184. The "d" word

Deval Patrick, former Assistant Attorney General for Civil Rights, is running for governor of Massachusetts, and his opponent is on the attack.   And that's got Massachusetts lawyers riled up.  According to the Boston Globe, "The Massachusetts Association of Court Appointed Attorneys is circulating a memo calling Lieutenant Governor Kerry Healey's attacks an assault on the Constitution."  Sounds pretty dire.

Here's the Globe's description of the ads:

The source of the ire: two ads from the Healey campaign that highlight Patrick's legal work. One takes aim at Patrick's defense of Carl Ray Songer , an escaped convict who murdered a state trooper on a Florida highway in 1973. As a lawyer for the NAACP Legal Defense Fund in 1985, Patrick argued successfully that Songer was not able to present evidence of his character and education in court, and Songer's death sentence was reduced to life in prison.

"While lawyers have a right to defend admitted cop killers, do we really want one as our governor?" the ad asks.

The other ad spotlights Patrick's efforts, as a lawyer in private practice, to support the parole petition of Benjamin LaGuer , who was convicted in 1984 of binding his 59-year-old neighbor with a telephone cord and raping her.

"What kind of person defends a brutal rapist?" the ad asks.

You can watch the ads on the Kerry Healey website here.  (I think the one of the frightened woman walking through a deserted parking garage at night is particularly effective.)

Now here's Davis L. Yas, a lawyer and editor of Massachusetts Lawyers Weekly, describing the outraged reaction of Massachusetts lawyers:  "Yas said lawyers 'regard these ads as misinformed, distasteful, and insulting and in some ways they might even be disingenuous.'"

"Misinformed, distasteful, and insulting" are just the windup to the hammer blow, the accusation so ferocious Yas virtually apologizes before making it: in some ways, they might be, they might even be ...  Oh, I can't repeat it!

(Am I justified in assuming that other Massachusetts politicians employ only tasteful attack ads?  Ones that avoid insulting the opponent?)

If you're not a lawyer, you've probably never heard the word "disingenuous" used in conversation.  But a Westlaw search shows that, just since 1990, American appellate courts have used the word "disingenuous" no fewer than 10,256 times.  (No doubt the total is higher today.)  In the vast majority of those 10,256 cases, the appellate court was insulting some lawyer. 

"Disingenuous" is the ultimate legal insult.  It means "lying."   The word is used to describe a statement or argument by one's opponent.  It means: even he or she isn't so dumb as to actually believe that.  It's intended to place the opponent on the horns of a dilemma.  In a profession that places a high value on savvy (or, less charitably, on cunning), no lawyer will admit to being the opposite of disingenuous.   ("No, really, I am that dumb!") 

But, if the statement is false or the argument sophistic, what lawyer will want to own up to being the conscious and calculating author of it?  ("No, really, I didn't believe it, either.  I just said it.")

Lawyers like dropping the "d" word because it conveys a thought ("lying sack of shit") while permitting the person using the word to - disingenuously - deny any intention of conveying it.  To be extra careful, lawyers often employ circumlocutions such as "approaches the disingenuous" or "borders on disingenuous" - or "in some ways they might even be disingenuous."

The word "disingenuous" embodies some of the contradictory feelings lawyers live with every day: the competitiveness that makes you want to squash your opponent like a bug, coupled with a nervous anticipation of possible adverse consequences if you actually stomped.

As for the Healey ads, I don't know how accurate or inaccurate they are, and the ambiguity of the tag line ("While lawyers have a right to defend admitted cop killers, do we really want one as our governor?") is smarmy at best.  But, taken all in all, I don't actually perceive the Constitution imperilled by them. 

The idea that the choice of legal work reflects something about the person making the choice is far from outrageous.  Lawyers judge each other that way.   Listen sometime to an insurance company lawyer talking about "plaintiffs' lawyers" - you'd think they were a different species.  Or go into a conference of lawyers involved in death penalty litigation and introduce yourself as a representative of the other side. 

What the protesting Massachusetts lawyers are saying, I'm afraid, boils down to something like this: The public is not allowed to draw inferences from the type of work we do, because that implies criticism, and the work we do is beyond criticism by non-lawyers.

Comments

[Patrick]

This is an interesting entry for me. Recently, I heard a radio ad for the attorney general's race of my state. It accused one candidate of, essentially, being a horrible person because he had worked as a defense attorney for a child molester.

I decided on the spot to vote against whoever sponsored the ad. A willingness to feed into culture politics by demonizing half the criminal law bar is NOT a characteristic I want to see in an attorney general. It bespeaks immaturity and a willingness to pander to popular ignorance. I prefer a lawyer who "defends child molesters" over a lawyer who actively attempts to increase public ignorance of the legal system. One is doing an important job that has to get done by someone, somewhere. The other's being a complete jackass.

[Peter W.]

I suspect that these kind of ads are really not very effective; I think that the vast majority of people really have no issue with defense attorneys, and to the extent that they pay attention, will tend to find the ads a cheap shot.

People would probably be more upset if he were a successful plaintiff's (err...consumer) attorney.

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