Soul stealing

I spoke recently with a good civil trial lawyer who tries a lot of cases to juries. This lawyer has been trying cases for 25 years. Things began to wax metaphysical.  He spoke about how a trial practice can steal your soul. By that he meant after decades of trial work trial lawyers may no longer see their clients, their partners, their employees, the jurors, the judges, the opposing lawyers, the witnesses, court workers, and perhaps even their families, as human beings. At that time, mental abuse or manipulation of other people, seen only as objects, becomes the operating system of the trial lawyer. When that happens, the soul leaves.

This conversation chilled me ’cause I thought there was much truth to it. Particularly for those of you who really try cases, I would be fascinated to know what you think and particularly whether there is an antidote.

RGK

20 responses

  1. I try a lot of cases for a civil practitioner. There is indeed a part of it that is dehumanizing, e.g. the gamesmanship element of it. But in my experience, the opposite is true. Trials are remarkably humanizing. Gone are the paper shuffling pre-trial motions and discovery battles. Trial is where the rubber meets the road. Neither the court, nor the parties, nor the jury can ignore the human face of each witness who stands up to tell his or her story. As long as witnesses (and especially party witnesses) are permitted to testify under cross-examination about the relevant facts they observed, they are the focus of trial, and they are humanizing.

  2. Trials. Cannot talk about civil trials. Not my field. But Criminal Trials …. Dehumanizing. For sure. Trickery and chicanery. All a show. The penalty for going to trial! Take the plea, because if you don’t and are found guilty, too bad. Common sense. No such thing, expecially in Federal Court. Can you be fair? Voir dire. A waste of time and effort. Smile to get on. Frown to get off. Gotta get past that jury consultant (only for defendants who can afford it). Who wants to admit being biased? Make the bad guy look bad. Seat him far away from the jury so they don’t get to “smell him.” He doesn’t look like you. If he does, he has a better chance. It’s not about justice; its about gettng the jury to see it your way and find for your side. A lawyer humanizes his client and himself to the extent necessary to convince the jury to listen to them.

    Anecdote: Represented a defendant who killed his wife, shot her dead in front of two kids under 5 as10 police officers were banging down the door to gain entrance to the apartment. They shoot him as he escapes, leaving a trail of blood. Motive for the killing was that the wife had an affair with the husband’s son from a first marriage, getting her pregnant and causing her to have an abortion which he was aware of having found the bill in her dresser drawer. Put 10 women on the jury. Didn’t ask a question. Just went by last names, the more Catholic sounding the better. Didn’t cross examine the first 9 cops for fear of them putting their stories together. Went after the ballistics guy who couldn’t tell whether the bullet came from the guys gun or the cops. Jury found him guilty of crim neg homicide, acquitting him of murder and manslaughter. In a nearby bar where I went to meet lawyers after the verdict, I was summoned to a table where 5 jurors sat slugging down whatevers. We were all in shock. After telling me what a great job I had done, one said, “don’t feel bad Mr. Duckman. We did the best we could. If it weren’t Friday, we could have stayed and your client would have been acquitted.”

  3. I think both of the prior posters have an important part of the truth. My experiences, though, are more in line with that of the first. Maybe because I am also a civil trial lawyer; I don’t do any criminal work. I find trials and civil trials to be amazingly humanizing events. I have my greatest success when the clients and the witnesses are truly themselves. The trial blows up and goes south when a client decides to package their presentation to be more “appealing.” Openness and vulnerability prevail. The jury can detect bullshit from a mile away.

    Of course, everything can change when you have a bench trial, if you judge is cynical or otherwise closed to the possibilities.

  4. I testified in a criminal trial in DC once. It was certainly a very human experience. I happened to have been in the exact perfect spot in the bar to witness all of the defendant’s actions. He was guilty as sin and the verdict reflected as much. He was high on PCP (and later, it turned out, some variety of cocaine as well). I saw him harass the bartender, get in the face of a friend of mine, be thrown out of the bar, then storm back in past the doorman and punch my friend in the face. It came out in sentencing that he was HIV positive, so his sentence was significantly reduced. Both my friend and I were fine with that once we learned the reason. In another case, I specifically instructed a prosecutor to offer a plea bargain (which he accepted) to an ex-boyfriend who assaulted me – he was bipolar and I’d much rather see him undergo court-mandated treatment for his illness and some community service than to be sent to Rikers Island only to come out worse and be a greater danger to someone else. There has to be a certain amount of compassion in these cases – it is not simply a tool for retribution, but hopefully one for reform. I think failure to understand that is one of the reasons for high recidivism rates in this country.

  5. Food for thought. Most of my trial work is criminal. It is important for a trial lawyer to be empathetic (an actual human) and objective (coldly realistic about how things really work). Two problems result from identifying too much with your clients: 1. you will advise them poorly, 2. you will be sad most of time. The best advice I got starting out was: remember that the typical client had a serious problem before they came to see you, but it is his or her problem, not yours. You might be able to help or mitigate the harm, but it is not your problem. Most of my clients have had tragic lives and many of them will face harsh punishment in spite of my efforts. If I spent a lot of time thinking about that, I would not be able to leave the house in the morning.

    Objectivity has its pitfalls too. Lawyers operate in a rule-based system, but that system operates on and for humans, not computers. It is too easy to forget that our system is supposed to deliver fairness and justice and not simply clear 125 cases off the docket by the end of the month.

  6. i think the system kills the soul. ’empathy burnout’ is what we were counseled to watch for in law school legal clinic. i’ve done PD work for almost 10 years now. rarely can i emphasize with my clients enough to care what happens to them after their case is closed. i don’t know if a prosecutor ever starts with empathy, or about true justice, or only about winning, and looking good in the media. dockets are too crowded to allow the ‘down-time’ necessary to recharge, and heal the parts of the soul cauterized by our jobs.

  7. I spent over 35 years trying mostly patent cases, most of them from the accused infringer’s side. They included jury cases about DNA technology and computer circuits that were not completely understood by the judge and were entirely beyond the comprehension of the jury, but I never thought of these exercises as affecting my soul or as dehumanizing the judges, jurors or my opponents.
    If one considers the premises of litigation in the United States, it is immediately apparent that it is conducted in a totally artificial environment. Facts are established by a laborious and rule intensive process based on the challenged proposition that eye-witness experience rules. Impartiality is supposedly achieved by using deciders with no experience with the issues contested between strongly advocated sides. (For example in a medical technology or DNA patent case the registered nurse or the graduated student in biology is the first to be stricken by the plaintiff.) Finally, the advocates are schooled intensively to use both direct and subliminal techniques to persuade these uninformed deciders.
    When you put all these conditions together in an OK Corral atmosphere where winning is all important, you might reflect on George Orwell’s comment that “There are some ideas so wrong that only a very intelligent person could believe in them.”
    Nonetheless, you come to believe in your cases, and I did that. I viewed each case a puzzle that had to be solved. In any adversarial activity one succeeds by anticipating what will be encountered and planning to deal with it advantageously. Football coaches do just that when laying out plays. As in sports, there are certain fakes and deceptions that are not only permitted, but are part of the premise of the activity. I certainly never regarded any of this as “soul stealing” because I am not sure that I ever regarded patent litigation as a search for truth. Rather it’s just an expensive mode of dispute resolution.
    Perhaps a civil docket populated with cases involving injured or damaged individuals seeking recompense for some unfortunate happenstance, imposes different stresses on lawyers tasked to shepherd their clients through litigation. That was not my experience. Neither was I required to deal often with the pressures of a contingency practice. In such settings, the advocate may tend to dehumanize those that are around to insulate the soul from the omnipresent pain and pressure. But still, I don’t think it has to be that way on the civil side of the docket. My meager experience with defending criminal cases, however, provided a strong warning that neither my mind nor my soul would survive such a practice.

  8. I often ask lawyers that I have the opportunity to talk to is the future money worth things like what this article surfaces? I mean a young lawyer very go get em attitude, wanting to change the world. But, as the attorney referenced in the article says, this lifestyle steals your soul.

    I’ve seen cases tried and talked to attorneys and when they talk about the ways criminal cases can go, he told me, “Plea, alibi or something else it slips me now.” So I said what about the truth, He laughed really heartily and said there’s no truth in law.

    I always wonder is it worth it?

  9. Trials aren’t soul-stealing. Trials are fun — at least when the lawyers know what they’re doing. Soul-stealing are motions in consumer bankruptcy cases. Thousands and thousands of motions, day after day, year after year. Motions that don’t give enough facts to be understandable. Motions that don’t cite any rule or Bankruptcy Code section, let alone any case, that might warrant relief. Motions that raise more questions than they answer. Motions packed with misspellings and grammatical errors. Thousands and thousands of these motions, day after day, all written by people with seven years of higher education and licensed (for some reason) to handle the legal problems of others. The motions are what steal your soul — and grind you slowly but inexorably into dust. Give me trials any day.

  10. I’ve tried now in 25+ years of practice a pretty fair number of criminal and civil trials in both state and federal court, almost exclusively for the plaintiff in civil cases and the defense in criminal cases. I think the lawyer Judge Kopf refers to was having a bad day or was just in a bad spell; the job at times can get to you. I agree with Mr. King that civil trials have a very humanizing effect. Even in cases where every witness has been deposed, the live testimony in court before a jury comes out different often very different in tone, nature and even sometimes content. With the exception of expert witnesses, the witnesses testify almost always about something they directly and immediately participated in, which makes a difference. Trials, as hard as they are and notwithstanding the sacrifices they entail, are the best part of the job. The pretrial procedures and what in the present day appear to be obligatory motions for summary judgment inevitably wind up wasting considerable time and, as said above, numb the soul.

    Criminal trials are different. One reason is that too often the defendant starts out behind, notwithstanding the presumption of innocence. This is particularly true of male African-American defendants. A second reason is that most of the witnesses testify about their investigation: what they did in relation to something that had already happened. A third is that not that often does the defense raise a human explanation such as justification, necessity or self-defense. I do hope that sentencing hearings attain a humanizing component.

  11. I agree — trials are the exhilarating high point of my law practice. I know the kind of motions of which the Bankruptcy Judge writes. I know how annoying it is to receive the few of them I receive in my law practice. i cannot imagine how awful it must be to receive them by the thousands as a judge.

  12. Judge Kopf – I am 56 years old. I have tried dozens of civil and criminal cases to verdict in both federal and state court. My comments will focus primarily on my experience in criminal cases.

    I spent most of the 1990s as a federal prosecutor and didn’t lose a case for almost 10 years (that is how it should be). When I left the U.S. Attorney’s Office, a criminal defense lawyer friend of mine told me to get used to losing. I was offended by that remark and vowed to fight that complacent attitude. It is not easy, but I try.

    About 12 years ago, I tried a case with a very good lawyer from Atlanta. During trial preparation, it quickly became apparent that that lawyer had lost any sense of caring for his client and was only motivated by the chase of the next fee. I vowed to fight that attitude. It is not easy, but I try and we’ve had success both at trial and in pretrial motions.

    Quite frankly, I am astonished by the number of innocent people I’ve represented and do represent. I care for each and every one of them. I worry that we have become the incarceration nation and that people are being prosecuted for matters that were formally handled civilly or administratively. I worry that we incarcerate more people than the former Soviet Union.

    And, I fight mightily against the racist drug laws that we see daily in both state and federal court. Most controlled substances are consumed in the U.S. By whites, but most drug prosecutions are against African Americans.

    So, I still fundamentally believe that there is much good each of us can do. It can be a hard job, but it can be incredibly rewarding. I consider myself one of the few happy lawyers.

  13. I’ve found it’s not so much that “truth doesn’t matter,” so much as you never really know the truth. At the end of the day, a lot of cases boil down to “he said, she said” and circumstantial evidence.

    In an initial interview, I try to suss out all I can from a client, but it’s sometimes impossible to tell whether you’r being mislead until you get into the discovery. At that point, you STILL may not know whether your client’s account or the opposition’s account is true. The question is: Does it matter? Is it my responsibility as an attorney to judge? I say no. It’s my responsibility as counsel to present my client and his case in a cohesive, logical way, and let a (ideally) neutral third party determine what version of events is more believable.

    Where I agree with the attorney cited in the post is that I tend to subconsciously dehumanize opposing witnesses and parties. Having identified the problem, I try to avoid it, but it’s hard to avoid having my competitive drive take over and make me start viewing the opposite side as mean spirited liars or hopelessly confused buffoons, and the opposing lawyer as a shameless, irresponsible hack.

    I don’t feel soulless, but I certainly don’t always tell people exactly what type of clients I represent.

  14. My experience is more on the civil side though I’ve handled some difficult criminal cases in my career. The power imbalance and lack of discretion exercised, at least in my experience, is the most frustrating aspect. Prosecutors, both state and federal, are too used to winning, and at least by extension being right. That can be an extremely strong intoxicant. On the civil side, where I do most of my work, representing employees, the frustration begins with the prospect that even where laws can be invoked to protect those rights, the courts have stacked the deck for the employer. Maybe that is as it should be, I don’t know, but I do know when you spend a career rolling a rock up a hill, keeping perspective and a sense of humor becomes all the more challenging.

    Trials themselves can be soul stealing for anyone, but for the introspective soul the zero sum aspect of them can be crushing.

  15. 200 trials over 37 years-mostly criminal as FPD. While job is both rewarding and soul crushing my key to staying human is to have a life outside of the job…coach youth sports, play games of some sort, engage in reading outside of the law, have friends who are not lawyers,love your family, say what you think.

  16. Mike,

    Perhaps the zero sum nature of litigation provides a good reason for dispute resolution mechanisms that are less so. But that, as you well know, is a different kettle of fish.

    All the best.

    RGK

  17. And having said that, sometimes there can be no middle ground nor should there be. I would say that puts a premium on civility and professionalism. Thanks for the reply.

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