There’s an old lawyer joke:

Many years ago, a junior partner in a firm was sent to a far-away state to represent a long-term client accused of robbery. After days of trial, the case was won, the client acquitted and released. Excited about his success, the attorney telegraphed the firm: “Justice prevailed.” The senior partner replied in haste: “Appeal immediately.”

It’s what we lawyers do, appeal.  But this decision, like every other decision we make, should be subject to some small degree of thought and discretion.  That message comes from Judge Stephan Reinhardt of 9th Circuit Court of Appeals in United States v. Beltran-Moreno, courtesy of Eugene Volokh.

After pleading guilty to a multiple-count indictment charging, inter alia, two independent firearms counts under 18 U.S.C. § 924(c), Jose and Abraham Beltran-Moreno benefited from the district court’s erroneous construction of that statute at sentencing. They should have quit while they were ahead.

Appellate counsel argued that the sentence was excessive.  As a matter of law, the defendants sentence was below the mandatory minimum due to the requirement of consecutive sentences, and a lifetime below the guidelines.  But they appealed anyway.  As it turned out, no harm came of it because the government chose not to appeal the error and post-sentence caselaw precluded the court from increasing the sentence absent a government appeal.  That was just lucky.

Ken at Popehat also posts about this decision, and provides a great story of his own to go along with it.

Counsel, do you know what Satchel Paige said?

The title of this post is a line that Manny Real, a United States District Court judge in Los Angeles of some hard-earned infamy, likes to bark at lawyers before him. He’d utter it when a lawyer insisted on arguing a point when he or she had already won the issue. Judge Real was referring, of course, to Satchel Paige’s sage advice, “Don’t look back. Someone may be gaining on you.” This coy reference is intended to tell the lawyer to sit down and shut up and leave well enough alone. Few lawyers catch the reference; most stand there, terrified and gaping, until some merciful soul hisses to them that they’ve won and to shut up. Judge Real derives visible enjoyment from this process.

While it may be somewhat more difficult to realize when you’ve hit the point in argument where you’ve persuaded the judge to see things your way, most lawyers find if impossible to stop talking when there’s still air left in their lungs.  The other side argues something, and they feel compelled to stand and confront it.  Sometimes, the argument raised is foolish and unworthy of the court’s time, but it’s not always clear that the judge feels the same as he does, and so he goes on.

The problem in oral argument is that once you’ve won a point, more sound emitting from your mouth presents an increasingly strong potential to seize defeat from the jaws of victory.  Yet lawyers just can’t let go.  Even here, when someone raises a silly and obviously pointless argument in a comment, someone usually feels compelled to explain why the argument is ridiculous.  I usually ignore it, as further argument gives it more credence than it had standing alone.  Other people just can’t do it.  They just can’t leave well enough alone.

But on appeal, as opposed to Ken’s Manny Real story, there is no excuse.  The appellate counsel had all the time in the world to figure out, if it wasn’t obvious from the outset, that his argument was not merely a loser, but a killer.  For his own client.  Thus, pursuing it suggests two possibilities.  One, the lawyer was glaringly incompetent.  Two, the lawyer’s compulsion to pursue an appeal was an autonomic reaction, blinded from sound judgment.  Either way, it was just plain foolish.

Ken points out that many clients will chose to pursue an appeal even when it could result in a crashing blow, as this case had the potential to do.  He suggests that this might not be the fault of counsel, but the choice of the client.  While he may be right about the client’s misbegotten choice, it’s critical to remember that the lawyer, not the client, is solely responsible for the tactics employed in his representation, the choice of arguments and the pursuit of any particular avenue of redress.  The client may well have demanded the lawyer pursue this appeal, but the lawyer is solely at fault for having handed his responsibility over to the client.  If the client refuses to accept the lawyer’s performance of his duty, then the lawyer’s responsibility is to move to be relieved.  The lawyer does not get a free pass for being a bonehead at the client’s insistence.  We are not merely a client’s mouthpiece, and we are not saved from our failings because “the client said so.”

Judge Reinhardt’s decision is a lesson to remind all of us to get a grip on that lawyer bone that makes us engage in the knee-jerk reactions to do what lawyers do.  Sometimes, we are ahead of the game and need to say to ourselves and our clients, this is where it stops.  Yes, we could appeal, but to do so is to invite further damage.  Yes, we could argue more and address every silly point raised by our adversary, but to do so is to seize defeat from the jaws of victory. 

We need to know when to stop trying to win.  After all, now you know what Satchel Paige said.  And Judge Reinhardt too.