Commenter Lee Stonum wrote:
I am confident that Scott, Bennett, Pattis and Gamso are all hard-working, dedicated smart lawyers. I’m just as confident that Bennet & Pattis are superb trial lawyers (Scott & Jeff don’t talk as much about actual trial practice, but I’d guess they are also very good).
That was kind of him to say, but he’s wrong. I write a blue streak, but that doesn’t make me a hard-working, dedicated smart lawyer. Nor does the fact that I don’t write as much (anymore, anyway) about actual trial practice show that I’m “very good.” Lee’s fallen into the trap of the blawgosphere. Maybe I’m not a lawyer at all. Maybe I’ve never tried a case in my life. Maybe I’m twelve years old and pretending to be a lawyer when I should be studying for a spelling bee.
Okay, it’s fairly easy for me, since I’m completely transparent and verifiable. Though Lee’s assumption, that my lack of discussion about my trials is indicative of my not trying as many cases as, say, Norm Pattis, is mistaken. In fact, I don’t, as my practice is very different than Norm’s, and I would never carry the volume of cases that Norm does, or go from trial to trial to trial. That was my practice years ago, but it’s no longer the way I work.
But my lack of discussion has nothing to do with that, and everything to do with my decision to not discuss my cases to avoid any possibility that a confidence or strategy will be disclosed. I don’t own my cases, and they aren’t mine to write about. They belong to my clients, and my clients don’t want the worst experience of their lives strewn across the internet. I respect that, so I don’t kiss and tell.
Others feel differently, and I accept that my position is not universally shared. As a result, I learn a lot about how things are going for other lawyers. In particular, about Norm. He’s been bleeding all over the place lately, and sums it up in a post today.
It has not been a good year for me. I had a run of guilty verdicts unlike any I have ever had before. I lay in bed at night wondering whether I’m washed up, or whether I’ve become too arrogant to be trusted by jurors. In each case I tried this past year, I was able to accomplish what I wanted to do with the evidence. But the evidence, well, it kept on coming against client after client, a tsunami of grief that buried my clients and my ego.
After a loss, I sometimes sit late at night and wonder whether a better lawyer would have obtained a different result. This form of torture goes on sometimes for weeks, until a new case or controversy laps over the shore of discontent.
I don’t know any good trial lawyer who doesn’t believe he’s Superman going into the case, and a worthless wretch after a loss. If you don’t feel this way, you shouldn’t try cases. You can’t, no matter how many tricks you’ve been taught or gods you’ve prayed to. But you get only one day to feel sorry for yourself. After that, the pity party is over. There’s work to be done.
That Norm has had a bad series of verdicts is unfortunate. As a friend, I feel for him. But as a friend, I say “snap out of it.” We’re useless when we lose our confidence in our ability to try a case. If you are washed up, you better figure that out for real rather than take another case and risk another life. But you know you aren’t washed up, and that you’re just oozing self-pity. You know that we stare down both barrels of the biggest shotgun known to man every time we step into the well. If you can’t face it anymore, then it’s time to sit at a desk. You aren’t ready to sit at a desk for the rest of your life yet, are you?
It’s more of a worry to me when a lawyer doesn’t feel the pain of a loss. Either he doesn’t care, and takes another person’s life for granted, or he’s not yet ready to be entrusted with such a responsibility. Not everybody is cut out for this sort of work. In fact, very few are really meant to carry this heavy a load. There are people in the courtroom who are just awful trial lawyers. When they sit at the table next to me, I’m more afraid of them than I am of the prosecution. The knife in the back is harder to see coming.
I’ve never tried a case where I didn’t think there was something I could have done differently, better. Even when I win, I wonder. Only for a day. Then I put it behind me. I mean really behind me. To continue to carry that albatross around would make it impossible for me to walk into the courtroom believing that I can, I will, win the next trial. And I will win the next trial.
Snap out of it, Norm. You will win the next trial. And if you need to write about it to exorcise the demons, that’s fine, but then let it go.
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I enjoyed this post, and I agree with it.
If you think you are beaten, you already are.
You give Norm a hard time about his “bleeding all over the place recently.” I understand you do this in fun and out of respect and affection for Norm. But I think that Norm does a service to younger CDLs by writing about these things. The essentials of trying a case is one thing. Dealing with the emotions of winning or losing a case is another. It is helpful for me — as one of these less experienced CDLs — to see how someone like Norm deals with the losses.
I also respect your position on not writing about your clients’ cases. In fact, I’ve never seen it put quite so eloquently before: “I don’t own my cases, and they aren’t mine to write about. They belong to my clients, and my clients don’t want the worst experience of their lives strewn across the internet. I respect that, so I don’t kiss and tell.”
At the same time, from a learning perspective, the details of a case are sometimes pretty significant. And it is hard to make up the details speaking hypothetically. I sometimes learn a lot from Norm’s posts because of the very details he provides. I also think he manages to provide these details certainly without divulging client confidences but also without embarrassing his clients with facts that are on the public record already. You can feel the affection Norm has for his clients coming through in his posts.
I know you say you write for yourself only. Knowing you to the extent that I do, I also imagine you scoffing at the notion that you could have any pedagogic reasons for writing Simple Justice. But I think you are holding out on us. I think you know very well that people come to this site to learn things about the practice of criminal law and that this is in fact one of your reasons for writing the blog. I, for one, wish that there were more details on your personal experience and, dare I say it — feeeeeelings.
What Jamison said.
Seriously.
I’ve learned much from you and would like to learn even more.
There is a pedagogical benefit to be had here, but you’re not going to like the message in this one. We get beat up. It the life we chose. Take a kick in the teeth like a man and keep on fighting. Wimps wring their hands and moan about their feelings afterward.
An ongoing theme here, in case you haven’t noticed, is that this is not a job for wimps. If you want to spend your time reflecting on your emotions, wallowing in misery and self-pity, do transactional law. There’s no crying in baseball. Or trying cases. If you need to read about Norm to know how to deal with your “emotions”, then your taking away the wrong message. Look at Norm. He’s wreck, dwelling in his failure. The only lesson to be had there is that Norm needs a hard slap.
You want to know about dealing with the emotions of being a trial lawyer? Here’s your lesson:
If this gets your panties in a twist, then you should consider whether trial work is for you.
An anonymous wit taunts me and suggests I change the name of my blog to the Vagina Monologue. I may do podcasts with a new tune: Bleed on Me.
Hey, I write what I write and I am grateful for any readers. As always, I a stunned that anyone cares enough to comment on my many faults.
Who you callin’ a wimp, futher mucker?
I don’t care. I just use you like an old tissue for my own pedagogical purpose, then throw you away, beta boy.
[I love the Vagina Monologue line, though you’re obviously sexist by suggesting that people with vaginas are incapable of being tough enough to try cases, you sexist beta boy.]
You would have to take off the dress to elevate yourself to wimp status, beta boy.
Our issues differ.
Want me to rub you tummy?
As I said, our issues differ.
I stand corrected: Apparently you are not holding out on us. And the part about not being a wimp is good news. Standing tough, being a man, all of that is the easy part (even for Mirriam). It’s the self-reflection that could be far more challenging.
You deserve whatever happens to you.
Gaze at yourself in the mirror and feel deep emotions all day long. I’ve got clients to represent.
“I don’t know any good trial lawyer who doesn’t believe he’s Superman going into the case, and a worthless wretch after a loss. If you don’t feel this way, you shouldn’t try cases.”
Oh yeah….welcome to Mr. Haynes’s neighborhood.
By way of correction: I didn’t assume your lack of writing about trial meant or didn’t mean anything about how many you try or how well you try them. I extrapolated from the fact that I believe you to be a dedicated, hard-working lawyer (there’s plenty, from this blog, for me to base this on and you know it) who is also smart. I’m supposing you can try a case.
On the topic of taking losses, I think they are important. I generally don’t wallow in self-pity. I might cry with my client’s family and apologize that I couldn’t do more, but usually I’m more mad than sad. Mostly at the jurors, lots at the judge, a little at the prosecutor, at the cops. When that’s done I try to really analyze what went wrong and what could have done better.
Like most CDLs, I’ve got a healthy ego, particularly when it comes to trial. The losses, especially the ones I was sure I’d won, are a nice way of reminding myself that I’m not so fucking good as I like to think.
It makes me work harder the next time around. Anticipate faulty juror reasoning. Refine arguments and strategies.
What it can’t do, which is I think Scott’s point, is make you gun shy the next go round. I have colleagues who are not very good trial lawyers and it is maddening to watch them talk clients with very triable cases out of trial. I suppose given the client’s option: plea or trial with a lousy lawyer, maybe its good advice, but so much of the battle is lost when you begin to believe that most cases are unwinnable.
We had a young lawyer in our office who was very capable. The problem was he was winning cases he should be winning and losing cases he should be losing and it was beginning to make him trial adverse in his case analysis. My constant observation was that he needs to win one he didn’t want to try, that he thought he should lose. He eventually did and it was like a switch flipped. Crazy shit happens when you put the state to its burden and sometimes it cuts against us and we lose the ones we shouldn’t have, but that won’t happen every next time, even with a string like Norm’s on. One of the other nice things about being a PD is that I can always go cherry pick a nice case the DA should have dumped when I’m on a bad streak. I suspect there are no “easy” cases in Norm’s drawer, not given those he has been trying lately.
Norm knows. I’m goading him with posts like this, as he’s been a little too down in the dumps/emotional about a few particularly hard kicks in the teeth lately. If I was a little closer to where he lived, I’l give him a good Cher smack. Instead, I write my smack.
We all need our friends to remind us once in a while that this is the life we chose, and this life has no time for self-pity.
I’ve cried after losses. Yup. Sat down in my office and wept. Sat across from TLK and wept. Then, got up and moved on. Crying and trying cases are not mutually exclusive. Crying WHILE you are trying cases, well, that’s another story entirely.
Well, of course you cry after a loss. You’re a girl lawyer. Then you get a mani/pedi and everything’s fine again.
Yes, everything is fine. But usually it involves a shot of bourbon and a bubble bath.
Better than a shot of bubbles and a bourbon bath.
I will comfort you. What r u doing later on.