What law school ought to be.

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PREVENTIVE LAW AND PROBLEM SOLVING: LAWYERING FOR THE FUTURE
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How I Learned to be a Preventive Lawyer

Bruce J. Winick (1)

I was a law student at N.Y.U. Law School during the late 1960's at the height of the Vietnam War. It was a time when the tide of opinion concerning the conduct of that most controversial war had begun to turn. Our generation questioned the wisdom of the war, protested our nation's involvement, and took to the streets to demand an end to a war that many regarded as immoral.

As an undergraduate and then a law student, I received yearly student deferments by which I managed to avoid the moral crisis that being required to participate in the war would have made me confront. But the day of reckoning was nearing. I would graduate soon, and would still be two years away from being too old to be drafted.

I thought of myself as a conscientious objector, but knew that my Brooklyn draft board would never grant me that status. Leaving the country for Canada or elsewhere as some were doing at the time was something I would not do because I loved my country and the principles upon which it was based, even if I found its foreign policy at the time highly objectionable. Refusing induction if drafted, and going to prison as a consequence, seemed an extremely high price to pay for my principles, particularly since it would have sacrificed the law career I had trained for. My draft lottery number was in a middle range, leaving me exposed to a very plausible risk of receiving an induction order following law school graduation.

What was I to do? I was (or shortly would be) a lawyer, I reminded myself. Perhaps I could use my newly acquired skills to master the draft law and figure out a way to avoid being called to serve in a war that in the winter and spring of 1968, my last semester in law school, seemed increasingly to be impossibly wrong.

And so, I attended a draft counseling workshop in a nearby Greenwich Village church, read everything I could find about how the Selective Service System operated, and learned everything I could about the Selective Service law, regulations, and procedures. In the process, I learned that there were several deferments and exemptions for which I might qualify, and that presenting to my draft board a prima facia case for any of them would require the board to reopen my classification, and consider my entitlement to the deferment or exemption sought. If a request for deferment or exemption was denied, I also learned, I would have a right to take several appeals from the denial. First, I could request a personal appearance before the draft board to argue my case for the classification sought. Second, if that effort were unsuccessful, I could appeal to the Selective Service state appeal board. Third, if that step were still unsuccessful, I could appeal to the National appeal board. The appellate process would take many months and sometimes more, and even if I was unsuccessful, I could start the process again by then filing a new request for a different deferment or exemption than the one that had been denied. With a little luck I could run out the clock until my twenty-sixth birthday, when I would no longer be eligible for military service.

Rather than starting work at a law firm following graduation, I accepted a position as a full-time instructor at a mid-western law school, a position which could arguably qualify for an occupational deferment, although I knew that the argument would probably be unlikely to succeed with my draft board. After graduation, I waited for the draft board to reclassify me 1-A (available for induction), and then sought an occupational deferment. In due course, my request was denied, and I pursued my various appellate remedies. Although unsuccessful, I later was able to establish eligibility for a fatherhood deferment when my daughter was born a year and a few months later.

I had succeeded in lawyering my way out of my dilemma, and vowed to use my newly acquired draft law expertise to help other young men who, like me, were conscientiously opposed to participating in the war. During my year as an instructor, together with others, I started a student draft counseling service. We counseled many hundreds of students concerning their rights under the draft law and how they could avoid being drafted.

When that year was over, I returned to New York and joined a large law firm where I practiced in the area of real estate finance. I continued my draft law practice while at the firm, however, seeing many hundreds of young men and counseling them about how to avoid being drafted.

I had mastered the intricacies of selective service law. Many if not most of the young men I saw thought of themselves as conscientious objectors, and I counseled them on the preparation of a claim for conscientious objector status. Draft boards in that period almost never granted such claims, and I also therefore counseled them about other potential claims they might make and their appellate and other rights under the statute and regulations.

The draft boards were supposed to be "little groups of neighbors," volunteers who would assist the Selective Service System in processing classification claims. In reality, however, they often were composed of former veterans who saw their mission as conscripting virtually all the young men within their jurisdiction. Many draft boards were uninformed about the details of the various deferments and exemptions that the law allowed, were hostile to requests for them, and often failed to comply with the procedures mandated by the statute and regulations. In short, the draft boards often functioned in a blatantly lawless way, and could almost be counted upon to commit serious errors if given the chance. I therefore gave them the chance, counseling my clients on how to provide the rope by which the draft board would almost surely hang itself.

While uncounseled selective service registrants who did not know how to deal with their draft boards would frequently receive induction orders untainted by legal error, the letters and claims I submitted on behalf of my clients would almost always produce a legal error on the part of the draft board. Such legal errors set the stage for new rounds of appeals, and although these were almost always unsuccessful, would succeed in buying additional time until an induction order ultimately was issued. When an induction order was tainted by legal error, it was possible to point this out to higher levels at the Selective Service System or to the appropriate United States Attorney and sometimes to obtain a cancellation of the induction order and the opportunity to start a new round of claims for deferment or exemption.

I never lost a client. The secret was that I had mastered the complexities of the law and knew how to negotiate it on behalf of my clients. Clients came to see me who wished to avoid military service. By carefully explaining the details of the various deferments and exemptions they could conceivably apply for, I helped them to determine which, if any, they might seek from their draft boards, helped them plan ways of establishing eligibility for those claims, and counseled them on how to make them. I then shepherded them through the draft board and appellate process, laying traps for over-zealous local draft boards to commit error.

Although I didn't use the label at the time, I now realize that I was functioning as a preventive lawyer in my draft law practice. I was helping my clients to define their objectives, acquainting them with the various avenues they might pursue for their accomplishment, and helping them to pursue their rights and remedies with the relevant governmental agency. I was providing legal counseling, creative problem solving, legal planning, and facilitating the attainment of their objectives.

It was wonderful work, and looking back at it, I realize how fortunate I was to have cut my legal teeth in this area of practice. I learned much about how the law could be used to help the client achieve his objectives, and how to provide counseling in an inherently stressful context to facilitate their attainment. I was assisting people to achieve their goals while minimizing their exposure to legal risk, including the risk of facing a criminal prosecution for refusal of induction.

Facing such a prosecution produces intense stress, anxiety, and fear, and sometimes also depression and despair. The uncertainty it creates is sometimes hard to live with. Being a criminal defendant also is stigmatizing, injuring a client's reputation in ways that could cause the loss of a job and at least some future occupational, educational, and social opportunities.

In addition, the risk of conviction for refusal of induction was high. The prosecution needed to do no more than introduce the selective service file into evidence and prove that the registrant had failed to report for induction or refused to accept it. And challenging the propriety of the draft board's having denied a requested deferment or exemption was extremely difficult. The statute imposed the narrowest possible scope of review for judicial scrutiny of draft board classification decisions. Only if there was "no basis in fact" for the board's denial of the requested classification could the court find him not guilty on the basis of a classification error. A note recorded in the registrant's selective service file that the local board had found his conscientious objector claim insincere, for example, could constitute a basis in fact for the board's decision denying the exemption and could preclude the trial judge from finding the induction order invalid even if the judge thought the board was wrong on the merits. Refusal of induction also carried a penalty of up to five years in federal prison, and probation was rarely awarded for draft law convictions. Helping the client to avoid a criminal prosecution was therefore itself an excellent example of preventive law.

Preventing induction into the armed services was also an important preventive law goal for the client. Induction into the military constituted a significant deprivation of liberty. Freedom of expression was limited in the military, as was the exercise of many other rights. Army life was following orders rather than making choices, and involved regimentation, discipline, and often harsh and painful conditions. And it involved its degradation rituals, including the short army haircut. Moreover, for conscientious objectors, being a part of the military constituted a participation in the war effort, which violated their moral and religious principles.

Obtaining a deferment or exemption for the client on an administrative level, or using a client's procedural rights to avoid the issuance of an induction order until his twenty-sixth birthday (when he would become ineligible for the draft), and thereby avoiding either induction or criminal prosecution thus constituted a most valuable preventive law service for the client. Sometimes, however, victory at the administrative level was not possible. In such cases, the client might face the two largely unacceptable choices either of accepting induction or facing the risks of criminal prosecution. To avoid this dilemma, creative selective service lawyers developed another alternative - the pre-induction challenge to the draft board's induction order through a civil action filed in federal district court seeking a declaratory judgement that the order was invalid, enjoining in induction until the court could hear the challenge, and sometimes seeking mandamus relief requiring the local board to grant the client the classification sought. If successful, such direct judicial review of selective service action (as distinct from the collateral review that would occur in a defense to a criminal prosecution for refusal of induction) could achieve the client's objectives by testing the validity of the board's actions while avoiding the necessity that the client either accept induction or refuse it at risk of criminal prosecution. I helped to pioneer this new procedural mechanism, litigated one of the key cases and won it in the court of appeals, and wrote about it in a law review article that gave other lawyers a full explanation of how such pre-induction actions could be brought.

Practicing preventive law in the selective service context, I learned, also brought some special dividends. It provided a real opportunity to help people achieve what I considered to be important goals, and they were intensely grateful for the service. Some clients would visit me only after they had received and induction order, and thought that their choices were limited to either going to prison or leaving the country. Helping them to navigate through such treacherous waters and to avoid this dilemma was something that would change their lives, and they were greatly appreciative. There therefore was a high level of client satisfaction and gratitude that was palpable.

The contrast to the reaction of my clients at my law firm to the work I did for them was startling. It was a transactional practice, and the clients were always anxious to close the deal. Representation of such clients often required a good deal of skill and craft, and often saved or gained the client substantial sums of money. But they rarely seemed satisfied or even grateful, certainly not in the way that my selective service clients did. I felt that I had made more of a human connection with my selective service clients than with my business clients, who largely regarded me, a young associate in the firm, as a transactional cost. I felt that I was really helping my selective service clients, and experienced a high degree of personal and professional satisfaction in the work and the result I was able to obtain for them. I just didn't feel this way in my representation of my business clients, and I ultimately left the firm to do public interest work and then to teach.

Looking back at the period when I practiced preventive law in the selective service context makes me realize how formative that practice was for me. It taught me much about lawyering and about preventive lawyering, much about the role of lawyer as planner and facilitator, as creative problem solver and creative problem avoider. It taught me to regard law as a helping profession, and showed me the joys of helping people with my professional skills. It taught me much about dealing with clients experiencing great stress, anxiety, fear, and other strong emotions, about how to convey empathy in the lawyer/client relationship, and about how to empower the client. It was my introduction to lawyering, and as such, has colored everything that has come thereafter. I now teach and write about preventive law, and seek to convey to my students the important lessons I learned in my selective service law practice.

1.

* © 2000 by Bruce J. Winick.