6 – Boston
The ebonized cherry table in the conference room at Shapiro, McCarthy and Green looked expensive, the wood felt freshly oiled but, of course, left no residue on fingers rubbed surreptitiously across its surface. The table, the conference room, the art on the walls and the entire office on the top floor of a former Howard Johnson’s chocolate warehouse on Boston’s fashionable waterfront were designed to let clients know that the clients needed these lawyers more than these lawyers needed the clients. The conference room was where lawyers from other firms sat during depositions, where they sized up the firm, estimating where their opponents placed in the pecking order of Boston’s legal community. The conference room was also where clients were introduced to the firm’s three partners, and where fees were first discussed.
A Boston law firm made up of a Jew, an Irishman and a black had its bases covered. In twelve years it rose from three former district attorneys who had to take second mortgages on their houses to meet their first year’s overhead, to the original three partners plus eight additional associates, younger lawyers who worked for a salary rather than a portion of the firm’s profits.
The three young men sitting at the conference table across from Ben Shapiro were obviously impressed, and obviously uncomfortable, not knowing what to do with their hands or whether they could put their elbows on the table. They had not spoken, except to mumble a barely audible greeting. The middle-aged man with them didn’t share their problems. He sat back and listened closely to what Shapiro was saying.
“Your first problem is a legal doctrine called standing,” Shapiro said, speaking to the older man but occasionally glancing at the three others, noting that every time he looked at them they looked away, uncomfortable. He returned his gaze to the older man, who was now leaning forward, his right elbow on the table, his left hand on his hip.
“What this doctrine means is that not just anybody can walk into court and say a law is unconstitutional. Only people directly affected by a law can challenge it. You can’t challenge a law setting the drinking age at twenty-five if you are thirty years old because that law doesn’t affect you. Before we can challenge the government’s action, we have to show that somehow, even in a minor way, it affects you.”
“What does that mean?” the older man asked slowly. He sounded angry even when he was not. Each word was a bullet, fired by its own pull of the trigger. “Do these boys have to say they are Jewish, or that they lived in Israel, or that they are American citizens? I’ll have them dance the hora in court if you think it would help.”
“No. They are going to have to say, under oath, that they escaped from the ships in the harbor. And then they’ll face the consequences.” Shapiro spoke directly to the three young men now, testing to see how serious they were about this lawsuit.
“As an attorney, I’m not supposed to advise you to break the law, but you do realize, don’t you, that now that you are off the ships, you could disappear into this country, even without legit ID cards.” He was curious how they would react. Instead, the older man spoke.
“The organization I represent went to considerable effort to surreptitiously remove these men,” the older man pointed at the three young men, who, while remaining in their chairs, arched their backs and came to attention, seated. “These men are soldiers, from the ships,” he said, speaking directly to Shapiro, now turning his back to the young men. “They volunteered for this mission with the understanding that they would face the legal consequences. We don’t need a lecture from you, Mr. Shapiro, about the consequences of our actions.”
The man paused, searching for words.
“We are living with the consequences of Damascus every minute.”
The atomic bombing of Damascus was President Lawrence Quaid’s stated justification for not intervening militarily to restore the Israeli state. Many people, and virtually every American Jew, believed the Arab threat to cut off oil sales to any nation that interfered with Allah’s restoration of Palestinian rights played a greater role. That and the videotape every night of burned children, of mass graves, of the city blasted literally into rubble. Syrian children, of course, Syrian graves, Syrian rubble. The news blackout from what had been Israel was complete, and successful.
Every public suggestion that America send troops to the Middle East was met with a one-word response: Iraq. It will be another Iraq, people said, another time when young American men and women will stand in the crosshairs of the people they were sent to save. What’s the difference between placing Americans between Shiite soldiers and Sunni soldiers in Iraq and Jewish and Arab soldiers this time, people asked. We’ve learned that lesson, people said. Won’t make that mistake again.
American Jewish leaders quickly realized they’d lost the public relations war before it had barely begun. The only option for American Jews frustrated by the political process was the American recourse of last resort, the courts.
The men in Shapiro’s office wanted him to bring a civil rights law suit ordering the United States government to allow the ships’ passengers to enter the country. Naturally, automatically it seemed, Shapiro’s heart went out to the men, to all the people crammed into the ships, to all Israelis. Nonetheless, he was afraid this case was a loser. He did not like losing. Winning beat losing, even in criminal cases. Intellectually, he appreciated that the sense of personal power he felt in getting a guilty person off did not serve the greater good and was a bit perverse, but he acknowledged that, as with most trial lawyers, his ego was on the line with every verdict.
He feared this case was a loser.
Every civil law suit needs a hook, a legal ground called a “cause of action,” that supports what the plaintiffs ask the court to do. The cause of action may be for breach of contract or slander or assault or negligence. It can be for violation of a constitutional right. It can be to enforce a right granted by a statute.
But a lawsuit can’t be brought simply to order the government to do the right thing. And that was what this case was about, these men and their backers wanted a judge to order the United States government to do the right thing and let these poor people off the stinking ships.
The problem was that Congress had pulled in America’s welcome mat for political refugees. There had been too many people from every backwater in the world whose homes were burned, whose sisters were raped, whose fathers were executed, whose homelands were swept by tsunamis or draughts. Misfortune was no longer the key to the doorway to America. That was the law now and Shapiro could think of no way around it.
Nonetheless, Shapiro knew the three young men sitting in his firm’s conference room could walk out his door and vanish into America. Instead, they were willing to stand up in court and admit they’d entered the country illegally.
Thinking about what these men had at stake, Shapiro paused, impressed.
You don’t often see this kind of personal courage, Shapiro thought, reminded of the draft resistance movement during the Vietnam War. By the time Shapiro finished college, that war was dribbling to an end and the draft was over. He’d wondered what he would have done had he been a few years older or the war a few years longer.
In high school, before the influence of Hebrew school, bar mitzvah, and philosophy sessions with the rabbi had worn away to a general skepticism of everything religious, Shapiro was fascinated with the Jewish concept of the tzadik, the righteous man. A tzadik, he learned, was not a perfect man, but one who wrestled with the effort to do what was right even when faced with the temptation and opportunity to do wrong.
I can be a tzadik, Shapiro resolved back then. It became his goal throughout adult life.
A tzadik, as a lawyer, represents individuals overwhelmed by corporations and government, even though there may be more money representing the other side. A tzadik, as a father, leaves work early to spend time with his son. A tzadik, as a husband, is faithful to his wife, and is a supportive partner.
A tzadik, in Shapiro’s interpretation, is a mensch on steroids.
A tzadik faced with a decision, asks himself what is the right thing to do.
And then he does it, regardless of the consequences.
Shapiro had not thought about his resolution to be a tzadik for years. He thought about it facing these three men.
That was enough to convince him to take this case, loser or not. These guys are putting their freedom on the line. If they’re willing to do that, I’m willing to try to help them, he decided.
Now to make his partners happy. The prevailing party in civil rights cases is entitled to have his legal fees paid by the losing party, but that requires a win and gets the lawyer his money only at the end of what can be years of litigation and hundreds of hours of time that could have been spent on more lucrative work. Knowing he was about to represent these men whether or not they could afford to pay him, he decided it was worth a try to at least cover his time on the case.
Lawyers’ kids gotta eat, too, you know, was one of his favorite lines.
“This kind of law suit can be awfully expensive,” he said, this time speaking only to the older man. “We’ll need high powered experts and they won’t come cheap. Even with them, chances are we’ll lose at the trial level and have to work our way up through the appeals courts.
“You’re probably looking at four-hundred thousand dollars in legal fees and another forty thousand, at least, in expenses.”
“It’s not the money that matters,” the older man said sternly. “An important principle is at stake here.”
“The money matters if you don’t have it.”
“Rest assured, counselor, that we have it. How much of a retainer do you want?”
Fighting the good fight or not, the second biggest mistake a client can make with a lawyer is to say that money doesn’t matter. The biggest mistake, of course, is to let the lawyer know that money doesn’t matter because the client has lots of it. No other profession lets its practitioners set their fees based on the wealth of the client. A doctor who doubled his fee for wealthy surgical patients would lose his license. For lawyers, setting a fee based on how much the client can afford to pay is a fact of life.
The firm usually required a retainer of one quarter of the anticipated fee.
“Two hundred thousand will do for a retainer. If you’ll wait in the reception area I’ll get a representation agreement out of the computer,” Shapiro said, standing up.
“Just to clear up one point,” he said as he raised himself from his chair. “Will you all be parties to the case?” He locked eyes with the older man.
“These men are your clients,” the older man said to Shapiro. “I am their, shall we say, financier.”
Alone in the conference room after the men left, Shapiro took a deep breath and sat down looking out the window at Boston Harbor. He pictured the thousands of frightened people on the two ships.
I guess I took the case, he thought. I don’t expect we’ll win. I wonder what else will have to be done to save these people.