Pounding the Table

When I was a first-year law student, my then-criminal law professor Alan Dershowitz told us a version of what I later learned was an old legal adage: “If you have the law on your side, pound the law. If you have the facts on your side, pound the facts. If you don’t have either, pound the table." 

I couldn’t help but think of that adage as I attempted to distract myself from the actual news of the day by following (more closely than I’d like to admit), a story out of Martha’s Vineyard that someone somewhere has no doubt already labelled “Pierogi-gate.”

If you haven’t had the misfortune of hearing about the story, the basic facts are these. A week or two ago, Alan Dershowitz went to a farmer’s market on Martha’s Vineyard and tried to buy pierogis from one of the vendors. The pierogi vendor refused to sell to Mr. Dershowitz, who then went on YouTube to accuse the vendor of anti-semitism. Subsequently, the vendor, also Jewish, was forced to go on social media to defend the refusal, which they said was based on Dershowitz’s prior representation of Jeffrey Epstein, the accused sexual predator, not Dershowitz’s faith or political views.

In a more normal world, social conventions like consideration and discretion and (dare I even say it?) self-restraint would have influenced people to modulate their behavior, and that would have been the end of the story. But, of course, we no longer live in a normal world. So, with no obvious law on his side (despite threats of litigation against the vendor and the farmer’s market) and no obvious facts on his side (the Jewish vendor seems unlikely to have singled Dershowitz out based on his religion even if they don’t hold identical views about Israel), it appears Dershowitz decided to “pound the table”—and went back to the farmer’s market to confront the vendor again.

[I say “no obvious law” because I have little doubt a clever strategist like Mr. Dershowitz might be able to come up with some type of legal claim. But if you’re hung up on debating the existence of a meaningful right for criminal defense attorneys with controversial clients to buy pierogies, you’re missing my point, which is not about winning the battle but choosing the battle.]

Naturally, the second confrontation just prolonged the story, giving Dershowitz another chance to present himself as an aggrieved victim of “cancel culture” amongst the so-called liberals on Martha’s Vineyard. I haven’t had time to do a deep dive on his claims, but from afar, they all seem to boil down to complaints that his old friends ganged up to ostracize him because they didn’t like his work for Epstein and Donald Trump. One such claim: the local library stopped allowing Dershowitz to speak about his books based on objections to his legal work, which would seem like a somewhat petty, fairly ineffective way of combatting views perceived as disagreeable. However, that allegation has been strongly disputed by the poor library director, who has had to fend off threats every time Dershowitz makes it. The casual observer has no way of knowing what is true.

I agree with my old teacher that the prevalence of “cancel culture,” especially on the left, is deeply troubling. In the end, though, I also can’t help but think that, at its core, the ongoing story of Alan Dershowitz versus The Liberals of Martha’s Vineyard is a stark example of one simple, painful lesson most of us learned in middle school: you can’t make people like you.

Watching the video of Dershowitz’s second confrontation (which I’m not recommending) serves as yet another reminder that social media has given all of us a potentially dangerous tool to fight back whenever we feel aggrieved or mistreated, no matter how seemingly minor the alleged transgression. It’s the ultimate form of revenge. After all, what could make you feel better than publicly outing and humiliating someone who has hurt your feelings?

Then again, to what end?

In the context of a criminal trial, the old adage about pounding the table makes sense. Lawyers have an ethical obligation to represent their clients zealously within the bounds of the law, so even in what appears to be a weak case, they have to find some way to make an argument on their client’s behalf. Outside the courtroom— in the real world—pounding the table whenever you aren’t “winning” often looks more like a temper tantrum than a successful game plan. As I would hope most of us are trying to teach our children, attacking people on YouTube or Instagram may make you feel better momentarily, but it won’t do much to win back the friends you’ve already lost. And it still won’t get you any delicious potato cheese pierogies.