It’s reminiscent of a particularly moronic discussion of lawyers acting like “jerks.” Some were simplistic enough to arrive at an easy answer: jerks are bad, so don’t be one. Others recognized that being a jerk can be one tactic in the toolbox. Be one when it inures to the client’s benefit.
The thing is, being a jerk all the time doesn’t make you a jerk, it makes you an asshole. It’s just not necessary. All attorneys should lead with civility and courtesy when initially interacting with opposing counsel. And they should strive to maintain that civility as best they can. But ultimately, the practice of law is not about you or your feelings. The practice of law is about what’s best for your client.
The line between the shallow thought at the surface and the deeper thought below may be thin, but it’s the difference between being effective and being narcissistic, indulging oneself at the expense of one’s client. An ugly exchange in a Las Vegas courtroom put this into context.
A 3rd-year public defender was trying desperately to keep her client from being put in jail on a violation of probation by Justice of the Peace Conrad Hafen. This exchange followed:
[T]he judge told her to “be quiet.”
Bakhtary tried to interject.
“Zohra,” the judge said.
She spoke up again: “You’re making —”
“Do you want to be found in contempt?”
“Judge, you’re asking —”
The judge once more asked her to be quiet. “Now. Not another word.”
Bakhtary then said, “Judge, you’re,” before being cut off.
Hafen turned to his marshal. “Travis, right now. I’m tired of it. Right now.”
And Bakhtary was cuffed. She sat in the jury box, alongside inmates wearing jail clothing, while the judge finished hearing the case at hand.
As a general rule, lawyers, particularly young lawyers and public defenders, are to be applauded for being bold enough to stand up to a judge on behalf of their client. This is particularly true when they put themselves at risk in doing so. But like the simplistic “don’t be a jerk,” be bold and interrupt the judge is only one tool in the lawyer’s tool box. Knowing when and how to use the tools of the profession is what being a lawyer requires.
The problem arises when knee-jerk reactions to displays of “passion” are applauded, as if being a passionate public defender is good enough. This is not merely a dangerously foolish notion, but one that puts the lawyer’s feelings above the client’s interests.
How to suppress effective indigent defense 101: Las Vegas judge handcuffs public defender in courtroom https://t.co/4FUCvg1Ipc
— Keren Goldenberg (@GoldenbergLaw) May 24, 2016
What was effective about interrupting, pissing off (and ultimately being taken away in cuffs by) the person who has the power to put your defendant in jail? Absolutely nothing. Conflating misguided self-indulgence with effectiveness is a dangerous message. The public defender here wasn’t brave, but narcissistic, as if her “right” to speak was more important than her client’s life.*
Everything a lawyer does on behalf of a defendant must be tactical. There are times when it may be incumbent upon the lawyer to stand up to the judge, and there are times when pissing the judge off is counterproductive. Shut up and let the judge speak. Await the right moment to get back in the game. Find the right words to advance your argument. Be effective, not indulgent.
But we’re at a time where passion is appreciated as a stand alone virtue. There is probably no more simplistic, misguided and dangerous a belief than this.
— Neil Rockind (@neilrockindlaw) May 24, 2016
This mindless adoration of passion is great for fortune cookie wisdom and inspiration for the hard-of-thinking, but it has no place in the courtroom, where the duty is to be tactical on behalf of the client, not passionate to express the lawyer’s feelings. Failed tactics wrapped up in a pretty bow of passion may make the lawyer feel better, but it does nothing to keep the defendant warm at night in a jail cell.
And yet, the failure of effective representation isn’t the fault of the passionate, but the system, the judge, who should indulge every child who comes before the court.
— Keren Goldenberg (@GoldenbergLaw) May 24, 2016
Judge Hafen may be a jerk for having cuffed the public defender who refused to stop interrupting him. But he was also the decision-maker. It was the lawyer’s job to persuade this jerk, for better or worse. Persuading a judge or jury is what we do, whether they’re fabulous and brilliant, or nasty idiots and jerks. That Hafen acted improvidently may well be the case, but that’s irrelevant to the tactical decision to be made by the lawyer. At that moment, what Hafen felt was important. What the lawyer felt meant nothing.
At that moment,** it was only about what tactic would best serve the client, how the public defender could accomplish the goal of keeping her defendant out of jail. That the PD lacked the impulse control to shut her mouth, not push this judge, whether he was right or wrong, over the edge to her client’s detriment, is nothing to applaud nor excuse. That she will receive the applause of the passion apologists enables and empowers her, and others like her, to indulge their misguided feelings of entitlement to ignore the judge, to speak out because that’s what they feel, and to fail their client miserably.
The judge is a jerk? So what? At that moment, the jerk holds your client’s life in his hands. If you can’t bear him on the bench, complain about him later, but at the moment, find a way to make the jerk come to your side. That you feel you’re right, you have something that must be said, and passionate advocates are entitled to emote, even if it slits their client’s throat? Sorry, but it’s not about you. Not even a little bit. Not even if you feel very strongly the need to strenuously object.
There are times and circumstances where it is tactical to piss off a judge,*** to take a position that may well put the lawyer in jeopardy. And the lawyer’s willingness to do so on behalf of the client is most assuredly worthy of applause. But that has nothing to do with passion, the refuge of self-indulgent fools and children. It has to do with tactics. We have a duty to our client to zealously represent him. The corollary duty is that we never let our own feelings prevent us from exercising our best professional judgment for the client’s benefit. You get no red balloon for failing to do so.
*Hafen chalked up his punishment to maintaining courtroom decorum. While you anarchists will hate on decorum, it is another tool to be used to the client’s advantage, seizing the right moment to be heard or, under the right circumstances, to violate it. As with everything a lawyer does, it’s tactical, using the rigid dance steps of decorum to your client’s advantage. That’s what distinguishes the effective lawyer from the self-indulgent narcissist, the ability to grasp that everything is a tool, if only one keeps one’s head in the game rather than let narcissistic passion be more important than the client’s representation.
**It’s not easy to make the effective tactical decision in real time, but that’s the job. Just like whether to object to a question, you do it immediately or it’s lost. No one said being an effective lawyer was easy. But when effective tactical decisions are rationalized away by the excuse of passion, bad lawyering morphs into laudable boldness, even though it comes at the client’s expense.
***When the cause is lost and the dance is done, preserving a record may require a lawyer to break from decorum. At that point, when the opportunity to argue is over and the ax is swinging down on the defendant’s neck, tactics may demand extreme measures. But even then, it’s not a matter of passion, but tactics. It’s always tactical. Always. Because it’s always about the client.
Update: The transcript of the appearance before JP Hafen is now available. The relevant portions are on pages 6 and 7. For those pondering context, here’s context.