Letters to a Young Lawyer by Alan Dershowitz is just that — a series of letters directed to those just entering the legal profession.
And Dershowitz holds nothing back. He tells it how it is and offers sound advice along the way. What follows are my takeaways from his book.
“Pick Your Heroes Carefully”
Pgs. 11- 12
Trust no one in power, including — especially — judges. Don’t tale judicial opinions at face values. 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 absolutely 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 America most of them have gotten where they are by playing the partisan political game, and playing it well. The best check on the judiciary is a suspicious consumer.
“Live the Passion of Your Times”
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.
“Have a Good Enemies’ List”
In the world in which we live today, a lawyer without 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. . . .
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 adversarial 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.
“Don’t Do What You’re Best At”
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. . . . 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.
I know too many people who have taken prestigious jobs — deanships, chairmanships, judgeships, professorships, 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.
American law today sometimes deserves respect, other times it deserves condemnation. It must always be obeyed, but it need not be admired. Honesty is more important than respect.
Love liberty. Love justice. Love the good that law can produce. Aspirations don’t disappoint, so long as you realize that the struggle for liberty, justice and anything else worth pursuing never stays won.
“Should Good Lawyers Defend Bad People”
Zealous representation requires subordinating all other interests — ideological, career, personal — to the legitimate interest of the client. You are the surgeon in the operating room whose only goal is to save the patient, whether that patient is a good person or a bad person, a saint or a criminal.
[W]e are all better off with a legal system under which important rights are not denied anyone without affording them the right to be defended by a zealous advocate. If we move away from the American tradition of lawyers defending those with whom they vehemently disagree — as we temporarily did during the McCarthy period — we weaken our commitment to the rule of law. What is popular today may be despised tomorrow. So beware of an approach that limits advocacy to that which is approved by the standards of political correctness.
Overzealous lawyers are a pain in the ass to some judges. I know. I am one. We make their job harder by contesting every issue, demanding every right and disputing every prosecutorial allegation, so long as it is in the best interest of the client (both short-term and long-term). That is the key to defining appropriately zealous advocacy: It must always be in the legitimate interest of the client. Its purpose is not to make you feel good or virtuous, but to help the client win by any ethical and lawful means.
“Where Can You Learn Advocacy?”
In real life, cases are rarely won in the courtroom. Dazzling cross-examination almost never produces “Perry Mason moments.” In civil cases there is little courtroom drama, because the witnesses have been deposed in advance of the trial. Indeed, the mantra of the civil trial is “no surprises.” And most turn out to be like opening night of a Broadway show that has been rehearsed endlessly before its premiere. Criminal trials do occasionally generate some excitement, but almost never of the sort that is the staple of Hollywood movies or TV courtroom dramas. Cases are won and lost in preparation — in the library and in the field.
“Winning Before a Jury: The “Aha” Theory”
Try not to let the jury believe that you are trying to talk them into anything.
Let them come to the conclusion you want them to reach. . . .
A lawyer should never be perceived as a salesman trying to sell the jury a bill of goods. Jurors resent being talked into anything. They may nod in apparent agreement while you are making your pitch, but when they go back to the jury room without you, they will want to think for themselves. Always remember Twelve Angry Men!
“The Difference Between a Prosecutor and a Defense Attorney”
[T]here are few higher callings than an honest prosecutor with a real sense of justice. Such a prosecutor can have a greater impact on the criminal justice system than any defense lawyer or judge, since most prosecutorial decisions are highly discretionary. . . . A good prosecutor can probably help an innocent defendant more effectively than most defense attorneys can, by insisting that the evidence be solid and that the police and prosecutors comply with their ethical obligations. A decent prosecutor can also help a guilty defendant, by exercising discretion to charge him with an appropriate crime and to seek a reasonable sentence. But because not all prosecutors are decent, we will always need zealous defense attorneys to keep prosecutors in check.
“Know When to Fight — and When to Give In”
The toughest thing for a zealous lawyer to do is to give in, especially when you believe the other side is wrong. But knowing when to offer a tactical surrender can be an important part of advocacy. Don’t let your ego — or even your sense of ultimate right and wrong — push you into making the wrong decision for your client.