Monday, September 24, 2012

Passionate Lawyer - Dispassionate Judgment

First True Story
It was oral argument in a death penalty appeal in the Ohio Supreme Court.  I'd asserted, as we do in death penalty cases (and only death penalty cases), probably 15 or 20 Propositions of Law, mostly just to preserve the issues, but given the specifics of the case the only one I intended to argue that morning was the actual application of the death penalty to my client.  In capital appeals, and only in capital appeals, a trial-type closing argument is actually proper in that court.
That was my plan. But oral argument isn't, or at least shouldn't be, the lawyer standing up and blathering (however brilliantly or movingly or wateverly) to the judges or justices.  Oral argument is give and take.  The folks in the robes get to ask questions, and the lawyer has to answer them.  Sometimes they derail the argument completely.  ("Very interesting argument about ineffective assistance of counsel, Mr. Gamso, but I'd like you to talk about how weak the evidence of the rape was," a Justice once said to me.  The others wanted to talk about that, too.  Since that was good for my IAC claim, I went for it and won that case.)  This day it was a bit different.
I was getting into my pitch, explaining that of the dozens of people in the courtroom, I was quite sure none had the sort of ravaged background that my client did, and when you factored in . . . 
At which point, one of the justices leaned over the bench, looked at me, and said,
Counsel, we struggle with these issues.  Can you give us some guidance about how to approach them?
Me? Yeah? I can do that. So I told them how to go about applying the law in all cases but especially in the case of this client that I was representing that day.  Here's the principle, here's how you do it, and here's why it gets my client off the row.  (He is off the row now, back in general population.  The Ohio Supremes didn't put him there, but they gave us the ruling that let another court do the job.)
* * * * *
Eric Mayer last night, and Scott Greenfield developing the point further this morning, explain the dangers of passion for lawyers.  It's tied to the well-worn, but worthy maxim that anyone who is his own lawyer has a fool for a client.
Eric first.
See, it’s fine to be passionate about things. For instance, I’m passionate about my kids and their futures. For that reason, I’d make a crappy lawyer for them if one was needed. They’d need someone who is dispassionate who can calmly evaluate options and make learned decisions and recommendations. I’m not that person because I’m passionate about the subject.
. . .
Well, as lawyers, our job is to understand why and how the opposing party thinks. We must look at their logic, identify flaws, and identify ways to present our side as more logical and less flawed. Sometimes, it is possible. Often, it is not.
Feeling passion makes a person think they are flawless, and they see the other side as obviously and irreparably flawed. How dare someone think otherwise.
As lawyers, we are hired to analyze everything dispassionately, call it as we see it, and make the most of whatever hand we are dealt. If we are passionate, we fail at all three. The last thing we should do is practice in an area where we feel passion.
Now Scott (links removed).
Passion isn't just the rage these days, but a dangerously misguided perspective. It goes by other names, zealot, true believer for example, but it's all the same thing. Lawyers who have confused their purpose with that of their clients.
The characterization of passionate has become increasingly pervasive, mostly because lawyers think it sells. Clients like to think their lawyers "feel" exactly as they do, are as outraged at the injustice of it all and as utterly devoted to their self-serving perception of "justice." The axiom is "justice is blind," and they believe their lawyer should be as well.
. . .

It's easy to mount an argument when there is no one to argue against you, pointing out every inch of the way the error of your reasoning or the failure of your foundation. But that's not how it works in court, and that's not how lawyers function. We aren't pundits, pontificating in the comfort of our easy chair with only sycophants around us. We face prosecutors, judges and juries, and they get to both contradict our positions and determine whether we're out of our minds. And they do.
They're both right.
And yet.
* * * * *
Second True Story
My father was a lawyer, a court administrator, a bureaucrat.  By all reports he was a very good one.  He believed deeply in The Law, that uppercase fantasy that those of us who spend time in the trenches representing the powerless and reviled know to be lipstick on the real world porker.  He was also basically stodgy.  He believed in decorum, in not rocking boats.  He once told a friend of mine that his beard, admittedly somewhat scruffy, was harming the community around Columbia University where he was a student.
I might respect my father, but we didn't exactly share the same attitudes or outlook.  So one evening 40 years or so ago when my wife and I were in town for a visit and we were all sitting around the dinner table talking about whatever it was.  And I said (or perhaps he did - it has been 40 years or so, after all) at some conversationally relevant moment, that somebody or other was enthusiastic and that I (or he) hated enthusiasm.  To which he (or I) responded,
So do I.
And my mother and my wife each did a double-take.  As did my father and I.  We'd discovered a bit of common ground.  To the amazement of all of us.
 * * * * *
Passion is dangerous.  Eric again.
My experience tells me that passion usually results in one of two things: poor legal reasoning or unintended pregnancies.
He's right.
And yet.
There are lawyers, good ones, who are dedicated to their causes.  Passionately.  You find them employed by, even volunteering their time to advocacy organizations.  
I've been to ACLU staff conferences.  The lawyers are busy, working hard to learn the ins and outs of effective advocacy and how to advance their causes.  But talk to them and they all realize each case is about the client.  As cause lawyers, they get to be careful, to vet the clients as they vet the cases.  There should be a common goal for client and lawyer.
I attend a fair number of continuing legal education programs for capital defense lawyers.  Those lawyers are, for the most part (no, not every individual, but the vast majority of those who do the work regularly and seriously [unfortunately, those who do it regularly and those who do it seriously aren't always the same folks]), passionately opposed to the death penalty.  But they know they can't turn the cases they're litigating into causes.
As advocates, ACLU lawyers and death penalty lawyers know the client comes first.  If the client's need is for the A, but it's bad for the cause, the cause loses.  At least, it should.
What's true for the capital defense and the ACLU, is (or should be) true for the ACLJ (sort of any anti-ACLU on church/state issues), the Brady Campaign, the NRA. You get the idea.  There's a group for everyone, though I don't know that SABR has a legal staff.
The lawyers doing the work, at least at their best, are dispassionate about the arguments they make, about how they make them.  But they're passionate about what they do.  And about doing it well.
The passion drives them, but they're able to compartmentalize.
I want my surgeon to be passionately committed to saving my life.  I want that passion corralled though while he's actually operating.  Not eliminated, because the passion is making him care and keeping him focused not just on some abstract technocratic thing but on reaching beyond.
Same with my lawyer.
I don't want a technocrat.  I want someone who cares deeply, passionately, about my case.  And if there's a broader principle at stake (there is in the case where I'm a defendant), I want the lawyer to care about that principle because that will provide some of the drive and help the lawyer care about the case.  But I want the lawyers decisions - both the ones she's planned and the ones she's got to make on the spur of the moment - to be in my interest, not in the interests of the passion.
Scott, without quite saying it, maybe even without quite meaning it, made the point.
As a person, I can be plenty passionate. As a lawyer, I cannot. As a lawyer, my duty is to be effective in providing my client with the best possible outcome, regardless of any "passion" I may feel.
The trick is in the divorce, in the holding the passion in check.
It's hard.
But if we can't do it, we have no business being advocates.  Or surgeons.


  1. My gut reaction -- and I'm not sure it applies to lawyers -- is that if we're talking surgeons, I'd want a technocrat, but a passionate technocrat. I want the guy who enjoys learning about a twist in a procedure that is statistically proven to increase success by 4%. I want the guy who lives for getting the details right and being prepared for contingencies. The surgeon doesn't have to love me, but I want him to love his work.

    Maybe it's because that approach fits what I do for a living: If you hire someone to build a website for your law firm, you want someone who's passionate about building websites, not about law firms.

    1. I don't think I disagree, though I may have gotten muddled when I tried to say it. What I don't want is a mere technocrat. I don't think I want that in a surgeon - I want the guy who'll bust a gut to save me because he's passionate about saving lives and who'll be incredibly knowledgeable and dispassionate. Have the passion drive the work but I want the person to be a brilliant technician, too.

      Same for the lawyer.

  2. Look up "passion" and, after you understand the defintion, tell me if you would write this post again?

    There are plenty of people who are passionate, but suck at what they do. They are filled with passion, bursting with passion, blinded by passion, have passion coming out of their ears. But they can't do the job you need of them.

    You really don't want passion. You want excellence. Whether the surgeon saves your life because he loves you, loves surgery or loves the nurse standing beside him, is irrelevant. The only thing you care about is that he saves your life.

    And saving your life comes from the ability to perform his function excellently. Passion is an aphrodisiac for fools. If you could still feel after your dead, you would feel warmly toward your passionate surgeon. If you had an excellent surgeon, you would still be alive.

    1. We can pick and choose definitions and dictionaries. I'm partial to this definition of "passion" from Merriam-Webster's on line dictionary: "a strong liking or desire for or devotion to some activity, object, or concept."

      Your position (I think) is that passion necessarily detracts from competence because competence is purely intellectual while passion is at bottom emotional. I reject that view. Oh, it's a common problem. Emotion can be a distraction. But it can also be an addition. The classical rhetoricians understood that in the real world, pure logos would often fail to carry the day just as would pure pathos or ethos. (There's a reason Socrates was understood to be dangerous, just as there's a reason Jesus was.)

      I don't know about the courts where you practice, but in my world, with juries and with judges and justices, convincing them that I'm right doesn't get me nearly as far as convincing them that I'm right and that they should do something about it.

      The courtroom is, at bottom, a stage. The trial, the argument, whatever, is the play. The best advocates call on all their skills just as do the best actors. Kenneth Tynan once said that John Gielgud was the English speaking world's greatest actor from the neck up and Lawrence Olivier was the greatest from the neck down. Combine skills and you've really got something.

      It's not easy, and the passion must be held in check, but I'm not changing my mind.

  3. Your point here shows further confusion. When we perform in court, it's to accomplish an end. We emote before the jury if that serves our end. We argue logic if that's what's called for. It's all to achieve a goal.

    And that's where the point falls apart. The dispassionate lawyer knows to assess which role to play to achieve the end. The passionate lawyer can only be passionate.

    Just as in your example in the post, arguing on appeal, when the judge asked you a question, did you argue back passionately that they were focusing on the wrong thing? Did you argue that they shouldn't look elsewhere because you really, passionately, feel the argument you were making was the most important one?

    Of course not. You knew better. You would never let passion blind you to accomplishing your goal. You have strong feelings about things, but as a lawyer, you are dispassionate. You just don't realize it.

  4. Here's where we disagree. You say "The passionate lawyer can only be passionate." I take it from that, and from the rest of what you say here, and in your post and its comments, that you see it as all or nothing. I think that's wrong. It's possible (actually, it's human and probably close to necessary for all but those with severe mental problems) to have and act on both passion and reason. Hell, as humans we cannot entirely avoid emotion (even passion), no matter how much the Senate Judiciary Committee and the judicial nominees who appear before them pretend. What we can do - and what all good advocates do, I believe, whether they admit it or not - is harness the emotions.

    But even that is a distraction from the point I was driving at (perhaps unsuccessfully), which is that passion can get people moving. I've told the story before of the no-longer young lawyer who regularly laments that the courts don't follow the law. He feels beaten down, worn, and constantly surprised when he reads appellate opinions or gets rulings on motions and the judges ignore the facts and the Law and simply rule against his clients because they did (or are alleged to have done) bad things. "How do you get up in the morning," he asks me as we sip our beers. I tell him it's the anger that drives me. It doesn't control the work, but it gets me to do it. Just as I do death penalty work, which is hard and painful and not particularly remunerative, because I care deeply, passionately even, about the death penalty. That makes me want to fight the machinery of death. The fight is passionate, the decisions dispassionate.

    The guy in Eric's office, he thought passion was enough. It's not, of course. And unchecked it's terribly dangerous. (See Libya last week.) But that doesn't make it either worthless or irresistible.

  5. Perhaps I'm the one who is being unclear. Humans are never devoid of emotion, and some of us have strong feelings as human beings. They cause us to favor the side of the defendant against the government, or believe that the death penalty is wrong. But having feelings isn't the same as being "passionate," it's just being human.

    You have chosen to do death penalty work because you, Gamso the human being, feel strongly about it. Your death penalty representation, by Gamso the lawyer,is dispassionate, cold, hard, calculating, capable of making any argument at any moment to save a life.

    For a more concrete example, consider the ACLU's defense in Skokie. All had the same feelings as people, but some were outraged by the ACLU's defense. They were passionate. Some understood why it had to be done. They were dispassionate.

  6. When I read the Simple Justice post, it also gave me pause. I thought back to a time at a former job when I was in a slump. The place (a public defender's office) had become toxic, a very bad place to work, and I began looking for another job. I was telling a colleague and close friend of mine about it and that I wasn't sure I even wanted to be a lawyer anymore, but didn't know what I wanted to do. He asked me, "what gets you going? what makes you mad? what get you fired up?" I thought about that and concluded it was injustice. I was a PD because I hated the way the criminal justice system crushed people, because it pissed me off to see people get screwed. That's what I call passion, I guess.
    Of course, when I am representing someone, I try to be unemotional. I don't want my judgment about what course to take to get clouded by emotion. But that underlying feeling of being pissed off, getting fired up, is what keeps me at this job. I use that to motivate myself to do what needs to be done, and then do that thing dispassionately, if that's what it needed. Does that make sense? So when I read the SJ post about not being passionate, I took it as a way of saying the same thing but in different words. I mean, all you have to do is read SJ and you can see that shg is "passionate" (or whatever the hell word he likes to use) about representing people, about challenging bullshit, about fighting the state.
    I'd say those at the ACLU who represented the neo-nazis in Skokie were also passionate, passionate about the First Amendment. That passion led them to knowing what needed to be done. It's the fire in the belly.

    1. Miranda,
      I would appreciate it if you would check out my story about the Criminal injustice being perpetrated buy a group of lawyers and judges in Texas. we need to get the word out as fast as possible.

  7. I live your passion. Why can't all attorneys practice in an ethical way. My father in law was what I could consider a good lawyer, practiced to the letter of the law and was there for his clients. He his since deceased and would be sickened to learn of a case not the first case that is going on in the Federal Court in Texas. A group of lawyers are involved in organized crime. Their goal is to ruin a litigant. The underlining issue is that 2 Federal judges are allowing this to go on. jk One of the judges, Judge Royal Ferguson has stripped this litigant of many Constitutional rights we as Americans hold dear. This is a precedence setting case that has far reaching tentacles that will affect all of us.
    We need publicity to get this horrendous case out in the open. check out There is another link with actual court docs that will make you stand up and fight for justice.

  8. I have to disagree. I'm a trials guy and find that emotion has to be present and conveyed. There are times you're arguing something that you are either right about or should be and yet it sounds almost absurd. If you can couple an occasional strained voice, exasperation, or (very mild) disgust that the other side is even pushing the alternative, I think you get a better chance at reaching the fairness region in the deep recesses of the audience's brain. When you've got an issue that could go either way and there is an appeal to fairness or the capital L Law, a little emotion can go a long way. When there's a chance for a judge or jury to hang their hat on either side's hook, you have to get them to make that decision emotionally. If the attorney isn't fired up about it, (feigned or not), why should they be?

  9. Scott seems to be saying that passion precludes the ability to think and act strategically, which IMO is hogwash. Passion and wisdom are not antonyms. Moreover, it's just false that one's arguments are challenged in the legal arena but not in political venues, where they're challenged by even more people, since standing isn't required to participate, and of course, more passionately. The idea that it's only "prosecutors, judges and juries" who closely vet arguments and that advocates are merely "pontificating in the comfort of our easy chair with only sycophants around" is uninformed egotism.

    That said, the flip side of your argument is also true: Lawyerly dispassion and client-centrism is anathema to effective POLITICAL advocacy, which IMO is a big reason why anti-death penalty advocates and often the ACLU are ineffective in the political arena. It's true lawyers "can't turn the cases they're litigating into causes," but at the same time lawyers frequently, detrimentally want to LEAD those causes. A good lawyer must be willing to throw the cause under the bus for the sake of their client. But a good advocate in the political arena must be willing to do the converse, and lawyer leadership at the ACLU and anti-capital punishment groups too often thwarts their effectiveness for precisely that reason.