Wednesday, May 11, 2011

Time To Stop Digging

he problem I have with some of your statements is they don't seem to match the record.
As an appellate advocate, in oral argument, that's something you never want to have a judge say to you.  If you're counsel for the other side, though, you're feeling pretty good.
In this case, it was the lawyer for the state of Ohio.  And he kept piling inaccuracy and misstatement upon inaccuracy and misstatement.
First rule:  
When you find yourself in a hole, stop digging.
Not this guy.  He just tossed out another whopper.  Then he told the judge exactly where in the record it said what he said.  The judge looked.  Nope.
Maybe you can show me where in here it says that, because I just looked and I can't find it.
And there was more.  Same judge:
We can't both talk at the same time.
Another judge asked about one of the major cases in the area.
I'm not familiar with that case now.  The cases I'm most familiar with are the two I've been talking about.
Then he got Ohio law wrong.  And he made hyperbolic claims about federal law.  Even the judge who wants to rule against me didn't like that.
I'm being deliberately vague here because the specifics really don't matter.
And it could have been a defense lawyer.
Years ago, in a different appellate court, before a different panel of judges, the prosecutor was having a terrible time defending a case where he'd horribly screwed up the suppression hearing but the judge had denied suppression anyway.  Finally, one of the appellate judges sighed.
Tell me, when you go back to your office after court, what do you do?
I don't think I understand.
Well, do you open the middle drawer of your desk, put your hand in it, and slam the drawer as hard as you can?
I . . . . No, of course, not. . . . I guess I really don't understand.
Well, are you a masochist?  Do you like getting beaten up?  Why are you here defending this?
There but for the grace of good fortune and care
I won that case years ago.  I've got a chance of winning the case from a few weeks ago, though I've learned never really to be hopeful.
There was another case, years ago.  I had a client, 16 or 17 years old, facing as much as 50 years in prison.  I had an obscure line of cases that, in principle, should have cut his sentence in half.  But even though the cases were legally indistinguishable, they were (1) really stupidly decided, and (2) had to do with low level misdemeanors.  I was dealing with major felonies and a guy who'd been beaten to death.  I knew better than to believe the court would follow its precedent.
My real question was whether the panel would reverse its precedent or ignore it.  Either way, I knew I'd lose.
Damn, I won.
Except the state appealed.  The Ohio Supreme Court agreed to hear the case.  I figured they'd just say something like, 
That's the stupidest argument we've ever heard.  Reversed.
Instead, they took the opportunity to rewrite decades of law, to turn pretty good law into awful law.
You never know what will happen.
A very good lawyer is urging others not to take up appeals where they're more likely to make bad law than good.  It's good advice, though we can't really obey it when we have client's to represent.  And sometimes lightening strikes.
You really never do know what the judges will decide.
But you should know about not making it worse.
About when to stop digging.

1 comment:

  1. You really caught me with this:

    A very good lawyer is urging others not to take up appeals where they're more likely to make bad law than good. It's good advice, though we can't really obey it when we have client's to represent.

    For quite a while now, I've tried to convey this message to my good buddies charged with doing amicus work for bar associations. This is where they're efforts are needed most, fighting for the state of the law when counsel either isn't up to the task or is constrained to be on the wrong side of an issue.

    Sadly, bar associations would rather pay tens of thousands of dollars to lobbyists to fight futile battles (as they never seem to accomplish much of anything) rather than put in the effort to add their voice when the issue is being addressed in court. One ruling can make or break an issue of monumental importance, yet the official voices are never heard, it being far too much effort to keep track of important cases and issues, and much easier to throw some money at a problem than put in the effort to fight it.

    Every time a bar group bemoans a bad ruling, I wonder where they were when they could have made a difference. When I chaired amicus, I sought out important cases and made sure our voice was heard. Perhaps they would do more of that today, if only they weren't so busy lobbying to win an award at the next annual gala fundraising dinner.