Letters to a Young Lawer Read online

  the justices violated their oaths of office by stopping the Florida hand count in the 2000 presidential election.

  The judicial oath requires each justice to swear “to ad-

  minister justice without regard to persons. . . .”

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  Despite this oath, the five justices — in complete dis-

  regard of their prior decisions and writings — stopped

  the count in order to ensure the election of a particular person — George W. Bush. They never would have

  stopped the count under the identical legal circum-

  stances if the result would have been to ensure the elec-

  tion of Al Gore. If you do not believe that, consider the following law school hypo: Imagine if, six months before

  the election case, 1,000 of the most prominent constitu-

  tional law professors, Supreme Court litigators and jour-

  nalists who cover the High Court had been given an ap-

  proximation of the majority opinion in the Florida case.

  Only here’s the twist. The names of the litigants and

  their party affiliations were not provided.

  Is there anyone who believes the experts would have

  predicted how the five justices actually wound up vot-

  ing? To the contrary, most surely would have predicted

  that, on the basis of their prior decisions, Chief Justice William Rehnquist and Justices Antonin Scalia,

  Clarence Thomas and Sandra Day O’Connor would

  have been the least likely to join such a decision. After all, these judges have repeatedly ruled that the same

  equal protection clause is not violated when the state executes convicted murderers on the basis of far less pre-

  cise standards. Had Vice President Al Gore been ahead

  by a few hundred votes and Governor George W. Bush

  been seeking a recount, I have no doubt these justices

  would have mocked any equal protection claim made by

  Gore.

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  letters to a young lawyer

  If I am right, then what else could this be but admin-

  istering justice with r egard to persons? To render judgment based on personal or partisan politics — on the

  party affiliations of the litigants — is to violate the first rule of judging. Never decide a case on the basis of favoritism.

  I have written about this decision in considerable de-

  tail elsewhere.3 Here my point is somewhat different. It

  is about the disillusionment that comes with learning

  that some justices actually cheat. You probably already

  suspected that some lower court judges play favorites

  with lawyers and litigants who supported their election

  or appointment. But Supreme Court justices? That

  came as a surprise even to a lifelong cynic like me. What does this revelation do to your commitment to the rule

  of law? Does it give you license to cheat?

  My hope is that it redoubles your commitment to the

  rule of law and to total honesty in its practice. It should also make you more suspicious of all legal and judicial

  institutions. Trust no one in power, including — espe-

  cially — judges. Don’t take judicial opinions at face

  value. Go back and read the transcript. Cite-check the

  cases. You will be amazed at how often you will find

  judges “finessing” the facts and the law. Too often, legal observers take as a given judges’ intellectual honesty. It’s up to you to do a better job. If you smell a rat, blow the whistle to the Judicial Conference, the American Bar Association, Congress. At the same time, protect yourself

  from accusations of unprofessional conduct by being ab-

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  solutely sure of your criticism (never forget that judges and lawyers protect one another).

  In the meantime, get real. Understand that judges

  are human beings and that in American most of them

  have gotten where they are by playing the partisan polit-

  ical game, and playing it well. The best check on the ju-

  diciary is a suspicious consumer.

  It must start in law school. It must start with you.

  Having said all of this, I must admit that I still have one perfect hero. He was a lawyer, but his heroism took

  place primarily outside of his professional role. I even

  met him and got to know him a bit, and yet his status as

  hero has not diminished one iota. His name is not widely

  known, and his particular heroism can never be repli-

  cated — at least I hope not. His name is Jan Karski, and

  he died in July 2000 at the age of eighty-six. When he

  was a twenty-eight-year-old lawyer-diplomat in Poland,

  this young Catholic school graduate went undercover

  into Jewish ghettos and death camps in order to report

  on the horrible, indeed lethal, conditions. He was cap-

  tured by the Gestapo and tortured. After escaping, he

  went back to the death camps, risking his life repeatedly.

  He pulled out his own teeth in order to change his ap-

  pearance and avoid detection. He might have saved hun-

  dreds of thousands of lives by disclosing the reality of

  what was happening in Nazi-occupied Poland. But when

  he was smuggled out of Poland with his detailed infor-

  mation, he was taken to see the most important Jew in

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  Washington — a Jew who was close to President

  Franklin Roosevelt — Justice Felix Frankfurter. With a

  great lawyer’s memory for detail, Karski reported on his

  visits to the ghettos and the death camps, giving

  specifics. Frankfurter refused to relate the information

  to Roosevelt, saying he could not believe what Karski

  was reporting. The reality is that Frankfurter did not

  want to risk his friendship and influence with Roosevelt

  by putting his own credibility behind a report that he

  thought Roosevelt might not believe. That is the differ-

  ence between a true hero and a deeply flawed man of in-

  fluence. Understand that difference and live by it.

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  L i v e t h e P a s s i o n o f Y o u r T i m e s Passion should not be reserved for the bedroom. It must

  extend to your life’s work. You will spend far more time

  and energy working than making love — or playing

  sports, eating or listening to opera. Yet the common ad-

  vice for lawyers is to be dispassionate, removed, objec-

  tive, detached — in a word, professional. There is no in-

  consistency between passion and professionalism, so

  long as each is employed appropriately.

  Passion is the motivator. Professionalism is the

  means by which the task is carried out. Even if the means requires objectivity and detachment, passion can stimu-late the best use of these tools.

  Sometimes your passion should be out there for all to

  see. An effective lawyer can use passion — selectively and with modulation — as a tool of advocacy. But don’t overuse it, or it will diminish its impact, like the boy crying “wolf.”

  Beyond its value in the legal profession, passion is

  important as a life force. I have seen lawyers become so

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  detached, removed and dispassionate in their work that

  they can no longer do anything with passion. Profes-

  sional detachment takes over their lives.

  Gilbert and Sullivan’s Mikado condemned those who praised every century but their own. The poet Edward

  Arlington Robinson created a character, Miniver Cheevy,

  who “loved the days of old” and “sighed for what was

  not.” Many seek escape from the present in science fic-

  tion, history and fantasy. Justice Holmes got it right when he urged his fellow lawyers to live the passion of their

  times. There’s an old Chinese curse: “May you live in in-

  teresting times.” For me, that has always been a blessing.

  With the exceptions of cataclysmic eras, such as the Holocaust, every individual is capable of making his or her time interesting or routine. It’s largely a matter of attitude.

  Recently, I received a very gratifying letter from a

  former student that spoke directly to this issue. With his permission, let me quote from it:

  Dear Professor Dershowitz:

  About six years, I had the good fortune of having you as my small-section Criminal Law professor. As you

  can probably guess from the letterhead, after my

  Harvard education, I did not go on to practice criminal law. I did, though, take some advice that you

  repeatedly gave us during that class: I went on to carve out a niche for myself practicing what I love (which, for me, ended up being labor and employment law).

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  letters to a young lawyer

  When you first encourage us to carve out our own

  career paths, I was not sure how applicable your advice would be for me. I knew I would likely end up in a

  large firm: I also knew that most of my initial

  assignments would be dictated for me by the firm’s

  partners. But when I finally landed at Porter Wright, I decided I would try to carve out my own practice

  niche, because Porter Wright was receptive to my

  initiative I came to work every day much as you used

  to come to class: thrilled to be a lawyer.

  A few months ago, a colleague of mine asked me to

  name my favorite Harvard Law School professors. I

  had many favorites, and my friend was not surprised

  by most of my choices. When I identified you, though, my friend (who did not have you as a professor) raised his eyebrows. He knows me to be politically

  conservative, and I think he was a bit taken aback

  that I would identify someone having political

  convictions so different from my own. But my reasons

  for identifying you have nothing to do with your

  political views. As I explained to my friend, you gave me the best advice I received from any professor at

  Harvard Law School. And, more than most

  professors, you demonstrated every day that you loved being a lawyer.

  (This nice letter is more than matched by the daily

  hate mail my office receives from an assortment of

  kooks, bigots and outraged citizens, many of which are

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  unprintable. A recent printable letter from an old Har-

  vard alum — who was not one of my students — states

  that I remind people of “a nasty and vicious Woody

  Allen” and that I “exploit” my students by not paying

  them when they work for me. I pay them out of my own

  pocket.)

  A law student once asked Judge Benjamin Cardozo,

  then on the New York Court of Appeals, why he got all

  the interesting cases. He replied that the cases were not particularly interesting until he started to think about

  them. I observed that phenomenon with Judge Bazelon,

  who managed to turn the most mundane criminal cases

  into vehicles for raising the most profound legal and

  moral issues of criminal responsibility, the role of de-

  fense counsel and the relationship between poverty and

  crime. His passion was reflected in his opinions and his

  life’s work. It was also contagious, and many young

  lawyers who worked for him caught it. I know I did.

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  H a v e a G o o d E n e m i e s ’ L i s t

  Your mother told you it’s important to have the right

  friends. But it’s equally important to have the right enemies. Pick your enemies as carefully as your friends. A

  really good enemies’ list is often a sure sign of a courageous and moral person. The world is full of evil people

  and it is important to stand up to evil. As Edmund Burke

  said, “All that is necessary for evil to succeed is for good people to remain silent.” Martin Niemoeller, an opponent of Nazi racial ideology in the Lutheran church and

  one of the founders of the oppositional Confessional

  Church, personally experienced this phenomenon:

  First they came for the Communists, but I was not a

  Communist so I did not speak out. Then they came for

  the Socialists and the Trade Unionists, but I was

  neither, so I did not speak out. Then they came for the Jews, but I was not a Jew so I did not speak out. And 19

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  when they came for me, there was no one left to speak out for me.

  In the world in which we live today, a lawyer without

  any enemies is likely to be a coward and a sycophant. A

  lawyer with the right enemies is often an advocate who

  has taken on powerful interests and stood up for the

  poor, the disenfranchised and the despised.

  Don’t try to become a “Sara Lee” lawyer. Remember

  the slogan: “Nobody doesn’t like Sara Lee.” Of course

  not. It’s a cake! You’re a lawyer in an adversarial system.

  If everybody likes you, you’re doing something wrong.

  You’re not being tough enough. You’re not taking on

  controversial cases. You’re putting your friendship with

  other lawyers above the interests of your clients. You’re sucking up.

  I’m not proposing that you be gratuitously offensive.

  I know I sometimes am. As my mother says, “You catch

  more flies with honey than with vinegar.” Though we’re

  not in the fly-catching business, it is often better to use friendship than enmity to serve the interests of your

  clients. But enmity is sometimes inevitable in an adver-

  sarial world. So be selective in your choice of enemies.

  Know the difference between who you want to like you

  and who you want to hate you. A person should be

  judged, at least in part, by the enemies he or she keeps.

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  D o n ’ t D o W h a t Y o u ’ r e B e s t A t Some of the least happy people I know are those who

  figure out what they are best at and then tailor the job to their particular expertise. The problem is that what

  you’re best at is not necessarily what gives you the most gratification or what is most important. Our educational

  system steers students toward courses and areas in which

  they excel. Grades are, after all, quite important to getting into college and law school. And it’s OK to take

  courses in which you will excel. But courses last only a

  few months. Life is forever. So pick a career, or an area within your career, that balances excellence and gratification. It should challenge you every day and have you

  waking up eager to confront the day’s challenges. Obvi-

  ously, you don’t want to pick something you’re not very

  good at, no matter how much you might enjoy it (for

  me, that would be basketball). Pick an area that you’re

  quite good at but that gives you so much joy that you

  can’t wait to get up in the morning and go to work.

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  Early in my career, when I was less controversial, I

  was offered law school deanships and university presi-

  dencies. I knew enough about myself to turn them down.

  In one instance I wrote a “Groucho Marx” reply, saying

  that I would not want to join a club — or in this case, a school — that would have me as its dean. A dean or president must be able to bring people together. I drive them apart. I am a provocateur, not a pacifier. I would enjoy

  the prestige of being a dean, a president or perhaps a

  judge, but I would hate the day-to-day aspects of the job.

  I know too many people who have taken prestigious

  jobs — deanships, chairmanships, judgeships, professor-

  ships, partnerships — simply because they were flattered

  to be offered them. Understand the difference between

  being offered a job and accepting it. It is flattering, even career-enhancing, to be offered a prestigious job, but it is a terrible mistake to accept the job unless it is right for you

  — at the stage of life you are at when it is offered.

  Having said that, another word of caution: Don’t

  love your work too much, especially if you’re a lawyer.

  When I was a young lawyer, my elders would talk about

  the law being a jealous mistress or loving the law. Don’t love the law. It will inevitably disappoint you. Understand that the law is a tool, a mechanism, a construct. It is a false idol like so many others in life. In one respect, there really is no such thing as “The Law.” What we call

  the law is a process, a group of people, some ideas,

  precedents, books. Don’t respect the law, unless it merits your respect. The law in Nazi Germany or in apartheid