Former Watergate prosecutor and friends reflect on life in ‘Legal Briefs’

Episode Notes

Transcript

Lee Rawles:

Welcome to the Modern Law Library. I’m your host, the A BA Journal’s Lee Rawles. And today I’m joined by Roger m Witten, author of the book Legal Briefs, the Ups and Downs of Life in the Law. Roger, thanks so much for joining us.

Roger M. Witten:

Glad to be here. Thank you.

Lee Rawles:

So Roger, while I was reading the book, I was reminded of the many volumes of stories like Soup for the Soul that were around my house growing up. To me, there’s a kernel of that in legal briefs, and I’m just curious, how did you come to conceive of and decide you needed to write this book?

Roger M. Witten:

Well, first of all, I retired, so it created space to think about it. I had, from time to time, I had two thoughts that I didn’t recognize as being related. One was that I had a lot of friends and colleagues who had great stories to tell that would be interesting to lawyers and non-lawyers alike. And the second thought was that the profession was in need of improving its image. And at some point, those two thoughts morphed into the idea that an anthology composed of interesting stories for the general public would not only be fun to read, but might enable people to understand what good lawyers do and what they contribute to society.

Lee Rawles:

And I would say one thing for listeners to know is each chapter is written by a different contributor, although you contributed several chapters, but you’re getting different perspectives. They are quick reads. I would say you could pick up or put down this book at just about any point. And that was my experience as a reader. Was that your intention?

Roger M. Witten:

Yeah, in the past have referred to that as being G Grable. You can graze through this book, you don’t have to read it in order.

Lee Rawles:

And I think that that’s what really strongly reminded me of the Chicken Soup for the Soul type books. You can just have it out, pick it up, flip to a chapter, read and move on. But you do have an organization in here. You divided into three sections, events, people, experiences. Could you talk about how you decided on that organizational structure?

Roger M. Witten:

Well, to tell you the truth, I’m not totally satisfied with the way I decided on it. The problem was that many of the pieces could logically go in all two or three, sometimes just one of the chapters. And I’ve looked back at the order and scratched my head as to why I put certain things somewhere. So I wouldn’t talk a lot about that.

Lee Rawles:

About, well, you had a lot of people with some very distinguished careers contribute to this book. And so there’s a mixture of getting sort of behind the scenes looks at some very high profile things. The nine 11 commission, you yourself, you were an assistant Watergate special prosecutor, and then more sort of everyday experiences. I would love for you to just sort of recount for listeners the chapter or the story you told in the chapter A standup guy.

Roger M. Witten:

Well, this is a story about a lovable but irascible rogue. He was a guy who came up on the wrong side of the streets. He was in trouble as a young person. And during Vietnam, he joined the army and it turned him around. He was promoted, he was decorated. He came back, he went to college, he got a job. He was even informal member of a presidential transition. And in the course of that work, he met a guy, another guy who gave him a securities tip about a merger that was in the offing. And the other guy, and let’s call him Ted, bought the stock right before the merger was announced and turned a great profit. They didn’t know that the SEC at that time routinely checked for major trades just in advance of the release of a significant corporate development. And an investigation began.

The other guy fessed up and incriminated Ted. Ted was what he called. He called himself a standup guy. He lied and said that they had overheard the news about the merger at a Georgetown bar. Now no one would believe that story and no one did. And he came to us and there wasn’t a whole lot we could do for him except we came to learn that he knew of a second criminal enterprise that was more high profile than the first one about which the government knew nothing. So we thought we could maybe get a better plea bargain if we offered his testimony on this second issue. The government accepted the idea, but wanted to make sure that Ted was telling the truth. So they conditioned the deal on his passing a lie detector test. We decided we’d give ’em a lie detector test ourselves to practice, and the results were not terribly encouraging. But Ted, who from the beginning called me wit List said Wit lists, don’t worry, it’ll all be all. So we went into the FBI, we held our breath. He took the test and pass with flying colors, leaving us scratching our heads. Now a normal person would stand down at that point, but Ted went to a Georgetown bar and hung a banner that said, Ted won FBI. Nothing.

Lee Rawles:

Yeah, definitely do a victory lap. Ted. I just personally, I was reading this and I thought, oh my goodness, most lawyers reading this will have had that sort of like you said, irascible type of client where you’re like, oh buddy, why? Every time you call them, you’re sort of holding your breath a little bit. Like, oh no, did he get into more trouble? But then you form this relationship through working with each other. And at the end, you said, for many years he still continued to send presents to your daughters.

Roger M. Witten:

He did indeed.

Lee Rawles:

So you do make a point to include these more personal working stories, but as I mentioned earlier, there are some very high profile things discussed. Could you talk about approaching some of your colleagues to contribute? Were you specifically say going to a friend because you knew that he had done work with the nine 11 commission, or were you just approaching people and saying, Hey, you want to tell a fun story about your career?

Roger M. Witten:

Yeah, good question. Virtually all the authors were friends or colleagues of mine from college or law school or Watergate or practice at Wilmer Cutler and Pickery, now Wilmer Hale. So I knew who they were and what they had done. I didn’t lean on them too heavily to write about the hyper profile matters. I gave them a fair amount of discretion in choosing a topic, although we had to negotiate with some of them because I knew they would come through with interesting behind the scenes inside look at great events of our time, and they came through.

Lee Rawles:

And you mentioned that a big part of your aim was not just to tell stories like we hear at lawyer based cocktail parties. In your introduction, you actually have a sentence that says, who knew lawyers had good stories to tell about the ups and downs of their lives and the law? And I’m like, I know that because I’ve hung out with lawyers. But your point is, many people in the general public, their interaction with lawyers, if it’s at a personal level, it probably came during a time of their life that was very stressful or that they were going through some sort of crisis, or they see media depictions and think, oh, well, that’s what the profession is. That’s what a life in the law is. And you very much want to reach these people. So I’m opening up the floor. If you just had an elevator pitch to talk to the American public about why lawyers are of use to society, why they should be interested in the work that lawyers do, I would love for you to make it now.

Roger M. Witten:

Well, I don’t know how good a speech I can make, but what I tried to portray here was lawyers confronting difficult problems and solving them, whether it was how to get a sovereign debt deal done in Zaire when and the leader of the country, Mr. Mabutu was spending his time in Swiss resorts, or whether it was trying to negotiate with the White House to get on behalf of the nine 11 Commission to get critical evidence relating to nine 11, or whether it was Lloyd Cutler and Charles Ky who were on opposite sides of a big case involving the bankruptcy of the Penn Central Railroad work together to solve a problem that enabled conrail to be formed in Amtrak as well. And those are just a few examples of lawyers intelligently and fairly working out problems in the interest of their clients and in the public interest. Do the elevator go?

Lee Rawles:

Yeah, no, I think ding, ding, ding. It’s going up. One thing that I think makes this book particularly timely is because of the work that you did in your career, the circles that you ran in, like you said, you reached out to people you knew many of the people who contributed were talking about work they did either for the government or concerning government matters. Now, just to ground our listeners, you and I are speaking together on January 31st. There is a lot of turmoil right now in the political system, a lot of change that may be coming for government lawyers, government employees. And I just wanted to talk to you about both what it has been like to practice in this area where you’re dealing very much with the government and the importance of our system of government to the American people.

Roger M. Witten:

Well, that’s a big Question, Big set of questions. You may know that I practiced in Washington for a couple of decades before I practiced in our New York office. And so the practice I developed was very Washington oriented. And so the people I got to know were Washington oriented, and the lawyers I knew were expert in the ways of Washington, whether it be the regulation of telephones or anything like that. So this is skewed intentionally to look at the contributions of Washington. It’s by no means a monopoly on that. There are plenty of good lawyers in New York and some of them are represented here. Mark Kessel from Sherman and Sterling, Bob Heim, Richie Davis. There’s a good New York representation here. So I got a mix.

Lee Rawles:

Well, one of the things that I think is useful, especially like you say when you’re targeting a book to the general public is I am used to seeing represented in pop culture, a lot of criminal justice attorneys and their work, whether it’s defense or prosecution, everyone’s seen a law and order episode, but some of the most consequential legal work is not done in that area. It is done in the civil, the administrative. And I just thought that this book does a really good job of showing you law that is not necessarily about the criminal justice system.

Roger M. Witten:

Right, right. There’s one good piece in here by Stuart Rson, who was the Assistant Attorney general in the Department of Justice who talks about, and we talked about this book being timely. He talks about the prosecution of public figures, what the obligations and the ethical concerns are for government lawyers. That’s very timely. And my piece about Watergate is timely in its own way.

Lee Rawles:

We’re going to take a quick break to hear from our advertisers when we return. I’ll still be speaking with Roger m Witten about legal briefs, the ups and downs of life in the law. Welcome back to the Modern Law Library. I am here with Roger m Witten, author, editor of Legal Briefs, the Ups and Downs of Life in the Law. So Roger, one of the most formative experiences in your career was as an assistant Watergate special Prosecutor. Could you talk a little bit about that background?

Roger M. Witten:

Sure. Let me start by telling what I think is a wonderful story of how I got the job at Harvard Law School. I took constitutional law for Marchal Cox for my second and third years and wrote papers with one of the co-authors that contributors to this book, Jim Quarrels. And we did well enough in the class of that. Cox knew us. Jim had gotten a clerkship with a district court judge in Baltimore, which was his hometown. And by coincidence, Archie Cox recommended me for a clerkship on the court of appeals for the fourth Circuit with the judge in Baltimore. And I took that job and enjoyed it immensely. But about three months or so before it was to end, Archie Cox was named the Watergate Special Prosecutor, and Jim Quarles and I spent a weekend agonizing over the issue whether we could apply for a job there and leave our judges clerk list without us.

And we decided we couldn’t leave the judges and we shouldn’t leave the judges. And that’s where it sat until Monday morning, judge Winter came into the office and asked me to step into his room and he said, Roger, if I were a young man, I’d like to work for Archibald Cox. Would you have any objection if I wrote him in saying you were immediately available? And Jim’s Judge, judge Kaufman did the same thing, but a couple months later, and that led into Watergate. I had no previous idea of being a prosecutor, but I learned from experience and it was a formative career experience because out of it came my interest in and success in practicing white collar law, particularly with regard to the Foreign Corrupt Practices Act and other civil litigation. So it was essential to who I turned out to be.

Lee Rawles:

Well, I love that your judge was essentially like, Roger, are you being serious? Come on now. Thank you. Get out of here.

Roger M. Witten:

It was a great thing. He did.

Lee Rawles:

So you had this experience as a assistant Watergate special prosecutor, and then you went into government law. As I mentioned, there’s a lot of turmoil right now. What do you think are some of the lessons that you learned, especially from the time of Watergate that you think people need to be keeping in mind right now?

Roger M. Witten:

Well, I find the current situation to be abominable at a minimum. I think that the government lawyers who by and large are career folks who have expertise and are fair and reasonable, are in peril. We seem to be exchanging experience for loyalty, and I wouldn’t want to be a government lawyer in a senior position these days. It’s unhealthy, to say the least.

Lee Rawles:

Well, in addition to developing this expertise in the Foreign Corrupt Practices Act, you took part in some of the litigation surrounding campaign finance reform, including with the McCain Feingold Act, and I’d love to hear a little bit about what you learned from that before Citizens United overturned the McConnell case that you were involved in

Roger M. Witten:

The McConnell case was one heck of a ride. We had Senator McCain and Senator Feingold had two or three previous sessions of Congress tried unsuccessfully to get the bill passed, and then it looked like the bill would pass it in, I think third term. And we decided that it was clear that it was going to be challenged, that we would start to work on the defense before the suits were filed, and we had an opportunity to go over the legislation with our clients and recommend changes that would improve the chances of getting a successful outcome from the courts. So the lesson there is you don’t have to take the world as it is. You can try to change the setting in which you’re practicing. So what did we do? Among other things? We inserted into the statute a provision that gave Congress people, including the senators, the right to intervene as a party in the court, which gives them a much bigger role than they would have as an amicus qe.

And we wanted to make sure that Senator McCain and Senator Feal and the Congressman who joined them had a hand on the wheel in the litigation. The second innovation was because time was important, we didn’t want to go through three stages, the normal three stages, district court, court of appeal, Supreme Court. So we had the district court sit not as it usually does with one judge, but with three judges with a direct appeal to the Supreme Court, skipping one whole year’s worth of work. The other lesson I learned was watching Senator McCain, he was a hero and he believed in campaign finance reform. He had had a brush with problems earlier in his career. He learned and grew, and sadly, president George W. Bush when he signed the legislation, didn’t invite McCain to the White House. We’re fine goal.

Lee Rawles:

Well, we’re going to talk more about learning and growing when we return after this message from our advertisers. Welcome back to the Modern Law Library. I am here discussing legal briefs, the ups and downs of life in the law with Roger m Witten. Well, Roger, we already talked about how really the main focus of the book is to introduce a lot of these concepts and behind the scenes looks to the general public. But as I was reading a lot of these very interesting retrospectives from many people’s very impressive careers. I was also thinking about young lawyers today. If a young lawyer, maybe even a law student is picking up this book, what do you hope they’re able to take away from it?

Roger M. Witten:

Well, I had that in mind. I’m glad you asked. I was recommending in my old, they haven’t agreed to do it yet, that we give the book to new recruits. And because I think it opens up vistas as to what kind of lawyer you may have the option of being and holds out examples of work that is both intellectually satisfying and in a client’s interest and in the public interest all at the same time. Not every one of the cases you’re going to get as a lawyer meets that, but there are opportunities, and I think this kind of will be an eyeopener for young people who think they’re interested in the law but don’t quite know what they do with it.

Lee Rawles:

And the part about not quite knowing what you do with it yet, I felt reading a number of these that there could be almost a theme in here that some of the most interesting and rewarding work you do in your career might not be the work that you thought setting out you would be doing, or the most rewarding experiences are important. Formational experiences might involve stretching yourself in an area that you didn’t realize you were going to want to practice in. Did you see that as well as you were putting together the book and editing the essays?

Roger M. Witten:

Yeah, and I saw it in my own career, in the career of colleagues that some new thing would happen and you’d get thrown into it. You had no idea you’d be head in that direction and you’d get to be good at it, and then you get to be an expert at it. And it seems like you’ve been doing it all your life.

Lee Rawles:

Well, legal briefs has been out since last year, and I’m just wondering what has been the response from people who’ve been able to pick up the book themselves?

Roger M. Witten:

All the feedback I’ve gotten has been positive. Now people wouldn’t call me up and say The books sink. So yeah,

Lee Rawles:

Well, enemies might Roger. I don’t know.

Roger M. Witten:

The book has sold enough, but it hasn’t been a bestseller. But the people, 200 friends who’ve bought one or more copies, and they all have given me very positive feedback and encouragement. In fact, a lot of friends ask me whether there’s going to be a second volume.

Lee Rawles:

You know what? And we’ll

Roger M. Witten:

Have to see about that.

Lee Rawles:

Yeah, that’s one of the questions I had. This being a retirement project, well, it’s done now. What’s next for you? Do you see yourself maybe putting together a second collection or is there a new project on the horizon for you?

Roger M. Witten:

No promises.

Lee Rawles:

I don’t know how much work was involved in putting together the book and would love to hear about that. When you look at how long it took from the germ of an idea to actually putting it together and getting it in print, what was that like for you? And do you have any advice for anyone out there, other attorneys who have been thinking, Hey, you know what, I have a lot of wisdom to share for my career. I would kind of like to do a project like this. Any advice for them?

Roger M. Witten:

Do it.

Lee Rawles:

Just do it.

Roger M. Witten:

Just do it. The book took, oh, a year and a half or two years, I’ve floated the idea with friends and got some encouragement and people told me I needed an agent. I couldn’t get an agent. They weren’t interested. So I just set out on my own. And the first hurdle was recruiting the authors. I wanted the varsity, not the freshmen team. And the varsity guys in the varsity are busy.

Lee Rawles:

They’ve got stuff to do. These are very important people.

Roger M. Witten:

So they weren’t all available, although they were all supportive. So that getting a critical mass of 19 authors was both critical and time consuming. Then I had to negotiate with each one about what they were going to write about and how they were going to write about it. And generally, I gave them a lot of leeway as long as it was one law related, two short and three written in a style that was accessible. And I finally got agreement with all the authors on their topic. And then I set a deadline, silly me for getting a draft, and that was like herding cats, except these were very exotic cats or herd. But finally, I edited each story at least twice. We ended up, I found a publisher who thought the book was worthy, and we put it together. He designed the cover, which I thought was really good, and off we went.

Lee Rawles:

Well, and when it comes to the editing process, having edited many, many lawyers before, I do know the challenge of getting them to write for a more general audience. And I think that you were able to really do that pretty well. There were a couple moments where a lay person may need to pick up a dictionary or look something up, but in general, you were able, I think, to get the language to be understandable and accessible to the level that you wanted it. But I’m not surprised that it took at least two pass throughs.

Roger M. Witten:

Yeah. Well, I’m glad you said that. What you say is consistent with what I heard from others, which was generally the book was readable and enjoyable. There were a couple spots that were not so accessible, and I regret that.

Lee Rawles:

Well, if someone wants to pick up legal briefs, the ups and downs of life in the law, how could they do that?

Roger M. Witten:

Well, it’s being sold by Amazon and by other online booksellers. There are a handful of bookstores that have had it and may not stock it, but would order it. And I’ve got a stash here in New York in my apartment, and I’d be glad to ship ’em out to people who contact me at Roger m [email protected]. R-O-G-E-R-M-W-I-T-T-E-N.

Lee Rawles:

Well, thank you so much, Roger, for joining us for this episode of the Modern Law Library.

Roger M. Witten:

Thank you, Lee.

Lee Rawles:

And thank you to my listeners for joining us for this episode. If you have recently read a book or want to hear from an author on a future modern law library episode, you can always reach out to us at books at ABA Journal dot com. And if you enjoyed this episode, please rate review and subscribe in your favorite podcast listening service.