Letter or Spirit?

 Posted on November 07, 2007 in Uncategorized

[Edited 11/7/2007 to ensure compliance with TDRPC 3.07. Discretion is the better part of valor.]

When defending a client, my general style is to go riiiggghhhtttt up to the line and lean waaaaaayyyyyyy over. In one white-collar trial once, a long time ago, I asked a question of a witness today that the prosecutor thought crossed over the line. The prosecutor, when the jury was sent out, started talking at me about how I'd just "made my reputation." "This is not the last case we'll have together, you know that," he said.

(I marked it down in my calendar: after practicing law for years, at 4:30 on a Thursday afternoon, I had made my reputation with a single eight-word question.)

Why would that prosecutor expect me to do anything other than make putting my client in prison as difficult as possible? If I had been representing him, would he have wanted me to ask that particular question? Hell, yes (and for the same reasons that it so incensed him)! But prosecutorial sanctimony (a trait necessary to that field of the profession) wins out, and that day hadn't been going very well for him anyway, so he got mad. (It would have helped my client more if it had happened at the beginning of the day instead of the end.)

Now, I'm not going to violate my personal ethics for my clients. I'm not going to break the law for my clients. I'm not going to disregard a lawful court order for my clients. Beyond that, though, nobody who's trying to put my client in prison is going to get any breaks from me on a case unless the benefit to that client outweighs the detriment. I would never trade away my zealous advocacy for a client for the possibility of a better result or an easier time on some future case or a better reputation in the DA's office.

In fairness to the prosecutor (because I'm a fair guy), I think he thought that I was violating at least the spirit of a motion in limine, if not its letter. But I was within the letter of the order, and such orders don't have spirit; they have to be specific to be enforceable. If you're trying to hide the ball from the jury, and you get the judge to tell me not to talk about baseball games or balls, don't be too surprised when I start talking about bats or gloves.

Am I wrong?

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