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
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
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
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.
* © 2000 by Bruce J. Winick.