Bennett: The Art of Arguing The Frivolous

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.

31 comments on “Bennett: The Art of Arguing The Frivolous

  1. Richard Kopf

    Mark,

    “They attract and purge frivolous arguments like a bulimic does food.” Best ever!
    All the best.

    RGK

  2. Anon

    Yes, but

    “one man’s junk is another man’s treasure.”

    I certainly agree with your post, however. Many a time at oral argument on appeal I have simply said:

    “unless there are any questions, the appellant rests on his/her brief”

    One final thought. Its not just that 20 % club of attorneys that make frivolous arguments over and over again. Anders can be frustrating. The judges don’t seem consistent in applying the frivolous issue standard.

    1. zoe

      Agreed, the client may not think it’s a frivolous argument. And the client may have hired you (the attorney) to restore their credibility, — to their ex-employer, to their friends/family, to the world. The client has hired you to help protect his/her most important asset.

      And, as a famous Federal Judge once stated, “The client is the job. Without the client, you are not an attorney.”

  3. RKW

    Today’s frivolous argument is sometimes tomorrow’s law. On more than one occasion I’ve raised issues considered frivolous by a trial Judge only to have an appellate court accept the argument at a later stage in that case (or another case).

    1. SHG

      If you believe in the merits of the argument enough, then you willingly risk the judge questioning your intelligence and integrity. You may win the point. You may not. It’s a calculated risk.

  4. John A. Bourgeois

    Dear Judge Bennett:

    I can’t agree that all frivolous motions are improperly made or result in the loss of credibility.

    As a CJA-appointed attorney, I’ve frequently had to try to overcome my clients’ strong suspicion, if not outright hostility, arising from the fact that the I was appointed by the same government that was trying to put them in prison, that I’m not really trying to advance their best interests. In most instances, I was able to overcome that distrust. On two occasions, however, involving clients who were adherents of either the “flesh and blood” or “Moorish” delusion, I had to “prove” I wasn’t selling them down the road. After telling them their defenses were nonsensical, had no legal merit, would hurt their causes, etc., etc., I finally agreed that I would present motions based on them to preserve the record only. In each instance, I informed the Court that I was raising a motion at my client’s request that the Court was bound to deny based on district or circuit precedent, and was doing so only to preserve my client’s appellate rights and his confidence in his counsel. In both instances, both the Court and the AUSAs were terrific. They patiently allowed me to present the motions. Government counsel on both occasions opposed the motions simply observing that controlling law compelled their denial. And the Court denied them, politely, stating that the issues were now preserved. Afterward, the defendants allowed me to present regular defenses without further disruption based on their ideologies. (That was the deal I struck with them.)

    These motions were frivolous. But I believe it was the right thing to do. They allowed the cases to proceed constructively thereafter. My judges and opposing counsel understood what was going on. That being said, other than in specific context mentioned, I agree that counsel’s credibility is paramount.

    1. SHG

      Pretty sure Judge Bennett not only agrees with what you did, but goes so far as to suggest that the procedure for doing so is pretty much what you did (you went further than Judge Bennett suggests). Not sure where you see disagreement.

  5. B. McLeod

    Ah, Joni Mitchell! I read of case a few years ago where counsel got in trouble because he refused to argue his client’s theory that the guy shown on the video of the client robbing a convenience store was actually someone else. Interesting, because if anybody tried to do that in a civil case, they would be sanctioned. “Frivolous” does not seem to have the same meaning in criminal cases, at least for some courts.

          1. B. McLeod

            I saw it happen once. The court had two fringes that day, and the judge and defendant were not on the same page about “jurisdiction.” But the judge won. The defendant (or his representative trust of similar name) went off to a holding cell for direct contempt.

            1. B. McLeod

              I know, right? It was shocking. Probably why I remember it to this day. (Note to self – that judge is mean).

  6. Mark W. Bennett

    Thanks to all for the interesting comments. some folks are forgetting that I use an exceptionally high bar before I label a motion or argument frivolous. It has to be way beyond the pale of the tiniest merit. It is worth noting that the ABA Model Rule 3.1 prohibits a lawyer from making a frivolous argument. There is an exception for criminal cases that has no application to my post. I have in private practice and as a judge gone against the great weight of authority, sometimes all authority but never based on a frivolous argument as I defined it in my post.

    RKW’s post is interesting. either his is embellishing or the trial judges had a misguided view of frivolity. I would like to see cites to the record in the trial court and the appellate rulings. In my 42 years I have never seen a appellate decision that adopted a frivolous argument as I defined it. Not saying it hasn’t happened just saying I have not seen or heard it.

    All my best,
    Mark W. Bennett

    1. Ray Lee

      Judge, as much as I despise public tummy rubs, I want to say the post is an excellent piece of authoritative guidance, especially for less experienced counsel. It would be even better if law schools would teach all new lawyers how to distinguish between frivolous / not frivolous arguments, and especially the nonexistent role personal feelings play, but that is a separate topic.

  7. Robert L. Abell

    Having practiced as a Legal Aid lawyer in NYC back in the late 80’s and early 90’s and as a private practitioner here in Lexington, Ky., including many, many times in a CJA capacity in federal court, I have to say I’m astounded that Judge Bennett is confronted with frivolous arguments in 15-20% of his criminal cases, given the very, very generous definition of frivolous. For those lawyers that are frequent offenders another line of work would be worthwhile consideration.

    1. Mark W. Bennett

      Dear Robert,
      GMTA – great minds think alike. I used to keep the standard application to the nation’s dental schools on my bench but never quite had the nerve to pass them out — but was seriously tempted.

      1. David

        Had you or other judges regularly encouraged problem lawyers to become dentists, Judge Kopf’s prior post re dentistry could have had even more gory details…

  8. Mark W. Bennett

    Year ago I heard a very experienced trial lawyer who I cannot recall state : “You will win more very close rulings based on your reputation than on the law or facts.” It always stuck with me. Credibility goes both ways. I have had several experiences with CJA lawyers where I have gone lower that their recommended sentence several times in a row with the same lawyer (different offender). They have no credibility with me and, frankly, after the first time aren’t savvy enough to simply ask me to go as low as I can without naming a number and then look silly to their client when I go lower. There seems to me to be a relationship between not being very savvy and not having credibility.

  9. Mario Machado

    Judge Bennett:

    Some think that lawyers who argue whatever frivolous crap their clients throw at them are just tools, in every sense of the world. I’ll add that the percentage of tools in the SDFL is much higher than in your neck of the jungle.

    Also, the willingness to file/argue frivolous stuff is one of their favorite tools – there’s that word again – for trying to steal clients. Client gets shut down by principled lawyer A, then said client hears through a friend that tool lawyer B is not only willing to do it, but will succeed in doing so!

    The problem is excacerbated when tool lawyer B has been around longer than his principled counterpart (“he’s been around long, and gets lots of cases, must know what he’s doing”). What’s infinitely worse than the shady one getting another case is the possibility of another client getting hurt.

    Thank you for posting this, Judge.

    Mario Machado

      1. Mario Machado

        Ah, yes. In Miami, it appears on the bill as a “santeria” premium instead of voodoo. But same difference.

    1. Mark W. Bennett

      Insightful comment, Mario. I so seldom have retained counsel in a criminal case it’s not much of a problem in Iowa. But I can certainly understand you concerns in your location. Every once in a while I will have a defendant that wants to discharge our excellent AFPD’s and hire a crappy lawyer with little or no federal experience. It’s ackward for me, I do try to explain what great expertise their current counsel has but ultimately a defendant is entitled to make a foolish decision and hire the tool of choice. Best

  10. T. Roberts, Law Prof. (Ret.)

    This is a wonderful post and comments too; the entire post belongs in the materials of every Trial Ad program in the nation. But I dispair that faculty would know how to teach to it.
    Just saying.

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