Outside Counsel

It occurs to me that the reason we were successful yesterday-- and the reason we have cause for optimism going forward-- can be found in The Maltese Falcon, the source of most of what I know about practicing law.

Spade has recovered the Black Bird, and is negotiating with Gutman. They have put a pin in the question of money and are talking about Spade's other requirements. Spade wants a fall guy-- someone who he can turn over to the authorities as the individual responsible for killing Miles, Captain Jacoby and Floyd Thursby.  Gutman is skeptical, and wants to know why this is necessary. Spade explains:

 I can show Bryan, our DA, that if he goes around...
 ...tryin' to collect everybody he'll have a tangled case...
 ...but if he sticks to Wilmer here, he can get a conviction...
 ...standing on his head.

This is a principal that is at the core of advocacy, and a concept that Karl Llewellyn would have loved. When you need to persuade a decider, make it easy for the decider to go your way.

It goes deeper than that, naturally. As a litigator nearly all of what I do is done in courts of general jurisdiction, and even when I am in federal court I am typically arguing cases which are more or less sui generis-- the application of law to the facts is usually a somewhat complex intellectual operation for the advocates and the judge. In more specialized courts-- particularly administrative forums-- the issues are more tightly framed and the decider deals exclusively with those narrow issues. One effect of this is that when in a specialized court the pace is somewhat dizzying. The issues are framed in abbreviated fashion, frequently by merely stating the statutory section involved, or in a shorthand reference to the leading case law authority. If the matter before the court seems to require a simple, straightforward application of the legal principles that the court deals with all day, every day, the decider is not going to engage in the matter in anything but the most superficial way. In order to break out of that decision making model it is essential to do two things: You must demonstrate that your case is somewhat different than the ordinary run of these things; and you must at the same time make it clear that deciding the case your way won't create more problems for the judge than simply treating the matter as routine would.

We were able to do the first yesterday by preparing for it as though it was a regular civil matter. We had exhibits ready, in the form of letters documenting the client's ties to the community and academic accomplishments; and we had actual live people in the room prepared to testify to those things. That's not unique in this forum, but it got the judge's attention and caused him to slow down to consider the matter. Once that happened we were nearly home. Our client comported himself well (although there was a nervous minute when he started talking), and we were able to satisfy the judge that this was a matter where the easier choice was the more compassionate choice. Everybody -- even judges-- wants to feel like they have done the right thing, and nobody-- not even judges-- wants to feel as though they are being cruel. In front of the client's pretty, pregnant wife, his minister, and two parishioners this judge wanted to do the right thing, and so he did.