What it Means to”Think Like a Lawyer”

comments 6

I have always been puzzled by the venerable phrase “thinking like a lawyer.” What does it mean and should we take it as a  compliment or a put-down?

I think the idea is  best captured by a metaphor trial lawyers sometimes  use to describe the craft of a colleague they especially admire or an adversary they fear — he or she can “see out the front.”  It means the ability to look over a complex legal situation and manage its resolution to your client’s advantage.  Everyone knows that a competent lawyer must  know  all the  facts and  the laws relevant to  his or her case.   But those are  just the preliminaries. The best  lawyers have the  ability to weave those  facts and laws into a powerful narrative that in the end wins the day.

In the book  Guile is Good,  I  illustrate this point by telling how trial lawyer Gerry Spence  framed his final argument to the jury in a famous lawsuit  brought against the  Kerr-McGee Corporation by the estate of Karen Silkwood.   Kerr-McGee was a huge corporation that made plutonium-radium fuel rods for nuclear reactors.  Spence’s complaint  claimed that Silkwood, an employee and  union rep at a Kerr-McGee plant, had been contaminated by nuclear active material while working at the plant.  She later was killed in a car crash on her way to an appointment with a reporter for the New York Times  to discuss worker contamination.  (You may have seen the award winning film Silkwood that tells her story.)

Spence’s final argument to the jury is a good example of a  lawyer “seeing out the front.”  Like a well-crafted play, it had four “acts.”  First, Spence described in concrete detail the negligence of Kerr-McGee in its meager  program of safety precautions; then he described the  heroic young  Silkwood’s  attempts to  to warn the trusting  workers of their danger. In the penultimate “act” he  showed how Kerr’-McGee had tried to blame Karen  for her exposure to radioactive poisoning.

And then there was the finale  where  Spence’s  urged the jury to use the power that law gives them to see that justice was done to the memory of this heroic young woman.  The jury responded by awarding the Silkwood estate five hundred thousand  dollars in compensatory damages and  five  million dollars in punitive damages.

Not only did  Spence write the script, he produced  and starred in  the play. We have to understand that winning  a big lawsuit is the product of a a thousand  strategic decisions, some small, some large, but all essential to victory.  Before he or she accepts the case, the lawyer must evaluate it to make sure it will produce a verdict that justifies the expense of going forward. He or she then must decide what evidence to introduce and what evidence to leave out.  Also what  improper  objections to make  to disrupt the defendant’s case and what proper ones to  omit in order to  persuade the jury that the lawyer is so confident they will do justice to his client that he or she has no time for petty legal bickering.

And  the lawyer also  needs the nerves of a card sharp  and the acumen of an accountant to decide on what settlement figure he or she will finally accept, knowing full well a five million punitive damages verdict is never going to be upheld on appeal. But to me , perhaps the the most amazing talent of all is the  self-confidence to  choose an unorthodox approach to trying a case,  knowing full well that you  will be roundly criticized should it fail.

I think it parochial to  think of that only lawyers “think” this way.   Spence uses his  talent  in a legal context, but I think he is just one example of  a larger group of people with the more general ability to make  intelligent decisions under conditions of great uncertainty.   Lyndon Johnson showed the same talent creating the  War on Poverty ,as did  Steve Jobs in the marketing of computers, Berry Gordy in the record business, and  Harvey Weinstein  in the film industry.

But that still  leaves the intriguing question of whether it is “good” to  “think like a lawyer”?  In one sense, such thinking is  clearly a form of human excellence, like  running fast or singing  beautifully.  But things get more complicated when we put the question from a societal  perspective. What’s good for the client may be bad for the society.  Spence  had the luck (or sense) to use his skills on what appears to have been the side of the angels.   But not all brilliant lawyers are fighting for the Karen Silkwoods of the world against the Kerr-McGees.  While many talented lawyers today are fighting to combat the causes of climate change, I am sure that many more are using their skills to defend the corporations that are helping to cause it.

And then there’s the question of whether this brilliance  makes the  lawyer a better and/or happier person.  Here we must face up to the  sad fact that great ability often  soon joins itself to great hubris, what one might call the “master of the universe” syndrome.  A great man (usually it is a man) persuades himself that conventional ethical limits no longer apply to him.  After all, it  was  the same decision-making prowess that    enabled  Harvey Weinstein to bring a  beautiful movie like The Crying Game  to the screen that also permitted him to conceal his terrorizing of  young actresses for  decades. And let us not forget Judge Kozinski.

Here as elsewhere we can learn a lot from fiction.    Francis Ford Coppola’s  The Godfather  trilogy shows us early on that  Michael Corleone is the brightest of the three brothers, but then we witness how in the end his  brilliance at outsmarting the world only earns him  loneliness and bitterness.

So if  you ask me whether it’s “good” to think like a lawyer, I have to distinguish between different meanings of the term “good.”   If we think of  intellectual ability as an abstract quality (like a sharp knife) it is clearly  “good.”  But once we consider the purposes we use that intellectual knife to accomplish or how its use affects our own sense of well-being, I am afraid that simple answers elude us.    

If you would like to know more about Gerry Spence’s  performance in the Silkwood trial  and tales of other  lawyer creativity,  here  is  a link to my book Guile is Good.

Not Garrison Keillor!

comment 1
Repairing The Systen

It’s easy enough to enjoy some righteous indignation when the Roy Moores of the world are accused of sexual harassment, but I have a different reaction when people I admire like Garrison Keillor, Louis C.K. and Al Franken are  the accused.   But in the final analysis, if  they have done the deeds they are accused of, they too must suffer  the consequences.

John Huston was one of the most important directors in  Hollywood in the 1940’s and 50’s.  He became friends with a well-known jockey for a time, but then somehow lost interest in his new friend.   When the jockey didn’t take the hint, Huston went out of his way to insult and humiliate him.  Eventually, some of Huston’s friends became so uncomfortable with his cruelty towards  someone who only  admired him that one  asked Huston why he acted in such an ugly manner.  Huston’s reply is one we should remember– “Because I can!”

The only way to end our epidemic of  predatory acts against women is to make it clear that they will be punished  no matter who is the perpetrator.  There can be no “good guy” exception.

Keillor is a special case in that he denies the allegations.  Even a rudimentary concept of fairness requires that he be allowed a forum to show his innocence.  And, even if he is guilty of the acts charged,  we do not have to stop admiring the work of  people like Keillor, C.K., and Franken, nor should it prevent us from wishing  them well in their new lives.













It’s the Little Things that Count

Leave a comment
Repairing the System

The New York Times  has good news to report.  It turns out that doing good works. Non-profits in inner city areas that have worked on mundane projects– e.g. planting trees, building playgrounds,  mentoring students, and finding employment for young males– have played a significant role in reducing the murder rates in American cities.

Here’s the whole story.


Time for Donald to Take a Big Fall

comment 1
Democracy's Constitution / Repairing the System

The title to Tim Wu’s op-ed in the NYT sounds the alarm– “How Twitter Killed the First Amendment.”  https://www.nytimes.com/2017/10/27/opinion/twitter-first-amendment.html?_r=0. .

Professor Wu  points out that there has been a dramatic change in how speech operates in American politics.  Formerly, the First Amendment worked to protect speakers from government prosecution, thereby creating a workable national political discourse. But now censors in Russia and China have invented new techniques geared to the internet age that permit them to “not only disseminate pro-government news,” but also “generate false stories and coordinate swarm attacks on critics of the government.”  Information is no longer a tool of  enlightenment, but has also become  a weapon “to confuse, blackmail, demoralize, subvert, and paralyze.”

Wu also points out  that  these techniques have been imported into our own political discourse, ironically by our own president. “The administration habitually crosses the line between  fact and propaganda.”  And Trump’s supporters are also skilled in using Facebook and Twitter to “manipulate American political debate.”

I applaud Professor Wu for warning us that the  Trump presidency constitutes a mortal danger to  American democracy.  He also helps us understand some of the  causes of this danger. There are lots of  them.  It started with the discovery by  psychologists  that  people are by nature much less rational than had been supposed.  Not only are we irrational but we are consistently irrational in ways that allow  clever opportunists  to manipulate what we believe.  We tend to believe falsehoods that make us feel good more readily than truths that don’t, and to  accept as true false propositions if they are frequently repeated.

Our psychological frailty has  allowed people like Rupert Murdoch and Roger Ailes  to create a  new decentralized  free speech marketplace where some newspapers,  television networks. and  internet sites  give their audiences  only information they already agree with mixed with  repeated accusations of the iniquity and stupidity of their opponents.  The information is different on Fox than on CNN, but the strategy is the same.

And now social media corporations like Twitter and Facebook have invented techniques that allow them to micro-target  selected audiences  at a speed that had been heretofore  impossible.  Trump  agents were able to  feed the unemployed construction workers in Michigan the “truth” they wanted them to hear about “rebuilding America” at the same time as they were painting Hillary Clinton as a modern Lady Macbeth to the liberal Republican women in Pennsylvania.   And neither audience  ever knew the identity  of the source they were relying  on.

Trump has also helped instigate the era of “fake news.”   The term has been used to describe two different propaganda techniques. One is  the  systematic  repetition of statements (e.g. “Obama was not born in the United States”) the speaker knows are untrue.  The second is even more toxic; it consists of a  constant volley of false statements  by authority figures  (e.g. the president of the United  States)  accusing main line news sources  like the New York Times  and  NBC of routinely lying to their audiences. The result has been the creation of a political discourse where the very idea of  “truth” is a contested concept.

It is clear that there are many areas where the new internet  techniques  must be regulated, but this promises to be a very long and contentious process. Right now we have a more immediate problem.  President Trump is using his constitutional powers to  sow distrust in the integrity of  our traditional procedures for  establishing political truth. The idea of  a First Amendment “marketplace of ideas” where opposing ideas compete in a  fair competition from which truth  emerges is central to our democracy.  The Trump presidency continually attempts to undermine that competition by accusing the traditional  umpires in this debate, like the Times and NBC, of intentional lies.  The longer he stays in office the more harm he does to the voters’ trust in the  democratic process. If  the legitimacy of our political discourse is going to survive, American  voters are going to have to decisively repudiate Donald Trump before he completely destroys trust in the system.

How will that repudiation come about?  The constitution provides a mechanism: impeachment. That will require the House to pass articles of impeachment–most likely charging Trump of colluding with the Russians to impact the 2016 election–and then having the  Senate  find Trump guilty as charged.   Actually I think Trump is guilty of the even greater constitutional crime of subverting the democratic process.  But whatever the infraction charged, it is not clear that impeachment will be successful because both houses of Congress  are now controlled by a Republican party  that seems  increasingly to fear Trump more than he fears them. https://www.nytimes.com/2017/10/25/us/politics/trump-republican-party-critics.html

Should impeachment fail, it will be necessary that the voters overwhelmingly reject Trump  and the Republican party in 2020. This too will not be easily accomplished with  a polarized electorate fed false and confusing  information.  Trump  is still supported by 35-40% of voters as well as the leadership of the Republican party.   And that’s  a lot of voters in a polarized nation, especially when you add to them voters who don’t approve of  Trump but prefer him to an opponent whom Trump and his agents will  constantly demonize as they did Hillary in 2016.

Now all voters who reject Trump and Trumpism must confront the urgent issue of repudiating Trump. Lingering tensions between Clinton and Sanders supporters within the Democratic party must be neutralized and moderate Republicans and  Independents must join together  to repudiate Trump.  We all  lose if he wins.

If we hope to put our  fragile Humpty Dumpty of a democracy back together again,  it’s Donald Trump who  must take a great fall.



comments 2
Heroes / Legal Fictions

Michael Asimow  of  Stanford Law School shares with  us his review of the new film Marshall:

This enjoyable and inspiring movie is a worthy contribution to the courtroom movie genre.  You’re going to love it.

The movie memorializes the great Thurgood Marshall (who later won Brown v. Bd. of Education and sat on the Supreme Court). The film brings to life a forgotten rape case in Connecticut that Marshall tried early in his career when he was the solo staff lawyer at the NAACP.  The story focusses on the plight of a black man accused of raping a white woman and it highlights issues of racism and classism in the courtroom and on the streets.

The movie recalls the classic films “To Kill a Mockingbird” (which also involved a black on white rape case) and “Anatomy of a Murder.”   Like “Anatomy,” which also involved sexual issues, the trial consumes most of the movie.  What I really liked about “Marshall,” as well as “Anatomy of a Murder,” is that–as in real life–a trial is an attempt to reconstruct the past but we can never be sure of what actually happened.  The jury must select between conflicting narratives about the disputed events and we (like the jury) can never be certain of who is telling the truth. The lawyer’s job is to come up with a story that fits the facts and sell it to the jury.  As this blog emphasizes, guile is good and Marshall was definitely not lacking in guile.

The writing of this film is sharp and witty and the acting and direction are great.  Particularly strong is the emerging partnership and friendship of Marshall and the local lawyer, Sam Friedman. Marshall was not admitted in Connecticut and so he needed a local lawyer as co-counsel. Friedman is a Jewish lawyer specializing in insurance defense who had never tried a criminal case and thought he would just sit next to Marshall during the trial and and do nothing.  But the racist judge refuses to allow Marshall to participate in the trial and requirers the terrified Friedman to conduct the entire trial with Marshall serving as his adviser.  The way Friedman rises to the occasion is quite inspiring and recalls the great days of Black/Jewish collaboration in the civil rights movement.

Go see this film as soon as you can and tell your friends about it

Trump’s Constitution

Leave a comment
Democracy's Constitution / Repairing The Systen

In a year of shocking images, those from Charlottesville still  chill me the most. Certainly those of “alt-right”  marchers chanting “Jews will not replace us”, but even more so those of armed thugs attacking peaceful  #BlackLivesMatter demonstrators in full view of  quiescent police officers,  https://www.nytimes.com/2017/08/25/us/charlottesville-protest-police.html?ref=oembed   Eerily similar images from Germany in the 1930’s quickly come to  mind.

While there is still a controversy over whether the police were ordered to “stand down” by their superiors, they clearly  did not stand up to protect citizens exercising their constitutional rights from criminal violence. The right to speak out on controversial issues doesn’t mean much unless it is joined to a correlative right to police protection from violent reprisals by people who disagree with you.

We tend to think of “free speech” and “law and order” as contradictory concepts, but actually in practice they are a constitutional odd couple  who need each other if either is to survive. The  events at Charlottesville make  it immediately clear how free speech is dependent  on police protection. Alt-right participants threw rocks,  water, and even bottles of urine at the counter- demonstrators as the police stood by.  Experiences like that can only dampen the enthusiasm of future would-be demonstrators to speak out.

The dependence of the police on the vitality of free speech guaranties may be less obvious, but is  no less  present.  The First Amendment needs the police for protection, but the police have an equally necessary need for the democratic legitimacy that can only be provided by a system that  allows the citizens to voice their views on public issues– including police misconduct.  Otherwise “law and order”  is reduced to only “order” enforced by fear.

The growth of #BlackLivesMatter signals that large numbers of  minority citizens have lost faith in the police, a fact that can only diminish police effectiveness.   Events like those we saw take place in Charlottesville will now undermine the confidence  of millions of other Americans in the fairness  of the system.  Where does that leave our much heralded faith in the “rule of law”?

Of course,  President Trump was not  directly involved in the decisions made by the police in  Charlottesville last August, but I believe that his election and actions since then have created a social space where such practices  have become tolerated  if not condoned.   When the president uses the presence of demonstrators at a rally as an invitation to whip up the crowd to “get’em out of here,” his words become the constitution in action.  Tolerance of opposing opinions is no longer celebrated; it’s now seen as a sign of weakness.

So too the fact that President Trump’s recent imbroglio with NBC news will never reach a court does not deprive it of  constitutional impact.  NBC had reported the president wanted to multiply  our nuclear stockpile tenfold; he denies it.   This is a question of fact.  Of course, Trump  might have the facts right and the network might have them wrong,  but I don’t think many would bet on that proposition after listening to the president the last nine months.  I don’t even think he expects most observers to believe  him; he knows that “alternative facts” voiced by the President will have the power to comfort his supporters and raise doubts among  the uninterested and/or  undecided.

But the idea that that each side can have its own facts is antithetical to the values behind  our First Amendment  which  assumes that reasoned debate will allow the audience to distinguish between “truth”   and “falsity”‘.  If  uncomfortable facts can be dismissed as “fake news”, reasoned debate ends,  and with it democratic public discourse.

Some critics, like the author of this Washington Post article,  believe that Trump may be  too much a clown to be dangerous.  https://www.washingtonpost.com/blogs/erik-wemple/wp/2017/10/11/president-trump-may-be-too-incompetent-to-destroy-the-first-amendment/?utm_term=.1e9916ffa709   Unfortunately, that’s probably not true.   He may indeed be a  braggart  and a charlatan,  and perhaps also mentally unbalanced, but Donald Trump is also a genius of sorts. Not like Einstein, more like the creator of a very successful reality television  show who knows how the viewers’ mind works and how he can manipulate it to his advantage.   And in our entertainment-centered  culture, that means real power, power here magnified  exponentially by  the fact that  the speaker is the elected leader of the most powerful nation in the world.

And let’s not forget  that even an unsuccessful Trump might bring down the whole edifice of constitutional democracy with him.  Remember many thought Hitler a clown and he did ultimately fail, but not before he destroyed German democracy and caused the death of millions of innocent people.



Small Revolutionary Acts

Leave a comment
Heroes / Repairing the System

How does social reform happen?  History books tend to portray social reform as a tidal wave  that sweeps away an unjust and obsolete status quo, but I think reform is better understood as the  cumulative result of  individual acts of opposition to concrete injustices people encounter in their own lives. Only with hindsight can we  assess the importance of any one action. Even  an idle question posed  in a conversation between old friends might turn out to have been essential to success.

Jack B.Weinstein is a very experienced and highly respected Senior Judge in the federal distric tcourt in Brooklyn   He recently issued an unusual  “rule” for proceedings  in his courtroom. It states that junior members of litigation teams “are invited to argue motions they have helped prepare and to question witnesses with whom they have worked.”

The rule is Weinstein’s response to years of  watching  senior partners (usually male) pause during argument to confer with  a younger lawyer (often female) better informed on the issue in question.  Up to now Weinstein had taken informal steps to  encourage participation by younger lawyers, but it was a chance comment he made at lunch with a friend that led him to issue his rule.

His luncheon companion happened to be his former colleague Sara Scheindlin, recently retired from the Brooklyn federal disrict court.  As he sat down Weinstein greeted Scheindlin with the question he always asks when they meet– “What good are you doing in the world these days?”  I imagine the question was spoken in an ironic tone,  an inside joke between professionals who know well from experience how difficult it can be to “do good” in our complex legal  world.

But this time Judge Scheindlin gave a straight answer to Weistein’s question;  she replied  that she had just worked on a New York Bar Association report that had documented how few women lawyers  were  actually arguing in court cases that they had taken the major role in preparing. Since the report’s findings agreed with Weinstein’s own experience,  he asked what he could do to help.  Scheindlin  replied, “You could amend your individual rules”  And he did just that.

Of course, amending   the procedures in one court is a rather modest reform, but Scheindlin knew that Weinstein’s action might have effects well beyond his courtoom.   Weinstein is  a member of law’s aristocracy;  when he speaks, people listen– people like Alan Feuer  of the New York Times who wrote this interesting article on Weintein’s new rule. https://www.nytimes.com/2017/08/23/nyregion/a-judge-wants-a-bigger-role-for-female-lawyers-so-he-made-a-rule.html?mcubz=3 https:

Now self-appointed consciences of the profession like me will alert concerned citizens like you who may spread the alarm.  My prediction is that slowly large firms will be forced to change their ways. The best  job candidates will inquire about what steps firms are taking to give juniors courtroom experience, and  clients will also demand reform.  Large corporations like Hewlett-Packard, Oracle, and Facebook have already demanded that the firms who represent them field a diverse team of lawyers. Young male associates as well as female will benefit since it would be impolitic, if not illegal, to favor young women over young men.

If we take a larger historical perspective, we  can see  Scheindlin and Weinstein’s  lunch conversation as part of the history of the  women’s rights revolution. And a lot of people should get some credit,– whoever thought up the idea of the bar association report for one, but also Scheindlin and Weinstein,  Feuer, (and maybe even you and me). The  reform will have been  the result of  thousands or millions of  small  “revolutionary”  acts taken  over time that happened to change the future.

So the  next time you lunch with  colleagues why not ask them (in an ironic tone) “What good are you doing in the world these days ?”  You never know  what will happen next.

The Psychology of Equal Protection

Leave a comment
Repairing The Systen / The Supremes

A  brotherly difference of opinion about cake portions  presents the  same type of  issue that the Supreme Court will soon decide in an important  case. They both involve examples of inequity.

Nicholas Kristoff  reports  that scientists have found that monkeys  are very sensitive to   unequal treatment.  If you give one monkey  tastier food, the others resent it. https://www.nytimes.com/2017/06/03/opinion/sunday/what-monkeys-can-teach-us-about-fairness.html?_r=0   But Kristoff  also gives us a lot of examples of situations where humans protest  unequal treatment.  Whether it turns on preferential treatment for  first class air travelers or the sky-high salaries paid to corporate CEOs,  those left out resent it.

This Jared Bernstein article raises  the fairness issue of income inequality.
https://www.nytimes.com/2017/06/05/opinion/democratic-party-inequality-child-allowance.html He tells of a growing feeling that something should be done about the enormous wealth differentials between Americans.  The top 1 percent of Americans now own more wealth than the bottom 90 percent.  Bernstein also sketches out a  legislative  program that would decrease economic inequality in America.  A family allowance for children,  a government jobs program, and expansion of the earned income tax credit are all on his list.

In Wisconsin in 2012, there was a State Assembly election where  Republican candidates  were elected to a majority of the seats statewide even though the Democrats won a majority of the votes. They accomplished this remarkable feat by artfully drawing the election boundaries in a way that minimized the success of Democratic candidates.  The Seventh Circuit ruled that this  political gerrymander violated our constitutional provision against inequity, the Equal Protection Clause.

The Supreme Court recently agreed to hear the Wisconsin case and other alleged political  gerrymanders in  state and Congressional elections all over the country.  A decision is expected before the 2018 elections.  Of course, political gerrymanders have been used by the Democratic  party as well as the Republican in the past.  They are unfair no matter which party prevails, but in today’s America that party is almost always the Republican. And there is no doubt that the Republicans will use the political  power the gerrymander gives them to  defeat  the equality enhancing reforms Bernstein proposes.

Most people  dismiss the political gerrymander as too complex an issue to understand, much less care about.  That’s why I want to insist that the current Supreme Court case raises the same basic moral issue as the brothers’ dispute.   Have the portions been allocated fairly?  And like the cake argument — and that over  a family allowance for children- –  how that issue of fairness  is decided will  have a very concrete effect on the lives of very real people.

Here is a video of the monkey experiment.  It’s great.


True Grit

Leave a comment
Book/film List / Legal Fictions

If you had to choose a law partner from the characters in Better Call Saul, who would you choose? I’d pick Kim Wexler (Rhea Seehorn).  When you consider the alternatives it’s really an easy decision,  When he’s not busy playing sycophant,  Howard (Patrick Fabian) is a tyrant.   Chuck (Michael McKean) is paranoid, arrogant, and more than a little weird.  And then there’s charming Jimmy (Bob Odenkirk), the one  with a moral screw missing.

But Kim also  has many virtues in  her  own right.  From the first season she  has demonstrated intelligence,  hard work, and the ability to get along with others.   When we first met Kim she was an associate at Hamlin, Hamlin, and McGill, extremely grateful to the firm for financing her legal education.  She hoped to be a partner some day, but it became clear that managing partner Howard Hamlin did not think she had the “right stuff” to be a partner in his prestigious  firm.  Perhaps he felt that Kim’s reserve did not signal  the necessary “killer instinct.”  Kim didn’t complain; instead she showed self-confidence in not only striking out in solo practice, but also savvy in successfully attracting a big client.

But the virtue that most impresses me is  one Kim  has demonstrated in the last few episodes of Better Call Saul.   Let’s call it  “grit.” You will remember that Kim was able to wrest the valuable  Monte Vista bank business away  from her old firm,  only to discover that her friend, occasional  lover, and current office partner Jimmy McGill had engaged in  dubious  behavior in order to improve her chances of prevailing.

We know Kim well enough to realize she would find the fact that Jimmy had intervened on her behalf without her knowledge  deeply offensive, not  only because of the  impropriety involved,  but also because it  showed a lack of confidence in her ability to prevail on her own. I must confess that I thought that Kim might terminate  her relations with both Monte Vista and Jimmy  in order to separate herself from any possible scandal.

But Kim is made of sterner stuff;  she does not  retreat; she advances.   She first reminds herself  that she has done nothing illegal or unethical; she is not responsible for the actions of her office mate.  But she does have a duty to disclose the situation to her client  and warn them of the public relations  problems that could arise.   She does just that, adding that she would understand if they decided to retain new counsel.  They tell her  they want to stick with her.

Then she had to decide what role she should play, if any, in the disbarment proceedings brought against  Jimmy by the victim, his older brother Chuck.  Kim not only decides  not to abandon her friend, but actually volunteers to  serve as his co-counsel in the disbarment  proceedings.

There is both a heroic and a pragmatic dimension to this decision.  It’s heroic because she is coming to the aid of a friend in need,  even though this  will tie her more closely  to his misdeeds in the court of public opinion.  But since the repercussions of Jimmy being disbarred will impact  her career as well as his, it  makes good sense for her to make sure  that he has good representation.

I think here she has made  an admirable distinction between the roles of judge  and advocate. It would be improper for her to decide whether Jimmy violated ethical rules or not, but she does have a  right to make sure he puts on the best possible defense.

I won’t spoil your pleasure in watching the ethics hearing itself (Season 3, episode  5 “Chicanery” ) by revealing all that  transpires,  other than to note that  the unorthodox but extremely persuasive case   Jimmy  and Kim present limits the discipline imposed to a year’s suspension of Jimmy’s law license. So  Kim comes out a winner, not only as an advocate, but as a friend, and also helps avoid a scandal that would probably lose her a valued  client.

Of course,  Better Call Saul is at heart a soap opera.   As we begin to see in  the latest episode (Episode 6 “Off-Brand”), Kim’s friendship  with the irrepressible and irresponsible Jimmy McGill will continue to cause her problems.  Jimmy’s cynical and amoral alter ego Saul Goodman makes his first appearance.

Future events are sure to test Kim’s relationship with Jimmy. But I am confident she  will show the same poise and good judgment she has exhibited up to now. Kim’s evolution from compliant associate to confident  professional  teaches  us that practicing law is more than an intellectual exercise;  it’s also a test of character.

I would say the moral of the story of Kim’s transformation is that while you always have to stand up for your client, and sometimes  you choose to stand up for a friend, you should  never forget to stand up for yourself.





Creating the Future

comments 2
Heroes / Repairing The Systen

James Lorenz died  earlier this year. In the late 1960s  Lorenz  showed  himself to be one of the most important  social entrepreneurs of the second half of the Twentieth Century.  A 26 year old associate in a Los Angeles corporate firm, Lorenz not  only dreamed up the idea of  a network of local legal services  offices placed all over rural California  to serve its farmworkers, but also attracted  the political support necessary to get his proposal  funded, and then supervised the placement of its offices and the hiring of its staff.  The result was California Rural Legal Services (CRLA), what many believed  to be the premier legal services program in the United States.

I decided to attend Lorenz’s  memorial service, not only to honor  a former colleague, but also to see what I could find out about the back story behind  Lorenz’s  success.  I wasn’t disappointed.  Much of the service understandably consisted of memories of Lorenz’s glory days as a golden boy on the playing fields and seminar rooms of the elite Phillips Academy, and later at Harvard College and Harvard Law School.  But two speakers helped me understand how this young lawyer from a privileged background demonstrated  not only the creativity to come up with the idea of CRLA, but  also the political and  organizational skills to make it a success.

The first bit of information came from a friend of Jim’s who had done a little research to help in writing Jim’s  obituary.  My ears perked up when he mentioned that  Lorenz wrote his senior thesis at Harvard College on the creation  of the Tennessee Valley Authority (TVA).  The TVA was one of the  New Deal’s  most innovative and successful programs,  It brought  electricity to  Appalachia,  but  Lorenz’s  thesis emphasized how  one of TVA’s Directors, a  young  Harvard Law School alumnus named James Lilienthal, believed that the TVA’s  real mission was  not  electrical power, but the jobs  and political power it would provide the impoverished citizens of Appalachia.

After graduation from Harvard Law Lorenz took what seemed a very traditional career path, accepting an associate position at the prestigious Los Angeles law firm of O’Melveny & Myers. Like many young associates,  Lorenz  signed up to do pro bono work; the group he volunteered for provided free legal assistance to farmworkers.  Soon Lorenz got a call from an individual asking for his help, but he had to refuse because he was too busy with firm work.  A little later  Lorenz got another call, and again had to beg  off because of firm  commitments.

That’s when I imagine the  “Eureka!” moment occurring.  Lorenz saw that what farm workers  in California needed was not a list of one-shot volunteer lawyers,  but a law firm that could provide them the broad array of legal services that O’Melveny & Myers  provided its corporate  clients.  And he also realized  his  vocation was to create such a firm.

Another talk by retired California Supreme Court Justice Cruz Reynoso  showed the   savvy and determination that Lorenz brought to the task of making his dream a reality. Reynoso  recalled his first meeting with Lorenz.  It was in Washington D.C where Reynoso had recently moved to  take a position  at the Equal Employment  Opportunity Commission (EEOC).  But Lorenz knew Reynoso as one of the premier Mexican-American lawyers in California, a man who  had earlier established a successful practice in the small rural  town of El Centro, California.  So Lorenz flew in from California, even wheedling an invitation to stay in the  Reynoso  family home in order to improve his chances of  persuading  Reynoso to join the  CRLA Board of Directors.  Cruz Reynoso  later succeeded Lorenz as CRLA’s  Executive Director.

CRLA has won a lot of victories on behalf of farmworkers; a ban on the use of DDT in fields,   the end of  discriminatory placement of Spanish-speaking children in Special Education classes, and a  ban of the use of the notorious “short-handled” hoe in the fields are three  of many possible examples. Perhaps its success  is most eloquently witnessed by the enemies it made. Governor Ronald Reagan made a concerted effort to de-fund  CRLA  for alleged unlawful activities, charges that were later unanimously rejected  by a  panel of  state supreme court justices.

Legal Services for the Poor nationwide has been fighting a rear-guard action against reduced financial support and crippling restrictions for the last 45 years.  The fact that his creation, CRLA,  has continued to flourish in this hostile environment (serving over 40,000 clients every year) is strong evidence that Lorenz had  not only the right idea, but  but also built a organization that had staying power when times got tough.

But I hope we do more than celebrate Lorenz.  We should also  emulate him.  Too often people think of lawyers as rear view-oriented– focused only  on resolving past disputes. The story of Jim Lorenz reminds us that lawyers can also help create the future.