After twenty-three years of motions, hearings, trials and sentencings in over 4,000 criminal cases spanning four districts, I want to share my thoughts on the art of arguing the frivolous.
I practiced federal criminal defense law for seventeen years before I became a federal judge. For whatever reasons, in both retained and CJA cases, I had excellent client relations and to my knowledge never once argued a frivolous motion a client suggested. I listened and was patient with clients, but was able to convince clients why arguing frivolous positions was not in their best interest.
On occasion, I explained to clients, and confirmed in written detail for them, why I would not argue their frivolous claims. On very rare occasions I indicated that I would withdraw before I would argue the frivolous position. I explained why arguing a frivolous position harmed my credibility with the judge, probation office and the AUSA, and worse for them, harmed their chances of getting the best result possible. I do not recall ever having to withdraw.
So it is against this experiential backdrop that, to be blunt, I have been stunned by how often criminal defense lawyers argue frivolous positions. And I have a generous view of what frivolous means. It has to be totally devoid of a factual or/and legal basis, and be illogical, bordering on the ludicrous, before I am willing to label it frivolous.
Indeed, one can search my more than 1,200 reported decisions and the word “frivolous” is very, very, very, rarely used.
I would estimate over the years, frivolous arguments are raised in 15-20% of criminal cases over which I preside. The best criminal defense lawyers never raise frivolous issues, and this includes privately retained, CJA lawyers, and AFPD’s. One of the very best lawyers that practices before me is an AFPD. He has never raised a frivolous issue despite representing many very, very difficult defendants. It seems that there are serial recidivist frivolous-raising-offender criminal-defense lawyers. A small percentage of criminal defense lawyers seem to be especially enamored with the frivolous. They attract and purge frivolous arguments like a bulimic does food.
My best advice is to stop raising frivolous arguments because you lose all credibility with the judge. After Booker and Gaul, many AUSA’s initially opposed all downward variances. They had no credibility with me. As DOJ finally realized downward variances were here to stay, most AUSA’s began admitting the validity of, and sometimes supporting, the appropriateness of
a downward variance. They gained their credibility back.
So, if you are still addicted to raising frivolous arguments, here is what I suggest you do: Introduce the arguments with something like this:
Your honor, my client has specifically urged me to request that you ignore the mandatory minimum in this case and sentence him to time served because he does not believe he or society will benefit from the mandatory minimum sentence.
This is least informs the judge that the lawyer knows the argument is crap. The consequences of not doing this, and arguing the point as if you believe it has merit, totally undermines your credibility with the judge.
After more than four decades in the legal profession, I truly believe that your credibility is your calling card, and in the end, the most important asset you own. Guard it as if it is your first born or your retirement account.