Warren Court Children

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MAY 19, 1986

Warren Court Children

MANY OF MY friends, if they are still in legal practice, now hate it. “The world’s most overrated job,” one of them says. Lined up at motion calls: a lost generation, the Warren Court baby boom, the flood of us who went to law school in the late 1960s and early 1970s. We took Tocqueville seriously, and thought lawyers were America’s governing class. And the Warren Court was a Court of gods—Black, Douglas, Warren—hurling thunderbolts to start our cultural revolutions. Back then, the law seemed like a romance. Go to a big New York firm, make tons of money, save the world in your spare time, pro bono.

Now in those corporate firms, people look up for the first time after law school, the clerkship, the years of apprenticing as an associate, and ask: “My God, what am I doing? How can I get out?” And these are the plodders. The smart ones bailed out years ago for investment banking. I am even behind the plodders, still doing “causes,” as they put it in law school. I work in a small firm of four lawyers, with a kind of Warren Court practice: labor, pension, civil rights, and other worthy causes. Flailing away at it, in the Burger era, you feel a bit ridiculous, like someone still wearing bell-bottoms.

When we were just out of law school, we used to bore each other with our “cases.” Now there is an eerie silence. We discuss vacations, restaurants, even business trips, but never “cases.” Secretly, we do not even feel like real lawyers. Some of us are litigators, but we never go to trial, at least in federal court. Many of us, I suspect, cannot even draft our own wills, or handle the closing on our own condos. Oh well, we were born for greater things. But even in the big cases, which never go to trial, which linger year after year, crying to heaven, the class-action glamour wears thin. You wonder about the point of it all. You pour your life into some corporate catharsis, which you are paid to turn into your own, and years from now you will look back and ask, Why did I fling so much of my life into that?

As someone in the litigation business, I have the same mid-life angst as my peers do in the big law firms. But in my kind of practice, most of the time you end up writing letters for the Joneses. Every day a history of grief: you pour all their woes into little cassettes, then wipe them off. All morning, you take phone calls. Some unemployed Teamster, afraid you will charge him, says, “Uh, got a spare minute?” An old spinster is certain the governor has killed her dog. Someone needs a form 1053, urgent. In your mail only one real letter: a major client has written a postcard, in crayon, from a White Castle. You think, this guy has no grip on reality. How did he get me to file a million-dollar class action? This is your life, day after day. No court appearance, no summation to the jury, nothing to win you fame, fortune, and the love of women. Women, by the way, are leaving the law in droves. In the big firms they are the first to suffocate, like canaries in a mine shaft.

Yet people are still desperate to become lawyers. Even men and women my age, successful in other careers, talk about starting night law school. Ridiculous? It is the passion to become some secular saint, an Abraham Lincoln, an Oliver Wendell Holmes. In the Illinois bar we clutch at poor Abe as proof that we are doing something great. He is on the cover of the state bar magazine nearly every month. Yet according to his partner Herndon, the practice of law so depressed Lincoln that he could not even get off his couch in the afternoons. He would lie there for hours, paralyzed. And Holmes, when he left the state bench, despaired that he had spent his life on so many trifling cases.

Today, even as a governing class, we lawyers have fallen from grace. We have had to yield to the economists and number-crunchers, who are deregulating the New Deal, our New Deal, like academic bandits. The new Caesars, the Alfred Kahns and David Stockmans, have eclipsed our Joe Califanos and Ramsey Clarks. And in the law schools we have the enemy within, the Friedmanites, trying to turn the law into a branch of economics.

To make it worse, every thoughtful American denounces us. You hear it all the time: we have “over-lawyered” the country. We add nothing to the GNP, we give aid and comfort to Japan, we are a brain drain to unproductive pursuits. But perhaps better to have us all clogging up the courts than off in engineering schools working on Star Wars. I have a New York Times article from June 1983 in which even leaders of the bar denounce the profession: Derek Bok, Harvard president, former Law School dean, says there are too many lawyers. Warren Burger, the Chief, says there is too much litigation. This from a man who wants a national appellate court, to add another layer of appeal. Then Lloyd Cutler, rich corporate lawyer, says that lawyers serve only the rich. This from a man...well, never mind. 

II

THERE IS NO POINT in denouncing law school. You saw “The Paper Chase,” right? Yes, your classmates tear into casebooks like raw red meat. Yes, in my first year we had one suicide and (they say) six nervous breakdowns. Yet all the handwringing about the pressures, the appeals for the Red Cross to step in, miss the real irony: law schools do not tell you that this cannibalism is totally unrelated to the real-life practice of law.

Or maybe the honestly do not know. Word used to creep back to us quietly, from the older graduates. “Let’s just say,” one of them told me, “it’s not exactly nuclear physics.” Of course, I know one or two lawyers who do think it is nuclear physics. They read U.S. Law Week to relax. But most of us find, as a friend of mine says, “Practice is set up for people of ordinary intelligence.” Very ordinary intelligence. Go into a courtroom, and just tell yourself: all these people passed the bar exam.

In law libraries I wasted my youth in the romantic belief that the law was a learned profession. I began at Harvard, in Langdell LIbrary, a cathedral of the law, with big Domesday-type books and wall-size portraits of the lord chief judges ins car let and black. Like many students, I studied the law, serious and grave, stacking up the cases into little theological systems. Now I have ended up in Chicago, in Cook County Library, where it is like reading in a bus station, with chewed-up books, screaming bag ladies, and this public announcement every five minutes: “This is a public library, please watch your wallets and purses.”

When I went to law school (1971), there was great intellectual ferment. The Warren Court era was just ending, but that had not yet sunk in. Some of us, in our innocence, thought that the next issue on the court’s agenda would be wealth discrimination. How much equality did equal protection require? How much social justice could you squeeze out of those blank constitutional clauses? It is embarrassing to say this, but I used to wait eagerly for the next issue of the Harvard Law Review. It seemed to package the debate on the future of the left. I remember an outgoing editor who called it “the most important magazine in America,” and I took him seriously. That was its golden age, of course. Now it is in some rococo period, running articles on things like “the role of consent in the political and moral vision of Franz Kafka.”

Sound like the Sorbonne? Well, we were only reading torts and contracts. Some professors, the younger ones, started making references to Yeats and Max Weber, but that was it. A priest I know is shocked that law schools do not teach philosophy and history. He asks me, “How do you even practice? How do you know what is just?” Oh, I say vaguely, you learn that in college. In fact, for all my years in this business, I have never had an abstract discussion with anyone about what is just.

 

I MIGHT HAVE continued believing that the law had some coherence, that it was a worthy intellectual pursuit, but then something frightening happened. Sometime in the 1970s, like some primal big bang, there was a litigation explosion. The case law began growing like a blob. For one thing, judges began letting their law clerks run wild. To decide some motion to dismiss, law clerks began writing 50- to 60- page treatises, which they sent home to their parents, but which have no use for anyone else. Judicial opinions became truly repulsive to read, with great curlicues of “law,” Borges-like swirls of pedantic exegesis. Depending on the clerk, your judge could sound like Cardozo in one opinion, or Ken Kesey in the next. Then, at the next status hearing, the man does not even remember your case.

No one fully knows why it happened. But for some reason the law went from fast-forward in the Warren Court era to very fast-forward in the Burger era. The appellate volumes (F.2d’s) and the district court volumes (F. Supp’s) stopped being the story of liberty. Instead, they became like raw microfiche, conceptual reasoning with no off-switch, a bunch of law clerks citing each other in a madder and madder blizzard of words.

Supreme Court opinions are the most bloated of all. Even the academics are complaining. In the 1960s Black, Douglas, and other great judges were readable, and short. But in the Burger era there has been a shocking decline into babble. One reason, I believe, is that judges are now afraid. They do not know how far to the right they are supposed to go, so they throw up verbal smoke screens. If you know what is right, like Black or Douglas or even a conservative like Harlan, it is easy to be brief.

III

The hard part of being a lawyer has nothing to do with the law. It is everything else that throws you. Where do I stand? What do I hand the clerk? How many copies do I make? You grovel before the clerks. Not the law clerks, who write the 50-page treatises, but the real clerks, the minute clerks, the docket clerks: the whole Fellini crowd, dwarves, fat ladies, elves, who flick their ashes all over your pleadings. You ask, “Does this affidavit need a blue cover?” And they reply, “come on, Counsel, you don’t even know that?

I try to stay in federal court, but sometimes I slip and fall into the inferno. State court, we call it: Circuit Court, circus court, Circe’s court. The clients wear Keds, old ladies pack guns (as deputy sheriffs), and ex-wives jam the halls outside divorce court. FBI “moles” are everywhere, wiretapping judges. In Chicago the heat is on. “If you go in that judge’s chambers,” a lawyer warned me the other day, “just assume you’re on videotape.” This is where you live on the edge, filing a mechanic’s lien in the morning, then attacking a breathalyzer test after lunch. Get an easy-to-remember phone number (“D-I-A-L-D-U-I”) and read the legal tabloids (“Fingers, $660,000”). 

Ah, the elegance of federal court, where you know the files will not be lost, the judge will not be bribed, and the case will not be tried. Ever. In Chicago many federal judges have over 400 cases on their dockets, and because criminal trials have priority, a civil trial is almost out of the question. I recently learned of a “litigator” in town, now in his 40s, a partner in a big firm, who had never tried a single case. This man was what we used to call a trial lawyer. According to a journalist friend of mine, very few big-firm lawyers are impressive in court. How can they be? Nobody ever gets to trial.

The big firms send their associates to expensive trial schools. You watch yourself on TV, so you can learn to stop spraying your words on the jury. But there is no real substitute for the actual trial of cases, and if you are serious about it, you have to consider criminal law. The good criminal lawyers, every month, seem to be in some life-or-death trial. But like most civil lawyers, I get queasy just at the status hearings. Sometimes they interrupt the civil call and drag in some wretch of a prisoner, shaking like a wounded animal. Slam. Twenty years. O.K., back to breach of contract. We are very quiet, we civil lawyers. “I did two criminal cases,” someone whispers, “then decided I want to sleep nights.”

So we spend our lives in status hearings, packed with corporate lawyers, the meters softly running, tick, tick, tick, $200 an hour. This is the world of “complex litigation,” cases too big to try, the invention of corporate law firms. But it can happen to any case. You begin with a very simple issue. You remember telling the client, “We might try it in a year.” Then the issue breaks into a hundred little pieces. Then the pieces take up three file drawers. Then the whole case turns into a morass of little spats where nobody ever lands a punch.

 

AT THE STATUS hearings there are no rules. Whoever can talk, talks. You start to speak, and the other lawyer says, “Don’t interrupt me, Counsel.” Or: “Counsel, I let you talk, now let me talk.” Or: “Your Honor, counsel is contemptuous of this court.” Afterward, the real assholes wait for you in the hall, and hiss: “Just wait, Counsel, wait till this case is over. We’re going to get sanctions against you and your client.” Hey, you think, just deck this guy. But you get older, and stop rising to the bait. As the priest would say, that is the legal culture. With no philosophy, no history, what else can lawyers do? We just have a big Hobbesian shouting match: nasty, brutish, and no shorter than Bleak House.

With some lawyers, you can work out a code. Like soldiers passing cigarettes across the line, you come to respect each other. As a young lawyer, you can even learn from these other guys, the old-timers some of whom sense they are teaching you. Sometimes the judge will say, “Counsel, stop fighting,” and both of you, shocked, reply, “But Your Honor, we weren’t fighting.”

Before the judge, you bow and scrape like some royal chamberlain. It is always “Your Honor,” never plain “Judge.” Disgusting. What would Tom Paine and the Sons of Liberty say? Most lawyers are secret royalists, sticking “Esquire” after their names, oozing and oiling before “Your Honor,” one step from wearing powdered wigs. Some of them, I bet, danced naked at Woodstock. Yet once in court, in my own voice too, I detect the hateful note of unctuous servility. 

Then one day the status hearings stop, and the judge gives you a date for trial. At first you think, “No, it won’t happen.” Then you think, “My God, what is the hearsay rule?” You start waking up nights, your stomach in knots, and that is when the trial is still two months off. 

Maybe the judge is only pressing you to settle. In chambers they say: “Counsel, I can’t try this case, you hear me? I can’t.” Two days before trial, your heart in your throat, you settle. Then one or both lawyers will lean back and say, “Too bad we settled, really. I would have loved trying this one.” Yeah, sure, macho all back, fear and trembling gone, it is always too bad we had to settle. But we have to think of the client...

The judge often reviews the settlement for fairness. That lasts about two seconds. You represent the Sandinistas and have settled your case for, oh, half of Florida. The judge, even a Reagan judge, will smile and say: “I want to congratulate you, Counsel, on your professionalism in settling this case.”

Usually, by settling the case, you end a two-front war, one with your formal opponent, the other with your client. For example, one lawyer recently told me: “I was screaming at this lawyer, doing fine, almost had a deal. Then my client, next to me, starts screaming, too. Furious, I turned to him and said, ‘You, shut up.’”

In settling cases, I have learned that there are two legal cultures, as one sociologist says. Small-firm lawyers with small clients can settle cases easily. In the end they can turn to the client and say, MANY OF MY friends, if they are still in legal practice, now hate it. “The world’s most overrated job,” one of them says. Lined up at motion calls: a lost generation, the Warren Court baby boom, the flood of us who went to law school in the late 1960s and early 1970s. We took Tocqueville seriously, and thought lawyers were America’s governing class. And the Warren Court was a Court of gods—Black, Douglas, Warren—hurling thunderbolts to start our cultural revolutions. Back then, the law seemed like a romance. Go to a big New York firm, make tons of money, save the world in your spare time, pro bono.

Now in those corporate firms, people look up for the first time after law school, the clerkship, the years of apprenticing as an associate, and ask: “My God, what am I doing? How can I get out?” And these are the plodders. The smart ones bailed out years ago for investment banking. I am even behind the plodders, still doing “causes,” as they put it in law school. I work in a small firm of four lawyers, with a kind of Warren Court practice: labor, pension, civil rights, and other worthy causes. Flailing away at it, in the Burger era, you feel a bit ridiculous, like someone still wearing bell-bottoms.

When we were just out of law school, we used to bore each other with our “cases.” Now there is an eerie silence. We discuss vacations, restaurants, even business trips, but never “cases.” Secretly, we do not even feel like real lawyers. Some of us are litigators, but we never go to trial, at least in federal court. Many of us, I suspect, cannot even draft our own wills, or handle the closing on our own condos. Oh well, we were born for greater things. But even in the big cases, which never go to trial, which linger year after year, crying to heaven, the class-action glamour wears thin. You wonder about the point of it all. You pour your life into some corporate catharsis, which you are paid to turn into your own, and years from now you will look back and ask, Why did I fling so much of my life into that?

As someone in the litigation business, I have the same mid-life angst as my peers do in the big law firms. But in my kind of practice, most of the time you end up writing letters for the Joneses. Every day a history of grief: you pour all their woes into little cassettes, then wipe them off. All morning, you take phone calls. Some unemployed Teamster, afraid you will charge him, says, “Uh, got a spare minute?” An old spinster is certain the governor has killed her dog. Someone needs a form 1053, urgent. In your mail only one real letter: a major client has written a postcard, in crayon, from a White Castle. You think, this guy has no grip on reality. How did he get me to file a million-dollar class action? This is your life, day after day. No court appearance, no summation to the jury, nothing to win you fame, fortune, and the love of women. Women, by the way, are leaving the law in droves. In the big firms they are the first to suffocate, like canaries in a mine shaft.

Yet people are still desperate to become lawyers. Even men and women my age, successful in other careers, talk about starting night law school. Ridiculous? It is the passion to become some secular saint, an Abraham Lincoln, an Oliver Wendell Holmes. In the Illinois bar we clutch at poor Abe as proof that we are doing something great. He is on the cover of the state bar magazine nearly every month. Yet according to his partner Herndon, the practice of law so depressed Lincoln that he could not even get off his couch in the afternoons. He would lie there for hours, paralyzed. And Holmes, when he left the state bench, despaired that he had spent his life on so many trifling cases.

Today, even as a governing class, we lawyers have fallen from grace. We have had to yield to the economists and number-crunchers, who are deregulating the New Deal, our New Deal, like academic bandits. The new Caesars, the Alfred Kahns and David Stockmans, have eclipsed our Joe Califanos and Ramsey Clarks. And in the law schools we have the enemy within, the Friedmanites, trying to turn the law into a branch of economics.

To make it worse, every thoughtful American denounces us. You hear it all the time: we have “over-lawyered” the country. We add nothing to the GNP, we give aid and comfort to Japan, we are a brain drain to unproductive pursuits. But perhaps better to have us all clogging up the courts than off in engineering schools working on Star Wars. I have a New York Times article from June 1983 in which even leaders of the bar denounce the profession: Derek Bok, Harvard president, former Law School dean, says there are too many lawyers. Warren Burger, the Chief, says there is too much litigation. This from a man who wants a national appellate court, to add another layer of appeal. Then Lloyd Cutler, rich corporate lawyer, says that lawyers serve only the rich. This from a man...well, never mind. 

II

THERE IS NO POINT in denouncing law school. You saw “The Paper Chase,” right? Yes, your classmates tear into casebooks like raw red meat. Yes, in my first year we had one suicide and (they say) six nervous breakdowns. Yet all the handwringing about the pressures, the appeals for the Red Cross to step in, miss the real irony: law schools do not tell you that this cannibalism is totally unrelated to the real-life practice of law.

Or maybe the honestly do not know. Word used to creep back to us quietly, from the older graduates. “Let’s just say,” one of them told me, “it’s not exactly nuclear physics.” Of course, I know one or two lawyers who do think it is nuclear physics. They read U.S. Law Week to relax. But most of us find, as a friend of mine says, “Practice is set up for people of ordinary intelligence.” Very ordinary intelligence. Go into a courtroom, and just tell yourself: all these people passed the bar exam.

In law libraries I wasted my youth in the romantic belief that the law was a learned profession. I began at Harvard, in Langdell LIbrary, a cathedral of the law, with big Domesday-type books and wall-size portraits of the lord chief judges ins car let and black. Like many students, I studied the law, serious and grave, stacking up the cases into little theological systems. Now I have ended up in Chicago, in Cook County Library, where it is like reading in a bus station, with chewed-up books, screaming bag ladies, and this public announcement every five minutes: “This is a public library, please watch your wallets and purses.”

When I went to law school (1971), there was great intellectual ferment. The Warren Court era was just ending, but that had not yet sunk in. Some of us, in our innocence, thought that the next issue on the court’s agenda would be wealth discrimination. How much equality did equal protection require? How much social justice could you squeeze out of those blank constitutional clauses? It is embarrassing to say this, but I used to wait eagerly for the next issue of the Harvard Law Review. It seemed to package the debate on the future of the left. I remember an outgoing editor who called it “the most important magazine in America,” and I took him seriously. That was its golden age, of course. Now it is in some rococo period, running articles on things like “the role of consent in the political and moral vision of Franz Kafka.”

Sound like the Sorbonne? Well, we were only reading torts and contracts. Some professors, the younger ones, started making references to Yeats and Max Weber, but that was it. A priest I know is shocked that law schools do not teach philosophy and history. He asks me, “How do you even practice? How do you know what is just?” Oh, I say vaguely, you learn that in college. In fact, for all my years in this business, I have never had an abstract discussion with anyone about what is just.

 

I MIGHT HAVE continued believing that the law had some coherence, that it was a worthy intellectual pursuit, but then something frightening happened. Sometime in the 1970s, like some primal big bang, there was a litigation explosion. The case law began growing like a blob. For one thing, judges began letting their law clerks run wild. To decide some motion to dismiss, law clerks began writing 50- to 60- page treatises, which they sent home to their parents, but which have no use for anyone else. Judicial opinions became truly repulsive to read, with great curlicues of “law,” Borges-like swirls of pedantic exegesis. Depending on the clerk, your judge could sound like Cardozo in one opinion, or Ken Kesey in the next. Then, at the next status hearing, the man does not even remember your case.

No one fully knows why it happened. But for some reason the law went from fast-forward in the Warren Court era to very fast-forward in the Burger era. The appellate volumes (F.2d’s) and the district court volumes (F. Supp’s) stopped being the story of liberty. Instead, they became like raw microfiche, conceptual reasoning with no off-switch, a bunch of law clerks citing each other in a madder and madder blizzard of words.

Supreme Court opinions are the most bloated of all. Even the academics are complaining. In the 1960s Black, Douglas, and other great judges were readable, and short. But in the Burger era there has been a shocking decline into babble. One reason, I believe, is that judges are now afraid. They do not know how far to the right they are supposed to go, so they throw up verbal smoke screens. If you know what is right, like Black or Douglas or even a conservative like Harlan, it is easy to be brief.

III

The hard part of being a lawyer has nothing to do with the law. It is everything else that throws you. Where do I stand? What do I hand the clerk? How many copies do I make? You grovel before the clerks. Not the law clerks, who write the 50-page treatises, but the real clerks, the minute clerks, the docket clerks: the whole Fellini crowd, dwarves, fat ladies, elves, who flick their ashes all over your pleadings. You ask, “Does this affidavit need a blue cover?” And they reply, “come on, Counsel, you don’t even know that?

I try to stay in federal court, but sometimes I slip and fall into the inferno. State court, we call it: Circuit Court, circus court, Circe’s court. The clients wear Keds, old ladies pack guns (as deputy sheriffs), and ex-wives jam the halls outside divorce court. FBI “moles” are everywhere, wiretapping judges. In Chicago the heat is on. “If you go in that judge’s chambers,” a lawyer warned me the other day, “just assume you’re on videotape.” This is where you live on the edge, filing a mechanic’s lien in the morning, then attacking a breathalyzer test after lunch. Get an easy-to-remember phone number (“D-I-A-L-D-U-I”) and read the legal tabloids (“Fingers, $660,000”). 

Ah, the elegance of federal court, where you know the files will not be lost, the judge will not be bribed, and the case will not be tried. Ever. In Chicago many federal judges have over 400 cases on their dockets, and because criminal trials have priority, a civil trial is almost out of the question. I recently learned of a “litigator” in town, now in his 40s, a partner in a big firm, who had never tried a single case. This man was what we used to call a trial lawyer. According to a journalist friend of mine, very few big-firm lawyers are impressive in court. How can they be? Nobody ever gets to trial.

The big firms send their associates to expensive trial schools. You watch yourself on TV, so you can learn to stop spraying your words on the jury. But there is no real substitute for the actual trial of cases, and if you are serious about it, you have to consider criminal law. The good criminal lawyers, every month, seem to be in some life-or-death trial. But like most civil lawyers, I get queasy just at the status hearings. Sometimes they interrupt the civil call and drag in some wretch of a prisoner, shaking like a wounded animal. Slam. Twenty years. O.K., back to breach of contract. We are very quiet, we civil lawyers. “I did two criminal cases,” someone whispers, “then decided I want to sleep nights.”

So we spend our lives in status hearings, packed with corporate lawyers, the meters softly running, tick, tick, tick, $200 an hour. This is the world of “complex litigation,” cases too big to try, the invention of corporate law firms. But it can happen to any case. You begin with a very simple issue. You remember telling the client, “We might try it in a year.” Then the issue breaks into a hundred little pieces. Then the pieces take up three file drawers. Then the whole case turns into a morass of little spats where nobody ever lands a punch.

 

AT THE STATUS hearings there are no rules. Whoever can talk, talks. You start to speak, and the other lawyer says, “Don’t interrupt me, Counsel.” Or: “Counsel, I let you talk, now let me talk.” Or: “Your Honor, counsel is contemptuous of this court.” Afterward, the real assholes wait for you in the hall, and hiss: “Just wait, Counsel, wait till this case is over. We’re going to get sanctions against you and your client.” Hey, you think, just deck this guy. But you get older, and stop rising to the bait. As the priest would say, that is the legal culture. With no philosophy, no history, what else can lawyers do? We just have a big Hobbesian shouting match: nasty, brutish, and no shorter than Bleak House.

With some lawyers, you can work out a code. Like soldiers passing cigarettes across the line, you come to respect each other. As a young lawyer, you can even learn from these other guys, the old-timers some of whom sense they are teaching you. Sometimes the judge will say, “Counsel, stop fighting,” and both of you, shocked, reply, “But Your Honor, we weren’t fighting.”

Before the judge, you bow and scrape like some royal chamberlain. It is always “Your Honor,” never plain “Judge.” Disgusting. What would Tom Paine and the Sons of Liberty say? Most lawyers are secret royalists, sticking “Esquire” after their names, oozing and oiling before “Your Honor,” one step from wearing powdered wigs. Some of them, I bet, danced naked at Woodstock. Yet once in court, in my own voice too, I detect the hateful note of unctuous servility. 

Then one day the status hearings stop, and the judge gives you a date for trial. At first you think, “No, it won’t happen.” Then you think, “My God, what is the hearsay rule?” You start waking up nights, your stomach in knots, and that is when the trial is still two months off. 

Maybe the judge is only pressing you to settle. In chambers they say: “Counsel, I can’t try this case, you hear me? I can’t.” Two days before trial, your heart in your throat, you settle. Then one or both lawyers will lean back and say, “Too bad we settled, really. I would have loved trying this one.” Yeah, sure, macho all back, fear and trembling gone, it is always too bad we had to settle. But we have to think of the client...

The judge often reviews the settlement for fairness. That lasts about two seconds. You represent the Sandinistas and have settled your case for, oh, half of Florida. The judge, even a Reagan judge, will smile and say: “I want to congratulate you, Counsel, on your professionalism in settling this case.”

Usually, by settling the case, you end a two-front war, one with your formal opponent, the other with your client. For example, one lawyer recently told me: “I was screaming at this lawyer, doing fine, almost had a deal. Then my client, next to me, starts screaming, too. Furious, I turned to him and said, ‘You, shut up.’”

In settling cases, I have learned that there are two legal cultures, as one sociologist says. Small-firm lawyers with small clients can settle cases easily. In the end they can turn to the client and say, “You, shut up.” But big-firm lawyers have no such autonomy. Their clients are spending millions of dollars. And lately, the big-business clients have become more and more brass-knuckled about litigation. A corporate lawyer I know tells me, “They want the biggest prick they can find.” Not long ago our firm reached a tentative settlement with a big corporate firm, and the client immediately fired them.

 

BEFORE A TRIAL, like many lawyers, I have a minor personality change. I start treating people like witnesses. I try to control conversations. I label every casual remark:  “hearsay,”  “improper foundation,” and so on. I only hope, at the end of the trial, I can turn this person off. But a friend of mine, a prosecutor, could not turn off. He kept cross-examining everyone, everywhere, the taxi driver, even the maid. Drunk with power, he would lead the witness, cut off the escapes, bore in for the kill. In marriage counseling, I hear, there is a special program for lawyers.

A trial is a barbaric, outmoded kind of personal combat. Like boxing, you wonder why it still goes on. But the old lawyers say you try every case three times:  “the one you think you’ll try, the one you do try, and the one you wish you’d tried.” To me, the great surprise was that a trial is such an athletic event, a physical contest not so unrelated to trials in primitive times. Through the trial, you are constantly sizing up someone’s stamina, the client’s, the other lawyer’s, your own. Should you take a break now? Can your witness keep going? Is the other side running out of questions? In short trials, you are weirdly lucid, full of adrenaline, happy to skip lunch. Then it is over, and suddenly you are tired, with a horrible, bone-tired fatigue. Then you have insomnia, awake half the night, trying the case you should have tried. When lawyers say they are “on trial,” it is no slip: you are “on trial,” like the client. But you sought it out. You went into court and did something that could blow up in your face. Why?

During a hearing last month, my client leaned over and said: “Tom, I don’t care what happens to me now. This has been worth it, just to see Dixon squirm.” And it was a good day for us. Their witnesses were blowing up. One kept wringing his hands like Lady Macbeth. Another screamed at me, “I know what you’re going to ask, and don’t you dare, don’t even dare.” And the other lawyer had the look of Hamilton Burger, head in hands, after Perry has said, “Your witness.” Wow, I thought.

After the trial, over a beer, there is some long, post-cathartic wrap-up. Your client comes alive, after sitting in court for days, dazed, the whole trial like a dream, everyone up there attacking him, defending him. “Oh, I loved it when you asked...” And:  “Did you see the judge when he said...” For an hour or so, you may be the closest friend he ever had. A retired teamster, a Vietnam vet—he and you will never be this way again. 

 

IV

SOMETIMES I DOUBT that many of us Warren Court children can survive one more Republican term. Title VII lawyers have changed to medical malpractice. Unionside lawyers talk about changing to management. One of them, an old friend, told me recently:  “I just can’t sustain it anymore. All these areas of law I’ve been involved in have been cut to shit.” He grew wistful. “You know, I’ve good friends in management firms. They’ve come over to our side on some things. Maybe I can do more good there. Or stop them from doing really bad things.”

His problem is money. As he points out,  “Even if you win, you’ve got these terrible battles over fees.” The Reaganites do not have to change the substantive law. They just have to starve the lawyers who practice it. They have done so in obscure decisions that make little public fuss. Recently, for example, the Burger Court held that under fee-award statues, even lawyers who win smashing victories should receive partial fees limited to the time spent by them on the  “winning” issue. Now, if you do win, after many years, against long odds, courts can cut your income by half or more, income that had just barely kept you alive. By the end of 1988, Reagan will have appointed more than 400 of the 744 judges on the district and appellate courts and the U.S. Supreme Court. Nixon-Ford appointees will account for much of the rest.    

Chicago falls in the Seventh Circuit, an appellate court so right-wing, as one lawyer says, “they even scare Rehnquist.” The Seventh Circuit is a glimpse of the Reaganite utopia, a joint reign of terror by the old right and the Friedmanites. By comparison, the Nixon-Ford judges were not so bad. Some were big-firm senior partners, legal Lee Iacoccas ready to make a deal. They did not like us activist lawyers, but it was good business to keep us around. We filed the suites, and everybody made money.

Under Reagan, there are more incorruptibles. They are more academic, more ideological, and readier to stay on the bench, iron-butted, and give up big corporate-law incomes. And they are young. Recently I saw one off these new Reaganites: laissez-faire, University of Chicago, an academic who had never tried a case. Then I realized, with a shock, he not only was my own age, 37, but he had longer hair than I did, even a beard.

 

O.K., MAYBE SOME of us are jealous. Maybe, instead of money, we wanted power: the dark side of our Warren Court idealism. As a Harvard professor recently said,  “History has been sobering. Some of our classmates will be appointed to the Supreme Court, but not the ones we expected.” For him history has been sobering, for me it has ben annoying.

In my practice, a right-wing bench is a nightmare, because there is no right to a jury in most pension, civil rights, and labor cases. Juries would make it too easy. So the crucial moment is the first in the case, when the clerk randomly assigns you a right-wing judge. Before then, you had told the client, “I can live with anybody but Judge X.” Then you draw Judge X, second damn time this year.   

You call up your client, who should be in a Frank Capra movie. He says, in disbelief,  “You mean, that’s it? It’s all over when the judge is assigned?” You hedge a little, but he is stunned. This judge does not even know the case. Is he “bought”? As an officer of the court, you must defend its integrity. What answer will best do so?

The hardest thing to take about the judicial right is its hypocrisy. They prate about  “neutral principles,” but make up a principle, on the spot, to get any result they want. They did not like union workers suing their employers in federal court, so one day, out of the blue, they changed the statute of limitations from five years or more to six months. (Usually destitute and out of a job, few workers can file a major suit in that time.) Then they applied their new rule retroactively to dismiss hundreds of pending cases.

They attack liberal judges for invoking  “public policy.” Then they invoke Milton Friedman, and toss out centuries of law. I used to build our cases on traditional contract-law or trust-law doctrines. I thought that principled conservative arguments might shame them into doing the right thing. They brushed that all aside, citing, uh...“public policy.”

Some areas of practice have ceased to exist. I really do not know a lawyer in Chicago who will take an individual Title VII case, based on race. The employer always wins. Although the law may be technically otherwise, the employer simply has to articulate a nonracial reason, almost any reason, however spurious, for firing, demoting, or not hiring a black.

There are a few straight-out liberals left on the bench, but they always want you to settle. They use tricky, compromise rulings to head off appeals, because they know, and you know, it is all over if the other side goes up on appeal. You try to tell the client, “The worst thing we can do is win.” 

 

V

UNPROTECTED BY THE courts, you are easy meat for the big firms. They slowly eat you alive with NEXIS, the ten associates, paralegals, night-shift secretaries, and the whole SAC-command infrastructure. They could drown you with paper every week. When they file a motion, say, to dismiss your case, it is fiendishly timed to ruin your weekend—two feet of reading, dumped off at your office 5 p.m. Thursday, set for hearing 9 a.m. Monday.

They can launch pretrial discovery to every continent, and in an instant turn their warheads on you. In one recent case, a big firm deposed our few clients for over 80 hours: 80 hours of my life in the “conference room,” a windowless prison, jabbing paper clips in my palms to keep awake, trying to keep sane. Each deposition takes about eight hours, the first seven to circle around your client, the last to pounce on him—when exhausted, the poor bastard will say anything. Read Darkness at Noon, which describes a Stalinist interrogation. That is what we call a “good dep.” As the deponent’s lawyer, you sit there, with no fancy objections, no Darrow-type heroics, just observing for human rights violations. You go home when the court reporter, exhausted, begins to cry. 

For me, the worst part of a big-firm lawsuit is when they call and say, “Messenger it over, will you?” Yeah. Once in a while, I can trick them to send their messenger over. Otherwise, I “messenger” it myself. Then the receptionist, sure you are no lawyer, will not let you use their fancy bathroom. You might steal the firm cologne.

If things are so tough, why not get out? Go into corporate law, a nice “liberal” firm with decaffeinated coffee. Straight out of law school, it was fine to strike the moral pose, fight the good fight. But now you are 37. Friends begin to treat you like a child playing Peter Pan. They give you a flinty look and ask, “What are you billing these clients on an hourly basis?” One of them, an ex-radical now in a big firm, says, “Come on, give pigdom a chance.” 

Ten years ago, after law school, when I joined the Mine Workers’ legal department, a teacher warned me, “More noble work? Is that good for you? You have to learn the world’s not all black and white.” Yet somehow you learn, even in the good fight, it is not all black and white. “I feel sorry for you,” an opposing lawyer once said to me, “you have to believe your clients.” Yes, your client may be the just man, the innocent man, the cedar of Lebanon. But damned if he doesn’t change his story ever so slightly just before trial, or remember some new fact you never heard before.

At the start of every case, you are pumped up with noble outrage. You fight some heartrending injustice, some crime against widows and orphans. Then your facts start to fall apart. Then your theories start to fall apart. Worst of all, you begin thinking, maybe this housing agency, or this pension fund, was doing the best it could. The other side says, “Look at the real world, look at the constraints, look at what your clients do not see.” They appeal to your education, your profession, your common allegiance to the cult of complexity. To your arguments, they have counterarguments, some of them devastating. Your clients only say, “Oh.”

Somehow, you have to hang on to your original sense of outrage. You sublimate it into some new technical argument. They blast away your old theories, but the new one holds. Recently our firm bailed out a group of pensioners on an obscure little point of law. The IRS even filed an amicus brief in our behalf. I could tell the appellate court, “O judges, social justice and Reagan are on our side.”

In ordinary lives, there are not many causes. But lawyers get causes all the time: trivial, evil, purely commercial causes maybe, but causes. And the causes radicalize you, no matter whose side you are on. By some mysterious, self-protective instinct, as the complexities sink in, you become perversely more fervent in court. You can take a holiday from being a responsible citizen. Indeed, lawyers can do things that their sober, bourgeois selves would never dream of doing on their own, in their own name.

This is just what gave judicial activism a bad name. By what right do you step out of your sober, bourgeois place and push to the hilt for any single cause? By what right do you pick the cause, and not defer to the outcome of the political process or the decision of some legitimate authority? Maybe you are just behind the times. The Reagan era has discredited your kind of Warren Court existential heroism. Not only the far right, but neoconservatives, neoliberals, and neopopulists have cast doubt on your whole enterprise.

In John Hart Ely’s book Democracy and Distrust, he says that courts should not intervene except to correct some major dysfunction of the democratic process. I agree. Sometimes, in a brief, I cite Ely’s book. yet in real life, I throw Ely out the window for the right case. Clean up a union, reform an asylum, second-guess a pension fund, target housing aid to the poor...or follow Ely’s theory? It is so clear in books, but so hard, with the client out in your lobby, to do the right thing.

 

SO YOU BECOME an enemy of the people, in Ibsen’s sense, not a bad job in the Reagan era. Anyway, you can get away with it. You can even seek social change in the courts, and because you are a lawyer, the world still respects you and your parents are still proud of you. And what better time to be a Warren Court lawyer? The republic is hardly in danger from judicial activism. So you crusade away, confident you will not wreak any excessive social change. Indeed, anything you achieve must be desperately overdue. 

Finally, you do not really pick these causes. They walk in on their own, screaming for justice: beaten up at union halls, thrown out of their jobs, cheated of their pensions. Some saints, some paranoids, some who just fell off their medication. A friend of mine, a public-interest lawyer, says “Give me straw-man plaintiffs. Real clients are such a pain.” Yet that is how justice comes in the world, not through you the lawyer but through crazy people, dybbuks, who briefly take possession of you.

 

VI

MANY OF US DREAM that one day some big windfall fee award will set us up for life. Now it is a pure fantasy. Federal courts, in class actions, no longer permit such windfall fees. If you win the case of the century, you will be lucky to get your hourly rate, and most courts will whittle that down to a fraction of the usual corporate-law rate. Still, we dream of winning that big fee, then smugly telling our friends, “See, we’re in this for the money too.”

Recently the New York Times ran a story about Harvard law professors urging students to seek “alternatives” to corporate practice. Alan Dershowitz said that you could do good and still make about $75,000 a year. “Once you have the need to get into six figures, you have to make some very substantial compromises.” On $75,000 a year, I would have scruples too. And a condo in Florida. Dershowitz gets his $75,000 a year, I read, by defending Claus von Bülow, Vanity Fair’s man of the year. 

Except in a public-interest firm, with a guaranteed salary, it is insane to do good. Insane. It is not a cut in income you face, but the nightmare of coming up with no income at all. Just one or two big federal cases, on a contingency basis, can sink your little boat. The professors would be credible, much more credible, if they told the students the truth: pass up the big firms at your own risk. Noble causes can bankrupt you. Only the very rich belong in federal court. I have been awfully lucky, as my friends know, in the lawyer who hired me seven years ago and in the cases we have taken since. I do not have to think about the wrecked solo practices of all those Title VII lawyers. I need only recall my own life in 1977.

That year, for the noblest work I ever did, I made $8,000. I was in South Chicago, representing a slate of dissident candidates for the top offices in the Steelworkers’ Union. By winning, we thought, back in that George Meany era, we would push the whole AFL-CIO to the left, something Reagan later did without us. I was 27 years old and quite happy to move six times in a year and spend February behind a furnace in someone’s basement. Even the National Lawyers Guild thought I was nuts, and I was not even a radical. In New York one day, a Guild lawyer saw me on the street, lean and ragged. She bought me lunch at the Algonquin, and talked to me for two hours about workers’ rights, while I glutted myself with lady-lunch food.

Last month I ended up describing alternatives to corporate law to students at the University of Chicago. No one asked me any questions. Two other panel members, one an assistant US attorney and the other from the ACLU, got slightly more response. Miffed, I thought, well they don’t need you in the U.S. Attorney’s Office, or even in the ACLU. They have Supreme Court clerks lined up to take those jobs. In the tiny public-interest sector of the legal culture, you are as “fungible” as you are in the big firms. 

It is so trite to say, but it angers me: we live in an over-lawyered society, but only the rich have lawyers. The other 95 percent, all the rest, are locked out of the courts. I wondered about these students. Worried about the lawyer glut? In my field, there is little competition. In fact, my fellow lawyers and I always dump on each other our hapless would-be clients, not welfare mothers or ne’er-do-wells, but solid working people with serious problems. Every day I get calls from people I cannot help, referred from lawyers I have not met. Most of the time I tell them they do not have a case, because of some technical legal quirk, and they could not afford to bring such a case anyway, even if I took it on a mainly contingency basis. So they hang up the phone, and who knows what they do.

The Friedmanites say that if it is a good enough case, someone will take it. But with the Reagan bench, even a “good enough” case becomes a long shot. Or maybe I mean a case “good enough” for my sense of justice. Whatever that sense is, it can addle your sense of investment opportunities. You start playing long shots, almost for the hell of it, and it is your duty, you tell yourself, to do that. What more is there to say? In the legal marketplace, you are an inefficient firm. YOu should not be a lawyer.

An older lawyer once told me: “If your first aim is to make money, you should not be in law, period.” But that is a minority view. Even my hero, Mario Cuomo, would disagree. Recently he said, “I have a son who I am sure is going to get rich...and I’ve told him to go to the law practice. He wants public life...But first, I told him, go and make money so they can’t commandeer you.” To Cuomo, no elected official should act for financial gain. But a lawyer, an officer of the court? Only an idiot would not do it to get rich. You think of St. Ivo, the patron saint of lawyers, of whom the chroniclers say, “A lawyer and not a thief. A wonder to the people.”

 

IT IS ODD to me that people will treat you like a St. Ivo, even now, or like Judge Parker in the comics, who drops his sage advice through a plume of pipe smoke. Even grizzled old men, like some of my clients, who first dismiss you as a kid, come to seek your advice on everything, simply because you once answered one question right. In South Chicago, in the black neighborhoods, some older people still address you by a title, “Attorney G————,” as if you were the only one in town. Maybe it’s a hangover from the rural South. You hold an office, the local wise man, like all those alcoholic lawyers in the Faulkner novels.

In 1981, an old truck driver came and asked our firm’s help for some 200 retirees. A Teamster pension fund had cut their benefits by nearly two-thirds. The case was hopeless, but he wore us out, so we took it. For the next four years we lost, lost, lost, and lost, and then, home run, bottom of the ninth, we won. Everything. Suddenly, after all that losing, the case was over, and the men will now recover millions of dollars. For our client, the shock has still not worn off. He keeps calling me up, and says in his thick mountain drawl, “Well, now, the men are very well pleased.” Then, tickled to death, he starts to laugh. And laughs and laughs. And in the great tradition of our profession, one that I find irresistible, I start laughing too. 

This article appeared in the May 18, 1986 issue of the magazine. 

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