instructions

  about how to become the person who is giving the ad-

  vice. People seem to have a powerful need to re-create

  themselves (perhaps that’s why we worry so much about

  cloning). I recall vividly being told by one of my men-

  tors, a distinguished professor, the order in which I

  should publish several writings I was then contemplat-

  ing. It soon became clear that he was merely recounting

  his own publishing biography. He wanted me to become

  him, just as several of my other mentors wanted me to be

  them. Supreme Court Justice Arthur Goldberg, for

  whom I clerked, was always giving me career advice di-

  rected toward me becoming a judge — a position to

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  which I did not aspire. Professor Joseph Goldstein, who

  was my mentor at law school, pressed me to limit myself

  to academic and theoretical work — but I loved having

  one foot in the hurly-burly world of practical law and

  politics.

  I believe strongly that imitation is not the highest

  form of flattery, because truly unique individuals can

  never be imitated. But you can learn from them, so long

  as you realize that you are a different person, with your own dreams, backgrounds and priorities. Understand

  the differences and extrapolate from their experiences

  and aspirations to your own unique life.

  Be careful, however, about accepting anyone’s advice

  — including my own — on the basis of “years of experi-

  ence.” Before you put too much stock in experience,

  make sure the person offering the advice has learned

  from his or her own experiences. Most people don’t.

  They simply repeat their mistakes, over and over again.

  Their “years of experience” are little more than years of making the same mistakes over and over again without

  realizing that they are mistakes.

  It’s particularly difficult to know as a lawyer whether

  you’ve made mistakes, since there is little correlation between a job well done and a successful outcome. There

  are simply too many variables at play.

  I recall as a young lawyer reading an appellate brief

  written by an “experienced” lawyer. It contained a sec-

  tion that was anachronistic, citing lines of cases that had been either overruled or disregarded. Moreover, it was

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  poorly argued and even more poorly written. Since he

  was representing my client’s co-defendant, I pressed him

  about why he had included that section. He told me that

  he always included that section in every appeal that

  raised Fourth Amendment issues. “It’s based on experi-

  ence,” he assured me. “I’ve been citing that section for

  twenty years.” I asked him if he had ever won a case

  based on that section. He paused, thought for a moment,

  and said “No, not yet.” Recently I read another brief by

  this now elderly lawyer. It contained the same section.

  He had not learned a thing from his years of mistakes.

  That kind of experience you can do without.

  Also, beware of “wholesale,” “off-the-rack” or “one-

  size-fits-all” advice. The best advice is always retail, custom-made and particular to the person seeking it. Yet

  there are some general principles that may prove useful

  so long as they are supplemented by retail advice specific to you.

  You may note that although this book is entitled Let-

  ters to a Young Lawyer, the advice that follows is not conveyed in actual “letters.” That is a sign of the times. The written letter used to be a great art form. Rilke’s wonderful Letters to a Young Poet, which inspire this book, were themselves an extension of his poetry. His soul is

  visible, even in his hastily written epistolary words. As a product of the postwar
technological revolution, I am

  not a letter writer. Oh sure, I’ve dictated my share of letters to the editor, demand letters (“Screw you. Tough

  letter to follow.”) and other professional correspon-

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  dence. But I rarely write personal letters. Even in the

  current age of the computer, I am not an e-mail addict.

  Instead, I talk. Almost all of my advice has been oral.

  Fortunately, I write like I talk. I’ve never believed that there is a separate language called legalese — at least not a language designed for comprehension. I teach my students that a good brief writer is simply a good writer. I urge those students who speak well but write poorly to

  listen to their voice. Indeed, I urge them to tape-record their voice and then try to imitate in their writing what they have spoken so eloquently.

  And so, what follows is a written rendition of the oral

  advice I have given over the past nearly forty years. They are oral letters. In writing them, I have in mind the diversity of students, friends, children of friends, friends of children, colleagues and strangers who have asked me

  for advice over the past several generations. Sometimes I have a particular person in mind when I write. Mostly I

  envisage composites — men and women, younger and

  older, successful and unsuccessful, happy and unhappy.

  Of course, most people who seek advice are not perfectly

  happy, because people who are rarely need advice from

  those of us who are not. On the other hand, most of

  those who have sought advice from me have been more

  successful than the average lawyer. They have choices to

  make. Occasionally, I run across a student whose choices

  are quite limited. The advice they seek often takes the

  form of the question “Should I give up and get out of

  the law?” This is the exception. The rule tends to be a

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  request for advice about a considerable number of avail-

  able options, all of which are good. In contrast to my legal practice of defending mostly guilty criminals, where

  the options are generally “worse,” “worser” and “wors-

  est,” the options for my talented and wonderful students

  are generally “good,” “better” and “best.”

  I realize, too, that some students—particularly my

  own students — who purport to be seeking advice from me are actually soliciting my help. They understand, quite shrewdly, that seeking advice is a high form of flattery.

  They are willing to listen to my opinion, even though

  they have really made up their own minds and are seeking