Until today, I know of no collection of essays on the profession and the federal courts that merits mention. That drought has now been shattered with the publication of William Domnarski, SWIMMING IN DEEP WATER LAWYERS, JUDGES, AND OUR TROUBLED LEGAL PROFESSION, American Bar Association (2014). This beautiful book of essays should find a place in the briefcase of every federal practitioner.
Before I get to Bill, and the book, I want to concentrate on the form. (Judges are like that.) This is a collection of essays. That is important, very important. The author begins the preface with this keen observation:
My conceit is that it is with the essay, sometimes general and sometimes
familiar, that we can get closest to understanding the practice of law and,
by extension, the legal profession. Autobiography, biography, memoir, social
science studies, legal academic writing, and journalism have all contributed
to a rich literature that presents the practice of law and the legal profession,
but invariably individual texts are limited because they respectively explore
only parts of the larger whole. This is best seen in the vast literature of what
can be called the lawyer’s life. Essays that draw on the individual studies
in the different disciplines and genres, on the other hand, can cover vastly
more territory and can provide, perhaps, the only chance at understand‑
ing the issues and even adventures that sketch the lawyer’s life, with the
further byproduct from this that the reader better understands the broader
If you doubt the power of essay, you haven’t read Edward O. Wilson’s Letters to a Young Scientist, a collection of letters (essays) that have influenced the lives of thousands and thousands of scientists both young and old. Although different in tone, SWIMMING IN DEEP WATER is that kind of book for lawyers.
Who is William Domnarski? Well, he is a lawyer (a real lawyer, by the way). He also holds a Ph.D., from the University of California, in English literature. He is a prolific author. See here (click on books, essays and articles.) He is highly regarded as evidenced by the fact that he is currently under contract with the Oxford University Press to write a judicial biography of Richard Posner.
Now, to the book.
There are fifty essays alphabetically listed by title. There are forty‑one essays about lawyers, which include three about the effect of certain judges
on lawyers. They can be arranged into ten groups for the reader looking to pursue
a particular theme or subject: (1) the profession as organized, (2) law‑
yerly tasks, (3) lawyer civility, (4) legal fees, (5) lawyer clothes and offices,
(6) reading and writing, (7) thinking like a lawyer, (8) lawyer arrogance,
(9) the nature of lawyering, and (10) lawyers and judicial unpleasantness.
There is even an essay on “Dressing for Success” discussing the way lawyers dress and what signals they are sending with their sartorial choices. Bill tells me that he wishes I would have written my post on women and courtroom attire earlier so he could have referred to it, but he holds his cards close to the vest on whether I would have liked his discussion of my failed attempt at humor. Bill is a tough guy, and he pulls no punches.
Importantly, there are also essays on judges. Domnarski does not shrink from skewering judges. I like that about the book. In one essay on judges entitled I am right because I say I am, the author introduces the subject of “black robe‑itis”:
Oddly enough, given the significance of the topic, almost nothing has
been written about the phenomenon of judicial ego and arrogance that
gets at its significance. We have all seen examples of both, yet commen‑
tators rarely take on the topic of these twin excrescences. For something
so important, there should be discussion, not in the courtroom of course,
where judges rule and would not allow it anyway, but in the general dis‑
course about the legal profession and the fair administration of justice.
We need not worry about the ethical rule keeping lawyers from criticiz‑
ing judges, which applies to lawyers criticizing judicial performance in
their pending matters. Besides, a discussion of judicial ego and arrogance
is not even criticism per se. It is just an exploration of the phenomenon
known as “black robe‑itis.”
Knowing that humor is the best antidote to arrogance, Bill writes:
There have been several formulations or definitions of black robe‑itis.
Many go to the idea that the disease, if we can call it that, allows judges
to let their own sense of self‑importance cloud their good judgment. More
define it as a phenomenon in which judges believe that their judicial appoint‑
ments have made them god‑like creatures unapproachable by mere humans.
An especially good formulation appears in what is known informally as
the federal judge song by a group of lawyers billing themselves as the Bar
and Grill singers. One apparently unhappy federal judge described the song
in an opinion as “a derisive ditty going around the courthouse” set to the
music of “Happy Together” by the Turtles. It captures the sensibility in
question nicely. We can sing along to “[i]magine me as God. I do/ I think
about it day and night./ It feels so right/ To be a federal district judge and
know that I’m/ Appointed forever.” The chorus is even better: “I’m a fed‑
eral judge/ And I’m smarter than you/ For all my life./ I can do whatever I
want to do/ For all my life.”*
The essay proceeds apace and it gets even better. Now, I know I use bad words too much. I admit that. But, I fucking love this essay. Hell, I fucking love this book.
Late Addition: You can hear the song here. (Thanks Mike A.)