Apr 05, 2015 Thanking my former co-counsel David J. Bederman (1961-2011)
In 2003, I teamed up with then-Emory law professor David J. Bederman to represent a group of American military veterans in litigating against a federal statute — the Uniform Service Former Spouses’ Protection Act (USFSPA) –that undid a United States Supreme Court ruling that protected veterans’ retirement pay from being divided with ex-spouses in divorce court.
Although I was named lead counsel by the group that organized this litigation effort, David prepared and drafted our court filings — with my reviewing and always agreeing with them — and handled all but one in-court argument, which made sense considering his excellent experience and abilities for this litigation. My work included working with our clients, presenting our message to the public, arguing a hearing in trial court, and flying to Cleveland to depose government agency witnesses during the trial court discovery phase.
David had a resume to open many great career doors. Before becoming a law professor, he was a partner at Washington, D.C.’s Covington & Burling, which I would have been delighted to work at if offered the chance, before I decided to transition my career to criminal defense in 1991.
David impressed me by at once having great intellect and litigation abilities without any ego. He was kind. He believed in winning advocacy, as do I. He applied his full focus in our litigation work against this federal law.
One day during the litigation, David told me he had cancer, and that he was undergoing treatment for it. He never complained about his cancer and never let it get in the way of his work on this litigation to overturn the USFSPA.
This litigation, unsurprisingly, was an uphill battle, and David led the litigation battle superbly. We lost in the Eastern District of Virginia federal trial court after substantial litigation work there. We lost in the Fourth Circuit, where David argued the appeal in that court that so often does not even entertain oral argument. The Supreme Court denied certiorari review in 2007; our cert. petition is here.
This litigation work made sense for my law practice, not out of a support for the military in general (I see the United States as over-militarized) but out of a recognition that the USFSPA was giving the shaft to veterans — so many of whom had placed their lives on the line and on hold to serve in the military — particularly to those veterans who became victims of the retroactive application of the USFSPA, and that important Constitutional issues were involved. We are talking about real financial harm to veterans from the USFSPA.
From hearing him talk about this litigation, I think that part of David’s motivation to join against the USFSPA was true gratitude to America’s military service members. David and I did not need to discuss our motivations for handling this litigation nor our philosophies about the law and politics; we simply dug in and did the work. I learned much from his excellence as a lawyer.
Interim Emory Law School dean Robert Schapiro aptly observed of David: “David knew that there is a time to speak and a time sit down… This maxim applied to his style of quiet leadership at Emory, where he served on numerous committees and panels. When David chose to speak, everyone knew it was time to listen.”
Consequently, it is totally fitting that when David ended an oral argument before the Supreme Court, his exchange went as follows:
Mr. Bederman: “I have no further substantive points.”
Chief Justice: Do you have any non-substantive points?”
Mr. Bederman: “I will not rise to that invitation, Chief Justice.”
I had no further contact with David after 2007, not because I did not like him, which I always did, but because the case and our work together was done, and our connection had not gone much beyond professional.
Recently, David’s name popped to mind, and I looked up David, only to learn he passed away in 2011 at age fifty, which is two years younger than I now am. That means that he survived for several years after getting cancer.
My blog only makes a handful of tributes each year to those who have passed away. David fully deserves that honor.
Deeply thanking and bowing to David J. Bederman.