Suddenly four more dress-wearing old men materialize out of the heat haze and surround you, all chanting the same unintelligibly apocalyptic things. I think you might justifiably conclude that the time for polite murmurs and discreet sidling had passed and the time to run away had arrived.
And yet, when five [actually, six -- oops] dress-wearing old men made just that pronouncement on June 19, 1961—admittedly, less pithily, and while they were inside the mausoleum-shaped building on the corner of First Street and Maryland Avenue rather than on the sidewalk outside it—they were taken completely seriously by ... well, by everyone. The idea of not taking the Supreme Court completely seriously doesn't exist in American political life.
TV comedians are pitilessly funny about politicians who put themselves before the voters and tell us something of what they plan to do once they get power in their hands. But political appointees who refuse to tell us in advance what they have planned for us, who violate the first amendment by refusing to allow cameras inside their public buildings and penalizing criticism of themselves, and who institutionalize pomposity—somehow they're immune from ridicule (except for African-American justices' sexual proclivities and Italian justices' overly expressive hand gestures, stereotypes that prove the rule). Not even priests and the English royal family are too precious for jokes anymore. In America, only judges reside beyond the laugh barrier.
]]>Second, the cases I've worked on since leaving private practice have all been interesting. That's true of the drug cases, too. It's even true of the one speeding case I did: an ex-cop who taunted a former colleague in plainclothes by conspicuously zooming past him on the highway, relying on a state statute that permits officers to issue traffic tickets only when wearing uniforms. Only someone with a real ax to grind would have taken a speeding ticket all the way to the Court of Appeals, but he ground away mightily. The stories of the criminal cases are interesting, and sometimes deeply affecting. Even more than that, they're meaningful. They have meaning for people other than those directly involved in the courtroom proceeding. Often they have more meaning than anybody should have to bear. ...
Third, I'm expected to work a 40-hour week, which is a lot less than big-firm lawyers are expected to bill although it's still just a little too much for anyone. (Who doesn't respond to greetings on Monday morning with some variation of "Good, but too short"?) Some of my colleagues have the discipline to arrive at 8:00, go home for lunch at noon, return at 1:00, and knock off at 5:00. I tend to be the sort who gets into a groove and wants to keep working until everything in my head is transferred to paper, which sometimes makes me the last to leave the office at night, which then (naturally) tends to make me the last to arrive the following day, until it feels like I'm living in a different time zone than the rest of the office. My eccentricity is tolerated, for which I'm grateful. But from my point of view, the most important thing is that the work dictates my hours rather than vice versa.
Fourth, I can retire after 24 years with a pension that pays 75 percent of my salary. If I hadn't wasted those first five years, I'd be planning to retire shortly after I turn 51.
But there is a downside. It's easily stated: $. My salary today, adjusted for inflation, is a little bit lower than my last salary at [the firm where I started my career], which I left 19 years ago.
]]>Good judges strive to eliminate bias from their rulings, of course. In one of the most frequently cited phrases from any Supreme Court opinion, Justice Robert Jackson, one of the few modern justices with a clear understanding of the day-to-day practice of law (Sandra Day O'Connor was another), wrote that judges should be "neutral and detached" when they rule in criminal cases. Inside the courtroom, that means the good judge strives to be neutral as between the parties—the government and the defendant.
But more is at stake in a criminal prosecution than the fortunes of the two parties. The prosecutor's client is an abstraction. "The state" or "the United States" means the people who elected the representatives who enacted the laws to protect the people from criminal violence—and to provide justice for those among them whom the government failed to protect. Judges aren't detached from the government, which they embody. Nor are they detached from the people, whose consent is the source of their power. But they can be neutral as between violence and safety, crime and law, injustice and justice, perpetrator and victim. They strive for this.
So I'm afraid Judith Herman is wrong. Moral neutrality between victim and perpetrator is an option. It's the option chosen by our government, or rather by those government workers put in charge of our society's attempt to protect its members from death, injury, degradation, and abuse.
I THOUGHT OF the criminal law as society's response to criminal violence. How much violence is too much? Who gets to decide, the people or their judges? The people have passed laws that say things like killing another person without justification or excuse is a crime that should be punished. When, if ever, should judges refuse to enforce such laws?
But I found myself appearing before judges who thought of the criminal law in much different terms, as a series of courtroom contests between mismatched contestants. I saw myself as representing (though not in the technical legal sense) the victim of the particular crime, and the future victims of the perpetrator, should he be released to repeat his crime, and also all the people whose lives are shaped by violent victimization or the fear of it. The judges perceived me as representing the victimizer. I was the courtroom bully, picking on the helpless defendant. Almost all developments in the criminal law since 1961 involve identifying new ways in which an accused criminal can be considered the victim of the government. In almost every appeal I've ever done, I've had to defend police officers and prosecutors against accusations that they obtained a fair and just verdict by despicable means.
]]>Almost all legal argument is just a dispute about the proper category in which to slot a case. The lawyers on the opposite sides of the case are in the position of two apple sorters arguing across the conveyor belt at the packaging plant: "Fancy!" "No, Extra-Fancy!" Just as an apple's grade implies nothing about its taste or crispness, legal sorting doesn't necessarily imply anything about morality, or even justice, but only technical correctness.
A lawyer's role is amoral. That's not bad, but it's also not good. That's the point— it's value-free. The civil cases I worked on, with the exception of the media cases, were also generally value-free. One party may have broken the contract, but unless fraud was involved, the breach of a business contract is almost always a financial rather than moral matter. In practical terms our cases were all about what the legal system should do to replace a defunct contract. For no one not directly involved, it didn't matter. Business litigation generally served no larger purpose—not even that of economic efficiency, since the lawyers were barnacles on the streamlined hull of commerce.
All that neutrality got to me. It was like living one's entire life inside a beige room. There's nothing wrong with beige. Beige has much to recommend it. But it's ... beige. It wasn't that I felt superior to the work. If anything, the opposite was true. I felt there was something not quite right with me. Why didn't I share the apparent contentment of the lawyers I most respected?
Thinking it through with the analytical tools of a lawyer was useless because legal analysis proceeds from first principles, and the first principles I had absorbed in law school and at [my first] firm were: more prestigious is better; higher-paying is better; civil law is both more prestigious and higher-paying than criminal law. That led to the conclusion that I was happy, which somehow didn't convince me. ...
[I switched to doing criminal law as an appeals specialist with the state Attorney General's office.]
By the conventional standards of the profession, there's no doubt I was climbing down the career ladder when I joined the Attorney General's office. "Climbing" isn't quite the right verb. It was more like a fireman's pole. I was taking a big (more than 20 percent) cut in pay and sharply limiting my future earnings potential. I was going to work for the government, with all that implied about stodgy bureaucracy and shabby offices. (And, indeed, some of the furniture in my windowless L-shaped new office came from prison woodworking shops, although I kind of liked the yard-sale funkiness of the look and didn't mind the bookshelf's slight lean.) I was giving up sophisticated civil law for the disreputable criminal law. I was assuming a job title, assistant attorney general, traditionally bestowed upon baby lawyers for their first job out of law school. Being an AAG was the sort of thing an upwardly mobile lawyer might do for a year or two to make contacts before launching his or her career proper. In short, I was being unprestigious.
But I was also doing something that was socially useful. The satisfaction that comes from meaningful legal work is, in fact, one of the things that makes it unprestigious. Employers don't have to bribe people with high salaries to get them to do things they care about. In the legal world, where prestige usually correlates to high pay and the highest-paying jobs are those no one would do for less, prestige is generally a marker of meaningless work. New Mexico is an extraordinarily violent place, perennially among the most dangerous states for women and children. Growing up in the state from age 11, it had long seemed obvious to me that the violence had a chicken-and-egg relationship to the state's chronic poverty. Not only does uncontrolled violence discourage economic activity at the macro level, but individual victims of violent crime—a category that includes witnesses and everybody living in violent neighborhoods—suffer physically and psychologically in ways that hold them down. Abused poor children, for instance, drop out of school at roughly twice the rate of non-abused poor children—and New Mexico, like other particularly violent states, has a very high dropout rate. In rankings of the states, New Mexico has spent the past half-century becoming relatively more violent and relatively poorer. I didn't have any delusions that by becoming a prosecutor I could break the self-reinforcing cycle of violence and poverty, but I was strongly attracted to the prospect of doing something to help, leaving behind my old feelings of parasitism. I wanted, in short, to do good—which, to a lawyer, feels strangely like a confession.
The greatest attraction of the new job wasn't the opportunity to specialize in what I was best at, but the opportunity to get out of the beige room. Judith Herman, in the afterword to her classic Trauma and Recovery: The Aftermath of Violence—from Domestic Abuse to Political Terror, wrote: "moral neutrality in the conflict between victim and perpetrator is not an option." When I began to work on cases involving criminal violence, I left moral neutrality behind. I entered a world of vivid and sometimes disturbing color.
]]>But many conflicts of interest are accepted as so completely normal within the profession that, I suspect, the committee responsible for drafting the ABA's Model Rules didn't even perceive them as conflicts of interest. For instance, beginning with his reelection in 1998, New Mexico's governor Gary Johnson became the nation's most prominent proponent of drug decriminalization. New Mexico's drug laws are severe, on paper. When I began work as a prosecutor, selling a single rock of cocaine was punished as severely as child abuse resulting in death. The penalty for killing a child has since been increased, but a second conviction for selling even a tiny amount of cocaine will still result in a sentence longer than that prescribed for second-degree murder. In practice, drug defendants in the northern part of the state never receive the maximum sentence while those in the southern and eastern parts always do, which adds imbalance to the disproportion.
In New Mexico, the state's criminal defense attorneys are a very active and influential lobbying group, far more politically powerful than the prosecutors. During the years the governor was jetting around the country arguing the libertarian case for drug decriminalization, criminal defense attorneys dominated legislative committees with jurisdiction over criminal laws. But the defense lawyers never made a push to rationalize the state's drug laws. Why not? Because drug dealers are people who have access to large amounts of ready cash. The threat of severe consequences provides them with an incentive to transfer that cash to their lawyers. Better yet, forfeiture laws allow the government to seize all proceeds from drug sales as well as property bought with such proceeds, with a single exception—money earmarked for attorneys' fees. That provides another incentive for dealers to make over their estates to their attorneys. You can give your money and fancy car to me, your last remaining friend, or you can let the cops have it. The biggest beneficiaries of draconian drug laws aren't the police or prosecutors but criminal defense lawyers.
[A second example is insurance defense lawyers. Recognition of a new cause of action, or a mega-bucks punitive damages award, means businesses must buy more insurance, and insurance companies have more incentive to pay big fees. The demand for insurance defense lawyers' services increases with each case they lose.]
]]>On the other hand, every lawyer knows that lawyers sort themselves into fields of practice. Entrepreneurial trial lawyers and peas-in-a-pod insurance defense lawyers offer only the most vivid contrast. If they were put into a lineup, I don't think other lawyers would have much difficulty sorting them. A lawyer who goes to work in the wrong field will be miserable, often without quite understanding why.
Lawyers know that representing a certain client means nothing; they also know that it means a great deal. Both propositions are true, but they're true for different purposes...
]]>The hometowning judge is common as dirt, as he's only one variety of bad judge. There are many others. It's entirely predictable that young lawyers will encounter every variety, but law schools don't prepare their students for any of them.
[The categories included in this chapter are: The Lush; The Cliche Master; The Lazybones; The Bully; The Retiree; The Federal Magistrate (all-too-often a sub-category of the retired-in-place judge; see Judging Crimes, post 393); The Old Fool; The Control Freak; The Genius. See Judging Crimes, post 317, for more about The Genius.]
]]>Discovery is the phase of litigation during which the parties figure out how much a case is "worth"—the appropriate settlement figure. It's a period of pretrial jousting that allows the parties to sound out the other side, calculating their odds of prevailing at trial and estimating the seriousness of failure. By multiplying the estimated odds of victory against the projected dollar range of a verdict, the lawyers can come up with a ballpark figure for a settlement. Discovery, in practical terms, is a highly stylized form of negotiation. It's kabuki negotiation, in which the lawyers put on masks and make stereotyped gestures. ...
Another function of discovery is to give the parties something to file motions about. If one party thinks the responses it received to its document requests, interrogatories, or deposition questions were excessively evasive, it files a motion to compel discovery. If the party thinks the other side's requests, et cetera, are too broad, it files a motion for protective order. Regardless of how the matter is presented, judges are strongly inclined to "split the baby"— rather more like Shlomo in Joseph Heller's God Knows, who was really ready to cut the baby with a sword, than the King Solomon of legendary wisdom. So usually the parties have to go through a supplementary or substitute round of discovery in response to the judge's orders, which opens up the possibility for a second round of motions.
In this way, discovery means that instead of going to court to resolve the parties' dispute at trial, as in the old days, lawyers go to court to resolve their own disputes in a series of pretrial hearings. Discovery has grown into a way to deal with a big legal dispute by surrounding it with lots and lots of little ones, all of which must be addressed first. It's like sending out dozens of tugboats to guide an ocean liner into port, then requiring the liner to wait in the bay as all the tugs are docked.
]]>At least law school and the movies had taught me the line. Unfortunately, neither had showed me how to "manage clients"—the slightly supercilious term lawyers use to describe the complex dance steps necessary to keep clients happy while reducing their expectations to the reasonable and dissuading them from foolishness. Clients don't always want to be managed. Once I was given the task of advising mid-level bank officials about options for repossessing equipment after the borrower's default. I began, in what I thought was a jocular manner, by saying, "Well, we have three legal options and one illegal one." I explained the three. Then one of the officials said, perfectly seriously, "Tell us the other alternative."
I'd already been in the practice for a couple of years before I finally received some concrete practical advice about communicating with clients. A wise partner told me that I should always make a point of underestimating the chance of success. That way, if you fail, the client understands you did the best you could against daunting odds. And if you win, you look like a genius.
]]>I took two weeks off for my honeymoon and was told (gently— it wasn't a dressing-down) that I needed to do a better job of clearing off my desk before going away so long, and should also make a point of checking in regularly with the office. I wasn't permitted to be off the leash.
A minimum of 150 billable hours was expected every month, and I tried to stay comfortably above the minimum. I worked many evenings and on about half of the weekends. In some ways, working on the weekend was pleasant. I could wear jeans, and there was a sense of camaraderie with the other associates in their jeans. The only distractions were our chatting, but since the other associates were all good company the distractions were welcome. We also socialized some away from the office, going out for lunch or for drinks in the evening.
I was working with a group of people I liked. I was paid well. In my first years of practice I got to handle some of my own cases, and while they were all stupid and one was a disaster, I was learning the ropes. Most of my time was spent on complex litigation work that was, in a legal sense, relatively sophisticated. I was beginning to acquire some confidence in my abilities. What was there to complain about?
And yet the sensation I first experienced in the Arizona Biltmore kept recurring. I felt as though I was living someone else's life. Some people pulled back from the brink of death describe out-of-body experiences. This was the opposite—an inside-the-body experience, in which I found myself filling up a body that somehow wasn't me. And it was becoming a chronic condition, not a déjà vu–like episode. I kept trying to talk myself into being happy: where are you going to find a better job? But when my best friends from college visited me at the office, I felt like the world's biggest phony in my necktie. I was clumsy and tongue-tied around the people who really knew me.
]]>