by Justice William W. Bedsworth
I have spent a lot of time of late trying to prepare my law students for the fact not all their clients will be right. This is not exactly stop-the-presses news, but it does pull them up short a little when you force them to give some thought to the ramifications of that fact.
The cosmos passes more laws than Congress, and one of the most immutable is the Law of Averages. While I am sure there are quibbles to be voiced, the most straightforward legal application of that law is that roughly 50% of the parties to lawsuits are right. The rest of them are wrong.
And while you will have hot streaks and cold streaks, unless you limit your practice to securities violations by Buddhist nuns or slip-and-fall cases against ice rinks, about half the people who walk through your door will be wrong. It will be your job to get them fair treatment for their wrongness.
This half of the practice is not glamorous work. “Not a Day More in Prison than the Twelve Years He Deserves!” is not as stirring as “Remember the Maine!” or even “Win One for the Gipper.”
And “Yeah, We Concede Liability but We’ll Fight to the Death Your Claim for Pre-Judgment Interest” is not the stuff of which great banners are made. “Tippecanoe and Tyler Too” is more likely to fire you up than that. If that’s your pep talk, you might as well play the alma mater at halftime and not come back out.
My students seem able to accommodate that jet-cooling realization. They profess to understand that they didn’t come to law school to learn how to get the guilty off or to facilitate greed. They came to learn how to make the system fairer and more just. F. Lee Bailey’s notorious, “My clients don’t want justice, they want freedom,” has blessedly few adherents in the class of ’15.
Of course, they have not yet had the experience of interviewing a client and being glad he is handcuffed to the table. They have not yet looked across the desk at a CEO and thought, “Forget damages ... how am I gonna keep this madman out of prison?” So what I refer to as realistic idealism is thus far just an abstract concept to them. At any rate, it doesn’t seem to diminish their enthusiasm.
But they are not yet ready for the next swallow of wisdom I try to induce. Bedsworth’s Third Law of Practice Dynamics: Represent robbers or murderers, bulls or bears, congressmen or kitten-drowners, but do not—under any circumstances—represent attorneys.
Attorneys are wonderful people. I have now spent close to a half-century in the company of lawyers and would-be lawyers. They’re my favorite people. They’re smart and principled and they’re more fun than a sackful of puppies.1
But as clients, they are, to use the technical legal term ... sucky.
For one thing, they second-guess everything you do. You think your mother-in-law is unimpressed by you, wait until you have an attorney for a client. They may or may not know it all, but they absolutely know more than you.
Years ago, we had a case at the court of appeal where an attorney tried to file a brief that had five arguments. The first three were set forth in the standard manner; the second two closed with the notation, “Offered on behalf of Appellant without concurrence of counsel.”
Three of my colleagues debated whether they should accept the brief or return it, since appellant could not be both represented and in pro per at the same time. They finally decided to ignore the fact counsel had tried to divorce himself from part of the brief. The arguments were slam-dunk losers, and they figured the poor attorney had enough on his plate already.
You represent an attorney, you have to make two arguments on every point. First you have to explain to your client why it’s a good argument, then you have to explain to the judge why it’s a good argument. These people don’t just look over your shoulder, they try to grab the bat.
And Lord help you if you manage to convince the client it’s a good argument and the judge disagrees. Then you have to make a third, explaining to the client how you could have been so wrong. Is he/she really paying you enough for this?
Another problem is that attorneys have a pathological fear of being tricked. They learn to deal with losing. Being an attorney is a lot like being an oncologist: there are going to be some patients you just can’t help. Losing is as common as quarters, and lawyers learn to handle it.
But they hate—hate, hate, HATE—being outsmarted. And they are constantly on the lookout for traps. If eternal vigilance is the price of liberty, eternal hypervigilance is the price of a law degree.
When I was a prosecutor, I had the experience of representing a few of my colleagues, including one very highly placed colleague. This last was a wonderful person and a terrific lawyer. But as a witness, he made Chewbacca the Wookie look good.
I prepped him assiduously. He’d done nothing wrong and all he had to do was answer my questions and the judge would see he had done nothing wrong. But I prepped him anyway. Carefully. He was fine.
Until he got on the stand. Then he turned into a lawyer. So help me, he analyzed every word of every question as though it was a contract drawn up by Satan’s business manager.
True story. Beginning of my direct examination:
“What is your occupation?”
“I am a prosecutor. I am employed by the Orange County District Attorney’s Office.”
“And how long have you been a prosecutor?”
Long pause.
Excruciatingly long pause.
His mind boggled to a complete stop on how long he’d been a prosecutor. I didn’t know whether to burst into tears or wind my watch. I couldn’t very well ask him if he wanted me to rephrase the question. Finally he cocked his head a little and said, “You mean in this job?”
No, Jack, I mean in your previous incarnation as Thomas E. Dewey. Hell yes, in this job—although if you’d added up this and any other jobs you’ve had I would have been okay with it. I mean, it’s not like somebody’s going to check to see if you lied about how long you’ve been a prosecutor.
“Yes, please. This job.”
“Well, I am presently the Director of the Veeblefretz, is that what you want?”
Right now, Jack, I want whatever you will give me. A simple answer to these easy questions would be nice, but I’d settle for a doughnut or a handshake or a few bars of “My Wild Irish Rose.”2
“No, in total, how long have you been a prosecutor?”
“I joined the District Attorney’s Office upon receiving my bar results and have been here for sixteen years.”
What? You mean this is the only job OF ANY KIND you’ve ever had in your entire legal career and yet you stared blankly at me a moment ago and asked, “You mean in this job?”
For crying out loud, I’m your lawyer. You’ve known me for a dozen years. You chose me to represent you. I’m on your side. These are not going to be trick questions.
“Sixteen years. And how long have you been the Veeblefretz Director?”
Okay, this was a mistake. I should have known better. I should have jumped out of the plane while I still had a parachute. More math questions was not a good idea. But I was rattled. And I became even more rattled when I heard his answer start.
“Well, I was named Acting Director of the Veeblefretz Division in August—or was it September—I’m not sure of the month, but it was nineteen—oh wait, Veeblefretz may not have been a Division then; it may have been just a department. You see we started with ...”
“I’ll withdraw the question.” Does somebody have a resignation form handy? I think it’s time to call my brother-in-law about that aluminum siding job.
It did not get better. He answered every question like he had to diagram the sentence first. I remember thinking, “Please Lord, give me a dozen convicted felon snitches before I have to represent an attorney again.” She did.
Whom you represent is entirely up to you. You can represent bad people and still be good yourself. I spent fifteen years on the opposite side of the table from criminal defense attorneys, and they were some of the best people I met. Their clients were often absolutely awful, but the lawyers were good people.
So I don’t judge people by whom they represent.
Unless they represent attorneys. Then I assume they have a death wish.
BEDS NOTES
William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at william.bedsworth@jud.ca.gov.