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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