Monday, February 8, 2010

Done Yelling

A quote from a burned-out PD has been bugging me since I read it in an article I referred to in an earlier post--the article is "An Essay on the New Public Defender For the 21st Century" by Harvard Law professor Chargles Ogletree. (Westlaw, can't link)

"Public defenders from across the country," Professor Ogletree wrote, "offer painful testimony of the physical and emotional toll of doing their jobs. They tell of losing their motivation to be a crusader because they have become jaded, disillusioned, or cynical about the work of public defenders. One public defender described her feelings as follows:
'When you become a legal aid lawyer, you think that you are going to be the champion of poor people who are dying to meet you, who are thrilled with your representation, who are innocent victims of society, who are indigent. And then, slowly, these ideals get chipped away.... Slowly you begin to realize that maybe this prosecutor is not railroading every client, and that maybe, in some cases, your client is guilty.'"
I read that and thought, Really?  That sounds like an aberration of a PD, rather than representative.  I mean, it's not that I don't know that some of my clients are guilty, it's just that I don't care if they are or not.  Everyone out there feels this way, right?

Then, in one of the first comments I received on this blog (sorry I didn't respond to your comment, Jamison, but I've been thinking about it, and BTW, the second half of your comment made me completely pissed at this type of judge, because it was so horrible and also so typical, and is still rattling around in my head for an appropriate post), a former PD from Philadelphia wrote,
"I remember sitting in my office with my former office mate just a couple of months before he left for private practice. He was a good, committed, effective lawyer and also a die-hard, do-good liberal. He had just gotten off the phone with a client. I could hear just one side of the conversation but it was clear that the client was mad at him for something. He put down the phone and looked at me. 'I have gotten to the point where I absolutely hate our clients,' he said. 'It is time for me to leave.' He was gone three months later."
In my first years as a public defender, in a PD office on the coast, I represented a manipulative-type guy on a couple of forgeries.  For some reason, I remember that one of the lawyers in my office had dated him in high school.  I didn't hate him or anything, but I found him annoying--equal parts demanding and needy.  Fortunately, I was able to resolve his case with a quick plea bargain, but he had a number of prior felony "points," and we disputed the validity of a few of them.  He also had a federal case, and I had been in touch with his federal public defender, who wanted to know the outcome of his sentencing.

At the plea hearing, the judge unexpectedly placed the burden to disprove the validity of the prior convictions on me, then denied my motion to continue the sentencing hearing, but finally, after much whining, gave me until after the noon break to get the needed documents.  I spent the lunch hour shoving my Cheetos money in the microfilm machines.  When we were back in front of the judge, I had the right documents and made my objections, but the judge ignored my arguments and proof, giving the guy a sentence that was too high, but probably not worth appealing.  The guy was a total ass to me about it, calling me names--shitty-ass public pretender!, if memory serves, and it does--as the guards took him out of the courtroom.

Later that day, his federal defender called.  "How'd it go for Mr. Forger?"

Laughing, I said, "Oh, Mr. Forger had a pretty bad day today--the judge screwed him and gave him 22 months instead of 15."

"You don't seem to care about what happened," she said.

"I did care ..." I was taken aback by her calling me out.  "I spent my lunch money on him ... and I was laughing because sometimes we laugh just because things are so awful ... and the guy was an asshole, anyway."

"He still deserves effective assistance of counsel," she said primly.

"Well, I'm sure he will get that from you," I said, and slammed down the phone.  I was pissed.  I didn't deserve what she said--what a judgmental bitch.


A couple years after the forger incident, I had a client on a first assault charge, with a pretty good self-defense claim, except for the fact that my client was caught in the act of stealing a woman's purse out of a parked car, and the man he stabbed was one of the citizens who caught him stealing.  Who happened to be 92 years old.  And got stabbed in the heart.  No case is perfect, right?

The kid insisted he was defending himself when he stabbed the old man; he was so adamant about the self-defense that I didn't doubt that the kid was afraid when it happened.  I couldn't get him to understand, though, that the jurors might see the situation differently than he did.  No matter how many times I urged and explained, I couldn't get him to see his situation through the jurors' eyes.

As I prepared for the trial on that case, I realized my job was more about getting the jurors to see the situation through my client's eyes than vice versa.  This simple realization had a cascading effect in my mind, and caused many thoughts about my job and my clients to coalesce, and, more importantly, gave me an idea for my closing argument.

In my closing, I told the jurors how, when I was new public defender, I would fight with my clients all the time.  They would complain that I wasn't visiting enough, or that I wasn't working for them, and I would think, What the hell is the matter with you?  I'm working 12 hours a day, buying you trial clothes with my Cheeto money, and not selling you out.  Why can't you treat me with the respect I deserve!

I told the jurors that one day I realized, Maybe I need to think about what was happening from my clients' perspective.  How would I feel if I was locked up in a cell by the government, and then the government gave me a lawyer who I was supposed to trust, even though I didn't know anything about this person? How would I feel if I went a couple of weeks without hearing from my lawyer?  I knew how I would feel.  I would feel afraid.

After that, I told the jurors, my answer to a client who was ostensibly disrespecting me changed to something like:  "I don't blame you for feeling stressed; I'm sure I would too if I were in jail and didn't know who I could trust.  I get it.  But let's talk about your case and see if we can make some progress."

This client story transitioned into self-defense, because the law told the jurors to judge whether my client was defending himself from my client's perspective, not from the viewpoint of the stabbed people (did I forget to mention that two citizens were stabbed?), or from their own judgment.  Because if they looked at the situation from the citizens' viewpoint or from their own, they would think, That little punk, he's a thief and doesn't deserve to be in this courtroom--in fact, he should be stabbed right now!--but if they looked at it from his perspective--a dark parking lot, and he was wearing headphones, and then suddenly two people attacked him, knocking his glasses off, and even after he dropped the purse, they still came at him as he lay blinded and deaf on the ground (I know, it's a little much)--they would be able to feel his fear.  And like my experience, if you only look at something from your own point of view, you'll be the one who is blind.


I heard a lawyer yelling at his client in one of the attorney booths in the jail the other day, and it made me cringe.  I cringed not because the yelling was so awful, but because I thought, I think maybe I used to do that, too.  Sometimes the treatment we receive by the clients, the court and the prosecutors is pretty outrageous, and it can be nice to yell at someone to vent, and then leave them in jail while we go home, vented, to our families.  All full of vim and vigor, the occasional yelling used to be part of my tough-gal lawyer act.  I'm going to make you understand why I am right and what you should do! was the underlying attitude.

It's kind of a long story, but a couple of months ago I needed to talk to an entertainment lawyer.  Through a friend of a friend, a big-shot Hollywood lawyer agreed to talk to me for free and give me a few pointers.  He talked to me over his lunch hour, and (can you believe this) some lawyers charge money for advice, so it was very kind of him to talk to me.  I have to say, I was pretty whiny and pathetic, feeling very out of my element.  The lawyer guy was quick, funny, all brash and annoying bravado, and he kind of yelled at me.  It wasn't mean yelling, more good advice combined with "don't be an idiot" and caring exasperation--like we sometimes yell at our clients.  OK, I specifically remember him yelling, "Are you really this fucking naive?"

After the phone call, I wasn't devastated or anything, but I remember thinking, Now that really wasn't necessary--and it made me feel kind of bad.  I mean, I'm relatively smart and open-minded about advice, so why yell?  The yelling made me feel slightly stupid and, for lack of a better word, yucky.  I wish I had said to him, "I used to yell at clients like that before I gained more finesse."


I'm not sure what combination of experiences led the lawyers at the beginning of this post to hate their clients--probably the disrespect from so many corners and then the one person they're trying to help busting them, too. But I was really surprised by that attitude.  Because the clients are what keeps me here.  I'm not trying to say I'm all that--I'm not sure what kind of badge it is that I like addicts and criminals so much--but I've gone through some on my own changes over the years.

Maybe the only reason I can empathize with my clients is that I know what it's like to fail; I know what it's like to disappoint; I know what it's like to face temptation, and say, "HELL YES!" I know what it's like to screw up my life to a point that it seems unsalvageable; but I also know what it's like to surprise myself; that when you get to that lowest point--you're either going to give up or fight.  I know that the people who think they are immune from bad luck and failure are the biggest and blindest of fools of all. Our clients know more than we think, and they will recognize someone who will talk straight and who knows when to empathize and when to call bullshit.


MWalsh said...

Really fantastic. Describing the transforming process of viewing the world through the eyes of another is something that many have felt but few are able to describe with such clarity and depth. Thanks again for the inspiration.

Jamison said...

"He still deserves effective assistance of counsel," she said primly.

While I suppose I should be careful about what I say, I can't resist responding to that comment by the assistant federal defender. OF COURSE he deserves effective assistance of counsel! Did she think you would be working where you are if you didn't believe that just as strongly as she does? What is it about being a public defenders (and I say this as a former public defender myself) that bring out the sanctimonious and preachy side of people? Why do they feel they need to show other people -- including other public defenders -- that they are somehow MORE committed?

I swear, you have to have a sense of humor about these things or you will burn out pretty quickly. You have to have a sense of humor or you will annoy every one around you. You have to vent. Or you will go crazy. You have to complain. Or you will end up like my former office mate in the story you repeated above.

As for whether or not the client is guilty, I have the exact same reaction. It just doesn't matter when you're representing that person. You don't even think about it after a while. You look at the strength of the prosecution's case. You look at the strength of your own case. And then you decide whether or not you think the client will be FOUND guilty if you take it to trial. That's the only thing that matters.

Anita Moore said...

Thus the absence of anger, especially that sort of anger which we call indignation, can, in my opinion, be a most alarming symptom. And the presence of indignation may be a good one. Even when that indignation passes into bitter personal vindictiveness, it may still be a good symptom, though bad itself. It is a sin; but at least it shows that those who commit it have not sunk below the level at which the temptation to that sin exists...

C.S. Lewis, Reflections on the Psalms

Yelling at clients is not in keeping with the best traditions of the bar, and it may be inconsistent with charity; yet not to yell is not always an indicator of virtue. There are some lawyers who don't yell at their clients because they just don't care.

Jamison said...

Carol D:

I would have put this in an email to you instead of posting this in a comment, but I couldn't find an email address.

Anyway, I wanted to let you know that you have inspired a blog entry of my own, which features PDR.

I hope you will check it out at

carol d said...

Thanks to each of you for your comments, each for different reasons--

Mayli--thank you thank you for being first, because I was feeling insecure about this post, and because your comment shows that you saw what I was aiming at--the transforming process that this job can kindle--and I'm glad you could see what I was aiming for because I don't think I quite got there (I am really not asking for reassurance here; I give myself plenty of credit when I hit it right). A little too preachy, and I should have said I know I'll yell again, because I will. But I went ahead and posted it, because I thought it got close enough--or maybe as close as I could get--and still had some value.

Jamison, thank you for coming to my defense about the fed defender lady--I think you are right, that she was too self-righteous and harsh (which I'm sure is where the word "prim" comes from), but it was good for me to hear--that is, as mad as it made me, it also made me think, and although it took me a while to admit it, I was a little too cavalier back then. I still love to laugh at client stories, don't get me wrong, but there was a different edge to it back then. But that lady was still a bitch.
(And you were too kind with the post in your blog, I promise I will get a big head and do ill with all of this blogging money and fame!)

Anita, thank you for taking my stories to a higher intellectual level. You are right--it is better to yell than not to care--I just hope I can tell the difference. I was in Muni court the other day (usually just in felony court) and watched as a mentally ill inmate plead guilty in order to "get out" to a crime that clearly had no p.c. (he kicked a cardboard box on the sidewalk--that was it). I thought, How are we all letting this happen, sitting here quietly while this travesty happens, I should get up and yell and make it stop. But I didn't. And the guy left the courtroom, yelling, "Kicking a box isn't a crime!" with everyone looking at him like he was the crazy one.

Lee said...

1st time here. Wow. Looking forward to this blog.