Before he was a justice he was a threat. The lawyers on the other side had a name for him that was not a compliment. The people’s lawyer. He earned it the hard way, by knowing more than they did, every time, about everything.
Louis Brandeis came up in Boston in the last decades of the eighteen hundreds and built a practice by treating facts the way other lawyers treated law. He read the trade journals. He learned the businesses he sued the way an insider learns them. When he walked into a room he had already done the work, and the work was the weapon. His gift was not a golden voice. It was preparation so complete that by the time he spoke, the argument was already over.
His most famous move is now in every advocate’s toolbox, and most of the people using it do not know his name is on it. In a 1908 case about the hours women worked, he handed the Supreme Court a brief that spent a couple of pages on the law and more than a hundred on the facts. Studies. Reports. Data on fatigue and injury and the human cost of the long day. Courts were used to briefs made of cases. He gave them one made of the world. It worked, and it changed what a brief could be. We still call it the Brandeis brief. The lesson under it is the one that matters for you. The record is the argument. Bury the other side in verified fact and the law tends to follow.
He wrote the way he prepared, plainly and to cut. Two of his lines outlived him and are worth carrying. On the danger of a government watching its own citizens, he wrote in dissent of “the right to be let alone,” and called it “the most comprehensive of rights and the right most valued by civilized men.” On corruption and secrecy he wrote that “sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” Both are still quoted a century on because both are true and neither wastes a word. He did not decorate. He aimed.
He lost some of the great ones. Many of his most important opinions were dissents, written for a court that had not caught up to him yet. He wrote them anyway, carefully, for the reader who would come later, and later came. That is its own lesson for a trial lawyer who does not win them all. You write the record straight and complete even when the room is against you, because the room is not the only reader, and the loss you brief well is the one that gets fixed on appeal.
There is a temptation, when you admire a lawyer like this, to reach for the voice, the phrase, the moment of thunder. Brandeis points the other way. He is proof that the most powerful thing in the room is not the best talker. It is the best prepared. Out work them. Know the facts cold, colder than they do, cold enough that the judge trusts your version because you are the only one in the room who plainly did the reading. That is not the flashy path. It is the one that wins.
Louis D. Brandeis (1856 to 1941), born in Louisville, Kentucky; Harvard Law School, 1877; co-author with Samuel Warren of The Right to Privacy (Harvard Law Review, 1890); author of the brief in Muller v. Oregon (1908) and of Other People’s Money and How the Bankers Use It (1914), the source of the sunlight line; Associate Justice of the United States Supreme Court, 1916 to 1939. The right to be let alone is from his dissent in Olmstead v. United States (1928).
