Slate has started a new sub-blog by Kathryn Schulz on what it means to make mistakes, called The Wrong Stuff.  Naturally, the first place she looked was criminal defense lawyers, who (as opposed to any other discrete group on the planet) are universally wrong more than any other.  So why is her first interview with Alan Dershowitz?

Do you think lawyers have an unusually hard time admitting that they’re wrong?

Oh, yeah. I think that lawyers are terrible at admitting that they’re wrong. And not just admitting it; also realizing it. Most lawyers are very successful, and they think that because they’re making money and people think well of them, they must be doing everything right.

There is possibly no individual who dabbles in the field of criminal defense who less reflects the mainstream of criminal defense than Dershowitz, Harvard lawprof and perpetually available guest whenever there’s an open microphone.  This opening Q&A smacks of his disconnect from reality.  I bet you didn’t know that your problem is that you’re making too much money.  I bet other people didn’t know that they think well of you.  I bet.

Dershowitz is one of the few in criminal law to attain the status of household name.  Whether it’s Larry King or the Jewish Daily Forward, Dershowitz is the go-to guy to espouse the criminal defense lawyer’s point of view.  The only problem is that he doesn’t have the slightest clue what it means to be a criminal defense lawyer in the trenches. 

It comes as no surprise that when Schulz needed a criminal defense lawyer to pontificate, Dershowitz would be there.  There’s no state of being that he prefers to sound emitting from him, and he does so with abandon.  Ironically, while he’s clear about how terrible we are at admitting mistakes, the same doesn’t apply to him.

I worry about it. That’s why I always have young people around me; I insist on my students and the people who work with me telling me about my mistakes. And I think I learn from them.

If the rest of us surrounded ourselves with young people, we’d worry about allegations of pedophilia.  Not Dershowitz.  He’s better than us, immune from the reality that surrounds our work. 

The problem is that we are terrible about admitting mistakes, but hardly for the reasons he floats.  But the wrong stuff has been discussed here many times, and this post isn’t about why criminal defense lawyers react as they do, but about how exemplars like Dershowitz as the voice of criminal defense creates so many of the misimpressions, misunderstanding, mistakes, that frame people’s understanding of our work and our nature.   This was the same voice that propounded that the secret to successful white collar defense was hiring some Biglaw kid who was an AUSA last week to help the defendant to become a rat before the next guy.

Can you give me some examples of instances where you’ve been wrong?

I had an experience early in my career where I was working with a young woman who insisted on putting an argument in the brief. I thought the argument sucked and I didn’t want to put it in the brief, and she said, “Well, you’re the boss.” I said, “No, that’s not the way we do things. You’re going to persuade me to do it or you’re going to persuade me not to do it.” She ultimately didn’t persuade me, but she came so close and she was so committed to the argument that I actually put it into the brief — very reluctantly. I really thought I was making a mistake. And we ended up winning the case on that argument. I was just dead wrong and she was completely right.

Remember the old joke where a fellow is asked if he ever made a mistake, and he replies, “No, I thought I did once but I was wrong.”  Meet Dershowitz.  How many of us are so fortunate as to be dead wrong and yet always the big winner?  Even his screw-ups are better than ours.  How fortunate for his clients that right or wrong, Dershowitz is never wrong.  But then, we are a profession of people incapable of admitting failure because we’re too fabulously wealthy.

The theme of Schulz’s blog is interesting, and she does an admirable job of trying to pin down Dershowitz when it comes to the “discomfort”  endured in being a criminal defense lawyer.  But Dershowitz isn’t an easy man to pin down.  Fortunately, as Dershowitz explains, the trauma of criminal defense is something he only sees from the outside:

It was for thinking about what would happen if I ever got to that position. I’ve never been in the position where a client that I’ve gotten acquitted—and I’ve gotten a lot of people acquitted—has ever quote “done it again.” I’ve never had that. But it could happen, and I’ve thought about it a lot. I’ve had nightmares about it. But my biggest nightmares are cases where my client is innocent and where I think I might lose.

It must be wonderful to be Dershowitz, always self-aggrandizing and never suffering the “discomfort” that permeates the work done by the rest of us.  Rarely has anyone been held out as an example of the criminal defense lawyer who less reflects what we do.  There is absolutely nothing in his answers to Shulz’s questions that suggests the he has the slightest appreciation of what real lawyers do every day in the trenches.  But then, we’re often wrong and fabulously wealthy, so why should Dershowitz care?

And this is the understanding that the public has of our efforts.  It must be great to be a superstar criminal defense lawyer.  For the rest of us, who haven’t managed to meet Dershowitz’s norm, it’s just hard work in the trenches.  At least we’re all fabulously wealthy.