Erwin Chemerinsky
The legal scholar talks about his quest to free Stephen Yagman and what it means to be a truly educated lawyer
In November 2007, combative Los Angeles civil rights lawyer Stephen Yagman was sentenced to three years in federal prison for tax evasion, money laundering and bankruptcy fraud. His sentencing hearing was a spectacle befitting Yagman’s reputation: With his attorney looking bewildered, Yagman orated for four hours – or near-Castro length – flatly accusing government lawyers of attacking him for having made his living by attacking them.
Yagman did not win the day. He lost, and called his old friend Erwin Chemerinsky to take his appeal. Chemerinsky, a celebrated appellate lawyer, was in the news last fall when conservatives tried to keep him from getting the job as founding dean of UC Irvine’s nascent law school. In a matter of five days, the legal scholar had been hired, fired, and hired again. He’s been co-counsel with Yagman several times over the past two decades, including in attempts to win legal rights for Guantánamo detainees.
CityBeat caught up with Chemerinsky at his desk at Duke University to ask him about his friend Stephen Yagman, his hopes for the appeal and his plans to reform the way lawyers are educated when UC Irvine’s School of Law opens in August 2009.
–Ashley Archibald
CityBeat: What made you decide to take on the Yagman appeal?
Erwin Chemerinsky: I really don’t have anything profound to say. Stephen Yagman has been my friend and co-counsel for over 20 years. We’ve worked together over many cases, and when he asked me if I would handle his appeal, of course I said yes.
What kinds of cases have you worked on together?
I handled an appeal of a case about the shooting of a Los Angeles police officer, probably that would have been in the early 1990s. I handled another appeal a few years ago, a civil rights case he had worked on. I did an appeal where he had been initially disqualified. I was co-counsel with him in the Guantánamo detainees trial.
You’re also teaching at Duke and making the switch over to UCI. Are you concerned you won’t have the time?
I’ve always, for more than 20 years, handled criminal and civil appeals [concurrently with my teaching]. On May 9 I’m going to argue in the D.C. circuit the Valerie Plame Wilson/Joseph Wilson case against Cheney, Rove, Libby and Armitage. I argued a punitive damages case in the California Court of Appeals in January, and I’ve always done death penalty cases in North Carolina. I argued a human rights case in Ninth Circuit last July.
During the original trial, Yagman held materials back like the wills and the fee agreements. Are you at all concerned you might have similar problems? Hello?
I’m still here. I’m just trying to answer that in a way that’s consistent with lawyer-client privilege and my duty to my client. I can say that an appeal is limited to the issues raised at trial, and I believe we have strong appeal-able issues.
Can you comment on Yagman’s performance, his four-hour speech at his sentencing hearing?
I don’t have any comment.
Do you think that Yagman received a fair trial or even could have been given one considering his personality and reputation in the Los Angeles community?
It’s not in my client’s interests to say anything about that. Imagine I win on appeal and it goes back to the same judge. If I say in print that he didn’t get a fair trial, it won’t do any good. So I stick to the best possible answer, which is to say nothing.
Well, he doesn’t have the best reputation with judges since he’s been fairly abrasive to them … .
I think that there are many judges who tremendously admire and respect Steven Yagman, and some of them have said that in published opinions.
Ha, I’m trying to think of some way I can phrase things so that we can have this conversation.
Well, you ask whatever you want and I’ll answer as I’m allowed to do.
Do you think, quite frankly, that Yagman is a bigger target because of the work that he’s done, especially with regards to police?
Yes, yes. I believe that he was targeted because he’s an outspoken civil rights lawyer.
How would you describe Yagman?
My experience working with him has been wonderful. He’s passionate, his heart is always in the right place, he’s creative. He’s a very smart man.
What about his style do you not necessarily appreciate?
I’ll go back to what I said before.
What’s your plan of attack and how is it different from his original counsel?
It’s premature to say. I also have to be honest, I wouldn’t say at this stage. We’ll file our brief in early June and our strategy will become clear then.
How is the move to UCI going? There was some controversy about it this summer.
That’s very much in the past. I’m incredibly excited about it. I’m teaching at Duke full-time this semester and I’m moving at the end of June and I officially become dean July 1.
What do you want to do that’s different at UCI?
We have a wonderful opportunity to create our dream law school. We’re part of a wonderful university, terrific commitment of resources from the chancellor and the provost, and I think this is the chance to create the law school of the 21st century.
I want to emphasize experiential learning — I think we can do a better job training lawyers — and I want to do more interdisciplinary learning. Lawyers need to know more about other disciplines than law students have been traditionally taught.
What benefit do you see in that?
I think that the bottom line is that we can do a lot better job of training lawyers than law schools have traditionally done.
How so?
I’ll give you an example. Can you imagine if a medical school trained doctors without the students seeing patients while they were in medical school? And here, most law students graduate without ever having seen a client. I want to require that every student get clinical experience, much more in the way of skills training. I want to do more about having law students trained in other disciplines, like psychology or economics that they can use in their practice.
Did you have that sort of experience in law school?
No. I think that law schools do a very good job of teaching students how to read cases, how to understand legal doctrine, how to formulate arguments based on legal doctrine. Law schools do a very poor job of preparing students to practice law.
Is there some sort of liability in letting students run big cases?
Not if they’re closely supervised by a faculty member. I, for example, had a group of students under my supervision handling a case in the fed court of appeals. One of the students argued the case. The students wrote a terrific brief and the student who argued did a wonderful job.
Do you think that society’s opinion on lawyers has changed or can change? The phrase “blood sucking lawyer” is still relatively common.
Lawyers have always had a negative public perception. Shakespeare had a line, “First thing we do, let’s kill all the lawyers!” I think there’s a line in the Bible, “Woe unto you, lawyers!” or something like that. Some of that is inevitable. People see a lawyer only when they’re in trouble. Somebody in their family has a legal problem or someone died and they need their will prorated, they got fired and they want to see a lawyer. Some of it is a misunderstanding of the lawyer’s role. I think some of it is that we can do a better job in instilling a sense of public service into our law students.
I think we need to do many things. I think that many students hear about public service from the dean who welcomes them the first day and from the commencement speaker at their graduation on the last day. We could do much better within the school.
Do you think there’s not enough of an emphasis on ethics?
Too much about teaching ethics in law school has been about learning enough to pass a multiple-choice test on ethics that all law students have to pass.
Do you think this new vision of a law school could inspire others?
I don’t know. Change is difficult. My goal is to create the best possible law school that we can. If we do things that work and other schools want to copy it, that would be wonderful, but that’s not how I’m approaching it.
Published: 04/09/2008
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