In the course of a discussion about disclosing erroneously unredacted information about a witness to a defendant, a loose comment devolved into a raging debate.  This happens occasionally on a bar association listserv, but rarely does it reach the level of threats of violence.  This one did.

Because the listserv is intended to be private, and because it adds nothing to the discussion, there’s no reason to identify who made the comment.  It’s enough that the comment was made.

If a client wants to take a shot at a witness, that is 100 % their own stupid decision and they suffer the consequence.   Why should anyone even care whether a prosecution witness lives or dies

Why?  Because we are lawyers whose work is to defend those accused of crimes.  We are not criminals.  We are not animals.  We are neither devoid of humanity nor complicit in the harm caused others.  We are lawyers.

It’s fairly easy to understand where this sentiment comes from.  This is dehumanizing work, watching day after day as the system (meaning judges, prosecutors, even other criminal defense lawyers) refuses to acknowledge the humanity of our clients, and maybe even our humanity as we try to serve them while be treated as a thorn in the side of the system.  We can be made to feel like cattle as we’re called to the well for our few seconds of face time until a judge waves his hand and makes us go away.

Coupled with an excess of zeal, it’s easy to succumb to the sense that we need to withdraw to the most extreme reaches of the spectrum in order to be that passionate, focused advocate for the powerless, downtrodden, hated.  By replaying the platitudes that bolster our ability to go back into the courtroom day after day, bang our heads against the already dented wall, and go back again for more, we begin to believe that this is a monumental “us” against “them” scenario, an epic life or death struggle with the forces of evil overpowering our force of good.

Overwrought, hyperbolic, and just plain grossly excessive, these are the emotional triggers that many need to get them out of bed in the morning to fight one more day.  This is a tough business, and its can often take some extreme motivation to keep a lawyer working under these conditions.

But in a calm moment, an opportunity for a little more self-reflection, we have to realize that we do not wish for harm to come to anyone.  Certainly not our client, and not the witness against him either.  What moves us to stand up for these people who are accused is that they are human beings.  So too are those who claim victimhood. 

It was subsequently argued that we, as criminal defense lawyers, need not “buy into such hippie-humanitarian spineless dribble that we are to be appalled for not having unconditional good will towards the adversaries of our clients.”  It’s true that we need not concern ourselves with the well-being of witnesses or victims in our consideration of our function, and indeed such thoughts are likely to impair our ability to do what we are obliged to do on behalf of our client, which may prove inimical to at least the psychological welfare of those people, there is a huge schism between not caring about the welfare of the victim and being complicit in physical harm befalling anyone. 

Think of it this way: If we beat the living daylights out of the prosecutor just before opening statement, including a few decent kicks in the mush so he couldn’t get a word out of his bleeding mouth, it would certainly benefit the defense.  And to even suggest such a thing is beyond absurd.  We would never harm the prosecutor, no matter how much (at least for that moment) we hated him.  We don’t do such things because we are not animals. 

Life is becoming increasingly dehumanizing as we spend increasing amounts of time dealing with others from an unnatural distance, whether online, on paper, anywhere but face to face.  We get increasingly worked up in our zeal from the sense of frustration, coupled with the bolstering of like minded folks and the villification of our adversaries,  We begin to forget that others whose faces we can’t see are people too.  Like our clients.  Like us.

But most of all, we need to remember who and what we are.  We are advocates.  We are protectors.  We are the one person in the world who stands between our clients and the powers that want to do him harm.

But we are not animals.  We do not harm others.  We do not wish harm upon others.  We are not complicit in the harming of others.  Don’t let zeal and raw emotion get the better of you.  We’re lawyers.

Postscript: I never liked the listserv, and still don’t.  It’s a god-awful means of communication at its best, as demonstrated by what happened here.  But before it reaches the point where cursing and threats are levied, remember that all one need do when your throbbing  veins are about to burst is stop typing, turn off the computer and it all magically goes away.  Nobody remembers.  Nobody really cares all that much.  It’s quickly forgotten, hard as it seems in that moment of ire to believe.

Threaten harm, curse your enemy, rage and it will be remembered.  The same is true, by the way, of asking a really stupid question, especially one you could easily answer by a moment’s research.  Just saying.