The Club

 Posted on June 06, 2009 in Uncategorized

Gerry Spence spoke today at the end of the Texas Criminal Defense Lawyers Association's annual Rusty Duncan Seminar. I could see why they put Gerry last-if he spoke first, most of the lawyers talking about lawyer stuff would seem largely irrelevant or quaintly unself-aware.

One speaker, for example, advocated telling jurors who gave "good" answers on voir dire: "Have you served on a jury before? Because most people wouldn't think of that." What is that, a juror pickup line? Worse, he suggested that line after advocating not talking down to jurors. Could you find something more condescending than that to say to the jury?

One of Gerry's themes was that the trial is about credibility. (Of course it is.) What does sucking up to a prospective juror do for the lawyer's credibility? Squat. It must work for that particular speaker, though, since TCDLA invites him to speak at its seminars; there's no accounting for taste. (His definition of "good" answers seemed to be, "answers that show me that the juror is on my side", which reveals a less-than-advanced understanding of jury selection.)

Gerry talked about "The Club" of lawyers-prosecutors, judges, defense lawyers-in a community. If he were in trouble in a community, he said, he would always hire a lawyer from outside that community-which I took to mean an out-of-town lawyer-to defend him. His reasoning was that members of The Club want to stay in the good graces with The Club, and might choose their relationships with the other members of The Club over their clients' best interests.

I reflected on what this might mean to defendants hiring lawyers. Often lawyers tout their good relationships with the judges and prosecutors as a selling point. But the client has no reason to believe that, when his own interests become incompatible with the good relationship between the lawyer and the prosecutor, or between the lawyer and the judge, the relationship will yield to his interests. (Yes, I recognize that sometimes good relationships between adversaries are built on mutual respect, but how is the client to identify the lawyer who has a good relationship with the prosecutor because each respects how difficult the other makes his job, rather than because each appreciates how easy the other makes his job?)

Some people accused of crimes, especially those in small towns, are wary of The Club. In smaller communities the back-scratching among members of the bar is more obvious to non-lawyers. In larger communities each lawyer is less dependent on each other lawyer for her continued livelihood and practice so, while there is still interdependence, it is diminished.

There are many lawyers who are clearly not part of The Club. They annoy the hell out of the bench and the opposing bar, and burn all possible bridges at every opportunity. Some of them go what most people would consider too far.

One Houston criminal-defense lawyer recently challenged a judge to come down from the bench and fight him. Maybe calling the judge out gave that lawyer some tactical or strategic advantage that I don't understand; he won the case. Do we have to go too far to go far enough? Maybe we should all go so far to disavow membership in The Club. Most of us who fancy ourselves trial lawyers rather than plea artists should go farther than we do.

I don't believe I've ever sacrificed a client's interest to my relationship with a prosecutor or judge. My guiding principle for the last five years of my practice has been to find the truth that helps my clients, and then tell it. It has gotten me in trouble (held in contempt, even) but it has generally worked.

There are damn few prosecutors and judges who have ever done my clientsa favor on my behalf. Those that have, have done so out of respectrather than gratitude; my clients aren't going to lose anything if Itell the whole truth.

I don't consider that I owe any judge or prosecutor anything beyond thedignity and respect with which all humans should treat each other. Toooften those in power betray those values in virtual darkness. The onlyantidote is exposure.

I've probably been too diplomatic in these pages. I've had a policy of not naming names unless my subjects have put themselves in the public eye or abused their power, and even then generally avoiding doing so. I've sought to avoid hurting the feelings even of people who've done wrong.

In doing so I've left out an important part of the truth.