Letters to a Young Lawer Page 2
my assistance in achieving their predetermined goals.
They understand that an advice-giver often becomes in-
vested in helping the advisee act on the advice received.
For example, students will often ask me my opinion of a
particular judge or lawyer to whom they are applying.
When I tell them that they would be well advised to work
for that person, the next question often is “Can you write me a recommendation?” I think I can recognize the difference between those seeking advice and those seeking
assistance. But flattery often blinds, and I suspect that I have sometimes been blinded myself.
Inevitably, all advice is, at least in part, autobiographical. In this book, I try to be conscious of avoiding the mistake of telling you how to become me (not that you
would want to!). Many people, over the years, have ex-
plicitly asked me how they could design careers like
mine. I realize, of course, that my career is unique, and xv
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not easily subject to replication. Nor would many
people want to have careers of such controversy and po-
larity. In introducing me to speak last year, someone de-
scribed me as having “the most fascinating legal practice in the world.” I have no idea whether this is true, but I can attest to the incredible diversity of what I do on a
daily basis. My typical day can well include teaching a
class in criminal law, having lunch with a group of stu-
dents, taking a call from a death-row inmate, receiving
an e-mail from a political dissident halfway around the
world, considering a request to testify in front of a Senate committee, writing an op-ed piece for the New York Times, appearing on a nationally telecast show, getting a death threat from an irate viewer, giving discreet advice to a corporate executive or politician, consulting with
the attorney general of a foreign country, becoming the
target of an attack by Rush Limbaugh, Bill O’Reilly or
some other right-wing talk-show host, being lectured
by my mother and receiving an obscene phone call in
the middle of the night complaining about one of my
clients.
My clients have included “a Dickensian lineup of sus-
pects” (according to Fortune Magazine), both rich and poor, famous and infamous, loved and hated. I am fortunate in being able to pick and choose from among the
nearly five thousand requests for representation I receive each year, and I can afford to select them without regard to whether they can pay a fee. I select only a small number of cases, about half of which are pro bono . They all xvi
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have one factor in common: I am pissed off by an injus-
tice being perpetrated against the person, whether he or
she may be innocent or guilty.
In choosing my clients, I have learned never to con-
fuse celebrities with fascinating people, or high-profile cases with important ones. I turn down many celebrities
and high-profile cases in favor of obscure people with no money but an important or compelling issue.
Mine is by no means a typical lawyer’s career or a
typical law professor’s life. Yet because I have partaken in so many different aspects of the life of the contemporary lawyer, I willingly share the insights gained through
these adventures in the hope that some may benefit from
my mistakes.
My goal in writing this book is to encourage others
to learn from my successes and failures, from my correct
decisions and my erroneous ones.
Among the questions that I am most often asked are
“How did you get to where you are?” and “How did you
design the interesting career you have?” The honest an-
swer is “By complete accident.” I had no grand plan or
careful design, and I had little guidance from others. I
started out hoping to become a storefront lawyer in
Brooklyn. (My mother even had the store picked out.)
Then, when I did well in law school, I decided to be-
come a law professor. Then I decided to take on a few
clients in order to broaden my professional background
and enhance my teaching skills. Then I decided to write
popular columns and articles. Then I decided to write
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books, which inevitably leads to giving public lectures.
Finally I decided that I liked the mix. My lifestyle is certainly not for everyone. I work too hard, offend too
many people, generate too much controversy and am
too much of a provocateur. In a word, I have too much
chutzpah. But I have experienced enough of the diversity
of life and law practice so that perhaps my experiences
can help others in making choices of their own.
In this book, I offer a mix of practical advice about
careers, philosophical ruminations about justice, psycho-
logical insights into winning and losing — and even
some speculations on whether it is possible to be both an effective professional and a good person (a “mensch,” as
my mother would put it).
What is most missing from this book is the interac-
tive nature of the conversations I actually have with
those to whom I am imparting advice. So let’s do the
best we can. E-mail me your own reactions to my advice
and I will try to respond. In that way we can turn this
monologue into a dialogue. My e-mail address is
alder@law.harvard.edu. For those, like me, who are not
addicted to e-mail, my mailing address is Harvard Law
School, 1575 Massachusetts Avenue, Cambridge, MA
02138.
With all these caveats in mind, I plunge feet-forward
into the advice-giving business, hoping, perhaps, that I
can avoid some of the pitfalls I have experienced, but
knowing full well that I will trip over others.
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Part ONE
L I F E A N D C A R E E R
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1
P i c k Y o u r H e r o e s C a r e f u l l y
Lawyers tend to be hero worshippers. Perhaps because
we often work on an ethically ambiguous terrain, we
need to create larger-than-life role models to look up to.
We airbrush the warts of our heroes and turn them into
saints who could do no wrong. Eventually, we learn the
truth and we become disappointed, if not disillusioned. I know, since I have been through the process on several
occasions.
My own legal heroes included Clarence Darrow,
Oliver Wendell Holmes, Louis Brandeis, Felix Frank-
furter, Hugo Black, William O. Douglas, Thurgood
Marshall and William Brennan — as well as the two
judges for whom I clerked, David Bazelon and Arthur
Goldberg. They also included several of my law profes-
sors at Yale and older colleagues at Harvard. I wanted to be like these giants of the law. I grew up in a community and family with few judges or lawyers. I vividly remem-3
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Alan Dershowitz
ber asking my immigrant grandmother to introduce me
to her friend Judge Berenkoff. She asked me why I
wanted to meet Judge Berenkoff. I told her because he is
a judge. Grandma laughed and told me that Berenkoff
was a butcher. “Then why do you always refer to him as
judge?” I asked. “Because that’s his name,” Grandma
said. “Judge – G-E-O-R-G-E,” she said, spelling out his
first name with her thick Yiddish accent. “Judge”
Berenkoff was about as close as I would get to a real
judge in my old Brooklyn neighborhood. So, I searched
for role models and found them among these judges,
practicing lawyers and law professors — some living and
some dead.
I read everything I could about my dead heroes.
When I was a student, legal biography was generally ha-
giography. I grew up in an age when most public figures
were written about with praise. In my day, Clarence
Darrow was beatified in Attorney for the Damned. Oliver Wendell Holmes was glorified in Yankee from Olympus.
Thomas More was the hero of the play and film A Man
for All Seasons.
I’ll never forget the day I saw the great actor Paul
Muni portray the great lawyer Clarence Darrow on
Broadway in the play Inherit the Wind. As I watched
“Darrow” (he was called “Drummond”) cross-examine
“William Jennings Bryant” (he was called “Brady”), I
knew precisely what kind of a lawyer I wanted to, and
had to, become. I’ll also never forget the day many
years later when I first learned that Darrow had al-
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most certainly bribed witnesses and jurors in order to secure acquittals or hung juries in criminal cases. I was
devastated. My hero not only had clay feet, his entire
structure crumbled before me. I had been asked to write
a review of a new book on Darrow by Geoffrey Cowan.
The author, who was generally sympathetic to his sub-
ject, made an overwhelming case that in the interest of
leveling the playing field against the large corporations that payed for the conviction of his radical, labor union clients, Darrow had to pay the bribes. I was not persuaded. Whatever Darrow’s motives, the convincing evi-
dence that he bribed jurors forever disqualifies Darrow
from being a role model for lawyers. There is simply no
justification for corrupting the legal system, even if it is done to level the playing field.
In his book, Cowan had written that law schools do
not teach about such devices as bribery. In my review, I
agreed:
The reason we do not teach such “devices” in law
school is that they are not lawyers’ tools. They may
indeed be the tools of revolutionaries and others who work outside the system, and they may perhaps even
be justified by a revolutionary means-end calculus.
But a lawyer, who does lawyers’ work, cannot employ
such devices, regardless of the provocation. The lawyer may rail against the corruption of his opponents; the lawyer may expose or condemn — or perhaps even be
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right to resign from the practice of law to become a
revolutionary, if the cause is just and the provocation sufficient. But the lawyer may not become part of the corruption in order to fight for justice as a lawyer. If Darrow crossed that line, as Cowan convincingly
argues he did, then he does not deserve the mantle of honor he has proudly borne over most of this century.
Those of us who have long regarded Darrow as a hero
will be disappointed to learn of his clay feet, but . . .
the harsh claims of history must outweigh any
inclination toward hagiography, even when the subject is one of the very few lawyers who have had plausible claims to legal sainthood.
These academic words, however, concealed a per-
sonal disappointment — even grief — that I did not feel
comfortable revealing. Unlike the police chief in
Casablanca, who expressed mock shock at learning there was gambling at Rick’s Place, my shock was real and
deep. It continued for weeks. I was consumed by how
Darrow had tricked me into believing he was the kind of
lawyer I wanted to be. Though Darrow was long dead,
my anger toward him was very personal — the kind you
might feel toward a close friend or lover who has be-
trayed you. I’ve never gotten over it.
It wasn’t as personal when I learned that most of my
other heroes had clay feet — or at least one clay foot.
The process of disillusionment was more gradual. I was
let down more slowly when I discovered what horrible
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values Oliver Wendell Holmes had privately espoused in
his letters to friends. He favored sterilization — perhaps even murder — of “incompetents.” Holmes wrote ap-provingly of killing “anyone below standard” and “put-
ting to death infants that didn’t pass the examination.”1
In upholding the constitutionality of mandatory sterili-
zation laws, he approved the sterilization of a woman
who was mistakenly classified as an “imbecile.” Thou-
sands of people, many of whom were misdiagnosed,
were sterilized pursuant to the Holmes precedent. Even
the Nazis cited this precedent in support of their pro-
gram of racial eugenics.
My anger at Felix Frankfurter, whose chair I cur-
rently occupy at Harvard, was pretty intense when I read
about his refusal to help the Jews of Europe during the
Holocaust, but I had already met Justice Frankfurter by
that time, and I didn’t like him — I found him to be
petty and sycophantic — so the disappointment was
muted. Not so with Justice Black, who I knew had been a
member of the Ku Klux Klan before his elevation to the
High Court, but who I thought had gotten over his early
racism. Then he spoke to a group of law clerks during
the year I was clerking on the Supreme Court, and it be-
came evident that he still had some lingering racial bias.
He also struck me as an extremely rigid man, not open
to new ideas. Justice Douglas, who was open to ideas,
was nasty to the law clerks, the secretaries and the other court personnel. He also got into a fight with Judge
David Bazelon, for whom I had clerked, which revealed
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something about him that surprised me. Bazelon had
been asked to speak at a private club to which Douglas
belonged. The club excluded Jews and blacks. Bazelon,
who was Jewish, declined the invitation, saying that he
would not speak at a club that he, and others, would not
be eligible to join. Douglas called him on the phone and
started to berate him for his “narrow-mindedness.”
Bazelon signaled me to pick up the other receiver and
listen. I couldn’t believe what I was hearing. Here was
this paragon of racial and religious equality, trying to
convince my boss to compromise his principles and
speak to a segregated club. Bazelon stuck to his guns,
and Douglas slammed down the phone in anger.
My other heroes — Louis Brandeis, Thurgood Mar-
shall and William Brennan — had lesser faults, but still, when I learned about them I was disappointed. Brandeis
had engaged in some ethically questionable behavior as a
lawyer, because he sometimes considered himself “coun-
sel to the situation,” rather than advocate for a particular client. Marshall was often poorly prepared when he argued cases, even important ones in the Supreme Court.
Brennan refused to hire women law clerks for many
years, and fired a law clerk — at the insistence of Chief Justice Earl Warren — when the clerk’s left-wing activities became the subject of critical media reports. I still admire these three justices enormously, even with the
knowledge that they weren’t perfect.
The same is true of the two judges for whom I
worked. When you interact with someone on a daily ba-
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sis, their virtues and their vices become magnified. “No
one is a hero to his butler,” says an old English saw, and no judge can ever be a flawless saint to his law clerks. But Judge David Bazelon and Justice Arthur Goldberg both
served as imperfect role models for me in many impor-
tant ways, as have some of my professors and older col-
leagues.
So please, no heroes and no worship. Look up to
people who have admirable traits, but understand that all have human foibles, some more than others. Expect to
be disappointed, especially if you ever get to know per-
sonally those you look up to. Learn to live with the dis-
appointments and still emulate those characteristics of
your role models that warrant emulation. But even sin-
gular characteristics will rarely be without flaws.
Law is an imperfect profession in which success can
rarely be achieved without some sacrifice of principle.2
Thus all practicing lawyers — and most others in the
profession — will necessarily be imperfect, especially in the eyes of young idealists. There is no perfect justice, just as there are no absolutes in ethics. But there is perfect injustice, and we know it when we see it.
I can only imagine how so many law students, who
were taught to revere the justices of our Supreme Court,
must have reacted when they came to believe that five of