Letters to a Young Lawyer

Most advice turns out to be a series of instructions about how to become the person who is giving the advice. People seem to have a powerful need to re-create themselves (perhaps that’s why we worry so much about cloning). I recall vividly being told by one of my mentors, a distinguished professor, the order in which I should publish several writings I was then contemplating. It soon became clear that he was merely recounting his own publishing biography. He wanted me to become him, just as several of my other mentors wanted me to be them. Supreme Court Justice Arthur Goldberg, for whom I clerked, was always giving me career advice directed toward me becoming a judge — a position to which I did not aspire. Professor Joseph Goldstein, who was my mentor at law school, pressed me to limit myself to academic and theoretical work — but I loved having one foot in the hurly-burly world of practical law and politics.

I believe strongly that imitation is not the highest form of flattery, because truly unique individuals can never be imitated. But you can learn from them, so long as you realize that you are a different person, with your own dreams, backgrounds and priorities. Understand the differences and extrapolate from their experiences and aspirations to your own unique life.

Be careful, however, about accepting anyone’s advice — including my own — on the basis of “years of experience.” Before you put too much stock in experience, make sure the person offering the advice has learned from his or her own experiences. Most people don’t. They simply repeat their mistakes, over and over again. Their “years of experience” are little more than years of making the same mistakes over and over again without realizing that they are mistakes.

It’s particularly difficult to know as a lawyer whether you’ve made mistakes, since there is little correlation between a job well done and a successful outcome. There are simply too many variables at play.

I recall as a young lawyer reading an appellate brief written by an “experienced” lawyer. It contained a section that was anachronistic, citing lines of cases that had been either overruled or disregarded. Moreover, it was poorly argued and even more poorly written. Since he was representing my client’s co-defendant, I pressed him about why he had included that section. He told me that he always included that section in every appeal that raised Fourth Amendment issues. “It’s based on experience,” he assured me. “I’ve been citing that section for twenty years.” I asked him if he had ever won a case based on that section. He paused, thought for a moment, and said “No, not yet.” Recently I read another brief by this now elderly lawyer. It contained the same section. He had not learned a thing from his years of mistakes. That kind of experience you can do without.

Also, beware of “wholesale,” “off-the-rack” or “one-size-fits-all” advice. The best advice is always retail, custom-made and particular to the person seeking it. Yet there are some general principles that may prove useful so long as they are supplemented by retail advice specific to you.

You may note that although this book is entitled Letters to a Young Lawyer, the advice that follows is not conveyed in actual “letters.” That is a sign of the times. The written letter used to be a great art form. Rilke’s wonderful Letters to a Young Poet, which inspire this book, were themselves an extension of his poetry. His soul is visible, even in his hastily written epistolary words. As a product of the postwar technological revolution, I am not a letter writer. Oh sure, I’ve dictated my share of letters to the editor, demand letters (“Screw you. Tough letter to follow.”) and other professional correspondence. But I rarely write personal letters. Even in the current age of the computer, I am not an e-mail addict. Instead, I talk. Almost all of my advice has been oral. Fortunately, I write like I talk. I’ve never believed that there is a separate language called legalese — at least not a language designed for comprehension. I teach my students that a good brief writer is simply a good writer. I urge those students who speak well but write poorly to listen to their voice. Indeed, I urge them to tape-record their voice and then try to imitate in their writing what they have spoken so eloquently.

And so, what follows is a written rendition of the oral advice I have given over the past nearly forty years. They are oral letters. In writing them, I have in mind the diversity of students, friends, children of friends, friends of children, colleagues and strangers who have asked me for advice over the past several generations. Sometimes I have a particular person in mind when I write. Mostly I envisage composites — men and women, younger and older, successful and unsuccessful, happy and unhappy. Of course, most people who seek advice are not perfectly happy, because people who are rarely need advice from those of us who are not. On the other hand, most of those who have sought advice from me have been more successful than the average lawyer. They have choices to make. Occasionally, I run across a student whose choices are quite limited. The advice they seek often takes the form of the question “Should I give up and get out of the law?” This is the exception. The rule tends to be a request for advice about a considerable number of available options, all of which are good. In contrast to my legal practice of defending mostly guilty criminals, where the options are generally “worse,” “worser” and “worsest,” the options for my talented and wonderful students are generally “good,” “better” and “best.”

I realize, too, that some students — particularly my own students — who purport to be seeking advice from me are actually soliciting my help. They understand, quite shrewdly, that seeking advice is a high form of flattery. They are willing to listen to my opinion, even though they have really made up their own minds and are seeking my assistance in achieving their predetermined goals. They understand that an advice-giver often becomes invested in helping the advisee act on the advice received. For example, students will often ask me my opinion of a particular judge or lawyer to whom they are applying. When I tell them that they would be well advised to work for that person, the next question often is “Can you write me a recommendation?” I think I can recognize the difference between those seeking advice and those seeking assistance. But flattery often blinds, and I suspect that I have sometimes been blinded myself.

Inevitably, all advice is, at least in part, autobiographical. In this book, I try to be conscious of avoiding the mistake of telling you how to become me (not that you would want to!). Many people, over the years, have explicitly asked me how they could design careers like mine. I realize, of course, that my career is unique, and not easily subject to replication. Nor would many people want to have careers of such controversy and polarity. In introducing me to speak last year, someone described me as having “the most fascinating legal practice in the world.” I have no idea whether this is true, but I can attest to the incredible diversity of what I do on a daily basis. My typical day can well include teaching a class in criminal law, having lunch with a group of students, taking a call from a death-row inmate, receiving an e-mail from a political dissident halfway around the world, considering a request to testify in front of a Senate committee, writing an op-ed piece for the New York Times, appearing on a nationally telecast show, getting a death threat from an irate viewer, giving discreet advice to a corporate executive or politician, consulting with the attorney general of a foreign country, becoming the target of an attack by Rush Limbaugh, Bill O’Reilly or some other right-wing talk-show host, being lectured by my mother and receiving an obscene phone call in the middle of the night complaining about one of my clients.

My clients have included “a Dickensian lineup of suspects” (according to Fortune Magazine), both rich and poor, famous and infamous, loved and hated. I am fortunate in being able to pick and choose from among the nearly five thousand requests for representation I receive each year, and I can afford to select them without regard to whether they can pay a fee. I select only a small number of cases, about half of which are pro bono. They all have one factor in common: I am pissed off by an injustice being perpetrated against the person, whether he or she may be innocent or guilty.

In choosing my clients, I have learned never to confuse celebrities with fascinating people, or high-profile cases with important ones. I turn down many celebrities and high-profile cases in favor of obscure people with no money but an important or compelling issue.

Mine is by no means a typical lawyer’s career or a typical law professor’s life. Yet because I have partaken in so many different aspects of the life of the contemporary lawyer, I willingly share the insights gained through these adventures in the hope that some may benefit from my mistakes.

My goal in writing this book is to encourage others to learn from my successes and failures, from my correct decisions and my erroneous ones.

Among the questions that I am most often asked are “How did you get to where you are?” and “How did you design the interesting career you have?” The honest answer is “By complete accident.” I had no grand plan or careful design, and I had little guidance from others. I started out hoping to become a storefront lawyer in Brooklyn. (My mother even had the store picked out.) Then, when I did well in law school, I decided to become a law professor. Then I decided to take on a few clients in order to broaden my professional background and enhance my teaching skills. Then I decided to write popular columns and articles. Then I decided to write books, which inevitably leads to giving public lectures. Finally I decided that I liked the mix. My lifestyle is certainly not for everyone. I work too hard, offend too many people, generate too much controversy and am too much of a provocateur. In a word, I have too much chutzpah. But I have experienced enough of the diversity of life and law practice so that perhaps my experiences can help others in making choices of their own.

In this book, I offer a mix of practical advice about careers, philosophical ruminations about justice, psychological insights into winning and losing — and even some speculations on whether it is possible to be both an effective professional and a good person (a “mensch,” as my mother would put it).

What is most missing from this book is the interactive nature of the conversations I actually have with those to whom I am imparting advice. So let’s do the best we can. E-mail me your own reactions to my advice and I will try to respond. In that way we can turn this monologue into a dialogue. My e-mail address is alder@law.harvard.edu. For those, like me, who are not addicted to e-mail, my mailing address is Harvard Law School, 1575 Massachusetts Avenue, Cambridge, MA 02138.

With all these caveats in mind, I plunge feet-forward into the advice-giving business, hoping, perhaps, that I can avoid some of the pitfalls I have experienced, but knowing full well that I will trip over others.