Fighting for a living is what attorneys do.
Fighting to live is what soldiers do.
After the fight is over, what do you do?
One of the amazing things that I've witnessed in my life was the way, after World War Two, fought by the United States against the Empire of Japan, the Third Reich of Germany, and Mussolini's Italy, the United States made an effort not to grind the defeated foes into the rubble of Nagasaki, Hiroshima, Dresden, Hamburg, and Berlin, but to help them back onto their feet, with the Marshall Plan.
That was a plan by which the U.S. provided loans to rebuild city, nation, infrastructure, and industry.
This was not a gift. There were strings attached. The money had to be spent in the U.S. But we were the last man standing in that war. Communist Russia under Stalin was our ally against Hitler's Germany. Russia was down-and-almost-out. Russia (the Soviet Union) was on life support. We provided the oxygen, in the form of food, delivered by convoy on the Murmansk run. The Murmansk run was a convoy route from New York around the north of Norway to the far northern port of Murmansk, which froze over in winter. I had a high school teacher, Leon Loan, who was torpedoed twice, and survived, on the Murmansk run. Liberty ships, which my father built in the Bethlehem Steel Shipyard on Staten Island, New York, were the mode of transport. Escorted by a few destroyers through northern Atlantic waters, they were protected as well as possible by destroyers against German U-Boats.
In college, Wagner College, Staten Island, New York, many of my friends were the sons and daughters of fathers who'd fought for Nazi Germany. There was the U-Boat captain's daughter that I happened to like, the soccer teammate whose father led the Luftwaffe invasion of Norway, and Astrid, who insisted that the SS wasn't so bad, it was the SD that was really bad. Her father was SS.
And there was Georg's mother, who was put in a concentration camp by the regime.
"Imagine," she said, "being in a concentration camp with all those Jews."
It must have been tough.
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This comes up because I read a book recently in which the author's thesis was that there's a difference between fighting your enemy, trying to kill him, defeating him, and disrespecting him after the war is over.
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During a war, one of the things you do to defeat your enemy is to motivate yourself and your supporters. So you demonize the enemy. You caricature his features, ascribe inhuman, animalistic characteristics, call him names, and, in short, do everything you can to de-humanize him in order to make it that much more easy to destroy him utterly.
But then the war ends.
Do you continue to demonize the enemy?
Or do you allow yourself to think of him again, as you did before the war when you ate and drank and studied with him, as a human being, deserving of the same respect as you do?
Perhaps you are aware that in our military academies and armed forces, a certain number of foreign nationals are invited to participate and observe exercises. Eventually some of these become our enemy. They know us, and we know them, personally, very well.
Admiral Yamamoto knew us well. He'd attended the Portsmouth Naval Conference in 1905 in Maine, after Pres. Theodore Roosevelt agreed to mediate the recent war between Japan and Russia, won by Japan in a famous naval battle. In crossing the American continent by train, the future admiral, Yamamoto, had the first-hand experience of observing the size of this country. He therefore later opposed attacking Pearl Harbor, yet was given the task of leading the attack. He believed that Japan would awaken a sleeping giant. He was right.
One of the striking images in the aftermath of WWII is that of the former combatants, soldiers, sailors, and airmen, meeting on the deadly battlefields, as old men now, and meeting each other. War souvenirs are returned by elderly men, or their families. The flags, and photographs, carried by young men who died in war, are returned to surviving family members, as a gesture of human respect, after the carnage of war, when the passions have cooled, and the former enemy again becomes human.
How difficult it must be to change relationships, from a mutual desire to slaughter your enemy, to accepting him as a human being.
When we found common cause, against Stalin's Soviet Union after WWII, we befriended Germany. We formed an alliance, called NATO, the North Atlantic Treaty Alliance, against Russia. Loosely speaking, Russia and the Soviet Union are the same, even though technically they weren't, but why quibble.
We also befriended Japan. When I was a kid, Japan was the boogie-man. Friends and I traded nightmares about the Japanese. Eventually you have to let go of the wartime images.
***
During a recently ended piece of hard-fought litigation that lasted for years, I was firmly convinced that my adversaries were wrong. Eventually I was able to show this. But in the meantime I had a client to represent and that meant playing two roles interchangeably, something my adversary was unable to do.
Most of the time I was my client's intelligence chief and field general. But sometimes I was her diplomat.
Relations became so strained with my individual adversary that I finally had to tell the judge that I would no longer negotiate with this person in the room. In litigation you depend on the court to keep you out of trial by prolonging the negotiations until there's nothing left to discuss, and since my client was in jail and looking at life in prison in a very complex case, there was always plenty to discuss. I made sure of that.
My adversary was his team's fighter. He always wore the soldier's headgear. He could never switch to the diplomat's garb. I wound up seeing him in court and his front office in negotiations. I had to be ready to switch hats at a moment's notice, but he could not.
We have friends in common and sometimes, even though it may not be comfortable, we gather at the same restaurant and bump into each other. We shook hands the other day, even though he's still fighting, long after the game was over. Some silly loose end that he's appealing over nothing and friends have told him to give it up, but he cannot.
***
In the U.S, we experienced a terrible civil war in which some 600,000 people on both sides are known to have lost their lives. The bitterness of that war continues to pollute our national well. We've demonized and Nazified, to use the phrase of this author whose book I was reading, the South and the southern soldiers. Yet northern and southern soldiers gathered at reunions that lasted until 1936 in Washington, D.C. according to a book I'm reading by a law clerk, John Knox, to a justice (James C. McReynolds.) in that year.
In the movie "If It's Tuesday, This Must Be Belgium," there's a scene of a WWII battlefield in Europe in which aging former American soldiers, tourists, are shown counting off, for the benefit of the wife and kids, the steps from some hill on which they fought the German soldiers, while in the next scene, is an aging former German soldier counting off, for the benefit of his wife and kids, also tourists, the steps from the opposite hill on which he fought the same American soldiers. Both soldiers looked remarkably like human beings.
Demonizing your enemy in war makes it that much harder to restore decent relations afterward.
In litigation practice, your adversary sometimes takes a cheap or a dishonest shot. Many is the time that you want to tell your adversary what you really think of him, her, or what s/he just did. A few four letter words, nicely strung, would do wonders for your rising blood pressure, you might think.
I can't count the number of times I've thought that way. Yet I've always managed to hang up the phone, decently, before venting. That way when I needed to call to request a continuance or other favor, I could.
A friend of mine didn't.
He'd called the court and got the judge to tell her he was double-set, and going to be in another department of the same court, at the same time, which happens a lot, and would have trouble appearing at the appointed hour.
The judge ordered him to appear in her court, instead. My friend, an attorney, told her what he thought of this using a few choice words.
The judge was a rookie, unaware how things worked, and the friend had been around far longer than she, so I guess he felt he had the moral edge. But he didn't have the legal edge.
I wound up having to spend an evening looking up the latest on contempt vs. freedom to express yourself under the First Amendment, even to someone who wears a black nightie as a work uniform.
After thinking about it, apparently, and perhaps taking some advice from a colleague, the judge let the matter evaporate and they all got along fine for the trial, I'm happy to say. My friend learned to bite his tongue. It's no fun trying a case in front of a judge while wondering whether your client is going to get hammered if you don't manage to pull his chestnuts out of the fire. He might be paying for your poor choice of words. Not that any judge in a Hall of Justice would do such a thing of course. But who else is going to bear the brunt?
Just as it is not a good idea to pick a quarrel with someone who buys ink by the barrel (a newspaper) it's not a good idea to pick a quarrel with someone whose tool-belt includes a bailiff and a holding cell.
Because after you say what you wanted to say, you still have to get along.
So your adversary screws you and there's not much you can do about it, you think.
Don't worry. There is something you can do.
Keep book.
I telephoned the opposing counsel who'd filed a lawsuit against someone who became my client. The pleading was in-artfully drawn. Rather than jump right into preparing and filing a demurrer, I called the attorney and introduced myself as representing the person he was suing. I suggested as diplomatically as possible that it was unclear what he was alleging, and that if he'd like to amend (you can amend once without leave very early on, in some states) it would spare us both a lot of unnecessary effort.
He became irate. "If you demur on me, you'll never hear the end of it," he threatened. I wrote down what he said.
So I demurred and his complaint was dismissed w.o.p., which means without prejudice; without prejudice to amend.
So he filed an amended complaint.
Complaint #2 was just as bad.
So I demurred again, and meanwhile, I noticed his clients' depositions for a certain Monday in January.
Neither he nor his clients appeared at my office for the deposition on that Monday.
So I called his office to ask whether they were running late.
"Oh, no," said the attorney's secretary, after a long pause during which I'd been put on hold, "Mr. So-and-so is in federal court today, so he can't be at your deposition." I'd have to reschedule in other words. I wrote down what she'd said.
The peculiar thing about her remark was that no courts were open on that Monday, as it was the Martin Luther King, Jr. federal holiday.
So I filed a motion for sanctions and the attorney was required to appear in court and explain himself.
See, what I'd done was to keep book. Not only had I kept good notes, but I'd write this attorney a nice letter after each of the several incidents where he seemed to be trying to game me, recounting the incident in as calm a manner as I'm writing this, many years later. Then when I needed to go to court to haul him up, I simply attached the letters to my declaration supporting my motion asking the court to straighten this fellow out. Taken together, they formed a string of incidents that made a necklace that fit uncomfortably around his neck.
During the argument in open court in the Law and Motion Department, which is where attorneys air out their grievances against the way the other is conducting his part of the litigation, such as pleading and discovery issues, and the like, the judge asked me what I thought my time was worth, and I told him about my experience, which includes a considerable amount of experience in defending against false accusations of child sexual molestation, which is is what this case was about.
"Well I don't see why you're so proud of defending child molesters," opposing counsel remarked for the record and to the court.
It happens that I am reasonably proud of my hard and successful work defending people who are falsely accused, just as I would have been proud to have used my skills to spare the life of an accused witch in Salem, 1692.
The judge fined the attorney over $600, which was a bargain.
The hapless attorney was then allowed to amend for the 3rd time.
When I received Complaint #3, this time professionally drafted, but of no greater merit, I noticed that my former tackling dummy was no longer the attorney on the case.
What goes around comes around.
***
If you must go to war, it's not a bad idea to think ahead to the day when peace may break out, and you have to live together again.
Down at the Hall of Justice, where I've spent most of my time, there are any number of people I've dealt with yesterday, deal with today, and will have to see tomorrow. There's no percentage in making lasting enemies, as hard fought as today's battles may be. Today's adversary may be tomorrow's judge.
Yesterday's enemy, today's friend.
It may be a strange world that we live in, but it is our world and we have to do the best we can with what we've got.
***
On the subject of defending witches, referred to above, there was a certain case, and an incident in that case, in which I felt exactly as though I'd been transported back almost 300 years to Salem, 1692.
Today's equivalent of a witch is a person accused of child sexual molestation. The Michael Jackson case is now in trial in Santa Barbara County, and there's a huge case against the Catholic Archdiocese in trial now in the East Bay. We know that child sexual molestation occurs, and has occurred forever. What to do about it is the problem.
In our system we accuse the person suspected of being a molester.
If done properly after a competent investigation, the accusation may be worthy of belief.
But sometimes the investigation is lacking, the accuser goes off half-cocked, and an innocent person is accused of a crime that no one ever committed.
In this one case the little girl dressed as Shirly Temple took the stand before the jury. When it was my turn to question, I stood with the jury between the witness and me, and referred to her father, seated next to my empty chair at counsel table. The little girl - she was five by now, after over a year of pre-trial litigation, addressed her father by his first name, told him that he was a bad man, and that she was saying these things about him to protect other little girls. Then she looked past her father into the audience toward his many relatives, whereupon she denounced them, listing grievances against each, one by one. It sounded as though she'd picked up a few ideas from her mother, and the mother's attorney, with whom she was conducting a secret affair which only came out after I'd succeeded in having the case dismissed by negotiation after trial, in light of the hung jury.
I felt as though I were watching a child in Salem denouncing my client, the witch.
That's quite a responsibility, representing a witch. Arthur Miller wrote a play about witches, or witchcraft allegations in Salem, 1692. When he wrote the play, in 1954, all the witches were Communists, or alleged communists. "The Crucible," the play is called. You might take in a performance some time. It plays all over the world, and in each place the audience thinks it's about their country, when in fact it was about ours, originally, before it took on a life of its own.
Representing a falsely accused person is the highest calling in my book. The only question in each case was whether I would have sufficient ability to defeat the adversary. In each such case, and there were several that lasted from one to ten years, I felt, at trial, that this was the case I'd prepared my whole life to fight.
***
"Why do you always get the hard cases?" my eldest son once wondered.
"That's a good question, Robbie," I said.
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