Um . . . okay. Who is this?

“Jeff Deutsch. “

I know who Jeff Deutsch is. Jeff writes the excellent but sporadic Building Common Ground blog, dedicated to “building common ground between people on the autism spectrum and those who love, work with and play with them.” I read Jeff’s blog, but we’ve never talked on the phone, and I have to admit that for a moment I wondered whether this was some sort of online Asperger’s episode.

I did a quick search on Defending People for Jeff’s name, and found that the only reference was an innocuous hat tip here. A small light dawned. “Are you the Jeff Deutsch that writes the Building Common Ground blog.”

“No.”

Did you click on the link to see how your name was mentioned?

“No, I didn’t know what it was, so I didn’t click on it.”

You do know that you’re not the only Jeff Deutsch in the world, right?

The thought had never even occurred to him.

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High-volume blog writing?

250 words in under 40 minutes?

Interested in following legal news and developments?

Legal education and experience?

Professional blogging experience?

Internet savvy?

Are you thinking what I’m thinking?

(H/T San Jose criminal defense lawyer Izaak Schwaiger.)

As illustrated by the ‘problems’ firms are experiencing with X and Y geners, there has been a global values evolution. These generations are less willing to accept the same incursions on their family and social lives in return for rewards in the future. They are also less tolerant of organisations that fail to give them the opportunity to be part of a larger cause, one that exists outside of a profit motive or the meaningless client service guff that is often dished up.

Andrew Hughes, The Law: All Guff and Discontent?

Inspired by this, Scott Greenfield writes:

The young set sees posts like this expert’s and believes that they are right to demand changes that make them happy and fulfilled.  Older lawyers, who are discontent with the law fail to notice the absence of logical nexus between their discontent and the Slackoisie solution (though they will figure it out soon enough when the college tuition bill arrives) see acquiescing to the demands of the Slackoisie as the path of least resistance.  And everyone looking for an excuse to indulge their weaknesses and self-interest at the expense of their clients will embrace this nonsense.

In a comment to Scott’s post, Dan Hull essays a translation of the portion of Hughes’s statement beginning with “there” and ending with “motive”:

Whoa. Translation: (1) “It’s all about the law firm workers in a services profession or services industry”; and (2) “Clients are merely the equipment in our game. They can be compromised. Don’t sweat it. It’s really all about protecting the new low standards of the young. We can screw clients over by mailing it in–or maybe in between trips to the washroom to shoot up or complain about management making us work for the money”.

As a member of Generation X who long ago rejected a role  as a cog in the corporate machine (had the associates at Sheinfeld, Maley & Kay in 1994 been bloggers, some Greenfieldian curmudgeon would have groused about the summer clerk who asked if the job was fun—as if that matters), I find some truth in Hughes’s quote.  (It does suffer from poor writing—it’s not clear whether the “leadership expert and coach” author thinks that all talk of client service in law firms is guff. I think all lawyers can agree that law firms often pay mere lip service to client service; calling all client service “guff,” though, would be a declaration of war.)

I’ve long considered myself unfit to be an employee. The work-30-years-then-retire ethic of my parents’ generation never caught on with me. Certainty that I’ll never get a cent from Social Security contributes to my unwillingness to sacrifice now for some future retirement Xanadu. Why suffer for some faraway retirement that may never come when I can live well now and in the future?

The idea that I might become redundant at 65 is an abomination. The lawyers whom I most respect are those who aren’t going to stop working till they have to; who, at a sharpminded 70-75-80 years of age, are still doing battle in the courthouse.

So I try to live well now. Work-life balance? I’m all for it. Give me time with my family and my friends and my cars, good books to read and places to travel. Most importantly, let me attend my kids’ shows, and be there when they get home from school, and cook family dinners.

But. . .

But something has to pay the bills, and—since it’s the thing that I’m best suited for, and possibly the only thing I’m suited for—my something is helping people in trouble. The client is, as Dan Hull says, the main event. Without clients there are no cars, books, travel, home, or food. The family is my reason for existing; the clent is my reason for practicing law.

I’m not billing by the hour or by the word; I am paid a flat fee to defend the client as well as I humanly can. When the interests of family and client conflict, the client wins. That is the way it has to be. There will be other family dinners, but this is the client’s only shot at freedom.

Even in practices very different from mine—large firms representing non-human clients at hourly rates, for example—the client has to be the main event and win all conflicts.

What about that work-life balance? Some people are driven to practice more law so they can make more money so they can practice more law. For my part, I create balance by minimizing conflicts between client and family. I do that by taking few cases and charging lots of money. I can afford to take fewer cases for more money because (in a nutshell) I’m lucky and experienced. When I was less experienced, I created the balance I wanted by living a little more humbly.

I think there are two lessons here for the aspiring Y-Gen lawyer.

First, “work-life balance” is a metaphor for what we’re really talking about, which is money-time balance. Forget the myth that people are going to throw money at you for having a JD. You have to give up some of your time for every dollar you earn. The more dollars, the less time you have for your non-law pursuits. The more time you’re willing to give up, the more dollars you have to spend on your non-law pursuits. If you want money-time balance, be willing to accept less money.

If you’re talented or hard-working, your time will become more valuable over the years. (And recognize this: the more time you give up in the beginning, the quicker its value will accrue.) Eventually, maybe, you can live in the nice house and drive the fancy car and be home for dinner with the kids and take family vacations. Or whatever your dream is. But every payment on the car and house is time away from your non-law interests—a greater incursion on your family and social life.

Second—and this is most important—if you’re not prepared to make the client the main event, don’t be a lawyer. There’s no point in being a lawyer who puts the client second.

This blog does not publish anonymous comments. Absent compelling reasons, nameless blogosphere participants, in our view, are rarely worth anyone’s time, thought, or respect–even when they think and say brilliant things. Anonymous writers have already “discounted” themselves. They are second-class citizens. And they generally say third-rate things; they have no incentive to exceed below-average.

When the Founders declared, “We hold these truths to be self-evident,” it was an act of intellectual honesty, a signal of the basis of the logical argument that followed. They were not claiming some inside knowledge of the working of the world; they were not asking their readers to believe them because of who they were. They explained their premises, described the conduct of the King, and explained how, because of those premises, that conduct justified revolution.

When Madison, Hamilton, and Jay wrote The Federalist Papers as Publius, they were not concealing their names to protect themselves; they were maintaining their anonymity so that their logic and rhetoric would stand or fall on its own, independent of the authority of the authors.

Anonymous writings will be credited if their premises are clear and their logic is rigid; the opinion of a known writer will be credited if the writer is credible. But an anonymous writer’s opinion is of no value.

In America today, law schools take people’s money to teach them to “think like lawyers” (and often fail). That people can graduate law school in America without knowing how to think like a lawyer—that is, with logical rigor—is a harsh indictment not only of the universities, but also of the primary and secondary education systems.

Here are we, beneficiaries of a means of mass communication unimaginable a hundred years ago, and at the same time heirs to a hundred-plus years of form over substance in American education. Anonymous commenters spew their unsupported opinions into cyberspace as though they have meaning; the only sort of argument they know the name of is ad hominem (though, having no training in rhetoric, they have no idea what it means, which is why they throw it around so much).

Those whose identities (native or constructed over years of blogging) are known have some skin in the game. If they say something ridiculously stupid, it’s attached to them forever. So they are motivated to make sense.

Known commenters more often try, at least, to support their arguments. Why? Is it just that those who are willing to identify themselves, having some skin in the game, try harder, or is it that those who are comfortable with logic are more willing to identify themselves?

Regardless of whether the chicken or the egg came first, I’m with Hull. If you’re not willing to sign your own name to your real words,

(1) Get over yourself. (2) Get some help. (3) Or simply get back to work. You’re just not ready for the bigs.

The question is often phrased as “How . . .” or “How can you sleep at night when you . . .” but those demand smartass answers like “very well” or “on a pillowcase full of hundred-dollar bills.”

Typically, the laypeople (in which group I include civil lawyers and prosecutors) asking the question don’t understand the niceties of legal and factual guilt, so the question is usually “. . . people you know to be guilty,” which demands the answer, “they aren’t guilty till they’re proven guilty,” which is not smartass but will be seen as such by people who don’t understand that “guilty” is a term of art.

The Question assumes something that is true only rarely, if ever: that the criminal defense lawyer knows what happened. Some reject the premise. It’s not the criminal defense lawyer’s job to decide whether his client is guilty or not. Even if a client swears to have done the deed, the lawyer can and should doubt—clients lie to us, and do so for the strangest reasons.

But, for purposes of this post, accept the premise.

Why does The Question matter? Criminal defense lawyers don’t agonize over it—they just know. Most of the non-criminal-defense-lawyers asking the question will never, no matter how we answer, understand. For them, The Question is

almost always asked in a rhetorical, accusatory fashion, with inquirers never really wanting to know the exact approach, strategy or methodology involved in defending the criminally accused. Instead, they simply want to make a statement, essentially saying that they could never represent someone they believed was guilty, thereby indicting the criminal defense attorney for doing just that.

[John Contini.]

But there are folks who want to understand, and can understand, what drives criminal defense lawyers to defend even those who they know have done really bad things.

I don’t get The Question a lot. Maybe I need to get out more. But when I am asked The Question, I like to be as persuasive as I can be. Helping someone understand why it is we do what we do can improve the world by making people better jurors and less willing to blindly follow the government out of fear.

It’s hard to know where the person asking the question is coming from. For some, the Sixth Amendment Answer is enough; for others (like Maricopa County’s voters) the Constitution is an irrelevancy. For some, the Biblical Answer resonates; for others, it’s a fairy tale.

So this post is an effort to categorize the various answers to The Question, with examples. I’ll update it as time goes along, as a reference for those who follow after.

I. The Sixth Amendment Answer

We swear to uphold the U.S. Constitution. Part of that Constitution, the Sixth Amendment, requires that everyone accused of a crime—not just everyone who a good lawyer thinks deserves it—have effective representation.

You wouldn’t expect a doctor (bound by the Hippocratic Oath) to decide whether to heal people based on their worthiness [Blonde Justice]; neither should you expect a criminal defense lawyer (bound by the Sixth Amendment) to decide whether to defend people based on their worthiness.

“It’s different,” some might say, “because a doctor is healing disease while a criminal defense lawyer is protecting people from justice.”

II. The Flawed System Answer

Don’t confuse what happens in court with moral judgment, [Scott Greenfield] or the law with justice. It’s not about truth or sin or right and wrong. The law is a blunt instrument. It’s about whether the government gets to put a human being in a box—probation, prison, or a coffin.

Cops lie [Scott Greenfield]. Prosecutors cheat. Juries screw up. Some laws should not exist, and other laws provide punishments that are grossly out of proportion. It’s a flawed human system, in which the mistaken judgments of flawed human beings either balance out (in which case an approximation of justice can result) or compound (in which case gross misjustice can result).

If I take it upon me to decide who is guilty, it’s almost certain that sometimes my judgment would be wrong [Rick Horowitz]. If I’m going to contribute my own mistaken judgments, it’s not going to be in favor of someone losing his freedom or his life—there are plenty of 25-year-old pukes who think they were born wise and are more than willing to do that.

III. The Biblical Answer

I’m not big on organized religion of any sort, and Christianity and I have long since parted ways, but Jesus set the example—when called on to judge the woman caught “in the very act” of a capital offense, he defended her. Successfully. [See also John Contini's How Can a Christian Lawyer Defend the Guilty, which—oddly, to my mind—omits that tale.] Why did he defend someone whom he knew to be factually guilty?

IV. The Compassionate Answer

It’s as simple as this: I care about the person I know. In most cases, the complainant is an abstraction to me. His victimization is an abstraction. My client, on the other hand, is very human and very real. It is his tears I see, his hand I hold and his mother I console. I know my clients like no one else in the system. I empathize with my clients the way everyone else in the system empathizes with the complainants.

[David Feige.]

I don’t like hurting people. Is that so hard to understand? When I go to bed at night, I can sleep easily, knowing that I fought for freedom, and for less suffering rather than more. That I stood by someone accused so that he would not have to stand alone.

I can’t know whether anyone is truly guilty or innocent, or what they deserve, and frankly, I don’t care. We all deserve at least one person on the damn planet willing to stand there next to us and fight on our behalf.

[Danielle Sucher, Legal Agility.]

Without compassion nobody will ever understand why we defend; with compassion nobody will ever need to ask. [Me.]

V. The Cog-in-the-Machine Answer

Any approximation of justice that the system creates comes about only because there are people fighting on both sides. If I walked away from one case because I thought my client had done wrong, the government would be able to do whatever it wanted to that client—which almost always (in serious cases) would mean punishment more severe than appropriate, even for really guilty people. Other lawyers would walk away from their cases, and the government would be able to do whatever it wanted to them too.

More than that, though, if we make things easier for the government on the cases where we think our clients did wrong, it frees the government to concentrate its resources on imprisoning and killing innocent people.

Unchecked, the government will abuse the innocent as readily as the guilty. Unchecked, all distinction except power fades. The guilty as much as the innocent, perhaps more, need and deserve an advocate. We are all, as Sister Helen Prejean likes to remind us, better than the worst things we’ve done.

[Jeff Gamso.]

VI. The John Wayne Answer

When a person comes to me for a defense, with the vast power of the government arrayed against him, no matter what he did before he is the underdog now. I stand up for the underdog. I protect the weak from the strong. Every man needs a code to live by, and that is part of mine.

VII. The Martin Luther Answer

Criminal defense is a way of looking at the world [Jeff Gamso]. We are criminal defense lawyers. Defending people is what we do—how could we not? [Jamie Spencer, channeling me.] We defend. No more. It is our bond [Jeff Gamso again]. There are some men in this world who were born to do our unpleasant jobs for us [John Wesley Hall]; those men (and women) are we.

In other words, wir können nicht anders.

Wayne Conley was dishonorably discharged from the U.S. Army after being convicted in a general court-martial of instigating and participating in the gang rape of an unconscious soldier, and obstructing justice regarding that crime. He’s a registered sex offender (deservedly so, unlike many) who lives with his mother in Hanford, California. He’s also accused of telephone harassment in Fresno County, California.
Wayne Conley’s open telephone harassment case.

Clearly, Wayne Conley has more than one screw loose.

I met Wayne Conley when I wrote this post (and others), calling Melina Benninghoff a dumbass for allowing her former client, Wayne, to destroy her reputation by stealing content from real bloggers. Wayne called me on the phone (his mother’s phone), and was convincing in a way that only a truthful person or a sociopath can be.

(In an abundance of compassion I later removed Melina Benninghoff’s name from the posts after talking to Wayne and to her because I believed that she had been duped by him; in hindsight I should not have, since it was entirely accurate and the site remains up in her name with her contact information. Like South Carolina criminal defense lawyer Bobby Frederick says, Melina Benninghoff “now owns this mess.”)

Wayne Conley held me, and other legal bloggers, responsible for destroying Melina Benninghoff’s online reputation (because nothing is ever the responsibility of a narcissist like Wayne). At some point, he decided that it was his mission in life to defend lawyers like Houston’s Andy Nolen, about whom I’ve had an unkind thing or three to say.

Since September, Wayne has desperately tried to get my attention. He has created numerous twitter accounts (always with fake identities), tried to post comments on my blog under other people’s names, tried to post comments on other people’s blogs under my name, posted lies (about lawyers, about his military service, about everything) on Melina Benninghoff’s blog (complete with fake comments from imaginary people), threatened to get me disbarred, left fake reviews on Avvo, and who knows what else (he has some delusion about me having a secret “network” of blogs).

I ignored Wayne for three months, until the records of his court-martial arrived and I learned (from his mother’s testimony on punishment) that his father had died when he was in second grade. Then I understood his desperate cry for attention, and thought it uncharitable not to give him some. So I published and publicized the records.

Before our interaction, Wayne was hard to Google. There are several Wayne Conleys in the world, and Wayne wouldn’t show up in the first page without his middle name (Christopher).  Now, his online profile is considerably higher—and not in a good way. Most dishonorably-discharged gang rapists would probably prefer to keep their heads down than to become running  online jokes like Wayne Conley.

Along with his stunted sense of self-interest, Wayne Conley has an inflated view of his own importance.  Which brings us to the title of this post.

Wayne has tweeted, as @AsshatLawyer” (and also as @hanfordlawyer and @blawleriam and @myduilawyers and @lawyerblawtx and other pseudonymous accounts, but as @AsshatLawyer he has manipulated several real lawyers to engage him):

Which famous Texas criminal defense lawyer was worthy of mention as worst Lawyer in houston – Google Search http://bit.ly/7QvCWg Hint: MWB.

I think the idea is for Wayne Conley to show how he can manipulate Google search results. Which is really stupid for three reasons.

First, nobody looking for a lawyer or for information on a lawyer is ever going to search for “worst lawyer in Houston” on Google. (They’re going to search for “best criminal lawyer in Houston” or some such, or search on a particular lawyer’s name.)

Second, the idea of me as the worst lawyer in Houston is laughable. The aforementioned Andy Nolen has me beat by a country mile, and I wouldn’t even say that he is the worst lawyer in Houston. There is no best criminal lawyer for every case; the guy who is best for one case will not be best for another. I suppose the same is probably true for the worst (though the difference between worst and second-worst probably doesn’t matter if you’re the client).

And third, any Google search that Wayne Conley can make himself visible in, I can own.

[If you link to this post, please include the words "worst lawyer in Houston".]

The only thing necessary for the triumph of evil is for good men to do nothing.

Aside from the fact that the quote is quite bogus (see the link), it’s wrong. In order for evil to triumph, it is not sufficient that good people not act; they must must cooperate. There aren’t enough evil people in the world to overcome the good people without their active help. No evil was ever more than transitory without the positive involvment of good people. The Third Reich would, without the participation of ordinary non-evil folks, have gone no further than beer-hall ranting; Stalin, without the help of misguided people of good will, might have killed hundreds, or maybe tens, instead of millions.

Prosecutors love to pull out the tired fake quote in closing argument, but even when they are dealing with evil (99% of the time they are not) it’s a stupid thing to say.

Which brings us to Maricopa County, Arizona, where Sheriff Joe Arpaio’s henchman, County Attorney Andrew Thomas, has filed a criminal information against Judge Gary Donahoe and where:

The criminal “case” against Donahoe seems to many insiders—including, privately, several prosecutors in Thomas’ own office—a pathetically thin, a politically motivated hit job.

Phoenix New Times, h/t Jeff Gamso.

The County Attorney of neighboring Yavapai County, Sheila Polk, sees Thomas’s prosecution of his and the sheriff’s perceived political enemies as “spreading totalitarianism.” She’s not the only one—listen to my interview of Jim Belanger and read my other posts on the topic, as well as Scott Greenfield’s and Jeff Gamso’s.

For tyranny to succeed, good people must cooperate. The abuse of power to intimidate and punish judges for not toeing the executive’s line is a tool of totalitarians. Those prosecutors in Thomas’s office who privately revealed their feelings about this abuse to the Phoenix New Times are not just doing nothing. By continuing to work for Andy Thomas, and speaking out only privately, they are actively helping evil to propagate.

I’ve had local prosecutors tell me that they would speak out against our local D.A., Pat Lykos, if it weren’t for their family obligations, mortgages, and health insurance. Pat Lykos is very little like Andy Thomas. Requiring employees’ presence at one’s coronation is a far cry from using the power of one’s office to attack one’s political enemies; even when she engages in prosecutions that might be politically motivated, Lykos is not so damn obvious about it, and no prosecutor I know thinks she has done so. Cooperating in the subversion of democracy by undermining the rule of law might well be indefensible in a way that cooperating in one’s own debasement as a human and a professional is not.

Aside from the ethical question, there are practical considerations. These Maricopa County Assistant County Attorneys, casting their lot with Andrew Thomas, are lying down with dogs. If Arpaio and Thomas’s fantastical castle in the sky comes crashing to the ground, those lawyers are going to be remembered as having helped Arpaio and Thomas try to destroy the American system of government in Maricopa County. If Arpaio and Thomas’s delusions of grandeur are proven true—if the judiciary in Maricopa County becomes a lapdog or a nullity—those lawyers will be remembered as having helped Arpaio and Thomas succeed. Neither is a cheerful prognosis for their future outside of a totalitarian future; either way, Maricopa County’s Assistant County Attorneys wake up with fleas.

Speaking of lawyers speaking out against Arpaio and Thomas, today Phoenix independent newsman Nick Martin (Heat City) revealed that Maricopa County Attorney Andy Thomas “just announced he wants two other prosecutors to be investigated for publicly criticizing him.” Conspiracies are convenient: when you believe in a conspiracy against you, everyone who opposes you becomes a conspirator.

Why not?

A jury comes into the courtroom to be persuaded. The process of jury selection, properly conducted, ensures that those jurors who have inflexibly made up their minds will be excused. Those who remain are willing to be convinced either way. More than that, they expect to be persuaded. The lawyers have a duty to the jury to give it what it expects, and to do whatever the law and ethics allow to persuade the jurors.

Not that it matters to me, since “giving a sucker an even break” is not part of my job description, but the science of persuasion is equally accessible to both sides of a lawsuit. So if I apply neuroscience, or neurolinguistic programming, or hypnosis, or psychodrama in trial I’m not doing anything that my adversary wouldn’t be able to do (at least after a few hundred hours of study). A lawyer doesn’t have an ethical duty to refrain from doing something just because his adversary chooses not to [edit: do it].

That doesn’t really answer the deeper ethical question, though.

People don’t like to be manipulated; the idea of lawyers who can push their buttons without them knowing it is scary. But pushing people’s buttons without the people knowing it is what advocates have been doing for thousands of years—advocacy (and advertising) is much less effective if the audience understands the techniques that are being applied.

I suspect that the idea of appeals to the reptilian brain is additionally scary because we like to think of ourselves as evolved, individually and socially, so far beyond lizards that a reptilian brain is of no use. But the reptilian brain is part of the whole, and it is no less important a part than the mammalian or simian brains. As long as the advocate tells the truth, it is no less ethical to direct an argument toward the lizard brain than to the ape brain.

Should lawyers make appeals to jurors’ reptile brains? The alternative is not only to forget a hundred years of brain research, but also to abandon 2,000 years of rhetoric. Lawyers have always made appeals to jurors’ reptile brains; doing so is not rendered unethical by the fact that they finally realize that that is what they are doing.