Never Argue Angry

 Posted on April 10, 2018 in Uncategorized

I've got a case against a likely-soon-to-be-former member of the Smith County, Texas District Attorney's Office in which I'm challenging the constitutionality of Texas's revenge-porn statute, section 21.16(b) of the Texas Penal Code.

Court of Appeals? That's in the basement.

It is one of several such appeals I have pending. I've had oral argument in the Waco Court of Appeals (not recorded) and Houston's First Court of Appeals (video), and I've got a case pending in the Beaumont Court of Appeals, but that court won't give oral argument because it already knows all about free-speech law. ((Ugh.)) This morning I had argument in the Tyler Court of Appeals (not recorded).

It's very "suburban den circa 1979." But nice.

Before the argument, I walked over to shake opposing counsel's hand. He didn't accept the proffered handshake.

"Have you ever heard," I asked, "that rudeness is a weak man's imitation of strength?"

"Have you ever heard that you're an asshole?"

In fact I have. But hey, you want to play? Let's play.

"Have you ever heard that you're a dishonest lawyer?"

"I have. You said so in your brief. And I'm about to shove it up your ass in argument."

Huh. Why do weak straight men always have gay anal rape fantasies?

I'd forgotten that I had called him dishonest in my brief. Well, okay. Walk away, Bennett. "Good luck."

A digression:

After argument, I went back and looked at my reply brief. Here's what I had said:

It seemed rough and tumble but fair at the time.

(In the same brief I dropped this footnote:

I crack me up.

)

Here's the portion of page 10 of the State's brief that led me to accuse opposing counsel of dishonesty:

It should have been obvious to me.

I realized after reviewing the briefs that this is not the State quoting Miller; it's the State quoting Franks and Citron quoting Miller. There is dishonesty there, sure enough, but it's not attributable to Mr. West.

Anyway, this is all hindsight, and if I had realized it before argument I would have pointed it out to the court. But I didn't, so I didn't talk about that. I did, however, file a letter with the court this evening apologizing for calling opposing counsel dishonest.

Back to the main narrative.

My initial argument went well-the court seemed to think that because the statute would punish second- and thirdhand sharers with no culpable mental state with regard to the expectation of privacy held by the subject of an image, the statute is unconstitutionally overbroad.

I think they're right, so we wound up arguing goodnaturedly about whether I should win on that ground or on the broader argument that revenge porn itself is constitutionally protected. (I should win on the broader argument, but I can see why an intermediate appellate court wouldn't want to go there.) When you're arguing with the court about how big you're going to win, it's a pretty good day. It was fun.

Then my initial 12 minutes ended, and opposing counsel got up.

And he was mad.

Outraged.

He wanted to share with the court a highlighted excerpt from the Franks / Citron Wake Forest article. Because it vindicated him. It showed that he wasn't being dishonest to the court. He was just quoting two law professors.

He gave a copy to each justice.

I stood up to receive my copy.

He sat down. I thought about saying something. Didn't. Just stood there.

The court: "Do you have a copy for Mr. Bennett?"

Opposing counsel (to me, petulantly): "You didn't read it the first time."

Justice Hoyle: "Well, I'm not going to read it if you don't have a copy for everyone." [Gives his copy to clerk, who gives it to me, who puts it on counsel table.]

Awkward silence.

Opposing counsel begins the substance of his argument. It's nonsense about legislative intent.

The court: "What about the issue of second- and thirdhand sharers of images?"

Opposing counsel: "I hadn't thought about that, but yes, I think that makes it overbroad." [Sits down.]

Me (beginning my rebuttal argument): "I'm not sure I should say anything else."

Justice Hoyle: ((Yes, I looked for an "according to Hoyle" joke. Fortunately I did not find it.)) "But you're going to."

Me: "Of course. I drove a long way to be here."

More discussion of how much I should win, and whether the court should say something in dicta about the broader argument (please no).

Would opposing counsel have confessed error if he hadn't gone on tilt? I don't know. The natural argument for the State to make would be that the problem of second- and thirdhand sharers with no knowledge of the expectation of privacy is not substantial. It's not a good argument, but it's an argument, and maybe if opposing counsel hadn't gone on tilt he would have been collected enough to make it.

Would opposing counsel have gone on tilt if he hadn't come in angry? I don't know why.

But aside from throwing him into a less-than-ideal mindset for arguing the law, I think coming in angry made him unpersuasive to the court.

Here's why: Persuasion is trust and trust is rapport and rapport is charisma. And anger is not charismatic.

Picture an angry person. Do you see someone attractive? If you do, either a) you found the person charismatic before she was angry; or b) you share her anger.

If you are trying to convince people, beware anger. It's an immediate turnoff.

Unless you are preaching to an angry choir.

Anger is a powerful force. But if you want people who are not yet angry to follow you to anger (why else would you show anger while trying to convince them) you have to build the rapport first. Give them a reason to trust you, make them like you, then show them why you all should be angry.

Thank you for the lesson, opposing counsel.

[Edited to remove opposing counsel's name, thanks to a conscientious word from Nathaniel Burney. Buy his book.]