A fellow blogger — or, as he prefers, “blawger” (I’ve always been ambivalent about this bastardized version of the original word) — suggested today that he has a hard time, at times, believing that I’m actually a lawyer.

He may have been joking, but, even if he wasn’t, I won’t quibble with that: I have a hard time, at times, believing I was stupid enough to become a lawyer.

The reason for both of us to make this statement is pretty much the same, although Scott Greenfield, the aforementioned fellow blogger, refers to it by a different word than I use: he calls it “naïveté.”

Perhaps proving Scott’s point, I refer to it as “believing the law really means what it says,” or, following the definition used in Black’s Law Dictionary, to which courts refer only when it supports their viewpoints, “due process.” That definition, by the way, reads like this:

The conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case.

A number of quotations appear below the definition — I should note that my library contains only the Seventh Edition (1999) — one of which states:

Due process of law in each particular case means, such an exertion of the powers of government as the settled maxims of law sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.

That quote is attributed to Thomas M. Cooley, writing A Treatise on the Constitutional Limitations in 1868, at page 356.

John V. Orth, who wrote an brief history on due process entitled, fittingly enough, Due Process of Law: A Brief History, noted almost a century-and-a-half later:

Due process still forbids, and always will, unfair procedures…. Corrupt, partial, or fearful decision makers cannot dispense justice and are not even properly called judges.

So this is why I call what I expect to see in legal proceedings “due process,” because what I expect is decision makers who are not corrupt, partial, or fearful of doing what the law spells out. And I expect them to do what the law spells out.

As the quotes above indicate, no small part of that is protecting the rights of accused persons. It is far, far too easy to convict people in America today, for the wrong reasons on the flimsiest of “evidence” regarding alleged guilt. Not only that, the laws are sometimes so ambiguously applied that nearly everyone can be said to be committing at least three felonies a day.

But, despite the abject absence of any just application of our laws and the concomitant lawlessness of our courts, Scott Greenfield is not off-base to call my expectation “naïveté.” Scott is right to call it that because our judicial system is so far from meeting my expectation — and virtually every lawyer practicing “in the trenches,” as they say, knows this.

And that doesn’t say anything about the lawyers. Or maybe it says everything about the lawyers. Because, as virtually every lawyer practicing “in the trenches” also “knows,” “you have to pick your fights.” Getting judges to enforce the law is almost never one of the fights we should pick.

Or so I’m constantly told.

This is why, while Scott at times finds it hard to believe that I’m actually a lawyer, I find it hard to believe that I was actually stupid enough to become a lawyer, that I actually continue trying to act as if the law means something, and that I come to work every day to fight for that idea.

Unfortunately, though, I am a lawyer. This is what I do. Naïve or not, as often as I’ve thought about throwing in the towel and finding a job that did not require me to tilt at windmills, this is what I do.

The law as it exists today is not what it once was. There is no due process. Whereas the law was meant to ensure that, if we were going to be taking from people — taking either life, liberty, or property — it would be done according to a fair and just system of laws in a fair and just manner, it no longer has that aim. Law today has the same aim it had during the period when society was organized along “feudal” principles.

That aim is control. Pure and simple.

Under manorial principles, from which grew other concepts such as “feudalism” and “serfdom,” the attempt was to tie everyone but the rich — and, in some sense, even the rich excepting only those closest to the king — to the land, or “manor.” Everything you had and everything you could do was at the whim of the “lord” to whose manor you belonged.

“Belonged,” as in “they owned you.” They and they alone could decide what your “rights,” if any, were. They and they alone could decide what was meant by “fair,” or any of the other concepts that our Founders — the Founders of the United States of America — later tried to enshrine in a Constitution.

The lord of the manor utilized lower lords to help administer his system. (So far as I know, the lord of the manor was nearly always a “he.”) This system allowed for quite a lot of leeway in the abuse of power. And it depended upon a sheepish people who, as Founders of the United States also knew (Update 4/12/2017: link broken/removed), will suffer long and hard before they will ever be brought to the point of Revolution.

Today, at least in the United States, the same principles are making a comeback. The difference is that instead of land and “manors” being the anchoring point, there is a tie directly to the government itself. Everything we have and everything we can do is at the whim of some “lord” in a black robe. The lower lords who help to administer the system are known as prosecutors, or probation officers, correctional officers and police.

And anyone who believes, like me, that it would be different, if only the lords would follow the law, is, indeed, naïve.

But don’t expect me to give up the fight.

Because I am a lawyer. A real lawyer. My job is to stand for an ideal, to fight for what our Founders really meant when they attempted to enshrine “due process of law” into our Constitution. It is my duty to be naïve.

I know no other way.

23 comments

    1. And I appreciate all you offer, even when my lack of need for validation means I risk stepping on a toe or two. Thanks for continuing to offer what you offer, regardless.

    1. And I appreciate all you offer, even when my lack of need for validation means I risk stepping on a toe or two. Thanks for continuing to offer what you offer, regardless.

  1. Just for the record, and lest there be any confusion, I use the uppercase “L” Law for that theoretical, platonic, law-school fantasy of what Law is and how it works. For law as it be done in what Elizabethan’s sometimes referred to as the workaday world, it’s lowercase all the way.

  2. Just for the record, and lest there be any confusion, I use the uppercase “L” Law for that theoretical, platonic, law-school fantasy of what Law is and how it works. For law as it be done in what Elizabethan’s sometimes referred to as the workaday world, it’s lowercase all the way.

  3. Sometimes one can convey a message without murdering a few thousand words. Other times, it requires more, and so I will give it another try.

    Your last paragraph is intriguing, and you are right in a technical sense, but wrong in your message. Obviously, the comment was “on the internet,” but it related to the conduct of a specific person in a specific case. It was not a general discussion of ideals, but addressed a very specific situation (as you note).

    I apologize if this wasn’t clear when talking about ideals and platitudes, but to the extent we address a specific situation, it’s about what happens in the courtroom and not a philosophical or academic discussion. As I don’t plan to spell it out every time I write in the future, please bear this in mind.

    If Julian Heicklen was to call Rick Horowitz and ask for his advice, would Rick Horowitz tell him not to worry, the judge will surely do the right thing, toss out the indictment and send Heicklen on his way with the court’s apologies? If so, we have a problem. If not, then why would you write such a thing in a comment? And having done so, why would you continue to defend it after coming to the realization that it’s absurd?

    Nor do I suggest you aren’t a real lawyer. Rather, I challenge you to focus on what makes you a real lawyer. I have no doubt your are real, but you are also a relatively new lawyer who is clearly influenced strongly by ideals. If anything, you seem to wander from abject cynicism to high idealism in your posts, both of which tend to be opposing sides of the same coin.

    My purpose is to help you focus on what you do as a real lawyer, rather than defend foolishly idealistic comments that you know do not bear any resemblence to reality and convey a terrible message to anyone reading it that they can sit back and rely on our wonderful system of justice to save them from the abyss.

    I realize that it’s hard not to defend one’s honor after making an inadvertantly silly comment, but I have no doubt that you, because you are a real lawyer, will eventually come to the realization that it wasn’t your most thoughtful comment and that continuing to push isn’t going to make it any better. I trust that you will get there eventually. How long it takes is up to you.

    1. If you show me where I said, “Don’t worry; the judge will do the right thing,” I’ll gladly retract that comment.

      I said no such thing. If Heicklen were to call me, I would offer to go into court and defend him. I would not say, “Don’t worry.” Anytime someone goes to court, there is a time to worry, if for no other reason than that the courts follow the law only when it suits the goals of the judge hearing the case. The aim of the defense attorney, of course, is to zealously defend the client and one way of doing that — when the law is on the client’s side — is to aim to get the judge to follow the law.

      I may be a “relatively new lawyer” compared to you. The relative length of time one has been practicing, while not unimportant, is not the final indication of one’s strengths and abilities as a lawyer. My position in my local community has been earned by my handling of the cases that have come to me in the last few years. My reputation for fighting for my clients and my skill at doing that preceded my swearing in — preceded even my handling of oral argument in the Fifth Appellate District Court of California when I was a student. I was not allowed to handle such things as a favor, but because it was determined that I was the right person to do it at the time, notwithstanding my lack of years as an attorney (since, at the time, I was not an attorney).

      You know that I have a lot of respect for you. There are, however, two mistakes to be avoided:

      1) My respect means I look to you as a potential source of information, but not as someone necessarily capable of sitting in judgment of me; you yourself have frequently pointed out how “knowing” someone via twitter, blogging, etc., does not translate into real knowledge of that individual.

      2) It is entirely possible for two good lawyers to have differences of opinion on how they should practice law, what should (or does) motivate them, how they should handle any particular case (at times even deciding that a particular case should be handled in a way they would previously have thought inconsistent with their own strongly-held beliefs). My possibly-different approach to the practice of law is not necessarily better, nor necessarily inferior, to yours.

      I believe the law — or, as Gamso prefers (and I used do), the Law — enshrines particular ideals which we, as a society, value. I find that I also value most of what I see in the law, especially as I understand its constitutional aspects. I believe those ideals are worth fighting for and I do not believe that fighting for them is inconsistent with defending my clients. The laws which protect my clients rights do, when followed, protect my clients rights; fighting for the court to recognize and apply those laws is coterminous with fighting for my clients.

      You may have a different approach.

      Or we could just be arguing semantics.

      I’m actually not sure which.

  4. Sometimes one can convey a message without murdering a few thousand words. Other times, it requires more, and so I will give it another try.

    Your last paragraph is intriguing, and you are right in a technical sense, but wrong in your message. Obviously, the comment was “on the internet,” but it related to the conduct of a specific person in a specific case. It was not a general discussion of ideals, but addressed a very specific situation (as you note).

    I apologize if this wasn’t clear when talking about ideals and platitudes, but to the extent we address a specific situation, it’s about what happens in the courtroom and not a philosophical or academic discussion. As I don’t plan to spell it out every time I write in the future, please bear this in mind.

    If Julian Heicklen was to call Rick Horowitz and ask for his advice, would Rick Horowitz tell him not to worry, the judge will surely do the right thing, toss out the indictment and send Heicklen on his way with the court’s apologies? If so, we have a problem. If not, then why would you write such a thing in a comment? And having done so, why would you continue to defend it after coming to the realization that it’s absurd?

    Nor do I suggest you aren’t a real lawyer. Rather, I challenge you to focus on what makes you a real lawyer. I have no doubt your are real, but you are also a relatively new lawyer who is clearly influenced strongly by ideals. If anything, you seem to wander from abject cynicism to high idealism in your posts, both of which tend to be opposing sides of the same coin.

    My purpose is to help you focus on what you do as a real lawyer, rather than defend foolishly idealistic comments that you know do not bear any resemblence to reality and convey a terrible message to anyone reading it that they can sit back and rely on our wonderful system of justice to save them from the abyss.

    I realize that it’s hard not to defend one’s honor after making an inadvertantly silly comment, but I have no doubt that you, because you are a real lawyer, will eventually come to the realization that it wasn’t your most thoughtful comment and that continuing to push isn’t going to make it any better. I trust that you will get there eventually. How long it takes is up to you.

    1. If you show me where I said, “Don’t worry; the judge will do the right thing,” I’ll gladly retract that comment.

      I said no such thing. If Heicklen were to call me, I would offer to go into court and defend him. I would not say, “Don’t worry.” Anytime someone goes to court, there is a time to worry, if for no other reason than that the courts follow the law only when it suits the goals of the judge hearing the case. The aim of the defense attorney, of course, is to zealously defend the client and one way of doing that — when the law is on the client’s side — is to aim to get the judge to follow the law.

      I may be a “relatively new lawyer” compared to you. The relative length of time one has been practicing, while not unimportant, is not the final indication of one’s strengths and abilities as a lawyer. My position in my local community has been earned by my handling of the cases that have come to me in the last few years. My reputation for fighting for my clients and my skill at doing that preceded my swearing in — preceded even my handling of oral argument in the Fifth Appellate District Court of California when I was a student. I was not allowed to handle such things as a favor, but because it was determined that I was the right person to do it at the time, notwithstanding my lack of years as an attorney (since, at the time, I was not an attorney).

      You know that I have a lot of respect for you. There are, however, two mistakes to be avoided:

      1) My respect means I look to you as a potential source of information, but not as someone necessarily capable of sitting in judgment of me; you yourself have frequently pointed out how “knowing” someone via twitter, blogging, etc., does not translate into real knowledge of that individual.

      2) It is entirely possible for two good lawyers to have differences of opinion on how they should practice law, what should (or does) motivate them, how they should handle any particular case (at times even deciding that a particular case should be handled in a way they would previously have thought inconsistent with their own strongly-held beliefs). My possibly-different approach to the practice of law is not necessarily better, nor necessarily inferior, to yours.

      I believe the law — or, as Gamso prefers (and I used do), the Law — enshrines particular ideals which we, as a society, value. I find that I also value most of what I see in the law, especially as I understand its constitutional aspects. I believe those ideals are worth fighting for and I do not believe that fighting for them is inconsistent with defending my clients. The laws which protect my clients rights do, when followed, protect my clients rights; fighting for the court to recognize and apply those laws is coterminous with fighting for my clients.

      You may have a different approach.

      Or we could just be arguing semantics.

      I’m actually not sure which.

  5. Are you fighting for an ideal or for your clients? You aren’t a real lawyer because you “fight”, but because you are an effective advocate for those individuals you represent. An effective advocate doesn’t rely on the whimsical ideals enshrined in platitudes over courthouse doorways.

    We can advocate for ideals on the internet, but we are real lawyers in the courtroom, where there is no room for naiviete when a client’s life is on the line. It’s important to realize this distinction if one is a real lawyer.

    When one publicly contends that advocacy in a particular case is unnecessary as one can rely on the ideals of the legal system to safeguard a defendant’s rights and produce the “just” result, one hardly sounds like a real lawyer.

    Real lawyers fight for their clients. Idealists spout platitudes. So which are you?

    1. It sounds like you’ve jumped to a conclusion about what I said in a comment to your blog. In the post where I “publicly contend[ed] that advocacy in a particular case is unnecessary as one can rely on the ideals of the legal system to safeguard the defendant’s rights” I actually did no such thing.

      Your blog post, as I understood it, discussed a specific problem wherein a defendant, proceeding pro se, refused to advocate his position. The post also mentioned the corner into which the prosecution had painted itself and the potential difficulty this created for the court. I suggested that the court could solve its problem by following the law, if a law analogous to California’s Penal Code section 1118 existed.

      If you’ve ever read anything I’ve written in the past — and I know that you have — you know that I have very little faith that the courts would choose that approach; i.e., I do not believe that the court, in a situation like that presented, would follow the law. That doesn’t, however, mean that following the law is not an option available to the court if it wishes a way out of the situation as I understood it to be in your post.

      From where I sit, it seems a little strange to suggest that I’m not a real lawyer because I aim for what the law requires. I could as easily say that you aren’t very good at understanding human psychology and, instead, are being idealistic about Heicklen because you suggest that he needs to do that which he is apparently incapable of doing.

      There is no Venn diagram that makes being a “real” lawyer fighting for one’s clients in a realistic manner inconsistent with being an idealist who aims for what the laws actually require. Just because courts won’t follow the law doesn’t mean that in my fight for my client I should abandon advocating the position that, in the particular case I’m fighting, the court should, in fact, follow the law.

      Cynicism may recoil at the idea of aiming for the ideal, but being a real — and realistic — lawyer does not require cynicism.

      I would also point out that you said, “We can advocate for ideals on the internet, but we are real lawyers in the courtroom….” I’m fairly certain your blog, like mine, exists “on the internet” and not “in the courtroom.”

  6. Are you fighting for an ideal or for your clients? You aren’t a real lawyer because you “fight”, but because you are an effective advocate for those individuals you represent. An effective advocate doesn’t rely on the whimsical ideals enshrined in platitudes over courthouse doorways.

    We can advocate for ideals on the internet, but we are real lawyers in the courtroom, where there is no room for naiviete when a client’s life is on the line. It’s important to realize this distinction if one is a real lawyer.

    When one publicly contends that advocacy in a particular case is unnecessary as one can rely on the ideals of the legal system to safeguard a defendant’s rights and produce the “just” result, one hardly sounds like a real lawyer.

    Real lawyers fight for their clients. Idealists spout platitudes. So which are you?

    1. It sounds like you’ve jumped to a conclusion about what I said in a comment to your blog. In the post where I “publicly contend[ed] that advocacy in a particular case is unnecessary as one can rely on the ideals of the legal system to safeguard the defendant’s rights” I actually did no such thing.

      Your blog post, as I understood it, discussed a specific problem wherein a defendant, proceeding pro se, refused to advocate his position. The post also mentioned the corner into which the prosecution had painted itself and the potential difficulty this created for the court. I suggested that the court could solve its problem by following the law, if a law analogous to California’s Penal Code section 1118 existed.

      If you’ve ever read anything I’ve written in the past — and I know that you have — you know that I have very little faith that the courts would choose that approach; i.e., I do not believe that the court, in a situation like that presented, would follow the law. That doesn’t, however, mean that following the law is not an option available to the court if it wishes a way out of the situation as I understood it to be in your post.

      From where I sit, it seems a little strange to suggest that I’m not a real lawyer because I aim for what the law requires. I could as easily say that you aren’t very good at understanding human psychology and, instead, are being idealistic about Heicklen because you suggest that he needs to do that which he is apparently incapable of doing.

      There is no Venn diagram that makes being a “real” lawyer fighting for one’s clients in a realistic manner inconsistent with being an idealist who aims for what the laws actually require. Just because courts won’t follow the law doesn’t mean that in my fight for my client I should abandon advocating the position that, in the particular case I’m fighting, the court should, in fact, follow the law.

      Cynicism may recoil at the idea of aiming for the ideal, but being a real — and realistic — lawyer does not require cynicism.

      I would also point out that you said, “We can advocate for ideals on the internet, but we are real lawyers in the courtroom….” I’m fairly certain your blog, like mine, exists “on the internet” and not “in the courtroom.”

  7. I have to take your word for California, but the myth of the Golden Age persists in every Western (and many a non-Western) culture.

    Oh, to return to the days of the Warren Court when the lion will lay down with the lamb, when Peace will guide the planets and Love will rule the stars.

    Sure, the courts are a little better sometimes than others. Dred Scott has been technically repudiated. Plessy is no longer the law and nobody much (not even Clarence Thomas) really thinks it should be. But Brown left an awful lot undone.

    Rose Bird may have been great, but the California Supreme Court didn’t (and couldn’t) correct every outrage by every racist, arrogant, fear-mongering judge in the state.

    Or maybe I’m just more cynical than you are.

  8. I have to take your word for California, but the myth of the Golden Age persists in every Western (and many a non-Western) culture.

    Oh, to return to the days of the Warren Court when the lion will lay down with the lamb, when Peace will guide the planets and Love will rule the stars.

    Sure, the courts are a little better sometimes than others. Dred Scott has been technically repudiated. Plessy is no longer the law and nobody much (not even Clarence Thomas) really thinks it should be. But Brown left an awful lot undone.

    Rose Bird may have been great, but the California Supreme Court didn’t (and couldn’t) correct every outrage by every racist, arrogant, fear-mongering judge in the state.

    Or maybe I’m just more cynical than you are.

  9. I’m all for windmill tilting. Hell, it’s much of what drives me.

    There are, of course, a smattering of terrific judges out there who will occasionally do the right thing. Even they won’t do it often, in part because they understand that the law which they’re supposed to follow doesn’t actually endorse their doing the right thing. This is, however, a digression from what I wanted to say. And what I wanted to say is that the place you’re wrong in all this is the place where you indicate that you think it used to be different.

    “The law as it exists today is not what it once was. There is no due process. Whereas the law was meant to ensure that, if we were going to be taking from people — taking either life, liberty, or property — it would be done according to a fair and just system of laws in a fair and just manner, it no longer has that aim.” The Law (I use upper case for this construct of the “L” word) as platonic ideal may have those values. And the Law as nominally crafted by the framers or by the barons who forced King John to sign off on Magna Carta,may have those values
    (Though I don’t honestly think that either the framers or the barons really wanted a system that worked fairly for everyone – just for them and their, er, peers.) Which is why I say that I don’t believe in the Law.

    But while there have been occasional blips, and while some moments and judicial decisions and government actions have been better than others, the general trend of our legal system has always been to embrace, enhance, and enforce entrenched power.

    For me, but not for thee.

    1. In California, at least, there was a time when the Law — I’ll bow to you on the capitalization, as I agree with the premise; I had stopped actually because I’ve lost almost all respect for the legal system — anyway, there was a time when the Law was actually enforced. Or so older practitioners who have been around 30+ years tell me.

      Ironically, I was just discussing those days with someone earlier today, because the apparent reason the courts tended to enforce the law was because Jerry Brown appointed Rose Bird to the California Supreme Court. I made the comment that this time around, I doubt Brown will make the same political mistake. Victims and “Victims’ Rights” advocates, angered that the Law actually meant something, set about the work of destroying California’s legal system.

      They have been successful perhaps beyond even their wildest dreams.

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