Today's CBS show "Sunday Morning" presented another TV piece about a wrongfully convicted person later exonerated when evidence surfaced years later. In this case, a prosecutor [once again] had withheld evidence favorable to the defense prior to trial. One thing that makes this one different from most? The convicted defendant was white, female, well educated, successful and solidly middle class. The lesson? It can happen to anyone.
The woman was convicted of murdering her long time companion, despite the original police conclusion was that he had committed suicide. In part what saved her was the fact that her daughter had just graduated from law school and was able and willing to quit her job and spend six years trying to prove her mother's innocence. She found evidence that the "victim" had indeed committed suicide.
What does this have to do with competition and the need to litigate? Prosecutors, those charged with protecting us from criminals and crime, are not immune from the same character flaws as everyone else - often leading to injustice.
The link for me came when I recalled a recent conversation with a young lawyer who had formerly worked for a very experienced family law lawyer. I was critical of his former boss, someone I've been forced to battle with for 25 years; I expressed I had never found a cooperative or reasonable bone in his body. For decades, the boss had been the butt of jokes around the courthouse from lawyers, young and old, for his lack of cooperation or conciliation, for whining endlessly at judges who ruled against him, and rearguing the same losing positions at hearing after hearing, in virtually every case he handled. I can recall walking out the courtroom door after the judge had formally ended a hearing, with the lawyer still whining about the result to the judge.
I used to use him as an example of what I call the "stupid/evil dichotomy" - the forgiveness and sympathy I feel for those who may appear evil, but really are just not too smart, versus the animosity that persists over those who just don't care about the impact on society, their clients, or their own reputations, as long as they win the case.
The boss is one I always felt is one of those rare lawyers who straddles the line: Both evil and stupid. Examples? He had denied me a continuance of a week so that I could complete my honeymoon in 1984, and once denied a lawyer a continuance when her father had died - fortunately, the respective judges were smarter and more cooperative. He's never shown any emotional growth.
The young lawyer's response? "You have to understand, he's extremely competitive." He then went on to describe the former boss's history of competition in non-legal arenas, the details of which I had been unaware. Could this be the problem with cases that can't settle?
There is a small number of lawyers in Family Law who seem to be litigating all the time. Not the initial hearings where it's necessary for the parties to hear bad news from a judge about the validity of their positions, but the long, drag out, intensively expensive trials over years to minor skirmishes at periodic intervals.
When I look at these constantly litigating lawyers, the key personality trait really is an intense need to win, to gain an advantage over the other side at any cost. Not the trait of protectiveness of someone who needs their help, but a need to win. In the end, however, is the client winning, or is the lawyer simply putting another notch in his or her belt for having pounded the other side into the ground, or just wore them down to the point they gave in on some point. Is the lawyer sacrificing pounds of gains for the parties, at the risk of losing an ounce of victory on some unimportant issue?
All too often, litigants view these little victories, or at least the lawyer's willingness to fight for them, as what they are paying the lawyer to do. Client's don't know how to weigh the benefit/cost ratio of these little victories. Are they better off with $20,000 in attorneys fees in return? This is played out every day in courtroom after courtroom.
When some of these clients wake up months or years later, with tens of thousands of dollars of additional debt, they may realize the cost of winning was too high.
The sad part is that judges rarely understand what is driving the process. We never hear them complain about the lawyers' roles in prolonging these cases, which could otherwise be resolved. They tend to lay the blame on the clients, rather than their counsel. There is a reason most of our cases in San Diego settle when everyone gets into a room with a neutral, experienced lawyer supervising a settlement conference: They are forced to face the cost of continuing to battle losing on marginally important points.
And, no, I don't feel more cooperative toward that evil/stupid/overly-competitive lawyer - he just makes me more protective of my clients who face him.
