Two January Articles Two Years Apart that Light the Fire in the Belly

The belly of a near-midlife lawyer. Me and mine, specifically. Here are those January articles in 2013 and 2015, respectively: The Troll’s Lawyer written by Adam L. Penenberg on Medium exactly a year ago and Aaron Swartz and Prosecutorial Discretion by the New York Times’ Lincoln Caplan a further two years back.

Both involve the subject of prosecutorial abuse. And nothing makes my blood boil faster than prosecutorial overreach. There’s an incantation that lawyers learn early in life: dura lex, sed lex. The law is harsh, but it is the law. Supposedly.

Hearing that is much like hearing a programmer say the best way to do Web development is through “hard-coding.” Maybe true in a few ways, but plain stupid in most.

More than 10 years removed from law school, I cannot remember vividly now how law school looked.

But at the main entrance of the main building is a wall-quote by Oliver Wendell Holmes (Justice, U.S. Supreme Court): “The business of a law school is not sufficiently described when you merely say that it is to teach law, or to make lawyers. It is to teach law in the grand manner, and to make great lawyers.”

It was the first thing I noticed back when I was still an undergraduate just passing through the law college building, dreaming of maybe getting into law. It was the last thing I noticed, when it was time to leave.

With the benefit of hindsight, somewhere in that quote is the romantic aspect of what it really means to live the life of a lawyer.

Which brings me to Penenberg’s Medium feature.

Ignoring the expletives, Andrew Alan Escher Auernheimer’s affectionate description of his lawyer reminded me instantaneously of my law partner:

If you are a client, you want that kind of lawyer. If are a lawyer, whether or not you are actually spoiling for a fight, you want that kind of lawyer.

[Tor Ekeland] is a very competent legal scholar and theorist [and] also a relentless motherfucker that takes no bullshit and can hold his own in a street fight.

I would often find myself repeating an advice to my brother about marriage. That it is probably the most important decision (or non-decision, for that matter) you will make in your life.

That if you decide well, it will give you stability and a sense of purpose. But choose badly, and you set yourself up for some particularly hell-ish life.

Finding a law partner is harder by a factor of 10.

Alpha males who have strong opinions of just about anything, how things are, and how things should be done hardly make good mates.

So consider yourself lucky if you find and found one great partnership, once in your professional life. As I do. But as the parochial aphorism in the startup world goes, “You only have to be right once.” Much like, well, a good marriage, isn’t it?

Aaron did not commit suicide—he was killed by the government.
Aaron’s father

In the case of the prodigy Swartz, the concluding paragraphs sums up the problem pretty well.

“Prosecutors have discretion not to pursue this kind of case at all. But the discretion they often exercise is far at the other end of the spectrum. They go after defendants tooth and nail, overcharging them from the abundance of criminal laws with sentences so severe and out of proportion to the crime that, as now happens in 95 percent of criminal cases, the prudent choice is to cop a plea.”

“The Swartz case deserves singling out not only because of its tragic ending, but because the approach the government took is now the norm. For prosecutors, pursuing cases in this all-out fashion is their job. For defendants like Mr. Swartz, it is a brutal and dispiriting form of intimidation that hardly feels like justice,” Caplan adds and ends.

Law is a profession that has given me many “Jekyll & Hyde” moments.

Robert Louis Stevenson’s 1886 work The Strange Case of Dr. [Henry] Jekyll and Mr. [Edward] Hyde may be a work of fiction.

But it was also about a lawyer—and it was also published on a cold January morning

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