What it means to "think like a lawyer," and the COVID-19 pandemic

       Law is a dishonest field. I know that's a harsh thing to say about a profession, so please let me explain by looking at what lawyers do on a case. First, they sift through the evidence and categorize it into two buckets: evidence that helps their client and evidence that hurts. Then they do the same thing with laws; they find the relevant statutes, precedents and policies and split them into two buckets: those that help their client and those that hurt. Finally, they use rhetorical techniques to try and hypnotize a judge or jury into appreciating the facts and laws that help their client, and diminishing those that hurt their client. 

       Open any two sets of briefs in a case or watch any oral argument and you'll see this: two diametrically opposed takes on how the evidence and laws should be applied to decide the matter. And remember, the side the lawyer took among these two opposing views wasn't necessarily determined by the truth, or even what the lawyer believed. Rather, it was a function of who paid them. If the other side had hired the lawyer, he or she would be saying the exact opposite. So in that sense, lawyers are paid liars.

       I don't mean to minimize how hard it is to be a lawyer. It can take an incredible amount of work to find those facts and laws, and to craft those arguments. They might have to look through millions of documents, a tedious and painstaking effort. Then there's the task of putting it all together, which requires a talent for communication and rhetoric. It's also work that needs to be done, because unfortunately there are disputes that don't get resolved without a court. But still, if that's what you do all day, every day, you are training your brain to think in a certain way. You're training it to cherry-pick and spin.  

       In contrast to the legal profession, there are professions where cherry-picking and spinning should play no role. Science is one of them. Earlier this year, these two worlds came together when someone tried to use the lawyer's thought process in science. The highly esteemed law professor Richard Epstein tried to use his training as a lawyer to come up with a solution to COVID. You can see how that turned out in this New York Magazine article, or in this podcast. 

        This morning I read about an O'Melveny lawyer who might have been in a similar situation. Last February, President Trump put Vice President Pence in charge of the nation's COVID response. A few weeks later, O'Melveny partner Greg Jacob reportedly left the firm "to counsel Vice President Pence in connection with his stewardship of the COVID task force[.]" (quoting his former colleague Brian Boyle. Incidentally, I shared anecdotes about these two in an earlier post.)

       Some commentators cannot understand why the nation's infection and mortality rates are so high, and they blame Mr. Pence's mismanagement of COVID. I personally don't want to go that far. We don't know what would have happened in an alternate world with different leaders and counselors. But Mr. Pence did seem to spend a lot of time cherry-picking and spinning. 

A dark profession

       This week, Former Attorney General Eric Holder said he was “disturbed” that other lawyers would criticize his friend Neal Katyal for making what some think are "extreme" arguments in support of child slavery. Mr. Holder states that the justice system "cannot function at its best" if Mr. Katyal is criticized for defending his client in court, because if lawyers can't defend clients then there is no due process. That certainly makes perfect sense.

       Then you look into Mr. Holder's background. According to an article, Mr. Holder was the attorney who demanded that a judge seal evidence of his client Purdue Pharma’s wrongdoing with respect to opioids. As a partner at Covington & Burling, he demanded that information be hidden from the public. This evidence should have been released, because all trials are supposed to be public, but he insisted that it be sealed. I don't know if this Mother Jones article is correct; I only learned about Mr. Holder's past this morning, and I didn't pull up the docket and investigate what Mr. Holder did in 2004, but Mother Jones doesn't seem like the kind of periodical to just make up facts.

       And if it is right, Mr. Holder did one of the most evil things in American history because if that evidence were released to the public, it could have warned people and prevented hundreds of thousands of opioid deaths. This was no different than hiding evidence of a factory releasing toxic chemicals into a water supply, or hiding evidence that your client uses his position to rape women. Sure, Mr. Holder had a right to defend his client, but where did he get the right to settle out of court in a way that hid what his client was doing?

       There's other stuff about Mr. Holder. Here is an article accusing him of selling out the Department of Justice to the banking system during his tenure as attorney general. According to the reporter, Mr. Holder assumed a "brillian[t] disguis[e] as the attorney general of the United States, [while] actually working deep undercover . . . as the best defense lawyer Wall Street ever had." I don't know how you prove that he gave banks favorable settlements. I'm sure the banks think he was harsher than he needed to be, but it's possible.

       Mr. Holder is also viewed as the icon for the practice of “monetizing” a government position. This article suggests that Mr. Holder viewed his tenure as attorney general as an extension of his job at Covington & Burling. The firm didn't even fill his office during that period, because they knew he would be back when it was over. The article claims that this was the reason Mr. Holder was so easy on banks. Because deep down he wasn't the attorney general. He was a Covington & Burling partner who had hijacked government to advance the interest of his firm's clients. Again, there's a lot in that accusation and I did not review Mr. Holder's settlements with banks and, even if I did, I don't know you conclude that a settlement was too large or too small - but again this is all entirely possible.

       So let's get back to Mr. Holder's comment that the legal system "cannot function at its best" if lawyers criticize Mr. Katyal. The legal system apparently functioned at its best in his opioid case. Hiding evidence that could have prevented countless deaths, that's fine. That's what the justice system is supposed to do. It's supposed to hide and cover up wrongdoing, not stop it. Same with his tenure as attorney general. Allegedly selling out the Department of Justice to your firm's corporate clients is fine. That’s the justice system functioning at its best. He wasn't "disturbed" by any of those those things. The criticism of his friend's arguments in a child slavery case is what disturbs him. The world finally disturbed this man’s sensibilities.

       Despite Mr. Holder's concerns, the trend is to publicly criticize law firms for the things they do. Examples of this include the articles above, the recent criticism of Jones Day and Foley & Lardner over their arguably frivolous election lawsuits, and the astounding report that the Department of Justice dropped an investigation of Caterpillar, Inc. (Bill Barr's client at Kirkland & Ellis), just weeks after Mr. Barr took over the agency. None of this has anything to do with O’Melveny, but I write about it as a reminder that this blog might be about more than just O'Melveny & Myers. At times, this can be a dark profession.

Eric Holder, Covington & Burling, Neal Katyal, Hogan Lovells