Ch. 6 - Law Practice: My Second Chance, and the Third One Too
Below is chapter 6 from Ken’s forthcoming book, How Did I Get Here? A Memoir of the Baby Boom Generation.
On my first day of law school, in my first class, a civil procedure professor offered some professional advice: “When your client calls, look on your desk at that picture of your smiling kid. Think about the cost of braces. Punch the time clock for billing.”
At age 38, after years as a part-time teacher and free-lance writer, I could have turned cartwheels with delight. Actual payment for each tenth of an hour.
* * *
I marched through law school for three years, straddling two worlds. Wrestling with big ideas in the afternoons, teaching history to undergraduates at UC Berkeley, my students scribbled notes as I spoke. Mornings in law school, I took the notes as my law professors reshaped my mind to think with the logic of a lawyer, encapsulated in “IRAC,” the shorthand methodology for legal analysis: Issue, Rule, Application, Conclusion. I considered law school an extraordinarily difficult trade school – with its mechanical formulas for legal analysis, with no attention to how law fit in history and society. This was exactly what I wanted: how to practice law, not how to understand it; action, not scholarship; and, of course, payment.
When I had applied to law school in 1982, academic friends warned that I would never be hired as a new attorney in my 40s. I also worried about finding work with my track record as a student radical through the Sixties. And, after years of graduate study, in the Seventies I had not become a professor with a tenured teaching position. No, I had tried writing popular history, with a single book to show for it, a biography of a Communist trade union organizer. As a free-lance historian, a career I invented as I went along, I had steered myself into a dead end.
I pushed back the doubts when I enrolled in law school. I relied on the wise advice of my high school teachers from the sensible Fifties: law was a dependable career that paid well and opened doors to success. I hoped it was true. And if it should be true, I vowed not to mess up this career like I had messed up the professor career.
I was hired out of law school by my evidence teacher. Lynn Duryee was partner in a small tony law firm in tony Sausalito, in a lovely building on stilts over Richardson Bay. Lynn and her partner Larry Townsend were litigators with a high-end clientele. Lynn, tall, and taller yet in towering heels, was brainy, stylish, and irrepressibly confident. She loved practicing law, and clearly she was a smashing trial attorney. Larry was brainier yet, with a specialty in intellectual property law and he also was the spare time author of hilarious high-tech mysteries. To me, Lynn and Larry were all about success.
Litigation, legal combat, that’s what I wanted. It would be a complete departure from my unremunerative academic past. Lynn and Larry offered me $29,000 annually, a real salary in two paychecks every month, far more than I ever had earned. I was ecstatic.
Days after I began working for Lynn and Larry, I joined them for a monthly luncheon of the Marin County Bar Association. Lynn announced me as a new member of the firm: distinguished Ph.D. degree, teacher at UC Berkeley, and author too. My troubled bio sounded impressive. Left wing credentials? No interest. Age, over 40? No one cared.
Out for a business lunch with attorneys and judges, no students, everyone over 22, I was jubilant. I had made the great leap across a great chasm, from Sixties radical and Seventies academic to Eighties attorney-at-law. Welcome counselor. A second chance.
* * *
I got what I wanted: litigation. Fighting. I entered legal combat over everything: freedom, money, property, jobs, and housing.
Pets too. My first case was a dog. The client, a young woman, walked in with a terrible problem. Her roommate was about to move out with the dog. A complicated story followed about ownership of the dog. She loved the dog. She had to have the dog.
A fight over custody of a dog? I thought about my long-distance treks through graduate school for my Ph.D. and then law school for my shiny new JD degree. Now I had that second chance, a promising law career ahead. I questioned Lynn: “Is this dog case too silly for me?”
Lynn looked puzzled. Silly? Why? The woman needed representation for a legal dispute. And yes, she could pay. Okay, we’d take the case. Next thing, I was her attorney.
Two days later, emergency legal brief submitted, my client and I were in Marin County Superior Court, appearing before a judge to obtain emergency custody of the dog, pending any further litigation. I explained the dire situation. I saw the judge grin, like my first reaction, and I knew what to do. I described my first response, my own smile, and then explained how serious this was for my client. I watched the judge’s face focus as I spoke. I paused. I repeated my argument about why the dog belonged with my client. We walked out with an order giving my client custody of the dog.
My client let out a “Whoop” and hugged me. “It’s fantastic!” I thought. “I’m an attorney. I fight for justice!” My first jury trial was for a client charged with shoplifting. The client insisted she hadn’t done it. She refused a plea bargain that would have kept her out of jail. She wanted her day in court. As the trial date neared, I begged Lynn or Larry to take over the defense. Except as a law school exercise, I had never selected a jury, presented an opening statement, examined and cross-examined witnesses, or delivered a closing argument. I worried: my client might actually be innocent; she could end up in jail. Lynn and Larry insisted that I defend her.
My client and I appeared in court for trial. Like so many moments of reckoning in law practice, this one was anti-climactic. The district attorney dismissed the case, claiming a key witness was unavailable. I was an attorney hero, again, defender of the innocent.
In my next criminal case, my client was charged with breaking into parking meters. He adamantly denied it. Another innocent criminal defendant? I arranged an inspection of the prosecutor’s evidence. There, my client and I found tools for breaking into parking meters, and bags and bags of coins, more coins than I’d ever seen in one place, all seized from my client’s truck in the middle of the night in downtown San Rafael, where he’d been arrested near vandalized parking meters. No innocence problem here. He agreed to a plea bargain. For months after I’d see him at the courthouse, in orange prison garb, hauling garbage. We’d wave, and I’d think, “I made that deal. Weird. More justice.”
As a new litigator, I hated how my clients, mostly injured parties, depended on my legal representation in auto accident cases. There were routine procedures for gathering information, determining fault and damages, and settling with the insurance company. But I worried about my clients. They were injured, they faced uncertain future health, they needed money. I could not solve their problems. I could just get them some money, though never enough.
It was a similar problem with insurance defense work. Here I opposed the people bringing suit for auto accident injuries. Lynn, after reading my deposition of an auto accident claimant, was furious over my softball questions about this woman’s share of responsibility for the accident and injuries. The problem? My sixties sympathy for the victim, the little guy. I liked the opposing party, this nice woman injured in the crash with our client’s truck. I was concerned for her.
“Socialism,” I thought, drifting back to the Sixties. Rather than reliance on my novice skills in a cutthroat capitalist legal system, I wanted more assurance of justice. Lynn believed in this system, in the fairness of the laws, the neutrality of judges, and particularly the responsibility of attorneys to advocate skillfully for their clients, all contributing to just results. I had doubts: “Take out the profit motive. Get rid of the insurance companies. Eliminate the maneuverings of attorneys. Would socialism provide fair solutions for these auto accident victims?” Years earlier, I would have investigated this interesting question. But now, having learned the lessons of the flop in my first career as professor, I thought Lynn was right. Now I just had to excel in this flawed capitalist scheme and defend my client, the guy who drove the truck that hit the nice woman.
The employment cases were even more troubling to me. I believed it was better representing employees than employers, despite all their worries over jobs and livelihoods, worries that plagued me. I liked to be on the side of good, when I could recognize it, though I quickly learned this was not always clear in law practice. But I knew where I stood with class conflict.
The first time I represented an employer, I brought Larry my ethical problem: my support for workers and the labor movement. I omitted the details of my book on Joe Rapoport, the old time Communist labor organizer, but Larry got the idea: betrayal of my Sixties support for social insurgencies, including workers and the labor movement. Larry was firm: my problem was ridiculous, our clients were entitled to legal representation, and that was our job as their attorneys. I represented employers, and, a surprise, I liked some of these employer clients as I came to know them through our legal battles.
My strength as a litigator soon became clear: I was terrific at complex disputes. The more complicated the case, the more I shined. An academic at heart, I could bury myself in a law library for hours unraveling a knotty legal problem and writing an authoritative brief. Lynn, a brilliant quick hitter with confidence in her concise legal arguments, described my comprehensive legal briefs as “law by the pound.”
My skill at complex litigation first emerged in a business dispute, where I defended a sleazy guy who had defaulted on a loan from a predatory acquaintance. When I analyzed the complicated transaction, I thought the agreed payments on the debt were an obscure form of usury, with effective interest rates over the legal maximum. I filed a long-shot motion, arguing that my client should prevail because the loan was usurious. To everyone’s astonishment, particularly my own, my motion won. It was a startling moment at the hearing when the judge explained he was holding his nose at his own ruling, which he concluded was required by law. My deadbeat client, entitled to treble damages for usury, came out ahead.
“An unfair outcome,” I thought with embarrassment, “thanks to my good lawyering.” There was a lesson, a simple one for an ambitious new attorney: overcome the embarrassment. Use my research, writing, and talking skills. Win.
I loved winning, and soon enough I did plenty of nasty lawyering to get ahead. I found judges sanctioning me for improper tactics, like refusal to disclose documents to an opposing party without requiring an unnecessary motion. I was unyielding with an opposing attorney who requested modification of our litigation schedule, even for a family vacation. I once scheduled a motion for an inconvenient response time over Thanksgiving vacation.
The fax machine, then a new device, became my weapon. I would come into the office early morning, draft a blood curdling letter, and immediately fax it out for opposing counsel to find when he walked into the office, just the kind of thing I’d hate. I wanted my opponent to understand that I was relentless in our litigation war
I discovered I could be sneaky. At a trial-setting conference, when my opposing counsel was absent, the judge dismissed the lawsuit I was defending. I had won! At least for the moment. I scurried from the courtroom, and out a back stairway, avoiding my tardy opposing counsel who had run into traffic. When he filed a motion to reinstate the lawsuit, the court lost the file. It took him months to re-start the case.
I had big laughs about it back at the office, not yet aware that next time, with my own bad luck, it could be me with the problem. In fact, soon after, when I mistakenly filed a brief a day late, an irritated judge told me, “Call your malpractice insurance carrier.” Law practice, I would discover, eventually evened the scores for bad behavior. Rough justice, even for me.
Attorney malpractice cases were intoxicating for me. I was thrilled to find clients with legal claims against their former attorneys, who we charged with making a serious representation mistake and often an ethical lapse too. The defendant attorneys, outraged, ferociously defended their actions, reputation, and money. I believed I was on the right side of these battles, suing wrong-doing attorneys, advocating for their victimized clients. I thought that avenging attorney malpractice could be my solution: fighting for justice for wronged clients, while advancing myself professionally at the expense of wrongdoing attorneys.
New personality traits mysteriously emerged as I became a litigator: aggressive, scheming, ruthless, risk taking. Even as I searched for just causes to represent in litigation, it was as if I was rebalancing the scales for all my years as a do-gooder teacher and radical historian, day after day serving the cause of social justice. That was my long-gone life of conscience, now replaced by relentless legal combat and hard-nosed litigation tactics. Finally, in my 40s, I thought I was growing up, graduating from student rebellion, funky teaching jobs, and quixotic writing projects, making my way in the adult world of law practice, where opportunity abounded, action ruled, and payment followed.
* * *
My friend Sarah Crome invited me to dinner. She wanted to discuss my law work.
Sarah was an Old Left radical who had been blacklisted as a public-school teacher in the McCarthy era. She had to move from Philadelphia out to California in the 1950s to re-start her life as a teacher.
Sarah admired my first book on the Communist labor organizer Joe Rapoport, and encouraged me to complete my next book in process on the Petaluma community of left-wing chicken ranchers. She was one of my comrade partners in Chamokome ranch, our long-time collective. Sarah had introduced me to Stephanie, brought us together many times, and stood under the khupa with us when we married.
Here was my dear friend Sarah, inviting me to dinner to deliver a warning. It was my law work. Sarah warned that I was entirely absorbed in law practice, putting in unreasonable hours, ignoring friends in our collective, and making no progress on my unpublished second book. She was worried about me.
This was not a happy dinner.
“Sarah doesn’t understand,” I thought. I tried to explain that I simply was doing what I had to do to practice law. To represent my clients. To win. To succeed.
I did not explain to Sarah my larger plan to set my life right, through law practice, after my mistakes in the 1960s. She knew my story.
In Sixties fashion, 1966, I had enrolled in history graduate school at UC Berkeley, ignoring my can’t-miss high school career plan to become a tax lawyer and certified public accountant. Then, further in Sixties style, eleven years later, when I finally received my Ph.D. degree, I had cavalierly walked away from a possible tenured professor position, an actual teaching job with a salary and a future. Following my bliss, I became a free-lance popular historian of left-wing Jewish chicken ranchers.
Five years later, 1982, with one book published, and no publisher for that manuscript on the chicken ranchers community, I had no future prospects as a freelance historian. Approaching 40, I made a marginal living as an underpaid, overworked, part-time teacher at UC Berkeley. I loved teaching, and I was good at it, something I had learned during my two years teaching at North Carolina A&T State University. But I was among the growing ranks of baby boom academic proletarians, dedicated teachers and scholars with Ph.D.s, reduced to second-class status as temporary employees, best summed up in my official job title: Visiting Lecturer, a “visit” that could end anytime at the whim of a university administrator.
This dismal employment situation infuriated me. I had grown up in the postwar baby boom, expecting high compensation and respect for my work. This was not even a living wage, and it came with contemptuous treatment by deans, professors, and other academic colleagues who did not respect these part-time workers they exploited. Even as I helped build a union of Visiting Lecturers, I told myself, “I can do better than slave labor for the University.”
I felt left behind in the rush to riches in the 1980s, reduced to a spectator, an idealist without a mission. I had worked at what I wanted in the 1960s and 1970s, enjoying the unlimited prospects of my baby boom generation. My education, teaching, and writing were part of the student upheaval in the Sixties. We had opened our minds from Fifties conformity and driven the national agenda, the great public issues, through our social movements. After my countless antiwar actions, inspired teaching two years at a southern Black university, and writing about the historic struggles of immigrants and the American labor movement, I thought there should be some genuine teaching position for me at a university, a job contributing to a just society in the emerging Yuppie world of self-enrichment and self-absorption.
But, after my years of devotion to the history of chicken ranchers, I couldn’t resume the university professor career I had casually tossed away. And, I realized, I no longer wanted to be a professor. But I floundered trying to transfer my academic skills to new careers with foundations, museums, and educational programs. Corporate communications? No, too stiff and polished, too bureaucratic; it was too corporate, a betrayal of principle. I still had principles about what work I would do after free-lance historian.
That was how I began the Eighties, the decade of greed, grasping for a new employment foothold with no success. I felt cast aside, like the disappearing craft workers I had studied in the Industrial Revolution, and the chicken ranchers I had interviewed about corporate agriculture displacing their family farms after World War II. Not yet 40, the student rebellion over, with no future as a teacher and writer, or anything else I could recognize, with ferocious baby boom competition in all fields, I felt like a young has-been, trapped in adolescence, never with a grown-up job.
Law practice was my second chance, my hard-won opportunity to move past my mistakes of the Sixties and Seventies. And I was getting the hang of it. Strangers paid me for legal representation, and they were grateful. Sixties comrades came with astonishing contract problems, academic friends with ferocious property disputes, relatives who needed wills, and everyone with auto accidents and employment issues. I delighted at meeting with clients in my lovely office overlooking Richardson Bay. I was the same Ken, but in a new incarnation, confident I could help with that legal problem: “Let me worry about it.” And I did, both worry and help, while I celebrated my new prospects.
Sarah didn’t get it. Nor did other friends. Sarah was happy to hire me to write a new will. But she and the other friends all seemed to prefer me as a struggling writer and exploited teacher rather than as a well-compensated attorney.
An academic friend, Zelda, my long-time intellectual soul sister from graduate school days, wanted to see me in action as an attorney. I invited her to a trial, to my cross examination of an elderly woman suing my client attorney for malpractice. (Yes, I began defending attorneys who were sued for malpractice, and who, I discovered, were not so bad after all.) Zelda arrived to an empty courtroom, except for the judge and court personnel and attorneys and clients, where this great legal drama was unfolding before no spectators, except the jury. And as I approached the lectern to cross examine the plaintiff, from the corner of my eye I saw Zelda, my insouciant academic pal, alone in the spectator gallery, take out a banana, unpeel it, and start chomping. As I moved in on the kindly grandmother (Or was she conniving? I never was certain.), I wondered if the judge would admonish my friend from eating her banana in the majestic courtroom. I hoped he would. Zelda, hailing from the self-absorbed academic world I had left behind, did not appreciate this dramatic moment, my perilous cross examination of this difficult plaintiff, my thrilling new high stakes life as an attorney, a paid attorney.
I was infatuated with my new colleagues: their intelligence, savvy, professional demeanor, and gallows humor about law practice. They were dedicated to representing our clients. Younger than me, they were my teachers and allies in the trenches of legal warfare, my new world of bottomless possibilities.
Lynn arranged for her husband, a clotheshorse attorney, to take me shopping. I think she couldn’t tolerate my tattered sports jackets left over from graduate student years. At Nordstrom’s, he showed me how to buy a suit. I treasured his selection for me, charcoal with subtle pin stripes: handsome, beautifully tailored, and, to me, fantastically expensive. For the next twenty-five years practicing law, I worked in a suit.
Then Lynn sold me her car. Lynn loved flashy cars, and when she bought a new one she passed on her cast off. It was a red Honda Prelude, sparkling new by my junker standards, with a luxurious sunroof. I loved that car. Stephanie explained why: it was that cliché for men in a mid-life crisis, a red sports car.
That’s not how I saw it. Late one Friday night, driving my sleeping wife and daughter to our Sonoma County ranch collective in my red Prelude, motor humming as we ascended the coastal hills, bathing in moonlight through the sunroof, reflecting on my life as an attorney, I felt like I had arrived after a long journey.
Arrived where? Arrived back in the mainstream of American life. Arrived in a fast lane, with my Sixties cul-de-sac fading in the rear-view mirror.
* * *
When I applied to law school in 1982, I imagined my future bringing employment lawsuits against large institutions, like the University of California where I had been an exploited faculty member. Law practice answered my wish with a first big joke on me. In 1990, I moved to a law firm that specialized in employment litigation. It represented my longtime enemies: employers. The University of California, my old nemesis as my former exploitative employer, became my foremost client.
I was hired by an attorney I had met at a law school summer job. Tom Gosselin had founded a law firm on his own sheer ability, gumption, and gift for winning everyone’s confidence. He once had responded to my skeptical question about some ugly sex harassment claims against our client company by a female employee who alleged she was mocked for wearing high heeled shoes. Tom recited our defenses, including her slutty “Come Fuck Me Pumps.” He explained: “Every pancake has two sides.”
Like every successful attorney, Tom read people well. He appreciated my academic skills, now wed to litigation experience. He recognized my ambition. He courted me with his hard-charging young law firm, top drawer clients, exciting cases, and unlimited prospects. When Tom offered over double my current compensation, I leapt.
Of course, there was that one familiar problem: I was betraying my Sixties values by joining a management side employment law firm. I had published my book on a Communist labor organizer, Joe Rapoport, who I admired for a life of uncompromising devotion to comrade workers and the union cause. I imagined the silent reproach from all those left-wing immigrant Jewish chicken ranchers I had written about for years, whose life stories filled my still unpublished manuscript, their past decades devoted to struggles for social justice. I had broken ranks with my comrades in our Chamokome collective, Old Left and New Left, all partisans of workers and the labor movement. And there were those visiting lecturers I had left behind, my own comrades in struggle; they were still in the union battle with the pitiless University, my new client.
But, after years of participation in sixties opposition movements – students, antiwar, civil rights, labor, counter culture – I was thrilled to try the other side, the side of those who ran the institutions and ruled the world and enjoyed the rewards. I didn’t discuss my new work with friends, but they knew: now I represented the bosses.
I plunged into a big employment discrimination lawsuit – age, race, and gender – defending a department at UC Berkeley. It was a complex high stakes case, just what I wanted.
Or, did I really want it? Taking depositions of employee plaintiffs, I heard story after story of biased treatment. My clients, the accused managers, made me uneasy every time they explained themselves, sneering at the underlings suing them. The judge, I thought, sniffed a bad odor in our defense, and he denied my two strong summary judgment motions against weak claimants. The settlement negotiations that followed were uncomfortable, as I squirmed through sanctimonious lectures on discrimination by the employees’ attorneys. Worse, my scorched earth litigation tactics became an issue in the settlement of their claim for reimbursement of their attorneys’ fees, an embarrassment to me. Welcome to representing employers.
Soon enough, I mustered some sympathy for my new client, the University. As a big litigation target, with deep resources, it was a magnet for dubious lawsuits. Early on, I defended a lawsuit brought by a group of employees who claimed mistreatment by the UC Davis student government. Their silly allegations were brought by nincompoop attorneys that I was happy to squash through a series of motions, an inch by inch fight over months, an appalling waste of public monies, until the judge dismissed the entire case. Or there was the lawsuit brought by a disturbed student representing himself, a truly sinister guy who threatened harm to those who opposed him, in particular me. He had me conferring with the campus police and checking my backyard for his prowling at night.
Nonetheless, even as the University’s attorney I often remained sympathetic to disgruntled University employees who tried to prosecute their own lawsuits against the giant institution, something I never had considered when I was a dissatisfied faculty member. One, a brilliant UC Davis medical researcher, actually reached trial in federal court after we tried everything to dismiss her claims. I became the lead defense attorney after she filed sticky lawsuits against other defense attorneys who had opposed her. As she persisted with her lawsuit over years, as I formed a wary friendship with her, I admired how she learned litigation nomenclature and tactics from battling me. Uncannily, she won sympathy from witnesses and, I suspected, from our federal judge too, making me question my tenacious defense of the University. We finally defeated her at trial, but I felt little vindication.
I met attorneys who specialized in suing the University, my own previous daydream in law school. They’d often bring lawsuits with embarrassing allegations against high officials. The University was the most porous institution I represented, and it commanded little loyalty from its independent-minded employees. Rivers of information leaked out to these opposing attorneys in litigation, and they often were better informed about the lawsuit than me. I enjoyed battling these worthy opponents. They were who I once aspired to be.
I had my own satisfactions as a defense attorney. I liked being the lawyer who stated my appearance in court as the attorney representing the Regents of the University of California. I relished coming onto a campus as an outside litigator, a hired gun. I would enter a mess, with charges flying in a new lawsuit – everyone discombobulated, some fearful and others foolishly cocky – and assume leadership for navigating the institution through the perilous litigation route ahead. Especially satisfying, I did this for the UC Berkeley Law School – which had not admitted me as a student – defending them in a lawsuit filed by an expelled student, advising the dean on legal strategy, and obtaining a dismissal.
An academic friend who was a UC professor once asked how I felt representing “the bad guys,” referring to his own University administrators.
“Just fine,” I responded, and I explained. Those “bad guys” had become the clients, colleagues, and friends who populated my work world. They joined me for business lunches and supported me in legal battles, and they paid me too. I knew them as professionally accomplished and dedicated to their institutions. Turned out, I liked them.
I took pride in counseling and representing chancellors, provosts, vice presidents, and other top University executives. I liked the upper echelons of University risk managers, attorneys, and administrators, who I recognized as people I might find at any dinner party with academic friends. They appreciated my litigation skills and listened to my legal guidance. They inquired about my academic biography. I never had felt recognized as a UC student or teacher. But I found my honored place at the University in my strange reincarnation as its litigation attorney.
When University litigation managers discovered my academic background, they sent me their most precious litigation to defend against: legal disputes within the family of scholars. I represented the University against professors and graduate students asserting all types of discrimination, graduate students claiming violation of constitutional rights when they failed a Ph.D. qualifying exam, medical school doctors disputing arcane compensation formulas, language professors litigating over department budgets. I took pride in harmonizing each lawsuit’s unlikely convergence of this elite academic world with the mysterious legal system. Here, I thought, was one of my great professional accomplishments: understanding these two rarified realms, and steering massive educational institutions through the narrow exacting paths of litigation.
Another gratifying pleasure was my skill at high level litigation. I once found myself in the Ninth Circuit Court of Appeals facing Judge Stephen Reinhardt, one of the liberal lions of the federal appellate courts, a longtime hero of mine. In the midst of my presentation at the hearing, my adrenaline flowing and words rushing out as the panel of judges interrupted me with questions, I realized, with surprise and alarm, that Judge Reinhardt was searching for a way to defeat me.
I had won a trial court summary judgment motion on statute of limitations grounds against a UC Santa Cruz graduate student whose Ph.D. dissertation had been rejected by her professors. I had avoided any court consideration of the actual dissertation dispute because the graduate student’s attorney had filed her lawsuit a few days after the statute of limitations had expired. Judge Reinhardt, questioning me, was working hard – on the facts, the case law, and the public policy underlying the law – to get past the limitations bar and reach the substance of the claim, the dispute over rejection of the dissertation. I suddenly remembered that I was on the wrong political side of the case, using procedure – the statute of limitations – to avoid substantive review of a student’s discrimination allegations. And I was exhilarated, determined to stop Judge Reinhardt and preserve my victory. Rising to the challenge, I argued every issue in response to his assault, a ten-minute debate with Justice Reinhardt, a lifetime in appellate argument. It was legal high drama in another almost empty ornate courtroom.
By the end of the hearing, as I saw Judge Reinhardt dolefully shake his head, I knew I had held my ground. This was satisfying. The client, the University, would never grasp my morning’s inspired work on its behalf, nor would my academic friends who taught at the University. Back at the office, I was grateful for Tom, who appreciated this obscure win. For an attorney, there’s nothing better than another attorney in a nearby trench, who understands the inside game.
I often reflected on my own escape from an academic career as I litigated the ingrown legal squabbles of eccentric professors and ambitious graduate students enmeshed in the creaky University bureaucracy, battling for scraps of resources, absorbed with their narrow scholarship. I celebrated my law profession for its abundance, open mindedness, and free-wheeling possibilities, for its rewards to braininess, hard work, innovation, and chutzpah too. Law, like university scholarship, had been inundated with baby boom generation practitioners, but in law practice I found abundance and opportunities to maneuver and succeed. While representing the University as its attorney through the 1990s, I had a continuing discussion with myself about my career history, currently a stream of self-congratulations for my wise decision and good luck to leave constricted academia for the expansive world of law practice.
Tom’s justification for our employment defense work, those “two-sided pancakes,” referring to two sides to every case, never persuaded me. I rarely believed in the justness of the causes of my clients, the bosses, and their side of the pancake. In the cases I defended, usually my employer client had done something wrong. They hired me, after all, because they had a problem they couldn’t fix.
But even with the wrongs of my clients, I preferred representing large employers over individual claimants. I didn’t worry about the welfare of the institutions I represented, like I worried when I had represented individual plaintiffs. I slept better as outside defense counsel, knowing my client institutions would survive if one of my cases went south or if a claimant was a bad actor who still got the better of us.
I also became confident the system would reach a fair outcome for the parties, that lesson from Lynn Duryee, one that I slowly absorbed with years of experience. I learned that I simply had to do my job well. And, for our business of law practice, I had to satisfy the small armies of my clients’ in-house attorneys, risk managers, and vice presidents who looked over my shoulder to assess my litigation strategies, results, and fees as I represented their institutions. These overseers gave me plenty to worry about.
I looked like an attorney in those years. Once, when I crossed the lobby of the downtown high rise with my offices, I was stopped by a talent recruiter for a television commercial to be shot. She said I fit the attorney profile they needed. That profile must have been my dark blue suit, white shirt, maroon striped tie, stocky figure, male pattern baldness, and purposeful stride across that lobby with briefcase in hand. She hired me and, sure enough, one evening the next week, when I drove up to the outdoor set, I heard my recruiter say, “Here comes the talent.” Wishing that I actually had acting talent, I was reminded again that I had become a genuine attorney.
Sometimes, when I left the office early to work at home, I would pass coffee shops filled with people. They sat there in the afternoon oblivious to my world of raging litigation, sipping coffee, absorbed in conversations, peering into their laptops, or just reading a newspaper. “Who are they?” I’d wonder. And I’d respond to myself, “Café society. Enjoying themselves while I’m in litigation warfare.”
I puzzled over café society – who and how – and sneered at this idleness, but I had no wish to join. I was absorbed in my law career, and grateful for it. I had at last ended my prolonged adolescence that began in the 1960s and continued into the 1980s when I was in my 40s. Now I operated comfortably in the top reaches of law and business, and higher education too. Clients relied on me, and friends and family also came to me for legal advice. I was held in high regard, inside and outside law practice, and people listened when I spoke. I was paid well enough to support my family in a comfortable upper middle class life. As an attorney, I had grown up. I liked life as an adult.
I marveled at the trappings of my success, our offices in a downtown San Francisco high rise. I enjoyed a top floor corner office, the 15th floor, with floor-to-ceiling windows offering sweeping views of San Francisco Bay, which I occasionally remembered to look at. I still recalled my crummy cramped barren University office, shared with other part-time faculty members, where I once drank cigarette ashes flicked in my coffee mug by a colleague. Now, in the 1990s, when my law clients walked in to see me, the meeting always began with a reminder of my spectacular bird’s eye view of the world: “Ooooh!” I’d hear from the client. A secretary would bring us coffee, good coffee in clean cups. The fireboats on the Bay far below, shooting up towering streams of water to test their hoses, seemed to salute my success.
* * *
I remembered the warning at my law school orientation in 1983. I had heard it from a dean in a colorful bowtie: “We will narrow your mind to sharpen it.”
I had been 39, in a room full of young new law students. I had a Ph.D. degree, a published book, and a job teaching history at UC Berkeley. I had lived through the Sixties and Seventies in Berkeley, when everything had expanded. I had seen it all. I vowed to myself: “These law school professors will not narrow my mind.”
That dean knew better. Ten years later, I had made it as an attorney, but I recognized the price. I thought 50% of my brain was underused, the part with a feed from my heart, the part that considered history and culture, wrote evocative prose, and tried to make the world a better place. The other 50%, the half I did use, was working triple time to advance precise legal positions, IRAC on steroids, a weapon on the thrilling litigation battlefield. With that overworked 50% – sharpened but also narrowed as promised by the law school dean – I had work satisfaction and a well-paying job, secure in a law practice defending corporations and government agencies.
Here was my personal two-sided pancake, my own self with two sides uneasily co-existing: the law practice side working on overdrive and the history side merely remembered. Until 1993, when I published my second book of popular history, this one on those left wing Jewish chicken ranchers. The manuscript had been unfinished business when I entered law school, and I resumed work on it once I found my sea legs as a new attorney. With that underused half of my brain, I rewrote that manuscript into a book on weekends and found a publisher.
This book was a polar opposite to my precisely focused meticulous law work in the Nineties. It was a sprawling multi-generational story of American immigration and assimilation, political radicalism and social conflict, capitalist disruption and community displacement, with vivid characters and their passions, humor and grief, wisdom and foolishness. I knew I did best with law as my profession and source of income, and history as an avocation for my pleasure. But I also knew that this popular history book, this story of a community of chicken ranchers, a Sixties and Seventies creation that arrived in the 1990s, was my greatest professional achievement, more significant than any winning legal brief or trial victory. No matter how frenetic my workday as an attorney, with any call about the chicken ranchers, I’d settle back for an expansive talk with a reporter, academic researcher, or anyone else who wanted to discuss my book.
An appearance at a Berkeley bookstore, attended by academic friends and my former history professors, was bittersweet. This was an evening of exchanging ideas about history, the history of the immigration and assimilation of these Jewish socialist chicken ranchers. It was my rare celebratory moment in an academic world that had no place for me a decade ago and sent me off to law school. In contrast, inside my law profession, my publication pleasure was unadulterated, with praise from lawyers who read the book and unlikely delightful reviews in legal newspapers. Law practice was my home now, a generous profession that honored a litigator who wrote an unlikely book about chicken ranchers.
For several years I had everything I wanted for my work life: a booming law practice and literary accomplishment. I couldn’t harmonize the two: lawyering for the bosses and writing history that celebrated the common people, tight bloodless legal analysis and spacious colorful storytelling. But they happily co-existed in my world.
* * *
Just a few years later, approaching 15 years at litigation, I had enough. In the late 1990s, the lawsuits, once fascinating, seemed pointless, one battle after another for little redeeming purpose. Maneuvering large institutions through complex legal procedures on short timelines seemed ever more difficult, with unrelenting pressure. Managing large institutional clients, once fascinating, became perpetual headaches. The boundless opportunity of litigation had become cases causing endless worry. And those 60+ hours work weeks were becoming grueling. I wanted my life back.
Bay Area law practice changed in the late 1990s, the Dot Com era. As successful management side employment attorneys, I thought we were financially bulletproof. I was stunned to find us priced out of the market. Downtown rents became too high for our narrow profit margins. Legal secretaries became difficult for us to keep. Our younger attorneys, who I always considered loyal, disappeared to more attractive jobs in the tech sector.
The University piled on, it seemed. Over years I had watched the behemoth institution – the “headless monster,” we sardonically called it – mindlessly roll over employees who landed on its wrong side. Now it was our turn, longstanding loyal defense attorneys, in quarrels over our fees and services. They dumped us without a tear and rolled on.
I became preoccupied with recruiting business. This is where I did not excel. My “book of business,” my own collection of clients, became everything. I hunted for corporations, educational institutions, nonprofits, state agencies, and insurance companies. I overcame my aversion to salesmanship by selling myself at every chance. I recruited more clients than ever before, some who I didn’t like, but never enough. Where was all that legal opportunity and abundance that I had celebrated for years?
Mulling over my parched rainmaking, I wondered if there was a “U” branded on my forehead, short for University, meaning: academic, professorial, sees both sides of the legal issues (that pancake, again). I was not much of an employer cheerleader, and no flashy client magnet. I marveled at Tom’s ability to talk the language of employers, speak their world view of unjust treatment of the owners and bosses, and maintain unshakeable self-confidence. I was skilled at representing employers, advising them and litigating for them, but not good enough at persuading enough of them to entrust me with final responsibility for their legal problems.
Up on our 15th floor, the bottom gave way. One day I realized there were just a few of us left in our wonderful top story offices with the magnificent views. We departed for cheaper pedestrian quarters, cramped offices at the level of streets I had been looking down on for years. That was a dismal descent.
Of all things, as the business collapsed, as the fun of making money turned grim, my moral outrage re-awakened, and my worst cases became odious to me. I represented a state employee charged with sex harassment bordering on sexual assault. There was a grueling multi-day deposition of my client. I had prepared him well, and he was handling aggressive questioning from an accomplished female plaintiff’s attorney. At the lunch break, instead of bolstering my client, I found myself mulling over the appalling allegations. “Why,” I wondered, “am I representing this guy?” The justice system, I believed, would lead to a proper result, most likely a substantial settlement payout by my client’s agency at my recommendation. But I wished I was on the other side of this pancake. I wished I was on the other side of all these pancakes, an employment attorney who represented employees instead of employers.
And then there was the class action lawsuit I defended against alleged massive violations of wage and hour laws, with millions of dollars in back wages and penalties at stake. Our client corporation rewarded us, after an initial victory fighting off court approval of the “class,” by complaining we were providing an extravagant “Cadillac defense.” The client replaced us with cheaper attorneys and forced us to bring a legal claim to recover unpaid fees. “So unjust!” I fumed, outraged by this ungrateful client I considered unworthy of my representation. There were few things in law practice that I found more aggravating than battling my own client for money.
Toward the end of my litigation career, a slimy opposing attorney crawled under my skin, something that rarely happened anymore. As a seasoned litigator, now I got along with foes and focused on contesting the claims to achieve an efficient case resolution, whether by motions or settlement or trial. But this guy was incredibly belligerent, distorted everything into untruths, and could not be trusted for a moment. He was obnoxious and dangerous, and I detested dealing with him through perpetual disputes in depositions, court hearings, and simple telephone calls. Sometimes I thought he was a sociopath camouflaged as just another aggressive attorney. But I also wondered if I was seeing some early version of myself as a firebrand new attorney.
Finally, there was the warning of my friend Sarah, the Old Left comrade who had spoken to me years ago about working too hard at law practice and limiting my life. Sarah never accepted my subsequent work defending the bosses against employment law claims, that betrayal of class struggle, betrayal of her own class struggles. After I took the job, in a final comment on my law work, she once leaned over at one of the meetings of our collective and whispered to me a horrid revelation: the name of one my law firm’s partners, translated from Yiddish, meant “goblin.” She was referring to Tom Gosselin – Tom, of the two-sided pancake – who was my friend and ally through years together in litigation battles. I knew that Sarah was not criticizing Tom, but me.
Sarah’s closing argument haunted me. Our friendship never did recover from my job representing employers. There was no big falling out, no dispute at all. But Sarah moved on to other friends.
Fifteen years into litigation, I’d had too much of this mainstream, where I worked too hard, didn’t believe in the work, and still felt that I didn’t earn enough. And I still didn’t know what “enough” was. I was too long in this fast lane, where I had lost sight of Sixties ideals and a future. Time for another career change.
* * *
I needed a third chance, after historian and litigation attorney. A third career. Was that asking for too much?
As a child of the optimistic, bountiful Fifties and Sixties, I believed in serendipity, unexpected happy developments, good fortune. Particularly when you worked hard to prepare for it. Or, as Michael Jordan once put it, explaining another game-winning shot, players who put in practice hours at the gym are the ones who get “lucky” in the games. That is, I always believed effort, persistence, and enterprise would bring deserved rewards. My parents and their generation, children of the ghettos and the Depression, never had expectations that life owed them success. But like my generation, I had faith in my ability and the opportunities in reach.
Here was a second career crisis, an outgrowth of the first that had led me from historian back to law school. Just as adults had warned when I was a college rebel, now in my 50s I had a life built around my attorney income – family, mortgage, private school tuition, cars, vacations. I had to find new work. My wish: stop litigating, stop fighting. And a hope: reasonable work hours to give me back my life. And another wish: a job that improves the world; my bright Sixties idealism was dimmed but still flickering.
The possibilities no longer seemed limitless. I tried a headhunter, attorney friends, and unfamiliar law firms. Job rejections, I discovered are not simply painful at 57. They’re scary.
At one interview, every attorney’s office was crammed with piles of files, cases running amok. Lynn Duryee had taught me as a novice attorney to keep one file on my desk at a time – maintain order – and that’s how I practiced law. This was a new law firm of audacious young attorneys, another generation, undaunted by mountains of paper cluttering their offices. They joked about adding some gray hair to their group, an experienced litigator, me. It was a chilling reminder of the real age discrimination I now faced in my late 50s, deep and casual, not my imagined fears when I graduated law school at 42. I couldn’t escape fast enough from those arrogant kids and their celebration of mess and their contempt for experience.
I feared that serendipity might have run out for me. I suspected this was punishment for my goblin bargain, the years representing employers against employees. I fantasized about the academic road not taken, my forsaken path to a secure career of scholarship and tenure as a history professor, available for my taking two decades ago. Instead of this grubby job hunting as an old-timer in the cold world of employment as a litigator, I could be strolling across campus quadrangles, talking with eager students about sweeping historical ideas and the big books I might have written.
Teach law next? After all, I had a Ph.D. degree, two published books, and university teaching experience. But to become a law professor, I discovered, now you needed specialized academic training in law and the social sciences. Then expect to start at some remote university and work your way back to the Bay Area with scholarly publications. It sounded suspiciously like the plodding academic career as a new history professor that I had jettisoned in 1977 to write the chicken ranchers books. The very same cramped professorial careers I had observed as the University’s attorney and was relieved to have escaped.
I had lunch with Lynn Duryee, the most inspiring attorney I knew. Lynn had become a superior court judge. Now she saw law practice from the judge’s bench – the good, bad, and ugly, in depth – and she still believed in the noble mission of attorneys. She recruited me to give a gift, a satisfying day as a judge pro tem, helping settle civil cases on her docket, contributing to citizens resolving disputes. And she invited me to a hearing at her juvenile drug court, with teens graduating from a drug rehabilitation program, where I found tears trickling down my cheeks. Exactly what I needed: inspiration in the everyday workings of the justice system.
Serendipity arrived. I found an unlikely employment target: the state agency that administered the California court system, known then as the California Administrative Office of the Courts. I believed in the court system. I thought it provided justice, “substantial justice” I called it (or “rough justice” when applied to me), usually close enough to my notion of a fair result.
Back in the Sixties I would have assailed this justice system for favoring those with wealth and power, for legitimating a corrupt exploitative society. Indeed, I had experienced years of fantastic maneuverings and inventive arguments by attorneys, me too, seeking advantage for our clients in the courts, unleashed in an adversarial system of justice. But, having fought these battles and seen the outcomes, I now believed in the California state courts as a democratic institution. This justice system was cumbersome and expensive and worrisome for citizen litigants, with plenty of opportunity for attorney mischief, and advantages for the rich and powerful, but in the end I thought it was reasonably fair. I wanted a job with the courts.
I mounted a full court press for an AOC job: letters, informational interviews, and lunches with contacts. My application for a job as a supervisor of litigation was rejected. The agency rejected my next application for a supervisor job in the employment law group. I applied for a third job, as a front-line employment law litigation attorney. Hired!
Turned out, they actually wanted experienced attorneys who could hit the ground running. Thank you lawyer profession, with its many opportunities still unfolding to me as 2000 passed, just as I had been told in the Fifties.
And thank you diligence, my own, another gift from the straight-arrow Fifties. Thank you rebel Sixties for the public service idealism that impressed those who hired me, themselves veterans of the Sixties upheavals, and thank you Seventies for the historian skills and the chicken ranchers books that intrigued my new bosses. And to the Eighties and Nineties, thanks for my employer-side litigation expertise that attracted and reassured my new bosses. And, luck, as a Holocaust survivor once told me, never underestimate good luck.
At 57, I was employed again, now a public servant, re-enthused about law practice, and eager to achieve in a large organization. Once again, anything was possible.
Next goal: get out of litigation, escape the treasured job as a litigator I had just won but not yet started. No more pancakes; no more fighting on behalf of one of the two sides. Think bigger and broader. Find another AOC position. Work for a just legal system, impartial and accessible for everyone. Find the job I would have wanted if I had been an idealistic new attorney in the Sixties.
The third chance. The very opposite of what the dean told us in law school orientation when he promised to sharpen and narrow our minds. “Grow.” I thought. “Expand.”