There’s a natural tendency to be part of the choir. We want to be positive, praise success and support those with whom we share the bond of the “good fight.” But we need to be cautious about applauding things that are undeserving to avoid sending the wrong message. Such is my issue with Mark Bennett’s post, Winning Despite Yourself.
In an effort to avoid any mention of a lawyer who has never lost a criminal case, and thus upset alumni of the modestly-name Trial Lawyers College, the underlying praise was for winning a case by the mechanism of aimless rambling. Let me be blunt: I do not endorse aimless rambling as a trial strategy.
Nor, prior to this post and its comments, have I ever heard anyone else endorse aimless rambling as a trial strategy. So what gives?
As one commenter noted (in slightly different language), if you can’t dazzle them with brilliance, baffle them with bullshit. It’s a cute phrase, but not exactly a crowning glory. While red herrings and smoke and mirrors has a place in our repertoire, it is hardly the product of aimlessness. When properly used, it diverts attention from damning evidence and seeks to confuse the critical point. It’s an art.
Bennett applauds the fact of the win, notwithstanding some critical views of the lawyer, and reminds us that it’s better to win despite a less than stellar performance than to lose with panache. Point well taken. Our job is not feel good about our work when the verdict comes in, but to win the case for our client. We must never take our eye off the ball.
And regardless of how good or bad we do, the lawyer gets credit for the win, and takes the weight for the loss. But this isn’t about acknowledging the victory. That much is a given. This is about applauding the effort in our post mortem. If we blind ourselves from those things we could have done better merely because we won, we gain nothing from the experience except a notch on our gun.
Moreover, do we really want to applaud the win in itself? We aren’t pro-criminal, and sometimes our interests as members of society are well-served by a defendant being convicted. Mind you, that’s not our concern when we are the lawyers, but when we are bystanders, we aren’t any different than anyone else who wants a society where we are all safe from violence, free from fraud and secure in our homes.
So while it may be an understandable reaction for criminal defense lawyers to automatically fall on the side of an acquittal, that doesn’t raise the quality of representation when it falls short. We should applaud a job well done, and recognize (and admit) a job done less than well. Concealing it behind cute phrases, simply because the verdict was favorable, doesn’t make the representation any better or the lawyer’s aimless rambling a strategy that we want to emulate.
In an effort to avoid any mention of a lawyer who has never lost a criminal case, and thus upset alumni of the modestly-name Trial Lawyers College, the underlying praise was for winning a case by the mechanism of aimless rambling. Let me be blunt: I do not endorse aimless rambling as a trial strategy.
Nor, prior to this post and its comments, have I ever heard anyone else endorse aimless rambling as a trial strategy. So what gives?
As one commenter noted (in slightly different language), if you can’t dazzle them with brilliance, baffle them with bullshit. It’s a cute phrase, but not exactly a crowning glory. While red herrings and smoke and mirrors has a place in our repertoire, it is hardly the product of aimlessness. When properly used, it diverts attention from damning evidence and seeks to confuse the critical point. It’s an art.
Bennett applauds the fact of the win, notwithstanding some critical views of the lawyer, and reminds us that it’s better to win despite a less than stellar performance than to lose with panache. Point well taken. Our job is not feel good about our work when the verdict comes in, but to win the case for our client. We must never take our eye off the ball.
And regardless of how good or bad we do, the lawyer gets credit for the win, and takes the weight for the loss. But this isn’t about acknowledging the victory. That much is a given. This is about applauding the effort in our post mortem. If we blind ourselves from those things we could have done better merely because we won, we gain nothing from the experience except a notch on our gun.
Moreover, do we really want to applaud the win in itself? We aren’t pro-criminal, and sometimes our interests as members of society are well-served by a defendant being convicted. Mind you, that’s not our concern when we are the lawyers, but when we are bystanders, we aren’t any different than anyone else who wants a society where we are all safe from violence, free from fraud and secure in our homes.
So while it may be an understandable reaction for criminal defense lawyers to automatically fall on the side of an acquittal, that doesn’t raise the quality of representation when it falls short. We should applaud a job well done, and recognize (and admit) a job done less than well. Concealing it behind cute phrases, simply because the verdict was favorable, doesn’t make the representation any better or the lawyer’s aimless rambling a strategy that we want to emulate.
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Tsk. This is a misrepresentation of what I said.
I didn’t applaud Spence’s performance in the Marcos trial. How could I? — I don’t know what he was doing in that trial. I wasn’t there and, before yesterday evening, I hadn’t heard from any reliable sources who were. Now my reliable source who was present at the time tells me that Marcos was acquitted despite Spence. But my post was not about Spence. Here’s what you’re missing: what appears to an outsider to be aimless rambling may in fact be exceedingly subtle lawyering. Brilliant lawyering may be indistinguishable (to the jury and other outsiders) from bumbling. I would offer to write using smaller words next time, but I don’t think that would make my post any clearer.
This is for another post, but we defense lawyers are, like it or not, “different than anyone else who wants a society where we are all safe from violence, free from fraud and secure in our homes.” We think more than others about human freedom, and we are more concerned than most with government intrusions into this freedom. We aren’t pro-criminal but, more than most people, we are anti-government (I speak of “us” as a group, of course — many defense lawyers are very pro-government).
It wouldn’t hurt to use smaller words. And maybe you could type slower too.
Hey, I didn’t connect up the Marcos defense with subtle, brilliant lawyering. By using that case as the launching pad, you attributed your point to Spence’s work in Marcos. If you wrote the post without that attribution, I would agree with you wholeheartedly. I’m gathering that it wasn’t your purpose to link the “subtlety” issue with Spence, but that’s what happens when you use such big words.
My recollection, again based solely on press accounts, was that not only was the rambling aimless, but also seemingly endless, to the point that the judge frepeatedly cutting him off.
And I don’t see how getting your pants pulled down by the judge in front of the jury helps a client.
Fearing my recollection might be faulty, I pulled up this NYT article on the opening:
>>At one point, when Mr. Spence began talking about remarks made by former President Ronald Reagan, Judge Keenan said softly, but wryly, ”Which count of the indictment does this involve?” The courtroom erupted with laughter. Then, after Mr. Spence asked the judge for his indulgence, the judge turned angry and said: ”You will not have my indulgence. You’ve had it for quite a while. Let’s get to the facts of the case.” << Here is a link:
http://query.nytimes.com/gst/fullpage.html?res=9C0CE1DB1439F937A35757C0A966958260&n=Top/Reference/Times%20Topics/People/M/Marcos,%20Ferdinand%20E.
Now I want to make this clear, Turk, cuz I don’t want to rile up Bennett (he’s very sensitive, you know), but I remember when Marcos was tried all too well. A lot of criminal defense lawyers went to see the trial, to see that Master at work. I personally never got there, but heard all about it from my friends.
It wasn’t pretty. There was nothing subtle about it; he was a train wreck. Now I’m really not trying to pick a fight with anyone who thinks that a lawyer with the initials GS and wears a frilly cowboy coat is the cutest thing since Yoda, but in THIS INSTANCE was not well regarded. And anybody who walks around telling people that he’s never lost a criminal case is just a jerk. Even if it’s true, you don’t go around saying it to people.
S:
I am preparing my holiday shopping list. What size fringe leather jacket shall I order for our good friend from Texas?
N
lol. It’s Texas. It’s got to be big.
It sounds to me like you boys are obsessed with Gerry Spence. What’s that really about? Daddy issues?
Who’s Gerry Spence?
M:
Yeah, of course. Now enjoy your Kool Aid and go nite-nite.
N
You must be confusing me with someone else — maybe yourself a decade ago? I’m much better looking, but not quite as smart, and I never did drink the Kool Aid.
Too Much Applause For Aimless Rambling
Bookmarked your post over at Blog Bookmarker.com!