Thursday, August 22, 2013

Who We Are and What We Do - Another Entry in the Series

This morning, Scott Greenfield wrote about losing.  

You put your heart and soul into it.  And your intellect.  You consider, think it out, plot and plan.  You work out every eventuality including the ones you can't imagine and can't prepare for.  You convince yourself.  The adrenaline pumps.  The time is now.

And then the jury comes back.  Or the judge.  Or the panel of judges.

And then you reconsider and reevaluate.  You second guess and then third.
I could have done this differently.
I should have done this differently.
If only I were better.
It's what you do when you lose.  Which you will much of the time.  You do it when you win, too.
It's called "practice" for a reason.

Scott wrote about a friend who lost.
Take the night and feel bad about it, I said, and tomorrow put it out of your head. Tomorrow, you go back to the trenches and take up the next battle, and you can’t do that with doubts of the day before. Wallow for a while, but then it’s over. There is more work to do, and as much as it sucks to be on the losing end of a trial, the next guy needs you to fight for him as well, and nobody can mount the good fight licking his wounds from the last fight. 
Criminal defense lawyers don’t have the luxury of wallowing too long. There’s too much work to be done. My friend was back in court the next morning, thinking only of the defendant standing next to him and how he was going to kick the prosecution’s butt this time.
There are, though, and this is where I wanted to take this, there are those cases that haunt.  

Anyone who's been doing this stuff for a while knows that there's no sure thing.  

We've all won cases we could not imagine ever winning.  The facts were awful and the evidence worse.  The law was terrible.  The judge was pure evil.  The jury dripped venom.  The client sneered and strutted and snorted and pissed off everyone.  There was no way.   And yet we win.   Doesn't happen often, but it happens.

And we lose cases that we simply should not lose.  The client is innocent.  The video shows he was chatting with the Pope at the time of the shooting.  The prosecutor is a fool and a lout.  The cops get caught in their lies.  The snitch won't testify.  The judge smiles and nods.  The jury is practically sending love notes your way.  Your client goes up the river for a decade or more.

It's those cases.  Where you know, you just know, that you should have won.  That you had to win.  That somehow, someway.  If only you'd stayed up one more hour, worked a little harder.

If only you'd been a better lawyer.

That night you don't drink the good stuff.  The rotgut is all you deserve.  You may turn on the TV or open the book, but you don't watch or read.  You hug the spouse and kids with a bit of extra force though.  And you sit and glower and stare into space.  And beat yourself up.  Because you could have and should have.  Mostly, you should have been a better lawyer.

And then, because it's what you do.  If you're really cut out for this business, because it's who you are.
You get up the next morning and head for the office or the courtroom and do it again.  And, like Scott's friend, you go after it again.

But there's a scab.  And over the years you can't help, from time to time, picking at it.  While that client sits in the steel cage.  

You don't dwell on all the cases you lost.  You can't.  No more than you can forever savor all the individual victories.  But there are those few.

They gnaw at you.  They fester.  The number of them, small but real, growing over the years.  Those cases never go away.  You remember every detail. 
If only I'd said it this way.
If I'd asked that question. Or if I hadn't.
If I had it to do over again now.
If only I was a better lawyer.
At some level, maybe you know it's not true.  He couldn't have been saved.  The video with the Pope looked faked and maybe was.  Maybe he did it after all.  But still.

And yet, in the morning, one more time.

I spent a few days last week with a couple of hundred capital defense lawyers learning how to do it better.  Ones who come in at the end.  After the defendant's been sentenced to die.  After the court of appeals or the supreme court or whoever said, "Yep.  Kill him."  After more investigation and more work.  And more failure.

These are folks, the more experienced among them, who've lost clients to the chair or the chamber or the needle.  Along with the lectures and the workshops were the laughs and the war stories and the fear and the pain.

And the very crowded bar.

Because we're all, those of us who've been at this a while, haunted.  And yet we get up the next day.

Because that's what we do.  And who we are.

No comments:

Post a Comment