Wednesday, January 8, 2014

On the Choices We make

First Judge Kopf and then not-judge Mark Bennett and then Scott Greenfield wrote about Abraham Blumberg's article on legal practice as a confidence game.  Here's Kopf, getting the ball rolling.
More than 40 years ago, I read Abraham S. Blumberg’s 1967 classic entitled The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession. The premise of the article was that judges, prosecutors, defense lawyers and others in the criminal justice system make all sorts of compromises to make their lives easier. They do so at the expense of the defendant. Throughout my judicial career and otherwise, I have been acutely aware of that tendency, and I have sincerely struggled to avoid knowing participation in those selfish conspiracies.
Bennett talks about how there's a continuum from the "derelict" to the "paragon."  I suppose that's right. But as Greenfield observes, the derelict sometimes walk their clients out of court and the paragons sometimes blow it.  

None of us is as perfectly client-centered, as wonderfully diligent, as we might aspire to being.  The human condition is imperfection, after all.  However it might have been in Eden, we live in a post-lapsarian world where the best we can do is the best we can do.  

We can, with Judge Kopf, "struggle[] to avoid knowing participation in those selfish conspiracies." (Greenfield says "this is something to fight against, to shame, to ridicule and expose."  We can try to be aware, to struggle, to fight.  Sometime, someday, we'll fail.  We may not know it, may deny it.  But it will happen.  Probably it won't prejudice the client.  But it will be less than it should.  We will be less than we wish.

Scott talks about how he told the mother of a prospective client unhappy truths she claimed to want to hear but in fact did not.
My choice yesterday was to tell the mother of the defendant the truth she said she wanted to hear but really didn’t. Whether she retains me has yet to be seen. Either way, it’s how I roll because I’m a lawyer, and that’s what lawyers do.
It is.

I've turned down work, turned away clients and their families because they asked me to do not what was unethical (I've turned those folks away, too, but that's a different issue) but what was impossible. There are things the law does not allow.  There are times when there's nothing else to do, nothing to be done.  It sucks, but there it is.  And I won't take your money.  It's too much like stealing.

And yet.

There was an elderly couple.  Their son was in prison, had been for some years, would be for many more years.  They'd hired me to do what I could.  I did.  It didn't work.  They hired me to try something else.  I did.  It didn't work.  Before long we ran out of process.  There are only so many avenues, so many times you can usefully go back into court, so many times you can make variations on the same argument.

We're done, I told them.  I know of nothing else to do.  I am very sorry.  I wish it were otherwise.

They were, as I said, elderly.  They were in fact lovely people who adored their miscreant of a no-longer child.  They offered me their house if I would just try one more time.  Please, we'll sign it over to you.  It was a nice house.  They owned it free and clear.  It would have been the largest payment I ever got for a piece of work.  I turned them down.

But what I saw, what I came to see at that moment, was that what kept them alive, really, the only thing that kept them alive (did I mention that they were elderly? frail?) was the hope that somehow, someway, someday, they'd see their son freed.  Please, they didn't quite say, but it was in their eyes.  Please, do this for us so that we may have some hope, so that we can still live.  If you don't, you'll kill us as surely as our child will die in prison.

I am a lawyer.  I'm not a social worker, not a physician.  And yet, I took their money.  Not their home, not much of their money, not nearly enough for the work I agreed to do, but I took some of their money.  To keep them alive.  This is it, I said.  No more after this.  No more.  Really.  But I took a small fee and I filed another round of not quite frivolous motions and pleadings, made one more time a set of not quite frivolous arguments.

One thing I've learned in this business is that sometimes you win when you should lose and sometimes you lose when you should win.  Another thing I've learned in this business is that when you should lose you pretty much always do.  I lost.  The client lost. 

The elderly couple are now dead.  Their child remains in prison.  Every few years he writes me asking that I try something else for him.  I decline.  From time to time he files pro se motions.  They always fail.  

I wonder, when I see those motions and the rulings on them, whether I should have taken on that final round.  I felt then and feel now some guilt for agreeing to try and do something I knew could accomplish nothing.  Except keep that couple alive.  Which is not the job of a lawyer.  But is something that, ultimately, I know now and knew then, I had no choice but to do.


  1. Postlapsarian. Oddly I don't recall ever seeing that word before. The concept I'm familiar with, though.

    I think what you did on behalf of the elderly couple was a fine thing. Maybe you did it out of human kindness, but it was still the work of a lawyer. And it was proper lawyer work. There are times when grim legal realities ought to be faced by everyone and it's a disservice to do otherwise, but that doesn't strike me as being one of them, at least based on the information you have given here.

    Beware the false dichotomy: lawyerly detachment v. human kindness or decency. I'm not saying those can never be in conflict, but I don't think it happens often.

    Not to mention our own assessment of what is hopeless and what isn't is pretty fallible. I wouldn't have thought Michael Skakel had a chance of getting a new trial on IAC grounds, but he did.

    Sometimes a few unusual things come together and just surprise you. Most of the time they don't, of course. The difference is timing. Or fate. Or it's random. Or it's God. Or the gods.

    Another false dichotomy: compromising v. doing what is right. It's false - most of the time - because most of the time you can't be 100% sure what is right. The compromise is, as you suggest, an acknowledgment of imperfect knowledge and/or wisdom. To characterize it as a concession to wrongdoing isn't fair.

    Then again, once in a great while you can be 100% sure. And then compromising is in fact a concession to wrongdoing.

    I suppose you can argue, as Abraham Blumberg apparently did, that by feigning uncertainty we can compromise away principle and we feign that uncertainty because we want our lives to be easier, because it's far easier to compromise than to stand and fight for principle, and this is especially true for criminal defense lawyers.

    As for me, though, I'll leave these delicate matters of conscience to each conscience, unless there's overwhelming proof to the contrary. I'd rely on the high standards of character and fitness that we require of lawyers. That has to be good for something, right?

  2. "Not to mention our own assessment of what is hopeless and what isn't is pretty fallible. I wouldn't have thought Michael Skakel had a chance of getting a new trial on IAC grounds, but he did."

    It does feel paternalistic for us to gauge hope. Is there maybe a difference between hope and statistical probabilities? At what magic number do we decide the stats don't justify the work? These are not easy questions.

    1. Studies upon studies make clear that we as a species are terrible at recognizing real world probabilities. So we worry about the remarkably unlikely far more than about the actually likely.

      As a lawyer, and within the limited scope of what I do for a living, it's my job to do better than guesswork. I don't play about with statistical probabilities, but I have a pretty well developed sense of what is for practical purposes likely, unlikely, a relatively sure thing, a dead bang loser. Does that mean I can't be wrong? Of course not. But if I can't see a way to getting something for the client, I have a duty to be honest about that before I take the client's money. And in the ordinary course of things, I won't take the client's money under those circumstances, though I understand that other lawyers will.

      Hope is an altogether different thing from likelihood. Hope, Emily Dickinson said, is "the thing with feathers." I can try (and often do) to diminish hope. But it's a stubborn thing - especially for the loved ones of those condemned to years or til death (whether orchestrated by the state or, as Shakespeare's Caesar would have it, that "will come when it will come").