Every dog has its day.  Today belongs to my favorite mutt purebreed, Norm Pattis, sitting on a hard bench in Detroit so that we don’t have to.

In what may be his most brilliant post yet (which is not an easy level to achieve), Norm writes:

Lawyers and judges share a hermetically sealed world of case law and convention. We take the fact patterns of other lives and impress them into forms known at law. Over the course of years, we acquire a sense of what is reasonable based on what has occurred before. Reasonableness can cripple a lawyer.

Spence needs today to shake loose of Judge Borman’s tethers. The facts and the law work against Fieger in this case. If Deepthroat is right, and this case has larger significance, then Spence must take the case to the only people who really matter in this case, the jury. He can’t do that at sidebar. When the Government objects today, as it will, and the Court calls for a sidebar, Spence should stand his ground and withdraw the question. Let the people hear the case, he should intone.

This comes in response to some missive from someone who calls himself, with either an abundance of imagination or sexual issues, “deepthroat”.

Deepthroat writes with the passion of the converted. He reminds me of a student I saw at TLC, a wealthy man in his own right from the Southwest who has declared himself a latter-day Sam Adams; he literally bought himself a place in the hearts and minds of students and staff alike. He, like Spence, knows the people and their needs. Leave him be to fight the people’s fight. He, like Spence, knows best. In Deepthroat’s view the Fieger trial is a political trial. Fieger may be a fool, but so is everyman; so, for that matter, is the Government. Hence, the fight.

Positioning oneself as THE VOICE OF THE PEOPLE is not an easy thing to do.  I’ve seen lawyers try it.  I’ve seen them embarrass themselves.  People who think that they, and they alone, hold the truth tend to beg other people to give them a hard smack.  It may have worked for Darrow, but brother, you ain’t Darrow.

Will it work for Spence?  He’s a large fellow (and according to Pattis, this is not likely to diminish anytime soon) with a basso voice and an interesting timbre.  He can command a room.  He projects a larger than life image.  And he enjoys opening up to the jury, like Charlton Heston enjoyed spreading the Red Sea.

But the brilliance of Norm’s post is the idea of the tyranny of the reasonable.  It’s the war of ordinariness against the unusual.  The law loves the use of reasonableness as a standard against which conduct is measured.  Who can argue otherwise?  Of course, it’s not without its problems, since nobody agrees exactly on what reasonable is.  We are all right in our definition.  Just ask ourselves.  We know.

But when it comes to criminal law, since when is it our duty to adhere to someone else’s vision of doing what is reasonable or going to prison?   My reasonable may not be yours, or hers, of that other guys.  Which one becomes the standard to decide if mine is a crime?  But these questions aren’t asked in a courtroom.  Instead, judges and prosecutors fall back on phrases like “common sense” to cover the vast breadth of reasonableness in the hope that most people on a jury won’t see reasonable the same way as the defendant.  Or his lawyer.

It’s a great phrase.  It’s a great concept.  Well done there, Norm.  Now everybody, “NORM!”