Winning at trial by embracing the evidence and law as our own
Fairfax DWI/criminal lawyer on doing whatever it takes to win the battle
I entered law school all bright eyed and bushy tailed that I was on a glorious path towards at once doing good for the world while earning a good income. Tempering this ideal was a mix from too many people and corners, of Socratic method overkill and too many professors with closed-door policies to keep arms-lengths from students as the professors wrote law review articles that remain unread by many more people than would read those articles; law student competitive and anxiety-ridden dog-eat-dog over zeal not balanced by compassion; unfriendly-looking basement law library book stacks with stilted, often decades-old, sometimes irritating, and often mind-numbingly dull books with language about corporate contract minutiae, social contract and social control nonsense (including from the days when women were treated as their husband’s chattel), and litigation this-and-that; and a drive towards conformity in burnishing resumes with obtaining legal research positions with law professors on often dull projects, seeking summer jobs at government agencies harming society more than helping it, and seeking judicial clerkships even with judges of questionable judicial approaches and integrity, and
In other words, I came nose-to-nose, eye-to-eye, and stale breath-to-stale breath with the reality of the world after four years in the often Neverland of undergraduate school, tempered by a well-needed respite from law school, when I worked for a year with a Wall Street bank and played after hours on the streets of Manhattan, and even Hong Kong and Japan. For every person who made law school less pleasant, there was a good-hearted and good-natured soul inside the halls of the law school. For every court decision that threatened to send society downhill, there was an offsetting court case decision or a lawyer ready to fight to offset the bad decision. For every cold-hearted-seeming law student and lawyer, there was a lawyer with a heart, ready to risk his or her income level or even career to lead a professional and personal life that would allow him or her to sleep at night.
I witnessed civil liberties and civil rights activists learning the even most suffocating and oppressive seeming aspects of the law, because we cannot obtain true justice without first unearthing injustice.
At first I found it almost intellectually maddening when my first year law school legal research and writing professor Newell Highsmith talked about taking adverse court cases and owning them as our cases; addressing two recent appellate court decisions differing from the overwhelming number of cases against us as a trend in our favor; and finding and injecting more lively words into our writing about dull scenarios, like turning “The company did not pay on time, which was a violation of the contract” to “The Defendant SlimeCo. utterly breached its contractual obligations by stopping payment on its financial duties.”
All of the seeming law school nonsense looked less like nonsense by my reminding myself that one reason I chose law school was to learn the tools of the opposition, so as to do good with those tools to overcome the oppressive aspects of the law. Learning law in the abstract of being a hired gun is not fulfilling. Practicing law and persuasion on the side of the angels, which I do, is invigorating.
As it turned out long ago, my legal research instructor was right that we must own court cases — and the evidence, I add — and tout law trends in our favor, and use persuasive language that rings beneficially with the listener, rather than dulling the audience to sleep. The practice of law is not about dissecting and delighting in great writers as an English major, dissecting and examining animals in pre-med classes, nor spending months on an abstract mathematical dilemma. The practice of law — at least the practice of trial law — is about getting into a bloody ring with too many unfair rules and often with rules being bent and broken.
As much as criminal defense is a wonderful calling that gives its lawyer practitioners the opportunity to do great good for their clients and society while having fun along the way, such work comes with proverbial flung feces, projectile vomiting, and backstabbing. Russell Crowe’s Gladiator character is a good role model to keep in mind when dealing with all that nonsense and shenanigans.
A downside of starting a trial law career as a prosecutor is risking being complacent in developing one’s trial skills, rather than being an eagle-hawk as a criminal defense lawyer, ready to find, obtain and use every speck of anything that looks like gold dust — including that gold dust that my legal research professor addressed — among the case’s fecal matter. Prosecutors can win many cases by simply preparing for them without adding passion, imagination, a fresh eye, brainstorming sessions with colleagues and laypeople, trial workshops, mock trials and self demands for continuing to stretch the boundaries of possibilities. Criminal defense lawyers cannot afford working from an armchair.
As expensive tuition-wise was the lesson, I still in many ways value that my law professors and law school administration did not molly-coddle the students in their manner of speaking with, dealing with, testing, assessing or grading students. Whether the law professors and law school administration did this as a rote approach or out of a realization of the highly-competitive world of succeeding as lawyers, their approach eliminated a falsely rosy vision of the practice of law.
I stuck out law school, because I was convinced that I would find my place in the practice of law. At first I meandered, working as a law clerk my first summer at a federal bank regulating agency, and then working the next summer and for three years thereafter at a law firm primarily representing financial institutions and transportation companies (while obtaining and honing great litigation and lawyering skills along the way). And then I got my needed focus when I learned criminal defense through five years as a public defender lawyer, learned civil trial lawyering for two years with a civil trial law firm, and hit my full stride when I became my own boss eighteen years ago, ultimately doing almost only criminal defense, and adding a niche of challenging First Amendment defense through libel defense, adult entertainment defense, and political activist defense.
In the abstract, much in the law world is unexciting, mind-numbing and sometimes maddening, but when practiced on the side of the angels and for people in true need, is exciting.