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Litigation Journal

Spring 2022: Embracing Change

Citizen Lawyers (Retired)

D Alan Rudlin


  • Practicing before these specialty courts, with their distinctive procedures, presents challenges for litigators.
  • The FISA courts are becoming more transparent after recent legislative reforms.
  • Litigation in these tribunals primarily involves the members of the nation’s intelligence community.
Citizen Lawyers (Retired)
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There comes a time in every trial lawyer’s life when the idea of retirement appears on the horizon. Perhaps it comes in the afterglow of winning a particularly meaningful trial, especially before a jury. Or when you are no longer invigorated by the challenge of trial. Each day in court once made you feel alive, but the thrill is fading. Maybe you just want to leave at the top of your game. Whatever the situation, you will sense when the time has come. That is when you’ll need to call on your preparation skills for a very different kind of experience. Here are some thoughts on how to navigate the transition.

Take Six Months Off

My first suggestion: Put on hold being your professional, always prepared self and similar litigator instincts. Yes, much of your success has been due to your tenacious commitment to detailed preparation for every facet of your case. Resist the temptation to treat retirement as another big case, for which meticulous research and detailed planning are the answer. Apply those skills to the preparatory work, but once you are officially retired, give yourself six months of non-planning time to sort through what things genuinely interest you. Go ahead and take the long-postponed vacation, or be more radical and just let serendipity into your life. What you do is less important than what you don’t do. Skip the daily calendar and the list of agenda items. I will warn you that it’s not an easy process, as you adjust to the vacuum of client or firm responsibilities. You may feel an initial sense of vertigo in adjusting to the unscheduled life and perhaps a sense of loss of professional identity. As with any new sport or activity, slowly you will find your groove. Then it will be time to begin preparing for your post-retirement life. During the six months of decompression, you will start to pursue a variety of long-postponed things you always wanted to do if only you had the time. Maybe you’ll polish some of your existing skills or passions—golf, painting, woodworking, gardening, or writing poems, essays, or a novel. I suggest you consider two additional courses of action, both of which allow you to show appreciation for what you have been able to achieve in your career. As much of a self-made success as you are, my guess is other fortuitous factors may also have been at play. Make a plan to put your general gratitude into some kind of action to give back.

One is simple: If you haven’t already been doing some volunteer work for those less fortunate, explore the wide array of options in your community and seize one. I’m not referring here to legal pro bono volunteer work or serving on a board. Those are worthwhile, but I recommend you find something totally different. My own exploration led me to serve on our local food-bank emergency hotline to answer calls, emails, and walk-ins from people who didn’t have enough to eat. The idea that here in the richest country in the world we have adults and children who are hungry and don’t know where their next meal will come from struck me as surreal. Talking to people in that circumstance and helping them solve some of their basic food issues is as rewarding to me as walking out of a courtroom on some of the best days in my professional career.


My second suggestion is to share the hard-earned wisdom you’ve gained as a trial lawyer by teaching law students. I had done a wide variety of teaching during my professional career and found I enjoyed it. I taught as an adjunct at numerous national and regional law schools. Even more frequently, I was on the faculty of CLE programs with my litigator peers throughout the country. I had loved presenting creative ideas on how to litigate class actions, mass torts, defamation cases, the care and feeding of experts, Daubert challenges, the art of advocacy, appellate practice, and environmental litigation. Those subjects had been the staples of my teaching at law schools and CLE programs. Colleagues had told me that I was a good teacher. I also found that teaching keeps you sharp at whatever topic you teach. To teach effectively requires a clear understanding and ability to communicate a crisp distillation of your subject—the same skills all good trial lawyers have.

During my six months of not planning anything following retirement, I thought about what I would want to teach. Upon reflection, I concluded that I was no longer interested in teaching the trial and appellate skills courses I had enjoyed teaching during my career. Those familiar topics didn’t spark my interest any longer. I loved teaching and wanted to share my knowledge and challenge students, but I needed a topic that was more meaningful to me. During my six months of letting serendipity occur, the answer came to me.


I reflected on how often lawyers in America end up being tapped as leaders in a variety of non-legal contexts—in politics, communities, and corporations, and on profit and nonprofit boards. Law school does not teach us to be leaders. Law schools do an admirable job of teaching us “how to think like lawyers” and developing the critical analytical skills for various substantive specialties. Law schools generally do not consider instruction in leadership skills to be within their core academic mission.

Although leadership skills sometimes may be intuitive or genetically endowed, most “natural leaders” have learned those skills the hard way, as wisdom acquired over years of experience. As I observed the trend of lawyers being selected to fill major non-legal leadership roles in our society, I decided I could teach future “citizen lawyer leaders” in law school some leadership lessons, using a modified case study approach.

A very significant case had postponed my own retirement. It involved a will contest, and my client was the alumni association of one of our national military academies. The association’s largest individual bequest at that time was from the will at issue. I had litigated a variety of fiduciary and estate matters near the end of my career, and I was intrigued by the facts of this case, as well as the prospect that winning for the client would provide deeper financial resources to enrich the leadership skills of the academy’s students. I took on the case, promising the client to postpone my retirement plans however long it took to see the case through. It took three years before a successful jury verdict became final.

In connection with that case, I met former Army General and Presidential National Security Advisor H. R. McMaster. Around the same time, I read his first book, Dereliction of Duty, a compelling critique of the multiple surprising failures in our national leadership in the years 1960 to 1965, as America was drawn deeper into its misbegotten involvement in Vietnam. The Vietnam War had been a topic of long-standing interest to me. McMaster’s book was written from his perspective as a young lieutenant colonel criticizing the military joint chiefs for failing their constitutional responsibilities and instead becoming complicit in our national civilian leadership’s fateful choices to get deeper into the war. The candid criticism by a young military officer struck me as a courageous act of leadership in itself.

What really got my attention in McMaster’s book were the detailed facts about the former or current lawyers—highly credentialed and obviously smart—in senior leadership posts advising the presidents and cabinet members on policy issues and making recommendations on Vietnam strategy. McMaster’s book presented the case study I had in mind—the formative early years of America’s involvement in Vietnam, when a failure of leadership skills by the lawyers serving in national policy-making roles contributed to the war’s unfortunate outcome.

I could modify the traditional case study method of law teaching to use the leadership lessons from the first five years of America’s descent into Vietnam. If the course helped future lawyers who will become leaders do a better job, then I would give back something important that would add value to the law school curriculum and benefit society at large as well. I fleshed out my ideas in a concrete and digestible form by drafting a proposed syllabus, which I could use to persuade law school academic deans that adding the course made sense. The syllabus proposed the core concept of teaching leadership skills to prepare law students for the time when they would become leaders in society, using as a case study the missteps of lawyers in government policy leadership positions when America became mired in Vietnam from 1960 to 1965.

Leadership Seminar

I came to understand the barriers to entry into the traditional curriculum for my seminar idea: Law schools have tight classroom space and other logistical challenges. Some are constrained by perceived rigidity in American Bar Association accreditation standards on what constitutes appropriate legal education. The political shoals of legal academia were unfamiliar to me and presented impediments for acceptance of my proposed course into the curriculum. An idea to make the course a joint offering by the law school and another university department bogged down the process. I realized that just as many large law firms have departments that can create “silo” practice area issues, so too does academia.

I was fortunate to find a law school that recognized my proposed seminar as a worthwhile, if somewhat “outside the box,” offering. The law school was William & Mary, founded in 1779 at the request of Virginia’s then governor, Thomas Jefferson, and given life by its first professor, George Wythe. Jefferson and Wythe set a primary goal of their new school to train “citizen lawyers,” who would make a difference for the better in government and society at large. One of the school’s first students was the future chief justice John Marshall. My course had found a home. I have now been teaching the seminar for five years, and it has been a wonderful experience. I have used Dereliction of Duty as the primary text, with various supplemental reading assignments. We cover fateful leadership choices made from 1960 to 1965, identifying at each stage where better leadership skills might have avoided the impending disaster and produced different outcomes. Instead of trial or deposition transcripts and interoffice emails, we study some remarkable recordings and other records of the policy discussions by the legally trained advisors making recommendations to Presidents Kennedy and Johnson. Three very bright lawyers from top schools were asked to develop for the presidents what the country’s strategy steps should be. They developed poor advice, flawed in large part because it was based on the fallacious notion from their legal training that the adversary is a reasonable actor. They were classic examples of lawyers who, having been trained in law school to solve a problem with a hammer, saw the problem as a nail. The classroom discussion notes that these legally trained leaders were among the “best and the brightest” in terms of pedigree, intelligence, and background, yet they lacked fundamental skills of leadership, skills that the students themselves may be suddenly and without preparation expected to have if they are called upon as future lawyer leaders.

Our study is informed by George Santayana’s comment, “Those who cannot remember the past are condemned to repeat it.” I emphasize that legal training and ways of “thinking like a lawyer” should complement the development of broader leadership skills to prepare the students for service as future leaders. We explore the conventional idea of a lawyer’s role focusing on a client’s interests and whether it may be too constricting. “Thinking like a lawyer” should not become a rigid shackle. To be a good leader, and lawyer, sometimes may require a broader perspective. I provide examples in which the lawyer goes beyond giving advice on whether the client can legally undertake certain actions to address whether the client should undertake such actions. We study how generally accepted principles of legal ethics support the students’ development as citizen lawyers. The course materials include the national and international statements of principles of professional ethics that support a lawyer’s consideration of interests beyond the immediate client’s. For example, the preamble to the American Bar Association Rules of Professional Conduct recognizes that a lawyer may be an advisor, advocate, negotiator, and evaluator. The vision for the profession as set out in the preamble is one of leadership beyond practicing law: “Lawyers play a vital role in the preservation of society.” Similarly, the United Nations Basic Principles on the Role of Lawyers recognizes lawyers’ responsibility for upholding cultural, social, political, and civil values. This is a lofty vision of leadership and far broader than the narrow constraints of “What does the client want?”

The course is enriched by invited speakers, lawyer leaders from various roles in society, including former law school deans, college presidents, the head of the Federal Bureau of Investigation, judges from state and federal trial and appellate courts, prosecutors, and senior corporate counsel. The guest speakers talk candidly about leadership skills for lawyers, both in representing clients and when they may serve as leaders themselves. Through the combination of the academic coursework I assign and the personal experiences they hear from contemporary leaders who were or are lawyers, my students learn important leadership lessons. If just one of my students becomes a policy leader and employs some of what the course teaches about good leadership skills when confronted with a challenging issue, I will have repaid some of my debt for the good lessons in leadership my own experiences and education gave to me.

Litigators are superb problem solvers. Apply that professional skill set to whatever you identify as a critical problem our society needs help in addressing. It might be climate change, affordable housing, health care, job skill retraining as globalization and technology displaces entire swaths of our country’s workforce, or the myriad problems that afflict our political leaders today, such as conflicts of interest, campaign donations, and lack of transparency. Then don’t just read and muse about those problems. Instead, focus on a small and specific way you can contribute to a solution. In short, I encourage you to find your own path to share what you have learned as successful litigators. In my case, it has been to teach our society’s future lawyer leaders how to make better decisions that someday may affect a broad segment of society. By identifying a societal problem and taking action to help deal with it, you will have gratifying experiences in your continuing career as a citizen lawyer (retired).