A good, old fashion debate has broken out in the blawgosphere. Lord, I miss the days when we debated all the time, but I’ll take what I can get from as much of the blawgosphere as remains. It started with Jamie Koehler’s post about a young lawyer who engaged in an “ugly” argument with a judge.
Last week I watched from the gallery as a young attorney got into an ugly argument with the judge. Who knows, the lawyer might have been right when it came to the substance. But everything else about it was wrong. You do not talk over the judge. And you do not pick fights that you are going to lose, particularly when you have your client standing there right next to you. Judges are people too, and they can have long memories. Watching the judge’s body language the next day when dealing with the same lawyer on a different matter confirmed for me everything I needed to know.
As a general rule, this was fine. Gratuitous fighting with the guy who makes decisions rarely ends well. For the most part, it’s an indulgence, the lawyer venting his frustration over the judge not agreeing with him. There’s a lot of that around these days with young lawyers, who can’t understand why everyone doesn’t appreciate their brilliance and bend to their will.
But then Jeff Gamso jumped in:
Jamison is exactly wrong.
Oh, he might be right in the detail. It may be that the lawyer was an asshole, picking a fight with a judge because by god he was right. Or to show off for the gallery hoping that someone out there would ask later for the business card of the lawyer with balls. Or because he spilled coffee on his tie that morning.
Or maybe he needed to make a record that the judge wasn’t happy about. Maybe he needed to argue for that bond reduction and the judge just might have given in. Maybe, hell, I don’t know.
But that’s the point. And it’s why Jamison is wrong. Because you don’t in this business worry about how the judge will deal “the next day . . . with the same lawyer on a different matter.” At least, not if it’s a different case. It doesn’t matter whether judges “have long memories.”
This reflects the putatively same scenario, but with entirely different purposes imputed to the lawyer. Jamie’s baby lawyer was pointlessly disrespectful and argumentative. Jeff’s was purposeful, and refused to compromise today’s client for tomorrow’s.
And then the Unwashed Advocate, Eric Mayer, came out of hiding to put his two cents into the mix:
At this point, I view any further discussion as unnecessary and more likely to create ill-will toward my client. Therefore, I stop. Some want to push further than G2, turning the disagreement with the opposing side into an argument with the judge. I fail to see where this could, in any stretch, be calculated to bring a favorable result to the client. All it creates is bad blood in the courtroom, and the lawyer loses credibility with those who matter the most. Though, I’m sure those who use this technique have a reason for doing so.
Eric tries to bridge the gap between Jamie and Jeff, contending that whether the reason is banal (putting on a show for the sake of the client) or deliberate, the creation of ill-will is never a winning strategy. And the Puddle rides Eric’s coattails to reduce thought to its barest minimum.
There is a critical distinction in contrasting Jamison’s position from Jeff’s. Jamison does primarily DUI defense, which means he’s before the same judges regularly, and the stakes of losing are, in the grand scheme of things, not too high. Jeff, on the other hand, does death penalty defense. Is avoiding pissing off a judge worth a person’s life?
But Eric speaks to the efficacy of getting angry with the judge. As the general rule, he is no doubt right. But unlike Eric, I not only can see, “by any stretch,” but have pushed the envelope of argument, purposefully and successfully. An anecdote, which by definition proves nothing but serves as an example:
There was a judge in Manhattan who was both loved and feared by the defense bar. She went out of her way to be social from the bench with defense lawyers, inviting them up to chat, occasionally giving her favorites a peck on the cheek. The prosecutors never minded this, though, because they knew that while she would kiss the lawyer, she would screw the defendant. And the lawyers would take it quietly because they didn’t want to ruin their friendship with the judge. After all, what purpose is served by generating ill-will?
I refused to play. I didn’t want a kiss, and I wasn’t worried about her disliking me. While she acted as if we were besties, my clients’ lives were being ruined. Realizing her need for validation of her self-image of “tough but fair,” I took to pushing her buttons. I never spoke over her, because the court reporter can’t record the words when two people speak at once, but I raised allegations that inflamed her, infuriated her.
In one particularly poignant moment, I argued that the reason she refused to set reasonable bail for my client was because of his ethnicity. She raged back at me in response, that she would never do such a thing unless she had no other reason to detain him. I got her.
The point isn’t that Eric, or Jeff, or Jamie, is wrong. The point is that everything we do in a courtroom is tactical, whether it’s stand down from a fight or deliberately push buttons knowing that there will be blood on the floor.
General rules are fine, and usually best practices for those who are either insufficiently experienced to handle the consequences of their tactical choices, or lack the stones to do it right. But they’re general rules, and as Jeff properly notes, there are times when the rules need to be broken because there is a human life at stake, and going along to get along is the forfeiture of our responsibility to the defendant we stand next to that day.
Could that mean the next day, we face a hostile judge? Sure. Nobody said it was easy being a criminal defense lawyer. Nobody said we wouldn’t face consequences for our choices. And nobody is saying that being an argumentative, disrespectful jerk is generally a good idea. But sometimes, it’s the means needed to save a person’s life, and if so, then that’s what we have to do.