Dear Wuss, Esq.:
I know, I know. You resent me calling you a wuss, but man’s gotta call a spade a spade. Or, in this case, a wuss a wuss. You know who and what you are.
You’re the guy who goes into court with a couple of decent motions. You file them knowing that you have a great chance of succeeding because, hey, the law appears to be on your side. From your perspective. You expect to win.
Then, you don’t. It might be that you read the law wrong. Perhaps the opposing counsel is sleeping with the judge. Maybe the judge just plain got it wrong. All those things happen. Our system is one that relies upon human judgment. We should never expect perfection from human judgment. Mostly, though, we should never expect the judgment of others to conform to ours.
However, you don’t see it that way. You fall on the ground and cry. Cry, cry, cry. Life is so unfair. You had it right. You scream. You wail. You grasp your side as the pain of a stitch appears from your gnashing and whining. How could they do this to you. You!
And your client. Oh, the poor client. He suffers-all because of them. Them! They want to hurt him. They’ve planned this all along. They’re conspiring to get him. Sure, he was a nobody before entering the courtroom, and he’s still, relatively, a nobody now. It doesn’t matter. They’re out to get him.
You may not go that far, but you still cry. Cry and whine. Cry and whine.
Then, as you lay on the ground, exhausted from your crying. You reach for your keyboard. You write. No, not a motion or legal brief. You write on Facebook, or a message board, or a twit. You write about the unfairness. You kick the process, the “system,” the rules, and the deck so deftly stacked against your client. Unfairness reins supreme.
Tears pour from your words.
And not a damn bit of it helps your client.
They stand there looking at you all lumped on the floor. Some have the wherewithal to say “Dude, what the fuck?” Most, though, just look at you and continue to assume that you know what you’re doing. They think it’s all part of the big strategy. They wait for you to pull-out something magical.
You have no magic to pull. You explain to them that the judge got it wrong, opposing counsel is evil, and that your unfortunate charge will suffer as a result. It’s your disclaimer. And what a disclaimer it is! You did great, but that big evil system seems determined to make you the next martyr. You leave. Your client is left bewildered.
You wash your hands, go home, and whimper yourself to sleep.
The client deserves better.
In court, you’ll get knocked on your ass. Sometimes, the judge does it. Others, it is opposing counsel. Occasionally, it might even be a jury. It happens. It’s trial, after all.
So, you’re knocked down. When you’re down there. Find something–a pen, pencil, keyboard–and come up swinging. You keep fighting. Sure, there’s a system. Sure, it might make things difficult for your client, but you owe them to try and bend it, maybe even break it. Occasionally, you might even manipulate it to succumb to your own will. That’s why you’re a lawyer. You’re supposed to test things, push a little, navigate systems, and guide your clients to the safest possible waters. It’s ugly. It’s bloody. It’s like a knife fight.
Rule #1 in a knife fight: You will get cut. Expect it. Fight through it.
Rule #2 in a knife fight: You must keep swinging, and stabbing, and trying. If you don’t, the other guy will win, and you will die.
Rule #3 in a knife fight: Somebody will lose. Do whatever you can to not be this person.
Lawyers who bemoan the legal process amuse and disgust me simultaneously. They want change, yet they lack the foresight to see where the change may lead. For criminal defense attorneys, the process never changes in our favor. Change in favor of fairness to alleged criminals doesn’t win votes. Ever. We should aspire for old, musty systems. They are familiar, and the longer something exists, the easier it is to find ways to bend it in our favor and show how their absurdities should not be held against our client.
So stand up. Fight back. Move to the next objective. Plan for contingencies. Get dirty. Get bloody. Learn to love it. Your clients deserve that. Stay and fight. Charge back in to the fray again and again. Client after client.
As an added benefit, I’ll stop calling you a wuss, and that’s not a bad thing, either. But, don’t do it for me. Do it for your client.
Thanks for your attention.