On Pissing Off the Powers That Be

The problem was that I knew about this obscure case.  It was unreported, which meant that back in the day it was tricky to find, and even among the unreported it was obscure.   But it was from my particular intermediate appellate court, and while it wasn't exactly on all fours with the case I had ("all fours" is lawyerspeak for "just the same as in every significant way"), it was close enough to use for an argument.

The thing is, it was a pure legal argument.  Follow your precedent, the argument would go, even though the precedent dealt with petty offenses and my client was looking at decades in the slammer. Fewer decades if I won, but decades still.  And unlike that other case, there was a dead guy in mine. And my guy had been convicted of getting him dead.

What I didn't have was a story.  I didn't have a way to make my client sympathetic or his sentence seem beyond the pale.  All I had was this pure legal argument.  Follow your precedent.

And there was this.  The precedent was dumb.  It was obviously wrong, legally wrong that is, when the court decided it some years earlier.  But the offenses were petty, the amount of time at issue was measured not in decades, not years, not even months.  It was a matter of a few days.  And the guy probably had a good story.  Which, as I say, I didn't have.

What I had was this cockamamie legal argument.  Follow your precedent to where you never thought it would take you.  Even though it's distasteful.  And even though the precedent is stupid and obviously wrong.

But it was the argument I had.  And so I stood up in court.  What I wondered was how I would lose. Would the court ignore the old case?  Distinguish it somehow?  Misrepresent a fact or two about the current case?  Overrule the old one?  Surely, they wouldn't follow it.  It made no sense then.  It made less now.  But it was what I had.  It's you're precedent, I said.  You're bound to follow it.

I won.  I convinced the court that they had to follow that old dumb case.  Rule of Law, by god.  It was almost enough to make me a believed in uppercase-L law.  Almost.

Naturally, the prosecutor asked the supreme court to hear the case.  Unfortunately they agreed.  And now I had nothing.  That court wouldn't be impressed by a silly precedent from a lower court.  And it had no obligation at all to follow it.  The system is that shit flows downhill, not up.  Lower courts are supposed to obey higher ones, not the other way around.

And so I was standing up in the well of the Supreme Court of Ohio, back when they were in the old courtroom in the office tower rather than in the Palace of Justice.  Back when the courtroom decor was crushed velvet in a color I called bordello red.  Back before they didn't broadcast the arguments and archive them on line for anyone to watch.  Which given how it was going to go, and how it did go, may have been for the best.

The prosecutor, who'd been opposing counsel in many of my cases, was better than I'd ever seen her.  Of course, she had a sensible argument:  What the lower court did was stupid and wrong.  Fix it.  Me, I just had to defend the dumb lower court decision.  Which I gamely did.  To no avail.

I lost.  Shit  I know these things happen.  I hadn't expected to win in the court of appeals.  I sure didn't expect to win in the supreme court.  But by god, I'd managed to convince myself that I was right.  And my client went from more decades to fewer to more again.

Fuck.

But the court didn't just screw my client.  It didn't just say that the court of appeals was wrong, wrong, wrong.  It did those things, of course, and then it went on to eviscerate a good law that the lower court had applied stupidly.

Which is a complicated way of saying that my good work led to the making of bad law.

Sigh.

It happens.  Anyone who spends much time in the appellate courts has the experience of making bad law.   Good law, too, of course.  I've managed that also.

* * * 

There's been some talk on our criminal defense listserv about an issue important to many of us that someone has coming up in a case.  "Don't make bad law," comes the admonition.  And of course, the lawyer with the issue hopes not to.  But sometimes.

* * *

Jamison Koehler tells this story this morning.

Last week I watched from the gallery as a young attorney got into an ugly argument with the judge. Who knows, the lawyer might have been right when it came to the substance. But everything else about it was wrong. You do not talk over the judge. And you do not pick fights that you are going to lose, particularly when you have your client standing there right next to you. Judges are people too, and they can have long memories. Watching the judge’s body language the next day when dealing with the same lawyer on a different matter confirmed for me everything I needed to know.

Jamison is exactly wrong.

Oh, he might be right in the detail. It may be that the lawyer was an asshole, picking a fight with a judge because by god he was right. Or to show off for the gallery hoping that someone out there would ask later for the business card of the lawyer with balls. Or because he spilled coffee on his tie that morning.

Or maybe he needed to make a record that the judge wasn't happy about. Maybe he needed to argue for that bond reduction and the judge just might have given in. Maybe, hell, I don't know.

But that's the point. And it's why Jamison is wrong. Because you don't in this business worry about how the judge will deal "the next day . . . with the same lawyer on a different matter." At least, not if it's a different case. It doesn't matter whether judges "have long memories."

Or prosecutors, for that matter. Or the cop you're cross-examining.

Oh, it's not that you want to be picking fights.  All things being equal, there's no profit in pissing people off - especially people you work with every day - just to show that you can.  But sometimes.

Because it's not about us.  And it's not about the next case.  Not ever.  It's about this case.  This client. Always.  Every single time.

Which means that sometimes, not always but sometimes, what you need to do today is at odds with tomorrow.  

That good relationship that helps you get good deals.  Cool.  But sometimes you have to toss it aside. Because the prosecutor hid the evidence or the judge is biased against your client.  And has to be called out.

And if that means the next guy gets screwed?

Once it a while, we're helpless.  And today's necessary fight will make tomorrow's bad law. Because the alternative is abandoning today's client for tomorrow's.  

Which we can never do.