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Shoveling sh*t in the battlefield for justice is better than slipping and falling into sh*t

Dec 17, 2009 Shoveling sh*t in the battlefield for justice is better than slipping and falling into sh*t

While I was applying to law schools, my father recognized that I was not hip on a traditional corporate law firm path, even though I ended up working for a traditional corporate law firm during my third year in law school and two years thereafter. He knew I was big on civil liberties and civil rights, and told me about a lawyer in his office building in Bridgeport who practiced such law.

I eagerly called the man, whose following words rang the clearest with me: "If you want to practice civil rights law, you will have to shovel a lot of sh*t along the way." I never asked what he meant. Because his focus apparently was more on civil rights lawsuits against discriminatory practices and negligent police, I figured that at the least he meant that the big bucks come in fits and spurts when practicing such law, and that the number of potential legal employers in this area are very finite.

I accepted the challenge. I saw law school in many ways as learning the language of the enemy, meaning those in power who urinate on civil liberties, whether intentionally or not; and the language of those who help maintain oppressive status quos whether their motivation be to get along in the "mainstream", to pay their bills, or to oppress people.

I got sidetracked along the way to try to build a marketable resume. For my first law school summer, in 1987, I law clerked in the regulations division of the then-named Federal Home Loan Bank Board, during the eye of the storm of the Savings and Loan scandal. From 1988 to 1991, I worked at a 25-lawyer Washington, D.C., law firm on often high-stakes litigation and regulatory issues for financial institutions and transportation companies. At both of these places I found some amazing teachers and learned more about not stereotyping anybody merely for the work they do. In fact, one morning in the middle of the Iran-Contra hearings — when I would pass by Oliver North’s lawyer’s office each morning from the subway — a particularly brilliant lawyer at the FHLBB attacked Reagan’s claim not to have known a thing about Iran-Contra with a mocking "I didn’t knoooooooooooooooooooooooooooowwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww" followed by another lawyer’s jokingly warning her that one of Reagan’s political appointee lawyer-supervisors was approaching.

At the law firm where I worked from 1988-91, I learned powerful advocacy from Irv Margulies — a Reagan appointee himself, as a former Commerce Department general counsel — and Randy Shields, who worked with him at Commerce. They taught me advocacy in the real world that cannot be learned in law school. I know nothing about either of them that is not completely mainstream.

I shoveled sh*t at the Federal Home Loan Bank Board and my first law firm to find the diamonds of learning indispensable regulatory research methods at the FHLBB, before it was made easier to do online; and to learn how to pen persuasively positions that might not initially entice me, but that start making sense as I get deeper and deeper into the research, analysis and writing. While at the FHLBB, I kept reminding myself that there are more enjoyable places to be, and that I would get to those places, despite the then-sparse summer job choices for first-year law students. While at my first law firm, I asked myself what the hell I was doing there when I learned that one of the associates had the distasteful task of advising a transportation client about how to implement or justify a drug-testing program, and what the hell I was doing there when assigned to advocate for a company accused of sex discrimination.

I finally moved to work that fits more with my values, interests and ideals, in criminal defense, and, as a bonus, on behalf of indigent people who have little to no luxury of choosing among paid lawyers. My next five years, at the Maryland Public Defender’s Office, were much more up my alley, yet my previous two less exciting jobs helped make me a better criminal defense advocate and better writer. My two years after the public defender’s office at a plaintiff’s personal injury law firm helped me bridge the gap between advocating from my office and law firm library at my first law firm, to slugging it out in the courtrooms and deposition rooms. By the time I added adult entertainment, libel defense and political activist defense to my practice as a self-employed lawyer, all the learning from my previous work all came together to make it much easier for me to advocate and respond to injunctive actions, to slug it out before administrative courts, to quickly learn about new areas of law and new courthouses, and to transcend dreading the potentially eye-glazing droning of many an appellate court opinion to instead find ways to use each court opinion, statute, shred of legislative history, constitutional provision, regulation, and piece of evidence to my clients’ benefit.

Such a transcending perspective makes rather irrelevant those who warn prospective law students about the many people who hate law school and hate the practice of law. I know of people who hate jazz music, too, no matter how bizarre that might strike me. Such a perspective makes it easier to plow through law school studies, make sure that a legal brief follows the font size and word count of a court’s local rules, and to put in the time and effort to deliver excellence to clients not merely because they are clients but because the lawyer is driven to deliver excellence.

No matter how glorious it may be to successfully brief and argue such exciting cases as Miranda, Loving, and Melendez-Diaz, what matters most to clients is getting good results by any lawful and ethical means necessary, even if it is through the less sexy approach of proving a standing issue and that Younger (401 U.S. (1971)) federal abstention should not apply.

Law students concerned with social justice might get disenchanted with the suspension from reality and compassion that seems rampant in so many law school classes, casebooks, administrations, faculties, and student bodies, particularly in those law schools heavily populated by students intent on a corporate law career. Fortunately, such groups as the National Lawyers Guild — at least in the Washington, D.C. area — help match law students to practicing lawyer mentors to help keep the students on the path of succeeding through the law school bootcamp to get to the light at the end of the tunnel. At law schools themselves, fellow law students and law professors with hearts and humanity will be found to provide similar support.

This week’s D.C. Circuit ruling in ANSWER Coalition v. D.C., ___ F.3d ___ (D.C. Cir., Dec. 15, 2009), is a case in point about the need to be ready to do unglamorous work on the road to fighting for civil liberties. This appellate ruling overturns the trial court dismissal of a First Amendment and Due Process lawsuit against the District of Columbia’s postering regulatory scheme, with the appellate opinion focusing on legal standing to sue and on Younger federal abstention principles. Neither line of court cases will excite people at a cocktail party, unless they also litigate similar issues. However, they are among the most important Constitutional principles to understand for those bringing civil liberties challenges against governments.

I have written about this postering/ANSWER Coalition case before, here and here. The video of D.C.’s oppressive postering laws and oppressive police enforcement helps bring to life why lawyers fighting for civil liberties need to be ready to shovel sh*t on the path to victory, lest they instead fall into the sh*t and reek of sh*t in the courtroom. 

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