Letters to a Young Lawer
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L A W
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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Praise for A L A N D E R SH OW IT Z :
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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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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
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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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— E S Q U I R E
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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
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Alan Dershowitz
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Todd Gitlin
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Mary Pipher
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Daniel Boulud
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Nadia Comaneci
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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)
0465016332-FM-OSX.qxd 2/1/05 11:04 AM Page v Alan Dershowitz
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)
05 06 07 08 / 10 9 8 7 6 5 4 3 2 1
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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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
viii
0465016332-FM-OSX.qxd 2/1/05 11:04 AM Page ix A c k n o w l e d g m e n t s
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