How Broken Is The System?

Zamir Ben-Dan: Police officers have discretion to stop who they’re going to stop and to enforce the laws in in, in given areas or given communities and not enforced them in given communities. And so as a result, they’re going to stop and frisk people in Harlem, but not necessarily on the east side, and the Upper East Side.

[Music]

Zeke: I like to welcome everyone to another episode of the Let’s Gather Podcast. I’m your host Zeke. And in this episode, I have an attorney named Zamair Ben-Dan to talk about the justice system as a whole. I like to give a content warning for any strong language used in this episode. And I hope you have a nice day and enjoy the show. 

Zeke: I thank you for being on the podcast. And the first question I like to ask is what what’s your origin story be?

Zamir Ben-Dan: My origin story would be that I am a black man in America, I’m doing my best to struggle on behalf of my people, trying to help those who I represent in the judicial system navigate their way through it in the best way possible. In light of the considerations that the system is not designed to help. Mm hmm. And would that be like a book or show?  It will probably be a book. Yes, it will probably be a book. I’m not much into film. So also film can be distorted. So yeah, your imaginations to with regards to certain things to what people think.

Zeke: Nice. Cool. So what about you? So you’re a lawyer, right?

Zamir Ben-Dan: Yes, I’m an attorney.

Zeke: Correct. What got you into law? To start with?

Zamir Ben-Dan: So I would say a few things. On the more selfish side, I always like to debate and argue. And I always like to reason and go back and forth with people. And that’s why I joined the debate team when I was in college. And overall, I generally enjoy public speaking. I’m not gonna say that I love it, but I do like it. I think it can be a lot of fun. I’m on the more altruistic side. I always wanted to be in a position where I can help people navigate through the judicial system. Because I’ve come to know a lot of people who have had experiences in the judicial system, specifically when it came to public defenders where they did not have the greatest experience with regards to public defenders or with regards to the attorneys that represented them. What got me interested in public defense specifically because I wanted to be a criminal defense attorney for the longest time. My inspiration for that was having heard of Johnnie Cochran at a very young age. And back when I was young, I didn’t know that there were so many areas of law. I just knew that there was criminal defense and lawsuit civil suing people. And in the criminal defense side of things, there was John Cochran. He was pretty much the the role model for me. And so I wanted to be a criminal defense attorney. What got me specifically interested in public defense was when I saw a documentary when I was 15 years old, called Murder on a Sunday Morning. It’s a documentary that I would recommend for anybody who hasn’t seen it. And it chronicles the journey of and Im being nice with journey. It chronicles the terrible experience of a 15 year old black child, who was falsely accused of murdering the white tourists in Florida, and was coerced into signing a confession that he did not write and practice execution prosecuted and very vigorously, despite there being clear holes in the case. And thankfully he was acquitted. And he was acquitted because of the work that has to public defenders put in on his behalf. They’ve represented zealously and of course, because they’re public defenders, they weren’t paid by him. In their case, they were paid by the state. How public defense offices arranged themselves is a little different, depending on where we’re talking in certain places. It’s through the state and other places. It’s nonprofit, like, I work for the Legal Aid Society, the Legal Aid Society is a nonprofit organization. But the point is that they’re, they’re not being paid by the people who work for them. So in order to work hard, you have to have that drive and that dedication, where you’re going to do the work that’s necessary for people because public defense is not a profession that pays particularly well. And so you have to be dedicated and they were dedicated and I was inspired by that. And so I wanted to Go into public defense.

Zeke: Nice. And in public offense, do you ever are like your um also you said like you struggled with like everybody else into to help them. Do for the pressure that you have to be there. Like you had to be like a superhero for your people.

Zamir Ben-Dan: Um, I I’m hesitant to use the term superhero, but definitely the only person in the room fighting for them. Absolutely. Yeah. And and you feel the pressure just because, first off, you’re operating in a system. And I think we should always understand that when you’re operating in a system. There are a lot of things that you do not control. In fact, more things than not, you actually do not control. And so they’re the frustrations that come with that. They’re the obvious frustrations that comes from time to dealing with clients where, you know, some of the situations that they find themselves in are not the most are not the greatest situation. So there’s that frustration, not to be overlooked. But then there’s also the frustration in terms of dealing with judges and process advocators, who are far more powerful players in the courtroom than defense attorneys, and who, unlike the presumption that everybody’s taught about being, you know, innocent till you’re presumed innocent until proven guilty, most people who are caught up in the judicial system, especially if they’re black and brown people are presumed guilty until proven innocent. And so there’s that frustration in terms of how so called justice is administered in the courts.

Zeke: And then well, that frustration how you deal with it and keep like sane, as a lawyer, and not like, lose yourself in your work?

Zamir Ben-Dan: Well, I think one of the things that lawyers who are dedicated try to do is they try to separate their own stresses from the stresses that come with the work. And that’s necessary to do if for no other reason, then the fact is, you represent so many clients at one given time, and so you can’t take the stresses that you’re dealing with with one particular client and carry that when you’re dealing with the next client because then you’re just not going to be effective at all. taking vacations is definitely necessary and sometimes taking breaks entirely is necessary. So I’m in the middle of a break myself, where I started doing community justice lawyering work instead of public defense, because I’ve been doing public defense for four years and you know, I needed to step back from it for a moment because I found that if I did not step back from it, I would not be effective in terms of trying to represent the people that I represent. So it’s necessary to take breaks Be it you know, prolonged breaks in terms of doing something else for a while, shorter breaks, in terms of vacations, and then also just finding things to do that you enjoy that take your mind off of the stresses of going to court and, you know, dealing with with the people who are involved.

Zeke: Nice, so the fact you said that um like judges and like prosecutors a more like a they’re, more powerful in the players, correct and according so how do you so, what kind of things did you do to like, overcome that?

Zamir Ben-Dan: Well, one of the things that I do, or that I was doing, you know, during the time that I was lawyering that I was doing criminal law was that I would represent my clients in unconventional ways. So I’ll give an example of that. When I was practicing criminal law, I would, I would file a lot of different motions, I would come up with a lot of creative motions, a lot of innovative motions, a lot of motions that were never filed before. When I use the term motion. I’m referring specifically to a type of written argument or written legal argument asking for some type of relief or some type of outcome. So motions can be for a case to be dismissed. Motions can be for certain charges to be dismissed. motions can be to have evidence thrown out. Motions can be to have the prosecution produce records or to have the police department produce records. So motions can be various things. And so I would file different types of motions to have the case dismissed or to have different types of things done that were never filed before that were rarely filed before. And one of the things that I found in doing that was that it served a lot of good purposes, it served the purpose of creating leverage, where you can get good dispositions, good endings for the cases, or you can get the cases thrown out. Because the argument is good, and the prosecution doesn’t want to address it. Or you could get better deals than what you might have gotten. If you didn’t follow the motion. And then if nothing else, where the prosecution is not bending, they’re not bowing, then it forces them to work. Because my attitude as well, if you want to convict my client, if you want to prosecute my client, then you’re going to have to work for it. I’m not going to roll over and let you get what you want. You know, it doesn’t work that way. So that’s one of the ways that I have leveraged the power of prosecutors where, in essence, if you make them have to work, then maybe you can get better results. In terms of how I deal with judges, I’m generally I’m polite, and I’m respectful, but I am not the most deferential individual. And so you know, when when a judge I feel is being disrespectful to my client or disrespectful to what it is that we’re trying to do, I will say something about it. And also through motion practice as well. You know, saying things out in open court is not as easy for anybody as I think and putting things in writing. And so, I will definitely use motion practice sometimes as a way of me expressing disapproval about what a judge does, or what a judge is doing.

Zeke: Okay, so let’s close take it back to where you were before. We’re like law school, what kind of classes you face there? And then how did you overcome become a lawyer?

Zamir Ben-Dan: So, in terms of law school, I mean, the work was always challenging, of course, Law School, a very, very rigorous academic experience. And what perhaps the biggest thing that makes it so rigorous is the fact that there’s a lot of memorizing, and there’s a lot of information. And so a lot of information there a lot of memorizing, you know, it’s it’s a lot of work and for some people, they excel it at more so than others. So it can be difficult, pretty much in that regard. For me, personally, I would say that the biggest challenge for me was learning how to deal with so called liberal environment. Law School was pretty much the first liberal environment that I found myself in in terms of an environment that I found myself in and I was aware of of a being a liberal environment, a white liberal environment. You know, I went to Iraq and community college before that, you know, you met all kinds of people there. I went to blue colleges to business school, relatively conservative. So I went to when I went to CUNY Law, which markets itself as a public interest law school. This was the first environment that I found myself in where it was a white liberal environment and mainly white liberal environment. And one of the things that I came to see is the fact that white liberals in many respects suffer from the same things that white so called conservatives suffer from, which is that they have very primitive views of people of color and particularly of black people. To give an easy example of this, there are there were in law school, plenty of white liberals who had the so called saviors complex, if you will, where they wanted to join the get involved in the judicial system. And then become a lawyer. When I say judicial system, not necessarily criminal law, but whatever field that they wanted to get involved in. They had a savior complex with savior complex where they wanted to rescue, you know, US poor people from ourselves because of, you know, we’re not able to fight for ourselves and so they want to, in essence, dictate how we should, in essence, dictate our salvation, if you will, or in the terms of our salvation. And so I wrestled with a lot of that. And I also wrestled with the fact that I don’t fit the the prototype of what they consider to be professional. You know, I’m a black man, I have dreadlocks, I have a beard. And generally speaking, you know, I dress in African garb and African clothing, and that’s not particularly acceptable in the legal field. You know, what I did find kind of interesting too, was the fact That, you know, there were black people who felt the same way about me and some of the white people in terms of you know, that’s not professional dress and they’re not going to associate with me as a result of that so that was that was a challenge that I had to deal with how did I deal with it? I mean, it pretty much rolled off my back at that point being in the environment was definitely a shock for me and it took me a while to adjust to it and realize that you know, white people who identified as liberals suffer from many of the same issues that white people who didn’t identify as liberals suffer from and then you know, once I came to realize that back then you know, you pick and choose who you deal with and who you don’t and as far as the individuals who didn’t like me because of you know how I carried myself Well, that’s on you and I’m not gonna dwell on that.

Zeke: Yeah. And with those experiences. Did I make it def def fuel you more to on well protect like one of the two like to represent as a lawyer, did it like fuel your drive?

Zamir Ben-Dan: I can’t really say that fueled my drive more than I would say that it definitely made me fearful. Because you had a lot of people who we’re going to be going into the puppet defense arena with me, who I realized we’re not going to do right, by our clients. And so I mean, that definitely scared me. I would say that, you know, it definitely scared me also, because this is something that I noticed in, you know, liberal environments, both at CUNY Law and our legal aid, is that, you know, people will say the right things when the conversation is controlled. But when the conversation is not controlled, you’re liable to hear all kinds of things that make you wonder, you know, you profess to be a liberal, and this is what you think and this is what you believe. You know, it’s kind of crazy. So Seeing that, I think definitely made me more concerned. Now. I didn’t think at that point. In fact, at that point, I didn’t need any additional motivation to say, Oh, you know, this is going to make me more of a fighter for the people that we represent. I mean, everything that I had learned up to the point where I got to law school made me determined to fight for for my people.

Zeke: Cool. So let’s go to a happier note. So when you do succeed and you hear back from your, your past clients, how does that make you feel?

Zamir Ben-Dan: In the few times that it has happened, it makes me feel good. You know, I mean, most clients don’t really reach back to say, you know, how are things going? And, you know, for me personally, that’s okay, because, you know, we’re not doing this work to get thanks from our clients. We’re doing it because it needs to be done. But in the moment, You know, when you get a good deal for your client, or when you get the case dismissed, particularly where a dismissal wasn’t necessarily expected, or you go to trial and you fight like hell, your clients appreciate it, your clients see it, and they appreciate it. And so it makes me feel good. You know, even in the moments where we lose, you know, I’m not feeling good overall, overall, it’s terrible. But I’m still appreciative of when my client sees that, despite the loss that I fought for him to the best that I could or despite us not getting everything that we wanted, that I fought for him the best that I could and so I appreciate that.

Zeke: And then, what kind of so as a lawyer as you can, do you enjoy anything about being a lawyer, besides like your drive?

Zamir Ben-Dan: Do I enjoy anything about being I mean, one of the things that I enjoyed about criminal law, you know, I told you about all kinds of crazy read motions. I like that a lot. I like the creative process of thinking up new types of motions or researching those motions. legal research is a big part of the job. I think regardless of what kind of law you really go into, and for criminal law, it’s definitely a big part of the job. And so doing the research and being able to craft the argument provided that the cases that you find don’t kill your argument, because for every, for every motion that I found that was created by probably had 10 other ideas, that after I read the cases realized there’s no point bothering because the case law is so bad in terms of promoting the idea that I want to promote. But I enjoyed that part of the job. I enjoyed being able to help people who society has called labeled as disadvantaged. So I have enjoyed that very much. I thought I would enjoy trials. When I got into the work I found that I did not enjoy trying cases as much as I have Thought I did. Because it’s a very scary endeavor. And it’s a scary endeavor because somebody’s life is on the line, or somebody’s freedom is on the line. And if things go south, you know, it’s gonna be terrible in terms of, you know, the clients, the clients Liberty being gone. And so, one of the things that I stress when I talk to my clients about going to trial, because back when I practice law, I didn’t or when I was practicing criminal defense, I never sought to discourage clients from going to trial outright. I would talk to them about the merits of their case, and I would talk to them about what their defenses are, what the good facts are with the backpacks are. And there, there were definitely times where I might have discouraged a particular client in that particular incident from going to trial. But I don’t necessarily shy away from trial. I don’t shy away from trial, you know, as a general policy, but I do give myself Fair warning, that trial is not a game. And that there have been people who have been guilty of what they did who walked away, in a sense, they were found not guilty after trial. And they were people who did not commit the crime that they were charged with who were found guilty after trial. You know, juries get things wrong all the time. And judges get it wrong even more, because judges presume our clients to be guilty, more so than you know, juries do. So I definitely make it clear to my clients that this is a risk, and that you may very well be found guilty, even though you didn’t do it. So if you’re willing to take on the risks, then we can go ahead and we can fight this case, but if you’re not willing to endure the risks, and I don’t know if going to trial is the right thing. But I say all that to say that trial trial can be enjoyable at different points in time for me personally. But there are very serious risks that that one needs to assess before they they go to it, you know, and there’s some People who they fall on extremes for both sides where there’s some people who are extremely risk averse and will never try anything. And then you have some people who are there to trout happy, if you will, their trigger happy and the trials where they try everything, including things that should not be tried. So trials can be enjoyable. But for me personally, I enjoyed motion practice and I enjoy just representing my clients.

Zeke: And on that note, when you see like, um, like criminal law and stuff like that on TV, movies, do any of them get it right or what things do they get wrong?

Zamir Ben-Dan: I’ll be honest with you, I don’t watch too much television generally speaking. And I generally don’t watch television because I think television overall is just a gross misrepresentation of reality, and does that comport with it? That said the little bit that I did watch with a little bit I have seen, like the rest of television is a gross distortion of actual reality. And just does not comport with how things actually work. You know, people talk about trials, trials take a long time to happen, at least they do in New York, and they do in many other jurisdictions. Trials are not speedy, they don’t happen overnight. And so the idea with people, you know, people who say that, oh, well, person wouldn’t plead guilty to something they didn’t do. If you didn’t do it, then hold tight, hold tight, and you’ll get your day in court. Your day in court can be years down the line, the year two years, three years down the line, and people get tired of that people get tired of it, in it of itself. And then if you throw in the fact that people have jobs and can’t keep coming to court, people have immigration consequences having hanging over their head sometimes, and so they can’t risk it. People have employment that gets suspended because they have an open case or of course The most common incentive for people to plead guilty, they’ll get set on your case or you’re remanded and you want to get out. So people can plead guilty for all kinds of reasons that have nothing to do with whether or not they actually committed the offense that they’re charged with. And part of the reason they do that is because speedy trial is not so speedy. It’s it’s an illusion that often does not happen. And then talking about please, a lot of people think that individuals are never confessed to a crime that they did not commit. Nothing could be further from the truth. First off, again, when we talk about please, please are in essence admissions, and people plead guilty, like I said, for all kinds of reasons that have nothing to do with whether or not they committed the offense. And then of course, a person can be coerced into confessing to just about anything, if the conditions are right. And it doesn’t even necessarily have to be physical abuse by the police officer, the law enforcement officer you know, proper psychology logical coercion or psychological stimuli can help a person to plead guilty to something that they, in fact did not plead guilty to. A lot of people seem to think that injustice this does not happen on a regular basis in the courts. That clearly isn’t true. And I see that every day. People hold police officers in very, very high regard. And police officers are some of the worst actors in the judicial system. And this is not hidden. This is not like, you know, something that you have to search hard in order to find this is documented. To give a perfect example of this. The New York Times came out with a series of articles about two years ago about test the line test the line is a phrase that was concocted in police circles about police officers lying under oath, they’re giving testimony that they know to be false false. And this has been a decades old problem that has been written about in large journals. Like I said, The New York Times did a series of articles about it. We know that police officers lie in court like this. It’s not a question. It’s not a possibility. We know that police officers lie in court and they lie routinely. And yet nothing is done about it. And yet, people are not going to know that when you watch Law and Order and whatever other shows that they have out there. Police officers are held in high regard. They do no wrong. They committed no crimes. They violate nobody’s rights, on television, but in actuality, that’s just not true. Police officers do all kinds of things that they should not be doing from illegal searches and seizures to planting evidence to assaulting people to falsifying paperwork to stealing property. I mean, we call it civil forfeiture. We don’t call it stealing, but that’s what it is. And not only do bullies do these things, but they are very actively protected. They’re protected by prosecutors, they’re protected by judges. They’re protected by the media, they’re protected by the city. They’re protected by the state. So this this is the reality that isn’t talked about. Speaking of law enforcement, prosecutors, there’s this idea that prosecutors are these venerated individuals that are about seeking justice and that are not about seeking convictions. And I can tell you stories for days of prosecutors who were faced who had cases where the evidence was either weak or non existent, who had cases where there was compelling evidence that the person didn’t do what they were accused of doing. And the prosecutor still sought convictions, they still sought pleas and in certain cases, they still tried the cases, with the hopes that they would get a conviction because at the end of the day, if they get a conviction, great, and if they don’t get a conviction, it’s not skin off of their teeth. Nobody’s going to jail as a result of them losing a case they’re not getting fired as a result of losing a case. And so, you know, it doesn’t really matter to them. Prosecutors generally are more concerned with getting convictions than they are with actually doing justice. They’re more concerned with getting convictions, then making sure that the person who did the crime is held accountable, and that people who didn’t do the crime are not held accountable. And, you know, this goes back into the whole idea of them presuming people guilty until proven innocent. Now, what’s unfortunate, again, speaking with the girth of prosecutors is that the prosecutor’s office is erected to promote the pursuit of convictions and not the pursuit of justice is not designed to, to go after, you know, justice. And so, you know, I’ve had prosecutors line prosecutors who get a case and they want to dismiss it, but they can’t because their supervisors won’t let them or they want to make a particular offer, but they can’t because their supervisors won’t let them. And so with these types of barriers and check the type of bureaucracy that the prosecution has in check, even prosecutors that want to do the right thing, in many respects are hamstrung from doing the right things. And they have to fight to do the right things. And now when we think about in the prosecutor’s office, what type of prosecutors you think get promoted to become supervisors and bureau chiefs and things like that? Whatever police officers get promoted to become sergeants and captains and things like that. It’s not the ones who are trying to do what’s right. It’s the ones who are perpetuating the injustices. And so, you know, television does a very, very great disservice to what really goes on in the judicial system. And then, of course, I think it’s fair to say that there is no legitimate if any examination of the role that racial bias plays in the judicial system or in policing or in the prosecutor’s office in any of the shows that exist in the limited views that I’ve seen or that I that I’ve experienced, I haven’t seen it if you have Feel free to let me know, but I haven’t seen it.

Zeke: Cool with all that there’s like so many holes in the system, is there any way to save this system or destroy everything?

Zamir Ben-Dan: Um Oh, I mean, I think, before we talk about destroying the system or fixing the system, we have to get to the root of the problem. And the root of the problem is that there are systems of oppression at play in the United States of America at large. You cannot face the judicial system without fixing the remainder of the country. You cannot get rid of the racial biases in the system if we do not address the racial biases that exist in the country at large. And this is what I think has been one of the biggest problems in terms of so called reform efforts and efforts to bring fairness to the system in a vacuum. The system doesn’t operate in a vacuum, no system in this country operates in a vacuum, no system, anywhere in the world operates in a vacuum, it has to be examined within the appropriate context. And that doesn’t tend to happen when we talk about fixes in the judicial system. Now that said, if you’re talking about quick fixes, is there a way to do quick fixes? I think one of the things that needs to To be done if that discretion needs to be greatly limited, not necessarily eradicated, I don’t think it should be eradicated, but it should be limited. And whatever discretion that does exist, there needs to be proper checks and balances for that discretion. Because there really isn’t a proper check and balance with discretion. And the fact is, when we examine the history of discretion in this country, and the use of discretion in this country, it has always been exercised in a racially biased manner. What do I mean, police officers have discretion to stop who they’re going to stop and to enforce the laws and in any given areas or given communities and not enforced them and given communities. And so as a result, they’re going to stop and frisk people in Harlem, but not necessarily on the east side, and the Upper East Side. They’re going to pick and choose where they’re stopping people where they’re frisking people and how they are Charging crimes as well, that’s another thing too. And this comes to prosecutorial discretion where the prosecutors can decide who they’re going to charge, what they’re going to charge the person if they’re going to institute a prosecution or not, and so on and so forth. And then judges have a lot of discretion as well. One clear example is in the setting of bail, a judge can decide whether or not to release a person on their own or cognitive or whether bail is necessary to ensure the return to court. And of course, bail gets set disproportionately on black people and on Hispanic people, more so than whites and more so than other groups. And so, discretion, the exercise of discretion has always been in a racially biased manner and in a socially unjust manner. And so, taking steps to limit that discretion where it can be limited, can be a short term fix, not a long term solution, but a short term fix. I thought that the bail laws that were enacted Last year, April 2019, was a good fix in terms of the problem because it greatly limited how much bail judges could set. Because prior to the new laws getting enacted, judges would pretty much routinely set bail on the same types of people, again, poor, black and brown people. And there was, in many respects, no need for it. A lot of people were being detained on misdemeanors, a lot of people were being detained on non violent crimes. A lot of people were being detained on low amounts of bail, but because they couldn’t afford it, then they were being detained. They were being locked up and held pretrial, even though there wasn’t much of an indication that the person would not return to court, which is the purpose of bail, as articulated in New York State. And so they passed these laws that went into effect January 2020. But because the law enforcement lobby was arrayed against it, and the prosecutors were arrayed against it, and the New York Senate has no backbone and Governor Cuomo I’m not even going to start on him. The reforms, pretty much we’re all but squashed before they had a real chance to work. Now. There are still some reforms in place, there’s some protections in place. But judicial discretion was limited to an extent that I thought was great with the bill reform that is being grossly expanded with the rollbacks that were enacted earlier this month. And so, you know, I mean, discretion, like I said, it’s a short fix. But if we’re talking about a long term solution, there needs to be more more of an examination into the context that the judicial system exists in.

Zeke: And what if we find a way to restructure, like the United States is like that? How do we like prevent the same problem happening again, it does away

Zamir Ben-Dan: I mean, if we’re being entirely theoretical, yeah, I guess there’s some practicality. But if we’re being theoretical, I mean, first off, everybody who was involved in the old system, or I should say, not everybody who was involved in the old system should be allowed to be players in the new system, particularly those who are most responsible for perpetuating some of the injustices. And, you know, I think, in that regard, the gathering of statistics and data can be quite useful in terms of determining who is more set on trying to do what’s right in the judicial system, and who is trying to perpetuate and continue to disparities that have always existed in history. So I think that that would be a necessary step in terms of not everybody was involved needs to necessarily be involved again, I also think that if we’re talking about making America more just society, that and I recognize that I am an attorney and the implications of what I’m about to say, but we should not be living in a society where you need a lawyer in order to understand what the law is. And in order to work out a defense, and in order to just be able to navigate through the judicial system. I mean, in any society, if we’re if this is supposed to be a system that is about doing justice, Justice should not be complicated and justice should not be technical. You should not have to hire a professional, an expert in order to understand what the law is and how the law works. The law is supposed to be something that benefits society because it’s something that binds society that requires the members of society to adhere to a certain level of conduct. And so it’s important that people under Understand what that contract is, and understand what the law requires and what it doesn’t require. So the law should be written in a manner that allows for laypersons. To understand the law should be written in a manner that allows people to be able to follow the law and use the law in their own defense. And the judicial process should not be an adversarial process. If we’re talking about doing justice, and it should be a truth seeking process, it should be a process that’s about fact binding. Now, how that process gets determined, I mean, that can be, you know, debated or discussed at a later point. But when you have an adversarial process in place, both sides are not concerned about truth. Both sides are going to be concerned about winning. If you’re the defense attorney, you’re naturally going to be concerned with getting your client off. And if you’re the prosecution, you’re going to be concerned with you know, getting the conviction. And so, in my personal view, an adversarial system is not a system for bringing about justice. Because if it’s a competition, then, you know, people are trying to win. And that’s not justice should not be reduced to competition, in my view. So there there should be a great change in terms of how the judicial process works. Now, in terms of dealing with people’s individual biases, I mean, I mean, that’s obviously got to be dealt with and to the extent that we could deal with it, you know, that would be most ideal.

Zeke: Cool. So with that in mind, also, do you think it takes a certain type of person to become a lawyer with all the hard work and all the things that depending on the position of the prosecution or defense, or even judge did a that a type of person to um to that?

Zamir Ben-Dan: I’m sorry. Again,

Zeke: My fault, it sounds like um pretty much do you take us to take a specific type of person to become a lawyer? Well, I don’t. Um. Okay.

Zamir Ben-Dan: Yeah. Does it take a specific type of person to become a conscientious lawyer or to become a good lawyer?

Zeke: Let’s go both,

Zamir Ben-Dan: Okay? Because the two are not the same. You know, you can be a good lawyer and be a devil. And then of course, are and you know, not conscientious at all. You could be a very conscientious attorney, but you’re not a very good attorney. So, in terms of being a good attorney, I would say that the things that a person needs to become a good attorney, you should be able to in and a good attorney in the climate that we live in. legal research and legal writing, in my view, are two of the most underrated yet most important skills that a good lawyer should have. You should be able to write well, you should be able to write persuasively, as persuasively as one can argue. And you should be able to do legal research in terms of finding cases. Because in the in the United States of America, pretty much the practice of law is heavily based upon a precedent, what was done in a prior case, what was done in past cases. And so being able to find those cases that help you make your argument will help you become a good lawyer. Because since it’s so based on what happens in prior cases, then we want to find cases that support our positions. And when we are arguing against somebody who’s bringing their own cases, we want to be able to distinguish or show how those cases are different or how those cases shouldn’t apply to this particular situation. And so understanding the value of cases understanding the importance of knowing when a case applies to your situation or when a case can apply to your situation. That’s an important skill to have as well. And of course, it’s not just cases there are statutes and other things. But case law is really a big part of, of our practice. So those two things are definitely needed. Obviously, one, let me know if they obviously, but what should be obvious is a good sense of logic, knowing just intuitively what makes sense and what doesn’t make sense. And you’d be surprised that I’m saying it should be obvious because I have encountered plenty of lawyers in the little time that I practice who have no idea of what is logical and what is the logical, they have said all kinds of things they will say all kinds of things that make absolutely no sense. They will make arguments where if you read the cases, they’re citing the cases they’re citing or not saying what they say that the case is say. Or they’re saying the complete opposite. So and So I don’t even know if that’s in the realm of logic. I mean, a lot, there’s logic, but then there’s also just diligence, like making sure that you’re doing a good job making sure that you are paying attention to detail, and you’re not making representations that are false. And then Aside from that, I would say, I mean, it’s, it’s obviously good to be honest. You know, don’t say things that are false. There are ethical rules that, you know, you can get punished if you do make misrepresentations on the record. yet, at the same time, I would say in terms of being a good lawyer, the best lawyers think outside the box. You can’t always go by rote. In terms of the things that you do, you can’t always do the same things over and over again. You have to be you have to be what’s the word? You have to be creative. I guess I can’t get a better word, but you have to be creative in terms of what you do in a given situation. I’ll give you a perfect example. So like in the system that we work in, one of the things that I do is I will form shop, to the best extent that I can because I don’t know necessarily control course schedules and things like that. But one of the things that I definitely used to do was I would forum shopping. What I mean by that is, you try and find, you find you try to put yourself in positions where you’re going to get the best outcome for your client in terms of which judge you deal with. So for example, if I’m thinking of filing a particular motion, I’m going to look at the court schedule to see which judge is going to be in the courtroom the day that I filed the motion. And if it’s a judge who I think is going to be sympathetic to my argument or receptive of my argument, then I’m going to file the motion. If I think it’s a judge, who’s going to be unsympathetic to my argument, or he’s going to reject my argument outright, if I see that this is a judge that I’ve knocked hedges in the past, and that I’m not going to get along with them, then I’m not going to follow the motion. I’m going to wait and I’m gonna hold on to the extent that I can to the extent that the rules allow. So you know, that’s an example of form shopping. I know another example of form shopping that I definitely did. I had to take Where a client of mine is charged with a felony. And we were in arraignments. arraignments is the first court date when you first see the judge for the first time. And the judge that we were in front of was a judge that if we went in front of him, I knew he was going to set bail on my client. And so I found out that this was during the morning shift that during the evening shift, it was going to be a different judge. And of course, this different judge happen to be a judge who I thought was a lot more understanding and a lot more sympathetic to people who were charged with crimes as opposed to being pro prosecution. And so there was an issue, there was a clerical issue where they couldn’t find the file. And whereas I normally would have pressed it under those circumstances, because you know, I’m working the morning shift, I don’t want to work the evening shift, I don’t want to stay behind you know, past my shift past five o’clock. In this particular case, I didn’t press it because As far as I’m concerned, if you want to go into the evening shift that would go before the better judge, and I would have a better chance of getting my client out, which is, in fact, what happened if I was going before the evening judge, and I was able to get my client out. And so, you know, things like that, where you can do things by rote, and in that given situation, say, well, we’re supposed to be arranged at this particular time. And so where’s the fire? Where’s the fire? Where’s the fall, and you make a big stink out of it, and now you’ve just disadvantage your client. Because you did things by rote. And then of course, there are people who, you know, they don’t necessarily care at all, like, I don’t want to stay here past a certain timeframe. And so I would much rather this client go to jail, or I yeah, I mean, I don’t want to say it that way. But for lack of a better word, you know, don’t let the client go to jail. If the client potentially not going to jail means that I have to stay late. Hmm. So, so yeah, I would say that all of those things are things that a good lawyer needs, in terms of thinking outside the box being good at the legal research into legal writing. And I would say public speaking too. I mean it, it doesn’t hurt to be a public speaker, it doesn’t help to be so nervous that you can’t make arguments in front of in front of a judge or in front of a jury. So, you know, it’s good to have public speaking skills. And then understanding logic, being diligent, and being able to being able to think outside the box. Now, in terms of being a conscientious attorney, um, I don’t think being a conscientious attorney is something that can be taught, if you’re conscientious person, and you become a lawyer, then you will be a conscientious attorney. And if you’re a slime, then, you know, being a lawyer, you’re not going to transform into a conscientious lawyer if you are not a conscientious person. And so I think in terms of being a conscientious person, I mean their steps in terms of what a person can do to try and be more conscientious but how conscientious person as I think is going to depend on their personality, personality. Nice, very informative.

Zeke: Is that, um, do you have any other advice for people who want to become lawyers or they didn’t think about?

Zamir Ben-Dan: Um, I would say this because people will come to me and asked me about whether or not they should go to law school because they might be interested in being a lawyer. And what I said to them and what I would say to anybody who might listen to this is, in this day and age you should become you should go to law school, if you are positive 100% positive that you want to become an attorney or you want to do something we’re having a law degree is required. If you are not sure about whether you want to become an attorney, you should not be going to law school. You should not be going to law school based on equivocations of all law looks good. Maybe 30 years ago, 40 years ago, it was a great idea to get a law degree regardless of whether you were going to go into the field. That’s not the case anymore. And the fact is that law school is too expensive. The process is too burdensome. And the light at the end of the tunnel, meaning jobs at the end, are is to dim, the light at the end of the tunnel is too dim for anybody to go to law school for any other reason, then they know they want to be an attorney. It’s just not the investment that it once was. And I mean, take now, like public defense, when I was in law school, was a very competitive profession. And now it’s become even more competitive of a profession. And it’s become more competitive because arrests are down. And unfortunately, New York City and probably New York State scene To think that it is a good benchmark in terms of whether or not to hire public defenders to base it off of how many arrests there are, and so strictly numerical, and it has nothing to do with quality, if there are a lot of arrests and horrible public defenders, if there are not so many arrests, and we don’t need so many public defenders, when it’s not so much, it should not be based on quantity, it should be based on quality, if you want people to have a quality defense, which they’re supposed to have the constitutional right to be able to prepare, then, you know, that requires having lawyers who are not overburdened with many cases. But in any event, you know, that aside, it’s hard to get a job as a public defender period. And it’s extremely hard to get a job as a public defender in New York City. And so, I mean, to give an example, or to give a numbers, I guess, when I became a public defender, and legally This was in 2015. There were 360 people who were interviewed for the first round and there were 100 hundred people who were interviewed for the final round. And they were ultimately 28 people in my class. Now for 360 people getting interviewed for a first round, meaning that more than 360 people applied, and my class ultimately had only 28. And of that 28, only 17 came straight out of law school. Okay, there are four people who were lateral transfers, there was one person who came from, or Well, there were four people who are lateral transfers. And then the other seven, were already admitted attorneys who were practicing elsewhere, who then came to the Legal Aid Society. And so there were only 17 graduates from law school, out of everybody who applied who got into legal aid, and so there just aren’t that many job openings and then in some of the other public defenders, if it’s bad for legal aid, it’s going to be worse to the other defenders. So like, Bronx defenders, I believe are not hiring anybody to see which hasn’t been the case, they’ve generally hired attorneys, not necessarily a whole lot of attorneys, but they’ve hired attorneys. nobody’s been hired by the Bronx defenders this year. Brooklyn defenders generally does not hire unless somebody retires or dies, or leaves. Same for New York County and some of the other defenders. So getting a job as a public defender is extremely difficult. And so and and that’s just public defense. I’m sure it’s true across the board to some extent, everywhere else. And so if you, if you’re thinking about going to law school, the question you should ask yourself is, is are you going to go into a profession where a law degree is required? Like are you sure of this? And if your answer is anything other than Yes, then you should not be going to law school. Now, if you are going to law school, then you know best of luck hope you do well. But yeah, I would say that

Zeke: Oh, I feel like a good place to stop on Some advice. So I did Thank you for coming to the podcast.

Zamir Ben-Dan: Thanks for having me.

Zeke: Do you have any last minute questions for me? Anything like that?

Zamir Ben-Dan: No, no. No, I mean, I suppose like when you’re done editing this, you’ll send this you’ll send me a link.

Zeke: Sorry. Yeah. Okay, definitely. Cool. And then last thing, what would you, what would you name your origin story?

Zamir Ben-Dan: What would I name my origin story? That’s a good question. I’ve named it A Life in the Struggle.

Zeke: A Life in the Struggle, nice.  

Zeke: That brings another episode on the Let’s Gather Podcast to a close. I would like to thank Zamir for coming on the podcast. For next week. I have Nova Lorraine, coming in to speak about creating her own digital magazine. I hope you continue to have a nice day and I hope to see you there.

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