First True StoryIt 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.)
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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.
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.Now Scott (links removed).
. . .
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.
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.They're both right.
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.
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Second True StoryMy 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.
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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.
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.
But if we can't do it, we have no business being advocates. Or surgeons.