One of the hard parts of defending people is knowing the hard parts of defending people, because when it comes down to it, the deck is stacked. And the stacked deck does not favor people accused of crimes.
This has always been such a hard part for me. It causes many a sleepless night. I agonize over the plight of my clients. I stay up half the night, studying the law, psychology, tactics, epigenetics, the manitou For more on the manitou, see Suzanne Methot, Legacy: Trauma, Story, and Indigenous Healing (2019). — anything that looks like it might help.
Despite my reviews, I feel inadequate. My health suffers — at some times immensely.
Feeling Inadequate Facing a Stacked Deck
Lately, these feelings of inadequacy (no doubt amplified by the pandemic quarantine) have driven me to re-focus. In particular, I’ve gone “back to the basics,” and started loading my library with books on trials, and trial techniques. But, more importantly, I’ve been focusing on some of the ways of the trial lawyer that, I hope, will help me deal with the saddest fact of defending people: how the stacked deck impacts trials. I have been working on another blog post on The Trial Tax, which I will link to this one when finished.
Recently, I found Rick Friedman’s The Way of the Trial Lawyer: Beyond Technique.
And, by recently, I mean “yesterday.”
I was up half the night again, because I couldn’t stop reading. Just about two hours before I had to get ready for court, slumber slew my study, and I dutifully dozed.
Learning a New Old Way
Friedman’s trial book is like no other. As David Ball writes in the Foreword,
It’s the first of its kind.— David Ball, “Foreword” to Rick Friedman, The Way of the Trial Lawyer: Beyond Technique 11 (2020)
It doesn’t focus on technique — that’s why the subtitle is Beyond Technique. The book is a book of ethos. It harkens back to another time. As Friedman says,
There was a time, I’ve been told, I’ve read about, I’ve imagined, when trial law was a profession. A commonly held and acknowledged set of values, beliefs, and understandings guided the trial lawyer through his career (they were almost all men). These values established the trial lawyer’s place in his community and gave him a wholesome sense of self. They articulated a sense of purpose that went beyond ego and self-interest.— Rick Friedman, The Way of the Trial Lawyer: Beyond Technique 15 (2020)
Friedman notes — not “bemoans,” but notes — the changes to that perception as America has “evolved.” His book seems, so far, I have to say “so far,” because I am, as yet, really only about half-way through the text. to aim at resurrecting that sense of law as profession, rather than business — limited to (and focused on) a way of making money.
For some, going to trial is a chance to show off, even becoming something of a vaudevillian act, more about ego and theatrics than about pouring one’s soul into standing, and fighting, for the small fry (the prey) facing big money (the predator), despite the stacked deck.
The model of the macho-swashbuckling trial lawyer is out of date. It is an aggressive, competitive, materialistic, destructive model. It is part of the same cultural model that has put the whole world at risk. It tells us we should be amoral technicians out to maximize our own self-interest. It tells us to seek bigger verdicts, more money, and more fame. It tells us it is naïve to speak in terms of right and wrong. It tells us to repress and ignore the feelings that make us human. Ultimately, it denigrates the human spirit — ours, and of those with whom we interact.— Rick Friedman, The Way of the Trial Lawyer: Beyond Technique 266 (2020)
Finding, or Cultivating, Ethos in Oneself
Friedman says that his book is “an attempt to describe the ideal trial lawyer or, perhaps, the ideal way to live the life of a trial lawyer.” He decides to give that ideal lawyer, or one ideally living the life of the trial lawyer, a name: Teiwaz (pronounced “Tee-waz”).
The Teiwaz, as he refers to this ideal lawyer throughout the book, is a truly spiritual warrior. And, lest I lose you — David Ball confessed to initially wanting to abandon the book before saying “THANK GOD WE GOT THIS BOOK!” — the book is, as I said earlier, a book of ethos.
Ethos is about character. It describes one’s guiding beliefs, one’s values. For Friedman’s purposes, ethos describes the guiding beliefs of the trial lawyer, and how those beliefs impact cases.
A clash of values occurs not only in the courtroom but often within the trial lawyer as well. In fact, any thinking person is going to face internal conflicts as a result of their work as a trial lawyer. […] If we do not satisfactorily resolve these conflicts, the trial lawyer will be using energy—usually unconsciously—to avoid them. An internally conflicted trial lawyer is a less effective trial lawyer.— Rick Friedman, The Way of the Trial Lawyer: Beyond Technique 33 (2020)
Ethos links the moral dimension of the work we do to the logos, and pathos, of our work. It provides our cases with credibility. But before it can do transformative work on our cases, we must find or develop it within ourselves. If we do not have it, neither will our cases, or our arguments for them.
If we do not have it, we must find a way to cultivate it; if we do have it — and most of us will have it, to one extent, or another — we must learn to cultivate even more of it.
The Teiwaz Lawyer Fights the Stacked Deck
Teiwaz know that most trials are lost. They know that the system is unfair and unjust. They fight anyway.
Teiwaz lawyers recognize that the system they are called to work within is not fair. The playing field is not level. The judges are often biased against them and their clients. The jurors are often biased against them and their clients. But the Teiwaz choose to step into the courtroom anyway. When they do so, they are fighting for something they consider important, something that is grounded in their own personal value system.— Rick Friedman, The Way of the Trial Lawyer: Beyond Technique 40 (2020)
Some judges — I could name more than a few — once firmly ensconced on the bench, forget the morality of their work, and focus on efficiency, the business of law, moving things along, filling the prisons, which themselves are built on the immorality of industry. Part of the reason the United States locks up so many people these days is money.
[T]he privatization of prisons, prison medical care, prison rehab programs, and various other prison functions have created huge economic incentives to produce more prisoners. Corporations now routinely lobby for more extreme criminal legislation, in order to produce more prisoners and more profit. They also lobby for legislation that produces other economic activities.— Rick Friedman, The Way of the Trial Lawyer: Beyond Technique 31 (2020)
Criminal defense lawyers fight this failure to recognize the moral dimension of criminal “justice.” We fight the stacking of the deck, the unfairness of the system, which often includes twisting, or overstating, the facts of our cases, and overcharging the accused as a means of coercing a guilty plea.
The Stacked Deck, the Teiwaz Lawyer, and Tikkun Olam
If you know me, or if you have read much of what I’ve written, you might understand why Friedman’s message resonates with me. I have often written about how I make my living off the misery of others, and how much I dislike that aspect of my work.
The system is so skewed, and my clients so screwed, that I frequently feel as though I’m merely the salt in the wound: I make my living off their misery; before they are convicted, or jailed, or go to prison, I drain them of their money.
Or I drain their family and friends of theirs.— Rick Horowitz, “We Make Our Living” (January 2, 2014)
This is another reason why I lose sleep. I find myself thinking that if I somehow don’t succeed, I have ripped off my clients. And let’s be blunt: no criminal defense lawyer always succeeds. Any honest criminal defense lawyer will tell you that we probably lose more often than we win. I don’t care who you are.
The King of Home Runs, and the Stacked Deck
Many of you may be too young to know who Babe Ruth was — as I get older, I’m continually surprised about the people who I know who evoke “who?” when I mention their names — but he was a baseball player whose record for hitting home runs stood for more than 39 years. He hit 714 home runs in his day.
And struck out 1,330 times.
He was the Home Run King. And the Strike Out King.
This is what it’s like to be even the best of criminal defense lawyers.
Before Babe Ruth, it was considered a disgrace to strike out. Somehow, Ruth pushed past that. I will admit that I have struggled to do so.
Ruth’s strikeout record would stand for almost three decades, until Mickey Mantle exceeded it. Since then, it has been exceeded … usually by Hall of Fame legends, not by anyone who could be considered a failure. In other words, it’s quite literally true that the batters who fail the most spectacularly also tend to be among the most spectacular successes.— Rob Asghar, “Permission To Fail: Leadership Lessons From Babe Ruth’s Bat” (June 17, 2014)
Criminal defense lawyers have to fight, fight hard, and understand that they are going to lose more than they win. Babe Ruth might not even be our best model — he didn’t have pitchers hiding the ball, or (most of the time, anyway) umpires blatantly lying about whether what everyone clearly saw was a ball was, in fact, a strike — but I prefer him as a role model to the kamikaze pilot I thought of before reading Friedman’s book.
Teiwaz & the Zen of Losing
Teiwaz is actually a Viking, or Celtic, warrior thing, so maybe “zen” is a little strange here.
In Chapter 7, though, Friedman notes that,
Teiwaz lawyers recognize that the practice of law is an invitation to take a moral and psychological journey.— Rick Friedman, The Way of the Trial Lawyer: Beyond Technique 55 (2020)
It is a scary journey. Fear is our constant companion. We must learn to overcome it. To do that, we must face it. Nearly all of what I have read so far in The Way of the Trial Lawyer — see my footnote 3 — is about that task.
But, as I read Friedman, confronting the task, exploring oneself — going into the dark alley, as he calls it — is how we start to build ethos, moral character, strength.
Armed with the moral strength that comes from hard work, though, and effort, Teiwaz are able to stand calmly and firmly in the face of a raging judge. They are able to methodically unmask the deceptions of opposing counsel without losing themselves to anger or frustration. And in the end, they are able, if necessary, to tolerate losing, and move on to the next case, stronger and more determined than ever. They are able to accept that they are not Jesus Christ, sent by God to save humankind. They accept that they are just one moral agent in a complex and mysterious universe. They will do their best to do their part. They have internalized the spirit of the old Jewish text:
Don’t be daunted by the enormity of the world’s grief.— Rick Friedman, The Way of the Trial Lawyer: Beyond Technique 262 (2020)
Love mercy now.
Walk humbly now.
Do justly now.
You are not obligated to complete the work; but neither are you free to abandon it. Micah 6:8 with commentary from the Talmud.
In short, as I said, we develop a zen attitude — one of peacefulness, and calm — about our losses. We understand that it’s part of the fight, or a consequence of taking our turn at bat. We win. We lose. We strike out. We hit home runs.
Tikkun Olam, the Stacked Deck, and the Way of the Trial Lawyer
Another thing those who know me, and regular readers of my blog, will know is how much I think about tikkun olam. It is safe to say that I think about it most days most of the day.
Tikkun olam is a Hebrew phrase that literally means “world repair.” The phrase has a long history, and several meanings, but nearly all of them have this one thing in common:
The phrase “tikkun olam” remains connected with human responsibility for fixing what is wrong with the world.— My Jewish Learning, “Tikkun Olam: Repairing the World” (no date given)
For me, the stacked deck is the exact opposite of tikkun olam. It is world-destructive. And I have found it personally destructive. Case-by-case, year-by-year, it has worn away at me. It has torn at my resilience. Though I have done a good enough job of hiding it to keep clients happy with the work I do for them, I have lately often felt my soul hangs not together, as it should, but as ripped strands of tzitzit, no longer kosher.
Reading Friedman has helped to bring me back to myself. It has reminded me that the way of the trial warrior is a worthwhile, and worthy, way.
Teiwaz accept that to achieve anything as trial lawyers, they must risk losing. In fact, they understand that their entire career is just one opportunity after another…to lose.
Teiwaz have rejected the corporate message blasted at us from all directions—”Losing is for losers.” They understand the real truth: “Losing is for fighters strong enough to survive losing.” Teiwaz know they can survive a loss.— Rick Friedman, The Way of the Trial Lawyer: Beyond Technique 264 (2020)
Teiwaz resolve to learn from their losses, gain strength from their losses, and then move on. Teiwaz understand that the only way they can truly lose is by betraying their own values.— Rick Friedman, The Way of the Trial Lawyer: Beyond Technique 264 (2020)
What I value, more than my own ego, more than my own safety, more than my holding onto my fears, is tikkun olam. Repairing the world.
One human being at a time.
And so, stacked deck, or no, I will continue to work in the dark alley to improve myself, learn what I need to learn to keep growing, and to fight.
|↑1||For more on the manitou, see Suzanne Methot, Legacy: Trauma, Story, and Indigenous Healing (2019).|
|↑2||I have been working on another blog post on The Trial Tax, which I will link to this one when finished.|
|↑3||I have to say “so far,” because I am, as yet, really only about half-way through the text.|
|↑4||Micah 6:8 with commentary from the Talmud.|