Passionate Is Never An Excuse to Be Ineffective (Update)

It’s reminiscent of a particularly moronic discussion of lawyers acting like “jerks.” Some were simplistic enough to arrive at an easy answer: jerks are bad, so don’t be one. Others recognized that being a jerk can be one tactic in the toolbox. Be one when it inures to the client’s benefit.

The thing is, being a jerk all the time doesn’t make you a jerk, it makes you an asshole. It’s just not necessary. All attorneys should lead with civility and courtesy when initially interacting with opposing counsel. And they should strive to maintain that civility as best they can. But ultimately, the practice of law is not about you or your feelings. The practice of law is about what’s best for your client.

The line between the shallow thought at the surface and the deeper thought below may be thin, but it’s the difference between being effective and being narcissistic, indulging oneself at the expense of one’s client. An ugly exchange in a Las Vegas courtroom put this into context.

A 3rd-year public defender was trying desperately to keep her client from being put in jail on a violation of probation by Justice of the Peace Conrad Hafen.  This exchange followed:

[T]he judge told her to “be quiet.”

Bakhtary tried to interject.

“Zohra,” the judge said.

She spoke up again: “You’re making —”

“Do you want to be found in contempt?”

“Judge, you’re asking —”

The judge once more asked her to be quiet. “Now. Not another word.”

Bakhtary then said, “Judge, you’re,” before being cut off.

Hafen turned to his marshal. “Travis, right now. I’m tired of it. Right now.”

And Bakhtary was cuffed. She sat in the jury box, alongside inmates wearing jail clothing, while the judge finished hearing the case at hand.

As a general rule, lawyers, particularly young lawyers and public defenders, are to be applauded for being bold enough to stand up to a judge on behalf of their client.  This is particularly true when they put themselves at risk in doing so.  But like the simplistic “don’t be a jerk,” be bold and interrupt the judge is only one tool in the lawyer’s tool box. Knowing when and how to use the tools of the profession is what being a lawyer requires.

The problem arises when knee-jerk reactions to displays of “passion” are applauded, as if being a passionate public defender is good enough. This is not merely a dangerously foolish notion, but one that puts the lawyer’s feelings above the client’s interests.

What was effective about interrupting, pissing off (and ultimately being taken away in cuffs by) the person who has the power to put your defendant in jail? Absolutely nothing. Conflating misguided self-indulgence with effectiveness is a dangerous message. The public defender here wasn’t brave, but narcissistic, as if her “right” to speak was more important than her client’s life.*

Everything a lawyer does on behalf of a defendant must be tactical. There are times when it may be incumbent upon the lawyer to stand up to the judge, and there are times when pissing the judge off is counterproductive. Shut up and let the judge speak. Await the right moment to get back in the game. Find the right words to advance your argument. Be effective, not indulgent.

But we’re at a time where passion is appreciated as a stand alone virtue. There is probably no more simplistic, misguided and dangerous a belief than this.

This mindless adoration of passion is great for fortune cookie wisdom and inspiration for the hard-of-thinking, but it has no place in the courtroom, where the duty is to be tactical on behalf of the client, not passionate to express the lawyer’s feelings. Failed tactics wrapped up in a pretty bow of passion may make the lawyer feel better, but it does nothing to keep the defendant warm at night in a jail cell.

And yet, the failure of effective representation isn’t the fault of the passionate, but the system, the judge, who should indulge every child who comes before the court.

Judge Hafen may be a jerk for having cuffed the public defender who refused to stop interrupting him. But he was also the decision-maker. It was the lawyer’s job to persuade this jerk, for better or worse. Persuading a judge or jury is what we do, whether they’re fabulous and brilliant, or nasty idiots and jerks. That Hafen acted improvidently may well be the case, but that’s irrelevant to the tactical decision to be made by the lawyer. At that moment, what Hafen felt was important. What the lawyer felt meant nothing.

At that moment,** it was only about what tactic would best serve the client, how the public defender could accomplish the goal of keeping her defendant out of jail. That the PD lacked the impulse control to shut her mouth, not push this judge, whether he was right or wrong, over the edge to her client’s detriment, is nothing to applaud nor excuse.  That she will receive the applause of the passion apologists enables and empowers her, and others like her, to indulge their misguided feelings of entitlement to ignore the judge, to speak out because that’s what they feel, and to fail their client miserably.

The judge is a jerk?  So what? At that moment, the jerk holds your client’s life in his hands. If you can’t bear him on the bench, complain about him later, but at the moment, find a way to make the jerk come to your side. That you feel you’re right, you have something that must be said, and passionate advocates are entitled to emote, even if it slits their client’s throat?  Sorry, but it’s not about you. Not even a little bit. Not even if you feel very strongly the need to strenuously object.

There are times and circumstances where it is tactical to piss off a judge,*** to take a position that may well put the lawyer in jeopardy. And the lawyer’s willingness to do so on behalf of the client is most assuredly worthy of applause. But that has nothing to do with passion, the refuge of self-indulgent fools and children. It has to do with tactics.  We have a duty to our client to zealously represent him. The corollary duty is that we never let our own feelings prevent us from exercising our best professional judgment for the client’s benefit. You get no red balloon for failing to do so.

*Hafen chalked up his punishment to maintaining courtroom decorum. While you anarchists will hate on decorum, it is another tool to be used to the client’s advantage, seizing the right moment to be heard or, under the right circumstances, to violate it. As with everything a lawyer does, it’s tactical, using the rigid dance steps of decorum to your client’s advantage. That’s what distinguishes the effective lawyer from the self-indulgent narcissist, the ability to grasp that everything is a tool, if only one keeps one’s head in the game rather than let narcissistic passion be more important than the client’s representation.

**It’s not easy to make the effective tactical decision in real time, but that’s the job. Just like whether to object to a question, you do it immediately or it’s lost. No one said being an effective lawyer was easy. But when effective tactical decisions are rationalized away by the excuse of passion, bad lawyering morphs into laudable boldness, even though it comes at the client’s expense.

***When the cause is lost and the dance is done, preserving a record may require a lawyer to break from decorum. At that point, when the opportunity to argue is over and the ax is swinging down on the defendant’s neck, tactics may demand extreme measures. But even then, it’s not a matter of passion, but tactics. It’s always tactical. Always. Because it’s always about the client.

Update:  The transcript of the appearance before JP Hafen is now available. The relevant portions are on pages 6 and 7. For those pondering context, here’s context.

39 thoughts on “Passionate Is Never An Excuse to Be Ineffective (Update)

  1. Ryan

    The fact she was a young lawyer is also in play. Older lawyers do things in court and say things to judges I couldn’t get away with. They have a air of familiarity and collegiality that clearly comes with time, and earned respect. Such conduct, that will be perceived as innocuous from a older lawyer, when done by a young lawyer, just really pisses judges off

    1. SHG Post author

      Absolutely. The courtroom dynamic is a very important consideration in making tactical decisions. Whether it’s because an elder statesmen lawyer gets greater latitude, or we knew the judge back when he was just another dipshit lawyer, these are all factors that must be entered into the calculus of tactical decision-making.

      And for those who will respond, “but that’s not fair,” tough nuggies. This is reality, and if nothing else, lawyers must deal with reality.

    2. Kathleen Casey

      Passionate is not an excuse for interrupting a judge. They get temperamental when they cannot get a word in edgewise because letting them finish their sentences is not a priority to a nimrod attorney. And they tend to be protective of their stenos who sit there case after case, day in day out, creating an accurate record. Hopefully accurate.

      1. Keith

        Perhaps it’s the fact that I’ve chaired a few governmental meetings where advocates for each side kept talking and the stenographer gave me a silent plea for “help”, but that’s the first thing I thought when reading about this exchange.

        Speaking of which, can you preserve an objection for appeal by pointing the line in the transcript that said: {Inaudible}?

    3. Bruce Godfrey

      The opposite of what you have said may also be true at times: a young lawyer’s excesses might receive lenity that no 21-year veteran like myself can hope to taste. Under the ABA disciplinary guidelines (adopted by most states), substantial experience in the practice of law is an aggravating factor in discipline while a clean record and youth of law license mitigate.

      It is unhelpful that “passion” and “zeal” – criticized and upheld – are near-synonyms. Of the ancient virtues, prudence (the wise application of general principles) is the virtue most desperately needed to distinguish a purifying fire from a dumpster fire.

  2. Noxx

    “Passion is the palliative of fools”, extremely quotable, put that one in the scrapbook.

  3. Fred

    Maybe I’m missing it (Public transportation not conducive to reading comprehension), but how do we know this was not an effective tactic with this judge? Sure, it didn’t work this time, but what do you know that we don’t.

    1. SHG Post author

      Because the lawyer was prevented from completing her representation when she was cuffed, leaving her defendant there naked.

  4. SamS

    If I were the defendant, I’d be headed to jail thinking “Did my lawyer just cost me extra time in jail?”

    1. SHG Post author

      It’s never clear that’s the case, that it wouldn’t have ended the same way regardless. On the other hand, it’s very clear that it didn’t accomplish anything. If there was a chance to save the deft, it was lost.

  5. Jason Clark

    I agree with the post, but I don’t think the excerpt of what happened in Vegas gives enough context. Was the judge preventing her from doing something she was allowed to, or should have been doing? It isn’t clear to me if she was interrupting, or just talking after being told not to. I think I nearly went to jail once because a judge refused to let me make a proffer, after not allowing my witness to take the stand. I tried to make a proffer, Judge said they didn’t want to hear it. I stood my ground until judge ruled record would remain open until I supplemented by affidavit, accompanied with “not another word about it.” But had I shut up when first told to, the issue would have been forever waived. As you said, tactics and circumstances are the key.

    1. SHG Post author

      Judges (wrongfully) shut down lawyers from making arguments, proffers, whatever, all the time. The trick is figuring out how to circumvent the problem, not how to crash and burn. Any lawyer who hasn’t run head first into a recalcitrant judge hasn’t been in court. As General Patton said, the idea is not to die for your country, but to make the other poor bastard die for his.

      1. JKF

        The fact of the matter is, you’re saying that lawyer’s actions were foolish because they were unsuccessful. But she had as much experience with that particular judge as just about anyway.

        She may have known that after the lecture, there would be a ruling, and after the ruling, the order would be a done deal that the judge would not revisit.

        Sometimes bad strategy is the only strategy you have. A client has a right to counsel. That includes counsel who are allowed to complete a sentence. It is the judge’s responsibility to ensure that defendant is represented. If the defense attorney is handcuffed, the case should not be heard. Period.

        While it appears that the lawyer may have made some young-lawyer mistakes, criminal defense is all about doing things you know probably aren’t going to work. It’s misguided to say she did something wrong because it didn’t work. At no point in the transcript did it appear that the judge allowed the lawyer to finish a sentence.

        1. SHG Post author

          The fact of the matter is, you’re saying that lawyer’s actions were foolish because they were unsuccessful.

          No, that is neither the “fact of the matter” nor what I’m saying. What I said is what I’m saying. You don’t get to recharacterize it.

  6. wilbur

    What isn’t in this record, so to speak, is the history of this attorney before this judge. The attorney may have done this on a daily basis until the judge finally said “enough”.

    I learned very quickly not to show up a judge in court, just like you don’t show up a referee or umpire. It’s a matter of professionalism. They have long memories, because they’re human, and you WILL pay for it. Worse, as you say, your client – a defendant or the State – may pay for it.

    I’ve had shouting matches with judges, where the language got heated and even profane, but it was always, but always, in chambers where it was between us and when opposing counsel was present. And when it was over, it was over and forgotten between us as well.

  7. Patrick Maupin

    Because it’s always about the client.

    Until you can cure people of lying to themselves about their own motivations, the clients still get short shrift.

      1. david

        There goes that illusion . . . next you’ll be telling me that Donald Trump is a real person . . .

  8. Alex Stalker

    From reviewing that transcript, the judge seems pretty far out of line. The judge runs his courtroom, pretty loosely; he is constantly interrupting the attorneys and the defendant he is trying to question. (Page 3 twice, page 4 twice, page 6 twice). He refers to the attorneys before him by their first names. In the matter in question, he takes a defendant appearing to quash a warrant into custody, even though the client has substantially complied with the courts probation requirements, because the defendant was charged (not convicted!) of another crime in the interim.

    While your points are accurate and well taken, this doesn’t really seem to be the case of an attorney choosing passion over effective representation, but rather a case of a judge deciding to hammer a defense attorney for trying to complete a sentence (in response to the judge’s question “okay?”) in order to get the judge to slow down rather than take her client directly into custody. I suspect much of the dialogue in question was cross-talk, which makes the judge’s warning to the defense attorney probably more deficient than it appears in the transcript.

    1. SHG Post author

      The value of a normative assessment is proportional to knowledge of what one is talking about. This post isn’t about non-lawyer fantasies of how courts and judges should behave, but about saving lives in the real world. Judge and lawyers are not equals in the courtroom, no matter how much you would like them to be. Judges get to interrupt lawyers. Lawyers do not get to interrupt judges. I know, it’s not fair, but that’s how it works.

      Nor does it matter whether you think the defendant’s compliance was close enough to satisfy you. When you’re the judge, you get to decide. But until then, you don’t get a vote.

      1. Alex Stalker

        Of course we’re not equals. That’s why we have to call them “your honor” and pretend their jokes are funny.

        I practice in a rural county, so I’ve only been before a few score judges and pro tems, but I can’t recall a single judge referring to counsel by their first name in court. Maybe it’s common in other jurisdictions, but it strikes me as pretty disrespectful. Same with asking someone a question and then cutting them off. Running your court that way and then getting upset with an attorney who tries to finish answering the question you asked reeks of petty tyranny. Especially when the judge’s stated reason for putting the cuffs on the attorney is maintaining courtroom decorum.

        I shouldn’t expect you to remember who I am as I don’t comment much, and apparently I’m not brilliant or stupid enough to be memorable. I’m a PD so I’m in court a lot. I’ve dealt with judges who take advocacy on behalf of your client as a personal affront before, and this seems quite similar.

        1. SHG Post author

          My apologies for not remembering. That’s what happens when you get old. In some courtrooms, judges and the lawyers who work their room daily over years become more familiar. I don’t think it appropriate, but similarly don’t find a judge calling a lawyer by his first name surprising. Notably, the attorney didn’t tell the judge he objected to being called by his first name, so I would take it that it’s not unusual or considered particularly troublesome.

          But yes, we’re not equals in the courtroom, and every judge is a petty tyrant to some extent. That’s the job. That’s the nature of courtrooms. We don’t have to like it, but there is no courtroom where the lawyers get to tell the judge how to run the joint. We work within the paradigm, not because it’s a great paradigm, but it’s our paradigm. Winning for our clients is more important than getting one’s feelz hurt by petty crap like being called by one’s first name.

  9. Richard G. Kopf


    I have a theory. Here it is: The passion for the sake of passion displayed by hapless young lawyers developed in the law schools fairly recently. It has everything to do with a mistaken belief of entitlement. “It is me, don’t you know. Hear me roar!”

    This problem arose when law students were allowed to rate law professors, and even tenured types began to care about student ratings. The professors stopped saying things like “if you had read the case you idiot, you would have been prepared to answer my question with some degree of thought instead of mumbling inanities about justice and irrelevant crap like that. Get the hell out of my class and don’t come back until you are prepared.”

    Or maybe I’m just a jerk plus an asshole. Yep. That’s the ticket!

    All the best.

    Rich Kopf

      1. Billy Bob

        Here we go again: Hapless young lawyers,…. sense of entitlement, blah, blah, blah. Get real you two! As a non-lawyer of your same generation, my sympathies lie with the youngins. For no other reason than that the post WWII generation, including yours and mine, felt unearned entitlements yourselves which [some/many] of you refuse to acknowledge. We/you were the unwitting beneficiaries of an unprecedented economic boom and prosperity the world had never seen before, surpassing the British Empire. You all think you’re entitled to a McMansion in the toni-burbs, the most expensive car, a yacht, a membership at the country club, a second home in the Poconos or the Berkshires, etc.
        Did we mention Cape Cod? Ha. (Inside joke!) When we finished our trial in CT, the jury was handed a questionnaire to fill out, rating the judge, the prosecutor, the defense table, etc. Yours truly was sitting at the defense table and was the football in the whole proceedings. How comes we did not get one of those quesionnaires? Huh? Huh?

        Fast forward: in the intervening years, we have been called for jury duty twice in the jurisdiction in which we now lived. We were picked and served for one jury trial, without one dollar for expenses or inconvenience. We served willingly and proudly, FYI. This never made the press. Ha. The most important stories never make the press: If it bleeds, it leads!

        Now say it with Feeeling!

          1. Billy Bob

            Very good! And short. We follow your comments assiduously (?) and drop in on your blawg occasionally.
            Since you mention, we too–as many young men–were invited to participate in the illegal and unlawful war of aggression called Vietnam. However, in uniform, we refused. Since this is a serious military infraction, there was the inevitable court martial, or courts martial, as some call it: At the level called General, five officers presiding.

            Surprise: We walked out with a not quilty judgment, and the whole cafeteria cheered at noontime. True story! Naturally, this was not supposed to happen. But we lucked-out thru the diligent efforts of one Capt. Theodore W. __________, Jr., from my home state of CONnecticut and Harvard Law, Class of 65. This was our first real introduction to “the law”. That is what we call “defense counselor” par excellence. It can be done! We did not make the press.

            They say “military justice” is to justice as “elevator music” is to music. In our case, military justice proved to be a whole lot better than subsequent encounters with civilian justice. If you catch our drift? One of our recent landlords was a Judge Advocate General in the Navy during Korea, another misbegotten war. Also Harvard. There was a time when Harvard Law was the “gold standard”. We had many an interesting chat before his death.

            Fast forward: We have a brother who is a real Vietnam vet. We are now fast friends. And, we recently retired as HouseMaster Sergeant General of Heritage House I, a “transitional house” for homeless veterans, somewhere on the East Coast. It was both challenging and rewarding. No one passed thru our doors because he (or she) hit the lottery. Every room had experienced an in-house death, one under our watch. Thanx judge for responding.

  10. Pingback: The Team Sport of Criminal Defense | Simple Justice

  11. Marc R

    To the layman, a lawyer’s passion is enough. Unless that layman is the defendant.

    There’s tons of scores I would love to settle with judges via cattle call witticisms. But nobody wins that game other than the judges.

    You can have a jury trial or a bench trial for your client, and just because you pick a jury doesn’t mean you can forget the judge. A common refrain I hear from lawyers my age is “screw him, that’s why I pick juries.” But juries don’t decide dispositive pretrial motions or compel Brady requests.

    I view each judge as a sole jury for pretrial purposes. In this case, bail on a VOP is of issue. The goal is avoiding a felony adjudication on the VOP and the underlying prison sentence now possibly before them. Getting bail while awaiting the VOP hearing is nice, but it’s not mandatory, and the trade off to avoiding a conviction may be not having bond in the interim.

    I don’t see that PD securing bond and the judge made it clear that discussion was over; she can file an appeal or a motion for rehearing. I thought it was obvious the judge was setting her up. When he says “not another word” and you keep talking, the case is now about you and not your client. You shut your mouth, call the judge’s bluff that you won’t be an idiot and give him a simple contempt of court conviction that he can threaten you with as he spent charge you but taxes your client no bond until final VOP hearing and another 30 day continuance because you had to be detained your client never completed his docket status check. Congrats! You’re in the news, your client still doesn’t have bond, and now his bench hearing VOP issue is continued to a later time where hopefully the judge’s lawful and unchallenged wrath won’t hit your client with the underlying felony maxes.

    1. SHG Post author

      Had the PD merely stopped interrupting the judge, let the judge do what judges do, then, and only then, made her last, best pitch (especially since she would then know exactly what was going through the judge’s head), she would have at least had the potential to help her client. Bold and ineffective is nothing to be proud of.

      1. Marc R

        And she has nothing to appeal, either. Her conduct, and not the judge’s failure to grant bond, became the issue. Again, it’s only about your clients. Being right doesn’t mean shit when your client, and you, sit in a cell. The PD made it about her needing to get a word in and the judge was far smarter than her in that situation.

  12. Pingback: Lessons From A Dispassionate Judge: Focus On What Matters | Simple Justice

Comments are closed.