I resisted going to law school until I was 42.
Teachers and classmates in high school — it was Shawnee-Mission North in Merriam, Kansas — urged me to aim for the law. I was a champion debater — best speaker points at the state tournament — and chairman of my pretend party at Boys’ State. But when the Sputnik went into orbit, the call came from Washington for all good boys to become scientists, and so I set my sights on a career in rocketry. Fortunately, a modest score of 646 in the math section of the SAT (versus an 800 in the language section) aborted that mission and set me aground on the path of liberal arts. But that path had many twists and turns before I came to the law. At Wesleyan University, after a freshman year mostly wasted on drinking, getting in and out of a fraternity, and learning how to BS, I enrolled in the College of Letters, an independent study program in comparative literature. The College was modeled on the British system, which left the student basically alone for two years, with a Comprehensive Examination looming at the end. The final year was devoted to writing a thesis. I took full advantage of the free time to explore New England’s women’s colleges, ranging as far north as Bennington, a delightful place then in every way. I also read widely in politics and economics, and dipped just enough into comparative literature to pass the examination. Among the teachers at Wesleyan who left tracks in my memory were:
- Richard Wilbur, the poet, who would launch into meditative soliloquies while his cigarette burned to a long ash, on which we all focused, mentally laying bets on when it would fall;
- Stanley Coopersmith, the psychology professor, who had us try to clip the nails of a lab rat with a paper punch, so as to give us an emotionally intense experience that might be detected later by a polygraph;
- Ravi Shankar, whose accompanist on the tabla blew everyone’s mind by simultaneously drumming three beats with one hand and five with the other;
- Norman Rudich, the outstanding Romance Languages scholar who was legally blind and hired me to read to him in English, German, and French;
- Norman O. Brown, the author of Life Against Death, a neo-Freudian view of history and inventor of the phrase ‘polymorphous perversity’; and
- Hannah Arendt, who taught me that it takes seven drafts to make a good book, and who kindly obtained a small summer grant for me, based on my family’s history of helping Jews escape from Germany.
I mention all this here because it seems to me that lawyers benefit from being exposed to the widest possible range of teachers and subjects. Despite all the distractions, I did manage to graduate with high honors, high distinction in letters, and Phi Beta Kappa. Among my classmates, and for some time my roommate, was the brilliant John Coatsworth, who went on to high places as a Latin America scholar and dean at Harvard and Columbia. Armed with a Woodrow Wilson Fellowship to Brandeis University, I began studies in the History of Ideas department under Herbert Marcuse. Unfortunately that luminary, whose Reason and Revolution remains a great classic, had drawn the ire of the ultraconservative Brandeis administration under Abram Sachar, probably under pressure from moneyed alumni. Marcuse became the victim of an astounding campaign of administrative sabotage that I hope to detail at some other time, and he soon departed to the balmy shores of San Diego. Stranded, I transferred to the Brandeis Sociology / Anthropology department, where Profs. Kathleen Gough Aberle, Lewis Coser, Kurt Wolff, Maurice Stein and others held forth, and gathered around them a remarkable set of graduate students, including one of the original Freedom Riders, Bob Zellner. Although I did not know it at the time, sociology at Brandeis was an excellent preparation for the law. Justice Louis Brandeis, the first Jew to serve on the U.S. Supreme Court, achieved his reputation in part because of his ability to meld evidence about social and economic conditions with legal argument; this approach has become known as the ‘Brandeis brief.’ I took an M.A. in Sociology from Brandeis. I had intended to go on for a PhD and teach college, but life intervened and led me into other pursuits that belong to a different narrative.
Fast forward to the early 1980s, more than two decades after high school. I was renting an apartment in Oakland and had been active in in the tenant’s rights movement. When the electoral campaigns to pass Measures E and EE in that period were defeated, a bunch of us held a post mortem session. What do we do now? I don’t know, how about if we go to law school, somebody said. It struck me as a good idea. It didn’t escape my notice that some of the tenant activists managed to combine the good cause with a good living, by virtue of having a Bar card. My models and good friends were tenant lawyers such as Jay Koslofsky and Jeffrey Carter. It also mattered that there had been an argument within the movement over a legal issue, with me on the opposite side of one of the lawyers, an individual of considerable reputation from the East Coast, and I turned out to be correct. So, I finally capitulated to the advice that my high school friends had urged on me, and applied to the local school, Boalt Hall at UC Berkeley. Law school at Boalt was a great bargain in those days. As I recall, tuition, fees and costs for this nationally top-ranked institution came to barely seven thousand per year. Law school was also great fun. In freshman torts, our prof threw out the standard case book by Prosser, honed to perfection over decades, and substituted a half-baked new case book by a conservative “economics” school advocate, Posner. A semester-long battle ensued between the class and the professor, and among the students, culminating in a resounding victory for the Prosser wing. I was among the leading voices in the dispute. As one of the students told me afterward, “You’ve just won your first jury trial.” I also had the honor of receiving an “HH” (High Honors, best possible grade) from Prof. David Daube for my paper on the absence of a concept of negligence in Roman law. In a trial advocacy workshop, I had the satisfaction of representing a woman employee in a sex discrimination and harassment claim against one of the companies whose owner is a major alumni donor, and winning her a substantial settlement. In law school, I also got hooked on computers. The summer before entering, I had mail-ordered and built a kit computer, the Timex-Sinclair, with a tiny membrane keyboard, data storage to and from an external cassette player, display via an external TV set, and 1K RAM built-in. A huge 16k RAM add-on could be had at extra cost. From this I graduated to an Osborne, one of the first portables; the size and weight of a big sewing machine, it had a screen the size of a 3×5 file card. But it felt so-o-o cutting edge to be seen hauling this behemoth into the Boalt law library. I used it not only for research and drafting my own papers, but also as a source of income. For a modest fee, I prepared resumes for job-hunting seniors and mailmerged their cover letters to a database of law firms. There were other computer fans in the school, computer law was just heating up as a field, and much of this developed within copyright law, so I took every copyright law course that was offered. This was helpful later, in that it led to my first (and only) full-time law firm employment, with the intellectual property boutique of Owen, Wickersham and Erickson in San Francisco. Wickersham had made history by convincing the Supreme Court, in Diamond v. Diehr, that computer software was patentable subject matter. Mel Owen and the other partners of the firm were wonderful to work for, but I was not cut out for the law firm environment, and after this apprenticeship, I set out on my own in solo practice.
I Hang Out my Shingle
Thus it was that in 1988 I set up shop in a tiny office located between the men’s room and the ladies’ room on the sixth floor of 1440 Broadway in downtown Oakland. (The joke was that people who couldn’t decide which gender they were, came to my office.) It was affordable. My tenant lawyer friends on the tenth floor of the same building — in a suite headed by the legendary Robert Treuhaft, husband of Jessica Mitford, and one-time employer of law clerk Hillary Clinton — sent me the tenant cases that overflowed their plates. Some law school friends sent me intellectual property clients averse to the high legal fees of the big IP firms. Then one of the other lawyers on the tenth floor — James Eggleston, a leading labor lawyer representing the Postal Workers’ Union — needed someone to represent letter carriers in dog bite cases; and there I was, new and hungry. During law school, I had worked part time and during summers for a plaintiff’s personal injury firm, Katz & McIntosh, as well as for an insurance defense firm, Hall Henry Oliver & McReavy, so I was familiar with the territory. Ever since, I’ve represented clients in a string of dog bite, auto collision, trip-and-fall, and other injury cases. After some time, I moved up to the tenth floor and joined the colorful group of characters who practiced there. Besides Treuhaft and Eggleston, there were some of the major names in tenant law: Jay Koslofsky, Jeffrey Carter, Zona Sage, Larry Duga; the personal injury lawyer Steve Kasdin; appellate specialist Steve Bedrick; the employment law maven Anne Weills, zoning specialist Rena Rickles, estates and trusts attorney William Petzel, family law attorneys Chris Cleary and Hannah Sims, bankruptcy attorney Sally Elkington, and victim’s rights attorney Cynthia Prada. They’ve scattered to different venues now but all of them, to my knowledge, are still practicing today. My interest in nonprofit law came about in the most unexpected way. In the fall of 1992, I retired from a 33-year career of drinking alcohol, and became associated with a small network of secular support groups for former drinkers. When it became necessary after some years to start a new organization of this type, the task of doing the incorporation and tax paperwork fell to me, the only lawyer in the group. Thus I became acquainted with the mysteries of the 501(c)(3) application and later with Form 990. I’ve since had the opportunity to help other would-be nonprofits with these and related chores. Several of my cases, both in tenant law and intellectual property, involved trips to the courts of appeal, an area where I enjoy practicing because of the intellectual challenge. Recently I had the opportunity to represent the City of Oakland as outside counsel in a couple of appellate matters involving decisions of the Oakland rent board. One of the great advantages of being a solo practitioner is that I can move into new areas of the law whenever the spirit moves me. Recently I have developed an interest in the case of Marriage of Gillmore, in which the California Supreme Court established what amounts to the tort of working. The case holds that when a couple divorce, and the employed spouse continues to work past the age of eligibility to retire, he or she must pay the other spouse out of his or her pocket what the other spouse would have received in the form of retirement benefits from the pension plan, had the working spouse retired. In the federal system, it is the pension plan and not the working spouse who must pay benefits to the nonworking spouse, which appears more reasonable all around, and less punitive. I am also developing an interest in constitutional law, specifically in the establishment and free exercise clauses of the first amendment, as recently articulated by the Ninth Circuit in the case of Inouye v. Kemna. This holds, rightly in my opinion, that a person in state custody cannot be compelled to participate in activities of a religious nature, even if this is done with a laudable intention such as treating addiction. I intend to post more materials on this issue on this website as time allows. One of the other great advantages of solo practice is that I don’t have to retire. I plan to keep working and helping clients as long as I am able. And perhaps even after that … The joke is told about a lawyer who cross-examined a pathologist in a murder case. “Q: And how could you be so certain, sir, that the victim was really dead?” “A: Because I had his brain in a jar on my desk. But perhaps he’s out practicing law somewhere.” If my brain is still inside my head, and I may be able to help you, contact me.