I have a friend who, ten years ago, won a murder case in a small southern town. It was, he has claimed ever since, the first time ever a black man had been acquitted of murder by a jury in that county. I don’t know whether the claim is true; it’s not entirely outlandish.

When a plaintiff’s lawyer gets a good verdict for his client, you’ll often see him trying to turn it into a record—”biggest verdict for this sort of case for this sort of plaintiff against this sort of defendant in this county while wearing purple socks.”

What is it that makes us want our wins—viscerally satisfying in their own right—into records for the books? Are we trying to create the illusion that anyone but us and our clients’ families will care or even remember 20 years from now? Are we following some deep-seated impulse to give our victories as much meaning for others as they have for us? I see no harm in it, but I wonder: Is it normal? Neurotic?

Who’s to say that a lawyer shouldn’t define himself in terms of his successes at a lawyer? Sure, if a lawyer defines himself by his wins, there’s the danger of crushed self-esteem when he hits a run of bad luck. But we all define ourselves somehow.

My friend who won the murder trial is still talking about it. It’s hard for anyone to meet him without learning about it. It was the highlight of his career, and therefore of his life.

Even before he was disbarred (he had a career-ending run of bad luck), it was a little embarrassing.

While it might awe unsophisticated clients, lawyers’ self-talk doesn’t impress other lawyers. The quiet professional is more admired by his peers than the swaggering blowhard. Lawyers who brag on themselves are objects more of fun than of admiration.

This is especially true ten years after the defining moment. But even when the win is fresh, a lawyer gets more credibility with his cohort by acting—like Darrell Royal said—like he’s been there before.

I thought I had a brilliant idea, a great defense.  The risk was huge, but it’s not like the defendant had a lot of other options, and the reward was what every defendant wants, the win.  But having come up with a novel approach, it seemed like a good idea to run it past someone I respected with a lot of experience.

“You’re nuts,” he said.  “Look, it’s got no chance of working.  None.”

So the worst that could happen was that we’re back in the same boat we are now, no defense and putting on a brave face in the hope of winning the game of trial chicken.  If this idea loses, then we’re back to trial.

“You don’t get it, do you,” my experienced friend told me.  He looked very serious.  I probably didn’t look too happy myself.

The problem, he explained, was that I was outside the box, itself not a bad thing but the sort of thing that could brand me as the village idiot around the courthouse.  It was the sort of idea that people would talk about, others would hear about, and pretty soon would spread throughout the building.  And when I crashed and burned, I would be the laughingstock of criminal defense lawyers. 

Criminal defense lawyers love to do the usual.  There’s safety, even admiration, for those who fight the good fight in exactly the way the good fight is supposed to be fought.  If they win, great.  If they lose, everyone pats them on the back and congratulates them for a hard fight.  Either way, the criminal defense lawyer goes home to a cold beer and a warm embrace.   Do you think we all dress alike for nothing?

I thanked my experienced friend profusely, for both the time and concern he gave me.  It really was very kind of him to put up with my novel approach and care enough to tell me not to do it. 

I did it anyway.  It worked.  I was stoked beyond belief, and quite the hero for about a day.  Then it was all forgotten around the courthouse, but my client’s wife sent me a bottle of Hennessy cognac as a thank you.  I don’t really care for cognac, but the thought was very much appreciated.

The next day I wore a suit to court that was neither gray nor blue.  People stared at me, but I really couldn’t have cared less.

Over at Trial Theory, Bobby Frederick writes about small-firm practice (the context is a discussion of Will Meyerhofer’s article at Above the Law about the dangers of stress disorder in biglaw firms):

I suspect that most of those who cry about how difficult it is working
at Biglaw also would not survive in my office for very long.  The pay
sucks.  There’s plenty of criticism, and things have to be done right –
preferably the first time.  We are in the trenches and we’ve experienced
shell shock in the office and in the courtroom.

I’ve got a bit of experience with the kind of practice Bobby describes,
and I’m not buying the “shell shock” bit. We’re in the trenches only metaphorically. There’s not really much criticism either, unless you’re the sort of gentle soul who takes it as criticism when a judge doesn’t give you what you want.

The lousy pay can be real, though, and things absolutely have to be done right the first time. For the same reason that there is little criticism (no supervisors and no bosses) the solo or small-firm lawyer had better not screw up in the first place.

A trial lawyer screws up and has a slip of the tongue in closing argument, and his client gets convicted. He screws up and calls an inadequately-prepared witness, and his client goes to prison. Hank Skinner’s first state-court habeas lawyer screwed up and missed a filing deadline, and Skinner lost an entire avenue of postconviction review.

This atmosphere can be stressful if we let it. But let’s keep it in perspective. When he screws up, he doesn’t get eaten by a saber-toothed tiger; he gets to go home and have a glass of wine with his wife.

Still, trial lawyers often choose to let the stress rule them, even reveling in the stress. The drama of it—”in the trenches,” “shell shock”—has its appeal. And stress triggers the production of cortisol, which in the short-term gives us energy and heightened memory. Doesn’t that make the lawyer perform better?

Our bodies’ reaction to stress evolved to help us deal with the immediate short-term threats, to perform at full potential for a minute or two. Beyond that, stress starts to hurt us. Prolonged exposure to cortisol causes impaired cognitive performance. That, for the small-firm or solo lawyer, is a very bad thing.

So I picked my wife up from jury duty (she was thrilled when she got the initial invite in the mail; then nearly despondent when I pointed out that being summoned to Municipal Court meant it was “only” for a Class C) and took her to lunch.  The entire trial had begun at 8:30 a.m. and finished before we ordered our midday meal at Polvo’s. 

Of course, I asked her for the details, and as they got more interesting, started jotting notes on a tiny scrap of paper.  The notes resurfaced from the bowels of a desk drawer recently – the trial was about a year ago – and here’s the gist of them.   Read the full article »

I listened to the politicians, arms locked with the parents of Chelsea King, proclaim that they will pass laws so that such a tragedy “never happens again.” But it will.

What happened to Chelsea King is certainly a tragedy. What happens in her name will likely be a tragedy as well. The parents are in pain now, and want to do something to bring meaning to the death of their daughter. But the politicians know better. They know that there is nothing they can ever do to stop tragedies like this from happening.

We’ve been trying since Hammarabi chipped his code in stone to craft laws to stop people from doing bad things. It hasn’t worked yet. It’s not that we don’t have the law, though enforcement of many may be a lot harder than originally thought, but that laws punish people for doing wrong. Laws don’t stop them. They never have, even though we talk about disincentives and deterrence. Has any law eradicated a crime?

Eventually, we’ll have a million laws. And we’ll still have crime. People aren’t changing any time soon, and the very sad truth is some other person will, no doubt, commit this very tragic, very heinous crime again, no matter what laws are passed to make sure it never does.

I got a letter recently from an incarcerated client. He’s waiting for a hearing on a motion to revoke his felony probation; one of the possible reasons for revocation is that he picked up a misdemeanor case while on probation. Before the felony, he had three misdemeanor convictions in less than a decade.

In the letter, he wrote that he “wasn’t a criminal.”

Four separate guilty pleas in six years probably qualifies this guy as a criminal in most people’s books—especially if the people are as politically conservative as he was before he started sitting in jail. But he was making an honest living, supporting his family, and voting for his conservative “tough on crime” candidates, not living as a criminal.

In all my years of practicing law, I don’t know that I’ve ever had a client who considered themself a criminal—not, at least, one who would say it out loud. I’ve represented drug traffickers who considered themselves businessmen, murderers who thought of themselves as good fathers, and rapists who saw themselves as sick people. I’ve represented lots and lots of people who have made mistakes (sometimes the same mistakes again and again and again). But nobody below the “vs.” on the pleadings seems to define himself in terms of the mistakes he has made.

I think that’s probably a good thing. Someone who defines himself in terms of past events is bound to repeat those events. For the businessman, the good father, or the sick person, bad things happen, they move on, they try to do better. But for the criminal, what else is there but crime?

Which brings us to the topic of victims. Mark Bennett wrote recently about victims’ pride in being victims (“I’m not a witness, I’m a victim!”). My concern with that pride is that the person who sees themself as a victim will be victimized over and over again. Not only do predators recognize a victim as the weak part of the herd, but the love and affirmation our sick culture gives victims is addictive.

For the victim, what else is there but victimization?

It wasn’t recent, more like 10+ years ago, and almost certainly, given how often it happens, not actually the first time I walked a factually innocent client in front of a judge for a guilty plea.  But it’s the one I remember best.

Short version of the facts via the police report:  My client went to a car dealership and told them he was the soon-to-be-wealthy nephew of a prominent local.  In a few days, on his twenty first birthday, he was to inherit a few million, and he planned on deciding over the next few days which type of nice new car he should reward himself with.  None of this was true, my client was just as broke as the next guy.

But, the dealership lets him drive off in a new car, to test drive it over the weekend.  And he brought it back exactly when he was supposed to, not quite pristine, due to a minor fender bender while it was in his care, custody and control.  Of course, you can’t spit on a car without doing at least $500 in damage, and it’s about that time the dealer realizes: not only is my client not going to buy this or any other car, he can’t pay for the necessary repairs. Read the full article »