Jan 20, 2011 Lawyering without borders
For a long time, I have considered myself to be a citizen of the world at least as much as a citizen of the United States. National, state, and municipal borders are artificial lines drawn by human beings, which are invisible to even the most sharply-magnified satellite images. If we take the border issue further, is it artificial to think that each of us is a separate entity rather than interconnected with everyone and everything around us? While pondering the latter idea, it is important at the very least to engage our clients, allies, and opponents, and to permeate our lives and doings with ch’i.
My entire law school and lawyering career has been in the District of Columbia metropolitan area, interrupted for three years in Charm City/ Baltimore many rains ago, which covers three different bar exams, those being for Maryland, Virginia, and the District of Columbia. A high enough score on the multistate bar exam — a tough multiple choice exam that generally does not reveal the questions in the answers, but in eliminating the worst of the four possible answers — enables waiver into the District of Columbia Bar, which left me to decide between taking the Maryland or Virginia bar, since at the time I had accepted an offer to work with a D.C. law firm with a national focus.
I took and passed the Maryland bar exam in 1989, spending my full days for two months doing nothing much more than going to bar review classes, studying for the exam, and taking practice exams, interspersed with running and lifting weights at the gym. What fun.
Seven years later, while practicing as a full-time trial lawyer, I prepared for the Virginia bar exam with a home study course run by a gentleman who knew how to help me focus on prioritizing my studies when it was hard to cover as much material as when I devoted full-time to studying for the Maryland bar exam. The Virginia bar exam’s essay material covered perhaps as much as twice the material as the Maryland exam. Good times. While preparing for and taking the Virginia bar exam, I was probably helped by thinking like a practicing lawyer, rather than seeing the tested issues in the abstract, until I overheard a fellow exam-taker mention that question two on the essay exam I was waiting to hand in was a mechanic’s lien issue, which I had somehow overlooked through my years of practicing law having nothing to do with mechanic’s liens. I passed the exam anyway.
If you are still reading, my benefit of putting up with three years of often mind-numbing and mind-torturing experiences in law school — fortunately combined with personal and intellectual growth — and hot needles in the eyes from preparing for two bar exams, is the empowerment of going into court to stand up for what I believe is right, and winning at times, sometimes with particularly big wins. (If the disclaimer is required, past victories are no promise of future results to clients.)
Law school underlined what frustrated me so much about my several years of activism with Amnesty International, which organization at the time focused its volunteer members on petitions, letter-writing to government officials to release prisoners of conscience and to stop executions and torture (admonishing that such letters are more effective with respectful language rather than opening with "Dear torturing, murderous, power-hungry, mercenary, monstrous asshole who probably never got hugged by your parents"), and an occasional demonstration, the latter of which was most suited to my personality. Yes, accumulated feathers — or letters, as the case may be — sink the boat, but I too often feel impatiently seasick and exasperated in the process of struggling to sink the damned boat. In law school through such experiences as obtaining political asylum for a client from Ethiopia through the immigration law clinic, and getting a frivolous lawsuit against me dismissed early on (through a motion for a judgment on the pleadings) through the kind guidance of a litigation clinic instructor, I learned firsthand about obtaining positive change without needing to go the accumulated feather route.
Early on in my first year of law school, I related to a second-year student how deeply irritated I was about a law professor’s nonsense one day. I did not realize at the time how on-target he was when he recommended that I channel my too unbridled anger (in his view at least) to litigation activities, including moot court. I did not enjoy moot court very much, which involved briefing and arguing appellate fact patterns that numbed my interest. I was not particularly crazy, either, later on in law school, with various assignments in my trial advocacy class, which again often addressed fact patterns which were not of much interest to me.
Today, I love trials and appeals. I love my law practice. It is hard for me to find anything I do not love about practicing law other than the injustices and senselessness that abound, which I respond to with battling for t’ai chi harmony and balance.
What changed to enable me to look forward to a career as a lawyer? In one respect, I re-focused on the two main reasons I went to law school: To save the world, and to learn the language of the enemy (more accurately, the language of those using the law to do injustice). In another respect, I found t’ai chi, Taoism, and non-attachment/non-duality, which focus one on being powerful through harmonizing situations (sometimes only possible through pitched battle), and by looking within rather than without for inner peace and fulfillment. Without that approach, even the most celebrated and financially wealthy criminal defense lawyer could go crazy waiting three hours in a windowless courtroom waiting for his or her case to be called, particularly in courthouses that do not allow one to bring a Blackberry or laptop computer into the courthouse to get work done while waiting. Of paramount importance is having a real client to defend, whereas in law school it took great effort for me to try to connect an examination actor, or a moot court or trial advocacy client with a living, breathing human.
Also contributing to my love of the practice of law is being my own boss. I pick and choose the clients I take, rarely refusing to defend a paying criminal defendant whose case has not been resolved (and continuing vital pro bono work for such clients as animal rights activists and other demonstrators), but repeatedly refusing requests for help with expungement applications (other than requests from my existing clients), post conviction cases when they are battles too uphill and too likely to result in thankless clients, and scores of non-criminal cases, with my accepting and enjoying plenty of clients for matters involving First Amendment defense, student discipline defense, and advocacy under the Freedom of Information Act.
I also like that my joining all three jurisdictional bars -“ Maryland, Virginia, and D.C. “ eliminates the state borders to my law practice, and gives me more of an interesting variety of work, including getting real lawyer-directed jury voir dire in Virginia, criminal defendant-controlled power over getting a jury trial or bench trial in Maryland, and the strengthening of skills that comes with varying the court battlefields that I enter and the judges, courthouse personnel and opponents with whom I deal.
Most of all, though, I probably love the practice of law by having reached a point where I love my life all the more, having transcended beyond cursing oppression from governments and beyond; running from society’s overcommercialism, Phil Collins, excessive complacency, and excessive mediocrity and homogenization (but not viewing them as badly as did the great Frank Zappa); grousing over public opinion running counter to my own; and grumbling over lousy appellate and trial court decisions and jury verdicts to instead knowing that my cohorts and I can work to reverse those defeats. For me to let those external factors govern my satisfaction with life is to live counter to my belief in non-attachment/non-dualism, t’ai chi, remaining calm in the eye of the storm, and inter-connectedness.
I also enjoy the practice of law and life all the more by not getting overly hung up on past mistakes I have made. Fortunately, those mistakes have been more along the lines of an improvident line of cross examination at trial or expressing anger at an opponent when better kept in the back pocket, than mistakes along the lines of missing a court filing deadline, which I meticulously avoid. As Daniel Cristopherson aptly relates for problems infinitely more severe than spilt milk:
When Thich Nhat Hanh realized this was the US soldier who had killed the small children in his village, he invited the man to kneel with him and pray.
Tormented by depression, nightmares, and thoughts of suicide for more than a decade, the man didn’t think he could go on. Thich Nhat Hanh responded. Do not make yourself suffer because of the past. There are 60,000 starving children in the world right now. By leaving the past behind and making your home in the present moment, we can help children now. It is never too late to water the seeds of love.