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Legal lessons from abroad

Lawyer Frederike Winslow was born in Buesum, a small seaside town in northern Germany. When Frederike, along with her American lawyer husband and their little girl Claire, visited her family in Buesum last summer, they boarded a tourist boat to look for sea lions sunning on the beaches of the offshore islands. She had never seen the offshore islands before; it wasn’t the type of thing that people who live in Buesum do. To Frederike, the memorable part of her visit was the opportunity to introduce Claire to her 93-year-old great-grandmother, Therese.

In 1942, German delegates to the Wannsee Conference gathered at a villa outside of Berlin to coordinate the “Final Solution” for European Jews. At about that time, 17-year-old Therese was working as a delivery nurse at a German hospital. A couple of years earlier, Frederike’s grandfather, Dieter, then 18, had enlisted in the German army. He was sent to France, which he told Frederike he was excited about, and to Russia, which he was not.

When I met Frederike, she had not yet been “qualified” to take the state bar, so my firm was paying her an hourly salary to review tens of thousands of documents downloaded from an opposing party’s computer. The computer Frederike used was more or less in a hallway. Through her review of the documents, she discovered our opponent was a right-wing political sympathizer who was fond of purchasing Nazi memorabilia.

During a recent party at my house, she mentioned that she had never met a Jew in Germany. I good-naturedly shot back, “I guess that’s not surprising; they kind of had a bad experience in Germany in the 1940s.” The reference to the Holocaust led to a broader discussion of lawyer training in Germany, history’s role in that training, and Frederike’s experience as a young German — with a German accent — practicing law in America.

She explained that a significant part of her legal training included the role of lawyers in the Holocaust. Frederike said that during her legal apprenticeship at the Appellate Court in Berlin, she and her fellow students visited several Holocaust memorials. Their visits were mandatory. The curriculum included a trip to the Berlin suburb of Wannsee, where the 15 German delegates implemented the decision to, in her words, “murder the European Jews.” Nine delegates were attorneys.

“The message sent to us was very clear: Lawyers have the ability to do powerful things, and those things can be very good or very bad,” she said.

Frederike’s legal studies began at the University of Hamburg from 2003-2009. From 2011-2013, she completed the required two-year legal apprenticeship at the Appellate Court in Berlin on Littenstrasse, the street named after attorney Hans Litten, who represented the rights of individuals against the Nazis. In 1931, Litten subpoenaed Adolf Hitler to appear as a witness and cross-examined him for three hours. It is said that Hitler was so rattled by the experience that he would never allow Litten’s name to be mentioned in his presence. On the night of the Reichstag fire, Litten was arrested with other anti-Nazi lawyers. He spent the rest of his life in concentration camps, ending up in Dachau, where isolation and mistreatment drove him to suicide.

During Frederike’s apprenticeship, she worked in an administrative agency, a law firm, clerked for a judge, worked in a prosecutor’s office and tried cases in Berlin. The two-step process — law school plus a legal apprenticeship — generally takes about seven years. Frederike also enrolled in an American law school and graduated with an Intellectual Property & Technology Law LL.M. Nonetheless, despite what American law students would consider over-the-top legal training, certain regulations kept her from being able to take the bar in my home state. With a little help from her friends, she took the bar exam in 2017 — 14 years after she began studying law in Germany.

After talking about her legal training, the conversation turned to the broader topic of how her generation deals with the Holocaust. Frederike said in her high school history class, topic No. 1 was World War II. She the German attitude is that this needs to be taught, retaught, hammered in and never forgotten. Frederike mentioned that when Prince Harry went to a costume party dressed as a Nazi years ago, neither she nor her friends thought there was anything funny about it. She emphasized, “We don’t joke about that in Germany.” She added, “You know that case where we just won a summary judgment representing a Jewish temple? Well, I felt good about that, and it made me realize that I approached the case without bias, in part due to my legal education. I really liked contributing to that case.” I had assigned her to the “temple” case without giving a second thought to the fact that she was German, or that having her work on the case would be personal to her, beyond a normal legal battle.

She talked a little more about her grandparents. They had both contributed to the war effort, and she seemed, understandably, a little defensive. Frederike told me, “My grandfather was 18, and he wasn’t part of the Hitler Youth or anything like that. He was a young farmer and did what 18-year-old German boys were expected to do in those days.” I thought to myself, “When I was 18, I was a conscientious objector who was not going to fight in Vietnam.” I didn’t tell her what I was thinking, in part because I believe the situation was very different.

Frederike also recounted her grandmother’s stories of the constant air raids over Germany, and how she would scoop up four babies in each arm and race to the bomb shelter. Even today, whenever Therese hears an ambulance, it triggers a fear reaction and memories of those days. My father was probably in one of the planes repeatedly dropping those bombs. I didn’t mention that, either.

While at the same time offering a defense for her grandparents and in some ways Germany in general, she added, “Still, it is not easy for me and my friends to understand our grandparents’ actions, or should I say inactions; after all, how could you not know anything when your neighbors were disappearing?” She told me that she had tried on a couple of occasions to interview her now-deceased grandfather Dieter on his war experience, but she eventually decided he really didn’t want to talk about it.

Towards the end of the night, Frederike said, “Mark, remember when I was looking at those documents for you, and I uncovered the fact that the defendant was fond of Nazi memorabilia? I was panicked that if people saw that material on my computer, they would conclude I was a Nazi sympathizer.” Again, that was something I had never thought about.

As lawyers we are paid to fight for and champion clients. Sometimes we pick our causes, more often they pick us. On rare occasions, representing a client means more to us than it means to them. Once in a while, the legal issues are black and white, but more typically they are cast in colors of gray. Speaking with Frederike, it was obvious the same is true in life. We may think we understand the law, our cases or the motivations of our witnesses, but there always is a lot to learn and an unlimited amount of nuance encountered along our way.

The clear message Frederike took from her German legal education was to fully appreciate the power vested in lawyer advocates to affect their world. I wonder how many American lawyers understand that message.

Levison, Mark2018 Under Analysis, LLC. Under Analysis is a nationally syndicated column of the Levison Group. Mark Levison is a member of the law firm Lashly & Baer, P.C. Contact Under Analysis by e-mail at comments@levisongroup.com.

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