Vol. 177: So you want to be a lawyer?

A graduation letter to my granddaughter

Dear Thelma,

When you were born 18 years ago, your parents were determined to give you a strong name— an unusual name— a name that people couldn’t just say but would have to sing. And did you ever live up to their expectations.

At age 18 months, at the Jersey shore, an ocean wave knocked you over and could have drowned you. Your traumatized parents expected you to start crying. Instead, you exclaimed, “Agee!”— your term for “Again!”

When you were 11, after President Trump embraced his bizarre notion of “alternative facts,” you responded by launching The Chattering, a satirical newspaper dedicated to delivering nothing but fake news and useless misinformation. A sense of humor is said to be a sign of high intelligence in young children. This response on your part was not only hilarious, it was also honest.

Your Hebrew school teacher once observed that you rarely take the easy way. Instead, she said, you’re “always looking for the long and complicated way, challenging yourself endlessly and yet miraculously finding it fun and amusing.”

And this month you are graduating from one of America’s most extraordinary high schools— Brooklyn Tech— whose unique programs like Moot Court, Mock Trial, and Law and Society have inspired you to scrap your earlier dream of becoming a surgeon for a more daunting challenge: repairing America’s broken legal system. This is a quest that even I tremble to contemplate. My own feelings about the legal profession are decidedly mixed.

Amusement park case

I speak as a journalist who has written often about lawyers (like the Chicago Seven defender Bill Kunstler) and law firms (like the defunct Philadelphia super firm of Wolf, Block, Shorr and Solis-Cohen). Indeed, the admired faces hanging on my office wall are not journalists but lawyers like Clarence Darrow (who said, “You can only protect your liberties in this world by protecting the other man’s freedom. You cannot be free unless I am free”) and Learned Hand (“The spirit of liberty is the spirit that is not quite sure that it is right”— that is, if you’re not quite sure that you’re right, you will listen respectfully to others). And of course, I am grateful for the dedicated lawyers who successfully defended me in seven libel suits.

On the other hand, when your mother was a little girl, she was injured on a ride at an amusement park. The park’s operators refused to express any concern, lest doing so would be construed as an admission of their legal guilt. A lawyer offered to represent us for one-third of any damages he might collect. After the case dragged on without any resolution, I told him, “I don’t really want any money from these people. I’d just like an apology.” The lawyer replied, “How can I get one-third of an apology?”

Doctors vs. lawyers

I can’t help recalling an incident years ago at a conference on forensic medicine. During one panel discussion, a lawyer teased a doctor, “Two hundred years ago, when you doctors were still bleeding your patients, we lawyers were drafting the Declaration of Independence and the Constitution!”

The doctor then replied: “It’s true— we doctors do things differently today than we did 200 years ago. And you lawyers have changed almost nothing.”

It’s a point worth pondering. Until 1920 or thereabouts, medicine was more art than science. Antibiotics, organ and tissue transplants, radiology, pacemakers, cryosurgery— all were unknown. In those benighted days, doctors were not supermen but fallible mortals whose most valued asset often was a soothing bedside manner.

Yet thanks to recent advances in immunology, endoscopy, angioplasty, organ and cellular transplantation, and especially the mapping of the human genome, the medical profession today stands on the threshold of eliminating many human diseases and possibly even death itself. These days the medical profession’s greatest challenge is not curing sickness but the high cost of this biotechnological revolution, not to mention what to do with the millions of people now surviving into their 90s or beyond.

Crime and punishment

And lawyers? Today as in the distant past, the legal profession still largely clings to the adversarial model as the best way to resolve differences, despite the huge cost of lawsuits (in time, money, and bitterness), not to mention the mounting evidence that many ostensibly financial conflicts actually stem from emotional roots, and so would be better handled by therapists or counselors or social workers than by lawyers.

In criminal justice, the concept of “crime and punishment” persists despite growing evidence that punishment rarely improves anything and that more effective (and far less costly) alternatives now exist. Hardly a week passes without the exposure of some miscarriage of justice that took place because prosecutors were merely doing their jobs— that is, zealously pursuing guilty verdicts, as opposed to zealously seeking truth.

Is there no better response to crime? Even judges, prosecutors, and lawyers increasingly acknowledge that there is— and it’s usually non-legal. Private mediation services now resolve disputes relatively quickly, inexpensively, and without hanging anyone’s dirty laundry in public. More than 40 “community courts” around the U.S. now tackle low-level crimes in troubled neighborhoods by sending defendants to drug treatment shelters and social services instead of levying fines or sentences to overcrowded jails. A handful of prostitution treatment courts across the U.S offer, in lieu of jail, a lengthy intensive therapy regimen for women with multiple prostitution arrests.

My own small contribution to this brave new world was a “conscience clause,” which I routinely appended to all my freelance writing agreements. “This agreement,” it read, “presupposes an atmosphere of mutual good will between the parties, and presumes that any issues not covered here can be resolved amicably, in keeping with the principles of the Golden Rule.”

To my clients, I explained: “This is our mutual protection against lawsuits. If I think you’re mistreating me, and you can look me in the eye and tell me that this is how you’d like to be treated, then I’ll drop my complaint.”

This approach has been accepted by all my clients, save one— a law firm whose managing partner astutely perceived my purpose. “If we agreed in principle to staying out of court,” he remarked, “we’d drive ourselves out of business.”

The envy of Afghans and Russians

Let us stipulate (as lawyers like to say) that the evolution of Western law— from the Ten Commandments and the Code of Hammurabi through the Magna Carta, the English Bill of Rights, the U.S. Constitution, and 200 years of precedents developed by our courts— is a wonder to behold. Americans’ willingness to file lawsuits or criminal charges instead of fighting duels, hiring hit men, or burning down each other’s homes remains the envy of, say, Afghans and Russians. The “rule of law” that we Americans take for granted remains a distant dream in places like China or Iran. At their best, lawyers are problem-solvers— as we are reminded when we’re exposed to groups that have no patience with nit-picky, precedent-oriented lawyers (Donald Trump’s inner circle comes to mind).

The fact remains that the law is an inherently coercive tool, at a time when modern technology has developed the means to harness the non-coercive ability to communicate at many levels— from blogging to social networks to YouTube videos to organizing not-for-profits, protest demonstrations, and boycotts of disfavored products.

In such a world, the relevant question for people of good will is: How can the tools of the future be utilized to devise a more civilized and compassionate society? At 84, the only thing I know about the future is that it will be very different from the present. (I’m clueless about artificial intelligence.) But I do know that if there is any hope for the future, it lies with people like you— whatever career you ultimately choose.

Democracy’s flaws

You enjoy the luxury of growing up in a relatively secure and confident family. You were raised in the world’s most stimulating city. You also enjoy the benefits of an excellent education (which presumably will continue this fall when you enter the University of Chicago) and a humane Jewish tradition that stretches back 4,000 years. These blessings have granted you the relatively rare ability to think beyond your own narrow needs. From early childhood you have shown unusual concern for the fate of the Earth. You’ve marched in support of the environment. You painted “Portraits for Pantries” to help feed the poor.

But these efforts are possible only because you live in a free and democratic society. And today this fragile human experiment is under attack all over the world, including our own country. The flaw in government of the people, as we have seen lately, is that it requires people to take seriously their duties as citizens. It requires those in the minority to accept the results of elections. And it requires those in the majority to respect the rights of the minority.

This is no easy task, because we are all fallible humans, which means we can easily be swayed when demagogues appeal to our basest emotions and resentments. When that happens, democracies can die— unless strong and courageous individuals speak up for truth, justice, and tolerance, and against ignorance, hatred, and force.

A fugitive from Hitler

In your case, fortunately, you needn’t look far for examples. During the Vietnam War, your other grandparents, David and Elly Rubin, risked their personal freedom by providing sanctuary to the antiwar activist priest Daniel Berrigan when he was a fugitive from the FBI for his acts of civil disobedience. David and Elly followed their consciences even though their son— your dad— was just six years old at the time.

Elly’s mother, your paternal great-grandmother Marjorie Rosenfeld, found herself in the odd position of an American Jew studying psychoanalysis in Berlin when Hitler came to power in 1933. There she met Alfred Leonard (born Levi), a German law student who was documenting cases of attacks against Jews throughout Germany. After Marjorie returned to America a few months later, Alfred was forced to flee Nazi Germany. But he arrived in the U.S. as a refugee with only a temporary tourist visa, which would require him to return to Germany— and likely imprisonment or death— once it expired. He contacted Marjorie, and she came up with what seemed to her an obvious solution to his legal limbo: The two of them should get married. Which they did in late 1933.

Was she in love, in the bourgeois sense? Marjorie lacked the luxury to ask that question. She simply followed her instinct to do the compassionate thing. And that is why, among many other reasons, you are here today. And why, I wager, you will demonstrate the same courage and clarity of purpose when some fugitive from injustice comes knocking on your door.

‘I’m more flexible’

“You know what I like about being a child?” I heard you say when you were four and a half. “I’ll die later than my parents.”
What I like about being your grandfather is: It gives me hope that some people will possess the brains and energy and ideals to sustain the planet after I’m gone. Whether they’re lawyers or not.

When you were not quite six, I remarked that I was very impressed by your knitting. “That’s something I can’t do,” I said.

“Yes,” you replied, “but I’m younger – I’m more flexible.”

Exactly. This old planet needs its batteries recharged, and you’re one of the folks who will figure out ways to do it.

How will you use your awesome tools— strength, knowledge, curiosity, and humor— to improve your world? You can’t do it alone, of course. But maybe you will embolden others to follow your example. Maybe you will plant some seeds that will blossom in ways no one can imagine.

A tall order? Sure. But from someone with a name like Thelma Rubin-Rottenberg, the world expects nothing less!

Enjoy Dan Rottenberg’s newest book, The Price We Paid: An Oral History of Penn’s Struggle to Join the Ivy League, 1950-55. You can also visit his website at www.danrottenberg.com