I used to say that I was not rich enough to be liberal. I made it into Stanford on a scholarship. My dad was a schoolteacher and my mom didn’t work outside the house. I was bookish, but I had three big brothers who wrestled, so I could either be feisty or get pummeled. I chose to be feisty. I did very well on my SATs—that was the old college aptitude test—and got into the Farm, did well as an undergrad, and went on to Yale Law on another scholarship. I liked law because I figured I could use my brains and my feistiness!
I thought I was liberal. The first time I voted I voted for Obama. I didn’t make that mistake again! You see, I actually believed in the Constitution. I thought the Bill of Rights was an amazing statement of personal freedom, and I thought that was what a liberal was supposed to believe.
But at Stanford, and especially at Yale, I saw the reality. Sure, they paid lip service to concepts like free speech, freedom of religion, due process, and so forth, but the second any of them came in conflict with some progressive prerogative, that was it. The rights went out the door when they stopped being useful to the cause.
But to me, those rights weren’t just a pose. They weren’t disposable.
I graduated, clerked for a federal judge, and then went off to a big law firm where I was one of a dozen new associates working 80-hour weeks. I was on track to be a partner, and focused almost entirely on business litigation. But I was required to do some pro bono work of my own choosing—the firm was very keen on looking like it was all about public service even as it billed out lawyers at $600 an hour.
Other associates were choosing to represent death row convicts, welfare recipients, detained terrorists, or artists mad because Uncle Sam was refusing to fund them covering themselves with milk chocolate to protest patriarchy. But me? I chose to help a Tea Party group that had been pretty effective in upstate New York, then suddenly found itself under all sorts of investigations by different New York state agencies. It seemed almost [Klein stage-gasps for effect] coordinated, as if liberal bureaucrats were targeting the group and its members for daring to effectively petition the government for the redress of grievances.
It never occurred to me this might be a problem for the firm—I mean, it was clearly government officials violating the rights of some little guys. I figured out how to get past some procedural hurdles and sued the individuals in federal court. Then all hell broke loose.
I got a call to come up to the partners’ conference room. I had never been up on the top floor before. There were a dozen senior partners there, bigwigs who mingled with mayors and senators and CEOs and who would never even acknowledge me in the elevator, and now they were all looking at me.
They were not smiling.
They didn’t ask me to sit. One of the name partners, who I later found out was a huge campaign contribution bundler for liberal politicians, pointed a bony finger and said to me, “Ms. Klein, what the hell were you thinking with this Rochester Tea Party lawsuit of yours?”
He said the words “Tea Party” like he was discussing an STD.
I was taken aback, but I am a litigator and like I said, I am feisty, so I guess I just forgot to be intimidated. “I was thinking that the government shouldn’t harass Americans citizens because of their politics.”
Oh, he was steamed. “This is not a lawsuit this firm wishes to be associated with. You will dismiss it immediately.”
“No, I will do no such thing,” I said. “The Rochester Tea Party is a client of this firm, and we owe it a duty to see the case through until it releases us.”
I guess no one had told any of them “no” in a couple of decades, because they seemed too shocked to react. But I was not done. “And I do not understand your objection to representing a group of decent, hardworking people who just want to exercise their rights as Americans. I mean, are you saying that they somehow have less moral standing than the gentleman we represent pro bono who shot up that nursery school? Or that airplane bomber at Guantanamo Bay?”
Apparently, the answer was “yes.”
They fired me, and they convinced a Bill Clinton–appointed judge to let them withdraw from the Rochester Tea Party case.
I did not have anything better to do, so I took the case for them on my own—via the Law Offices of Roberta Klein, which consisted of my apartment in Brooklyn and a post office box for getting mail since this was before we did everything electronically. I went to work on winning the case.
Here is the little-known secret about litigation. The trial and the jury and all the trappings you see on videos—that is only a part of the game. Yes, it is important, but as theater. Nothing that ever happens in a courtroom should be a surprise. You are not there to find out new things (at least, you are not intending to—sometimes it happens). You are there to make a presentation, to put on a performance, and hope that your audience—and our audience was, in ascending order of importance, the judge, the jury, and the American people—gets the message you are communicating.
We sought to communicate a simple message—your government is doing something very wrong, and you, as an American, must put a stop to it.
The real detective work comes in discovery. That is the phase where you gather evidence. There, unlike at trial, you should be surprised all the time, because if you are not finding out new and devastating information, you are not digging deep enough.
You sometimes see videos where the lawyers talk about “fishing expeditions.” Well, discovery is a fishing expedition—and it is supposed to be one. There are very, very few limits on what you can delve into. Discovery is remarkably intrusive, but that was to our advantage. Our clients were small groups, like the Rochester Tea Party, and individuals. They did not have that much stuff to look through. But the government? It always has a lot of records and documents that might be relevant.
Discovery includes some very powerful tools. There are document requests. We would send out a list of categories of documents, like, “Provide all documents related to communications within your agency regarding, referring to, or discussing the Rochester Tea Party.” Then the bad guys would have to go through all their documents and give us everything that was responsive. We would send hundreds of requests, and they would ship us back truckloads of documents. Yes, often it was on hardcopy paper back then, and they kept a record of everything. They would usually even print out the e-mails. It is a lot easier today with everything done electronically, but their convenience was the least of our concerns.
You can send interrogatories too. Those are written questions. One might be, “Identify each individual in your organization who undertook, participated in, or recommended any administrative action regarding the Rochester Tea Party.” Then we would depose the people who were identified in response—question them under oath and in front of a court reporter—and start figuring out who coordinated the conspiracy against our client.
We would also send requests for admissions. If they admitted a request, they were bound to it. One might read, “Admit that a decision to assess an administrative penalty against the Rochester Tea Party based upon its conservative beliefs would constitute a violation of the civil rights of the Rochester Tea Party.” I would hope they would deny that—and they usually would, using some tortured interpretation of the text of the request—so that I could get up in front of the jury and tell them that these bureaucrats and their agencies had denied under oath that targeting political opponents was a civil rights violation. That would set the tone for trial nicely.