More Things I Have Learned From Lawyering
Having practiced law for quite a few years now, I have learned some lessons. About a year ago I wrote about some of those things I have learned. I thought I might come back and add to that list.
What makes someone an expert? There are lots of things. But one thing about an expert is clear – a “Real Expert” cannot be from “here”. What was true in Biblical times (“A prophet is not without honor but in his own country”) remains true today.
After all, how can someone from here in my own city possibly know as much as someone from 100 miles away? I guess this is just a human tendency, to believe that those around us cannot possibly be special in any way. To get someone who really knows something, we have to look in another city. Usually a bigger one.
Another lesson learned is that an eyewitness isn’t what it’s cracked up to be. Observation and memory can be funny things. Even ignoring things like bias or dishonesty, it is not always a good idea to take the word of an eyewitness without some critical examination.
I once defended a driver who hit a pedestrian. The pedestrian claimed that he was in a crosswalk with a “walk” signal. The driver claimed that he had a green light and the right-of-way, which necessarily implied that the pedestrian did not have a “walk” signal.
“This will be a cinch” I thought, because it was a busy downtown intersection during the morning rush hour, and there were something like ten pedestrians who saw the whole thing. The problem was that those pedestrians broke down something like 50-50. About half of them said that the pedestrian had the “walk” signal and that the car ran a red light, while the other half of them swore that the car had the green and that the pedestrian was crossing against the light.
The lesson here is that of those things we are sure we saw and remember, well maybe those things didn’t actually happen in quite that way. Or maybe they did. We have to be open to both possibilities even among people who are trying hard to be honest and accurate.
Another lesson is that is impossible to underestimate the ability of teenage boys to find new and not-very-healthy ways to entertain themselves. A case in my experience involved a high school boy who ran off the road in his father’s Dodge van. This was not a minivan, but one of the big vans that had not been really popular since the 1970’s.
He told the officer at the scene that a deer ran in front of the van and that he panicked. His friends in the van backed up his story, although the police report noted that there were no fresh deer tracks. When the driver and his father came in for an initial meeting, the father gave his son a look and said “tell him what really happened.”
Van surfing was what happened. It was a game that went like this: Someone would stand up in the back of the van. With feet planted and arms out for balance, the object was to stay upright so as not to fall or touch anything. The driver, meanwhile, would do all he could to make the guy in back lose his balance. So whether we call it surfing or the vehicular equivalent of riding a mechanical bull, these kids were playing a kind of road roulette. And, as always, everything was fun and games until the driver lost control. There were some injuries, but things could have been so much worse.
A lawyer of my acquaintance once tossed out the opinion that nobody should be a judge unless that person has first had children. His point was that parents develop a unique ability to understand human weakness and frailty. I would add that we also develop the ability to understand that youth can do some really dumb things that seemed like a good idea at the time. I guess the lesson here is to always listen critically and ask the follow-up question.
The last thing for today is one that applies very much with things happening in the news today. And it is this: At some point the dispute is over. And when it is over, it is time to walk away.
I have had many cases where I truly, deeply believed in my client’s cause. The problem with a lawsuit is that it is a zero-sum game. When taken to its conclusion, somebody is going to win and somebody is going to lose. And a win or a loss is not always right or fair or something that makes sense. Judges and juries make factual conclusions and legal interpretations that I don’t always agree with – not because of my part in a case, but because of my understanding of how things “ought to be”.
I have lost cases that I felt I should have won. I have also won cases I felt I should have lost. The second kind feels better, by the way. In both instances, there is a tendency of the losing side to want to keep arguing. To make that one more argument, to try that one last bit of persuasion in the hopes that the one in charge “sees it my way”. But at some point the gavel comes down and it is over. I may not like the result, but that is the way the system works. Some days you win, some days you don’t.
And having occasionally sat as a substitute judge I have watched some lawyers lose an argument gracefully and others who just do not know when to let it go. In one extreme case, the one who did not know when to shut up and sit down even managed to make me rethink my initially favorable view of his argument.
Which brings me around to the Robert Mueller thing that is going on right now. Whatever one’s opinion of the current President, it seems to me that the legal process of the independent counsel investigation has concluded. Under the current state of the law (as I understand it – and I will freely admit that this is not my area of expertise) the Independent Counsel is obligated to make a report to the Attorney General. That report has been made. The AG has made a decision on what will result from it. And . . . there we are.
Some feel vindication and others feel a deep sense of having been robbed of justice. But in politics, unlike in a courtroom, there is always an appeal to be exercised via the ballot box. And depending on which side of this question one finds himself, one can either [hope] or [fear] (choose only one) that those on the losing side keep talking long enough to sway those middle-of-the road voters who actually decide elections. Which way will the swaying go? A very good question.
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J. P.'s Blog 
So many of the things you describe here translate so well to other arenas as well. You’ve prompted thought on some of the incomplete stories, conflicting eyewitness accounts, and wild car outcomes I’ve encountered with managing a department with 400 people.
The biggest parallel you describe, and it must be an innate tendency with some, is to keep going after the fat lady has sang (or the unhappy looking special counsel has released his report). Of all these this is what tries a person’s patience the most.
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Yes, so many things we are sure we saw, well . . . A couple of weeks ago on CC was a piece about an old Toyata ad from when the Tercel was new. I remembered it. There was a red Tercel in the woods and a great big lumberjack/outdoorsman who did the Toyota Jump at the end.
Then I rewatched the ad for the first time in eons. The car was yellow and the big guy was a fisherman. Oh well.
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A couple of nails hit on the head here. Back when I did a lot of field work at aluminum smelters we had a running joke; “I’m more than 100 miles from home and I have a business card, of COURSE I’m an expert!” 🙂
What worries me about the whole Mueller thing is that (to continue your lawyering theme) everyone is reacting either as prosecutor or defense. Nobody seems to be genuinely weighing the evidence, not the various medias, not the politicians who want to press on with investigation, not the politicians who want to in turn investigate the investigators, and certainly not ordinary people who appear to have made up their minds a long time ago.
You’re an educated man JP, if you put on your substitute judge’s substitute robe are even you able to weigh up evidence in this environment?
And finally, I seem to recall a lumberjack as well. Could it have been a print ad?
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I think you are right about the prosecution/defense thing. I get that partisan politicians would act this way, but it is a tremendous disappointment that the news outlets seem to have lost (for the most part) the ability to do straight news reporting without being spiced by opinion and commentary.
Maybe now that the Mueller report is out we can turn our attention to whether Toyota ever actually did a print ad for the Tercel that featured a lumberjack. Hey, this is important.
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Here’s a Toyota commercial with a lumberjack, but it’s not for the Tercel, and the car isn’t even red. https://youtu.be/tj-JPsr00-4
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Sadly, nobody did the Toyota Jump.
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I was with you to the end. The Mueller report is, according to experts who have read it and the more than 800 former career prosecutors (from both parties) who have signed a letter concerning the importance of public disclosure, apparently a carefully drawn roadmap of obstruction of justice should Congress decide to impeach the president.
It certainly appears that the President is either worried about public disclosure or believes goading the Democrats to impeach him by so blatantly defying the separation of powers will make him a victim and help his re-election.
It is essential that Mueller testify before Congress, especially now that it appears Flynn told Mueller that the President tried to shut down not just the FBI investigation of his campaign, but also its exploration of Russia’s involvement. This is a serious national security issue that every American should want to learn the truth about.
If it were vindication, as the president and his minions claim, why are they stonewalling every attempt by Congress, Constitutionally bound to perform oversight, to let the public actually learn what the report found?
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As I understand the law, the prior system where an independent counsel would publicly report to Congress was allowed to expire following the mess that resulted from the investigation into Bill Clinton. The current system (put into place by Janet Reno) was supposed to be more law and less circus by the special counsel making a confidential report to the AG, who would then be charged with making a decision on whether or not to prosecute.
Somehow we find ourselves back to the older system with a public report, and maybe more disclosure rather than less is good for everyone. My problem with the report is that it did not recommend prosecution but excoriated the subject with lots of stuff that could become fodder for politically motivated attacks. I didn’t like this approach when Comey did it to Hillary Clinton and don’t like it now.
I understand that a report with most redactions removed has been made available to congressional leadership. The only redactions remaining in that one involve grand jury testimony that cannot legally be made public absent a court order. My bet is that the report contains stuff that a really aggressive or politically motivated prosecutor might choose to pursue but that one concerned with actually making a successful conviction in criminal court might not. Muller certainly did not recommend any prosecutions.
If there is to be an impeachment, well this would be the start of a new legal process that the House has every right to pursue. But until they choose to do so, the independent counsel investigation is over. We are now stuck in a middle place where there is lots of noise and activity but no pending legal process. Yes, there is “oversight”, but in the current climate it is hard to tell the difference between real oversight and hardball partisan politics. My view is that they either need to get on with filing articles of impeachment or get to work on the 2020 elections.
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I saw Barr say he has no problem with Mueller testifying before Congress. I personally feel it is better for the public to know Mueller’s actual findings prior to the election. I think that’s what the wiser Democratic heads feel too—not to rush to impeachment—but to let people know what’s actually in the report. That’s why I believe we need to hear Mueller speak. He made it clear that Barr misrepresented the report’s findings.
The problem I find with your saying we have reverted to the prior situation is that if Barr had truly been acting as the people’s AG, we would have had the release of the report with Mueller’s written summaries quite soon after the release. Instead, we got a misleading non-summary that misled the public.
You can fault Mueller, and many do, but I think he was acting as a careful institutionalist. Knowing the President couldn’t be indicted, he simply cited the bill of particulars that his investigation uncovered, placing the responsibility on Congress.
The complete lightly redacted report is available not just to Congress, but to the public as well. I plan to read it, but I doubt many other people will.
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I am agnostic as to whether Mueller testifys or not. But I care deeply about the context. If it is in furtherance of an impeachment, that’s fine. But there is no such thing as a “pre-impeachment discovery process” in which there are no rules and no definite end. In a lawsuit I have recourse to a Court’s subpoena power to require witnesses to testify and to get documents. I do not have that right before filing suit.
Here, the procedure is to file articles of impeachment, and compel testimony and production of documents in order to have everything the House needs to prove a case. But without a legal proceeding I would be concerned that Mueller, who did his investigation on behalf of the Justice Department, would become part of a political show with no rules and no pre-set purpose.
We have 2 equal branches of government involved in the present skirmishes. The only way forward (it seems to me) is to resolve it by the constitutional process of impeachment or by resort to the Judicial Branch for a ruling on who is entitled to what.
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Memories are partly recalled and partly reconstructed. When we reconstruct them, we unconsciously try to make them “make sense,” even if what we observed was fragmentary and chaotic. We resolve ambiguities in our own favor, and sincerely believe that what we remember is exactly what happened.
As for the “expert from afar” phenomenon, Robert Ringer talks about it in his entertaining book “Looking Out for #1,” which is part self-help and part social commentary. I recommend it: https://www.amazon.com/Looking-Out-1-Robert-Ringer-ebook/dp/B00BOU7238/
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Memory is a fascinating and mystifying thing.
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Interesting to get an American perspective on the Mueller report.
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My opinion is probably one that almost no news source will carry. Media here has become quite invested in “Trump Bias”, whether anti or pro. And what passes for legal analysis pretty much ignores the procedural questions (which, being honest, isn’t always the most exciting stuff).
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That’s what I found interesting about it – the legal fact-based neutrality of it. It’s hard to pick that up from CNN (I don’t get it but my mother does, we don’t get Fox here at all). I wish the news would go back to the Walter Cronkite days when they just reported the facts, not this endless speculation and analysis. (I’m thinking of Walter Cronkite not even being able to say JKKennedy was dead until it was confirmed). On our Canadian evening news, generally about 5 minutes is devoted to the US/Trump stuff, so it’s interesting to hear a US perspective,. In April I posted on the immigration issue (because I do a lot of genealogy I tried to relate it to the current day situation). I tried to be as neutral as possible, and present all sides, deal in facts not emotions. Did not get much response, as people are not wanting to wade into political issues these days even on WordPress, it’s so divided, that I went back to cake recipes! Here’s the link, if you are interested. https://thehomeplaceweb.com/2019/04/19/come-from-away/
It’s finally sunny and warm here 80 so I’m going out to enjoy it! Have a good day!
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Thanks for the link to your immigration post. Your take on this was a fair one. I wish more of the analysis I see here was like yours.
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