Right and Rights and Sleepless Nights: A Call to Contemplation Do you Talk to the Police or Not?
You have the right to remain silent. Use it. Or don’t… whatever. Do what you want. Just don’t believe law enforcement officers when they tell you that you’ll be rewarded for your honesty. You won’t. At least, not in the way that you think. You may be rewarded with smiles from the friendly officer and a lightened conscience to take home with you. They are not questioning you for the fun of it, though. They are gathering evidence. They will use your words against you in order to convict you. That’s their job. If you live a healthy productive life, you will be rewarded. With eventual death. If you are honest with the police, you will be rewarded. With time in jail. Reward is a complicated matter.
I’m certainly not saying that a person should not be honest with the police. Notice, though, that I can only express that thought with a double negative. The prospect is complex. I am urging you to contemplate the depth and consequences of that very situation. Have you ever asked yourself what you would do if you won the lottery? If aliens invaded? If we reverted to the dark ages? If your car went off a bridge into deep water? If you awoke and were the opposite gender? If you started to age backwards? If the world filled with water? If bacon were poison? If you didn’t have to sleep? If the only way to procreate was by eating another human? Of course you have. Well, here’s a good one to add to your list: what would you do if you committed a crime and were under investigation by the police?
If you are reading this right now, then you are probably not in jail. It’s not that they don’t have internet in jail, or that jails are full of illiterates… a satirical blog about legal matters is just unlikely to be the aim of an inmate’s limited time on the porn filled web. Since you’re not in jail, it’s not too late for you to imagine how you would behave in the face of that threat. You’ve committed a crime. Pick whatever sort of misdeed that suits your personality. You like to drink? You got a DUI. You like nice things? Theft. You like animals? Sodomy. Whatever you think fits. No judgment here. You did this thing and the police have reason to suspect you. They call you on the phone and ask if you’ll come in to the station and speak with them. What do you do?
You could say, “no thanks, I’d rather not.” I wouldn’t recommend the more commonly used “call me when you’ve got a f**king warrant.” It tends to raise shackles unnecessarily. Or you could choose to go in and talk to the police. This is really the critical step in your path. If you decide to visit the police, then you are going to talk to them about your crime. They’re not going to have you in to tour the newly remodeled barracks. They’re not going to sit down at a table with you for a quick game of mancala. And just imagine how awkward it would be if you arrived and said “hello, I’m here, but I’m not going to say anything.” Then you just stare at them as though you’re visiting a coma patient in the hospital? That’s not going to happen. A police officer’s stare is better than yours. His stare originates three feet above the gun on his belt. Three feet below your eyes hang your hands and you’ve already started peeling the cuticles away from your flesh as you fidget under the officer’s gaze.
So if you decided to go to the police station, then you’ve decided to confess. That is what you will do there. No one goes to an ice cream parlor, proclaims they haven’t eaten carbs in years and walks out. They eat a fudge sunday and enjoy the hell out of it. You will confess and then maybe go to jail. But that’s ok, if that’s the path you’ve chosen. It will be marked as a loss for the Defendant (you), but it’s useful to think about what kind of loss you would wish to undergo.
Losses can be quick and painful, like Miley Cyrus losing her dignity on the VMAs or they can be long and painful, like Lance Armstrong losing his Tour titles after years of impersonating a harangued Hercules. This scenario presupposes that you are already a suspect. The police will keep calling you. They will talk to your friends. They will read your Facebook posts. Your mom will find out. It’s a different kind of incarceration. More internet access, though. And you can go to the ice cream parlor whenever you want.
I can’t tell you the right answer to this question. The legal world is made of conundrums. It’s the lifeblood of an adversarial system. One can always find reasons why their side proposes the better choice. Rarely can either choice be accurately described as “good.” Grandma died and the judge says that Aunt Phyllis should inherit the porcelain dolls, not cousin Sue. The kids will have to alternate Halloweens at mom’s, where they dress up and trick or treat, and dad’s, where they sit in the dark and pray for the neighbors’ souls. Jeremy was brutally murdered and the jury find’s Pamela not guilty because someone did it, but it wasn’t her. Like “reward”, “win” and “loss” are difficult to define within that context. A person can always try to make the best out of a bad situation, though. And just like when your car propels into the icy river, it’s always best to have a plan. So, now you decide. Do you want to talk to the police or not? If you do, you will be arrested. If you don’t . . . they wont stop investigating you.
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Caption This! Winner (9/12/2013)
New to Bitter Lawyer? Start here, or dig into the archives!
Think you’re funny? Send us your stuff, and maybe we’ll use it!
Caption This! (September 12, 2013)
What in the Bitter Lawyer is going on here?
Put your lawyerly wisdom to the test and post a comment below or on Facebook with a witty, hilarious, or brilliant caption to this comic, courtesy of Shutterstock.com. And keep it clean(ish) and, y’know, respectful.
The editor’s pick will be announced next week, and then we’ll post the comic with the winning caption on Facebook.
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Zealous Advocacy: Five Types of Advocates and How it Can all go Terribly Wrong
I can hear my law professor screaming about that title right now. She hated the term ‘zealous advocacy.’ As an attorney in training, I only had some very vague idea of why ‘zealous advocacy’ might not be the best possible term. The preamble to the Model Rules of Professional Conduct (MPR) does mention zealous advocacy. However, the rules themselves only state that an attorney must be competent, diligent, and communicative with their client. The rules also require that an attorney have candor toward the tribunal and be fair to opposing counsel. As a real life attorney, I understand my professor’s distaste for the term ‘zealous advocacy.’ While I am sure I can be competent and diligent while being honest and fair, I’m not entirely sure I can always be zealous (whatever that means) and in line with the MRP.
My colleagues all interpret the duty to act as zealous advocates (a duty I’m not sure anyone actually has) in different ways. However, since the term isn’t at all defined and attorney types tend toward neurosis, the average court room is filled with various perversions of zealous advocacy. Some of the more hilarious/annoying (depending on your mood and gallons of coffee consumed before court) of these are:
The Proud as Peacock Attorney
This attorney walks into the courtroom with their chest puffed out to the point where you always get the vague sense that they are some sort of animal seeking a mate. It’s their belief that zealous advocacy is strutting around with an air of self righteousness and infallibility. Their soundtrack is Razzle Dazzle from Chicago. These attorneys pound their chests frequently and speak only imperatives.
Generally, if you acknowledge how impressive their feathers are, these attorneys feel as though they have done their job for their client and will be much easier to work with. Sure, maybe you feel like that’s a blow to your ego, but let’s face it, you are an attorney, so you never had much self-esteem to start with. Better to just fluff their feathers, so you can get some work done.
The School Yard Bully
This is the type of person who went to law school because they loooooved arguing. They were constantly starting verbal sparring wars with everyone they knew. In grade school this generally made them the most picked on. But they always knew their willingness to verbally harass anyone about anything would one day make them rich. Naturally, they and everyone around them assumed they would make great lawyers. That’s all lawyers do right? Fight pointless verbal battles?
Their idea of zealous advocacy is to belittle and demean anyone whose position is different than theirs. When discussing a possible settlement, this attorney will generally alternate between laughing at opposing counsel’s suggestions and making personal digs at their competence. They believe that zealous advocacy is pounding the table and picking fights. You wont be able to get anything done with them until they feel that they have started enough quarrels to warrant their legal fees. So, it is always best, when deal with this type of attorney, to create a series of pointless battles at the start of the case so when things get real, they can feel they have met their argument quota and just get to work.
The Emotionally Enmeshed Attorney
This attorney either believes that taking on their client’s emotions is zealous advocacy or they simply can’t help themselves so they hope that it is zealous advocacy. This type of attorney regularly reports not sleeping for days on end because all they could think about was their client’s problems. This attorney walks around in the courtroom with a heavy heart. They are not above resorting to begging and pleading for their client and can be brought to tears when things don’t go well.
When working with this type of attorney, always speak in soft tones. Reassure them that their client will be alright. Understand that they are feeling everything their client feels, so do not get upset with them when they are overly invested in a position that is unwinnable. Instead, encourage them to see how that position actually hurts their client and express your sympathy when they realize their client won’t get everything they want.
The Desperately Clinging to Their Bar Card Attorney
This attorney has some sort of delusion that it’s actually easy to lose your bar card. Karry Steigerwalt, famous in San Diego for reassuring attorneys everywhere that they will not lose their bar card, took money from approximately 6,000 clients and did not perform any legal service for them. His defense was that not all of them had paid in full. He got a one year license suspension and was put on probation. So to recap, straight up taking money from your clients and then doing nothing gets you, at most, a one year license suspension.
However, every courtroom has the attorney who, despite these facts, lives in perpetual fear of losing their bar card. They believe that if they do not fight everything (regardless of the merits of the fight) they will lose their license to practice law. They do not believe in picking their battles. These attorneys do not analyze facts and then apply the law. Instead, they simply object to everything. No matter what.
I have no advice for you on how to deal with this attorney. They will just simply make your life harder if you happen to appear on a case with them. Everything will take longer. However, rest assured that juries and judges do not like to have their time pointlessly wasted any more than you do. So, you certainly have a foot up on them.
The Terminally Afraid of not Being a Good Attorney Attorney
And the M. Night Shymalan twist here is that this attorney is every attorney. This category even encompasses the above bastardizations of the zealous advocate. Because, no one knows what zealous advocacy means! It’s not a real thing. And attorneys are not confident souls. They wouldn’t need to puff their chests out and act like peacocks if they were. And even if we were filled with confidence, how do you be something when no one knows what that something is?
Instead, we all constantly worry that we aren’t doing the best thing. We are racked with guilt when we agree to a settlement in a case where we didn’t know if we could win at trial. The thought that maybe we could have won digs into us at every turn. We have to constantly asses the value and winnability of cases, but we don’t have crystal balls and we don’t actually know what a judge or jury will do. We are advising people on best guesses and we are terminally concerned that our best guess wasn’t good enough. None of us know know what a zealous advocate is and we aren’t at all sure that’s what we are.
(image: businessman and businesswoman having a quarrel via Shutterstock)
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48 Hours in the Mind of a Trial Attorney
48 Hours before the trial begins:
Alright, I better go over my trial prep for the trial tomorrow
5 seconds later
Shit! I don’t have enough prepared! I’m going to mess this up and my client’s entire life will be ruined! Shiiiiiiiiiiiiiiiiiiiit!
10 minutes later
Hahaha, this question is so going to make this witness look like an idiot! I’m owning this thing!
5 minutes later
I need to make sure this evidence doesn’t get in . . . What’s a good way to do that . . .
. . .
. . .
. . .
Oh crap, there’s no way to keep this evidence out! I’m so screwed. My client’s going down.
Or . . . Maybe there is a way to keep this evidence out and I just can’t think of it because I’m the worst attorney in the world and I’m going to ruin my client’s case and lose my bar card and have no job and . . .
1 hour later
Man, I am just going to kill it at closing argument. When you put all of this together, there’s no way anyone is going to disagree with what I’m saying. And I’m going to look so awesome doing it!
Half an hour later
I think I’m going to win this case!
2 hours later
What was I thinking? Why did we take this trial?! We are never going to win this case! This was a total mistake!
Fitful Sleep
Day of Trial
Ok, I’ll know where the judge or jury is when I do my opening . . ..
After opening
Shit! I have no idea where the judge or jury is at!
During opposing counsel’s case
OMG, that’s so bad for me, I’m totally going to lose . . .
Shit! Crap! “Objection!”
That was humiliating . . . Why are all the words out of my mouth so dumb?!
That’s not even true! Why are they even asking these questions!
What does that have to do with anything going on here?!?!
Hey, jerks! Stop being so mean to my client!
shit! crap! “objection!”
Urgh, they are missing the whole point of this trial!
During Cross Examination of their Witnesses
Ahaha, I got you now don’t I!?!
Is the judge/jury even noticing how awesome I’m being right now?!
I’m totally going to win!
Hey! That’s not what you were supposed to say!
I’m destroying them!
I own this court room!!!!
During Direct Examination
We’re just friends here aren’t we? Just having a little chat that will totally smash the other side’s case . . .. wait what?! Why did you say that?!?! I told you like 3920483 times to never ever say that!!!!
Ok, back on track
Yep, that’s a great answer, just like I thought it would be, we are awesome!
Dude seriously!?! Do you just want to lose your case?! Why would you say that?!
Oh please do tell me more about that one part that is very damaging to the other side’s case . . . oh no! How dare they!
Crap, I’m at the end of my questions! What if I didn’t ask enough?! What if there is one golden question that I just didn’t include because I’m a terrible attorney?!
During Cross Examination of Our Witness
Shit! I forgot to ask about that one thing . . . I wonder if they’ll notice if I ask during redirect even though it’s completely outside the scope of cross . . . (eyes other counsel suspiciously)
No no noooooooo, don’t ask that!!!!!!
You guys are just so mean! Why are you doing this to my client?!?! I hate you!!!
Ha! Totally knew you going to ask them that and they were totally prepared, weren’t they?! Bam! Do Not Mess With Me!
Yeah, yeah, you made your point, shut up already!
During Their Closing
Urgh, that’s a bit of a stretch of the truth . .
What the hell are you even saying?
Shut up, shut up, shut up, shut up, shut up!!!!!!
Oh yeah, that’s how you wanna play? I got a response for that!
Crap, that is a good a point
Lol, what a dumb point, you are silly, I’m totally going to win
Nooooo, I’m going to lose. My client’s life is ruined and it’s all my fault!
During My Closing
Oh yeah, and by the way this is what is really going on here! BAM!
I’m totally going to win! Everything is in my favor now!
Crap, that sounded way cooler in my head . . . stupid voice . . . and stupid hands, why are they moving like that?!
Oh yeah, were you prepared for that?! Didn’t think so, because I spent the last month thinking about this case and I have the best argument ever!
And look how well thought out everything is! You have nothing on me!
And yeah, that point they made earlier, dumb dumb dumb . . .
Dear Court Room: anytime you want me to come back and wipe the floor with opposing counsel, just ask! Because I just ruled that!
While judge/jury deliberates
We are winning!
We are losing!
We are winning!
We are losing!
We are winning!
We are losing
. . .
After Court
Must . . . have . . . beer/wine/straight shots of vodka
[Image: Stressed Female Lawyer Looking at Laptop via Shutterstock]
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Zealous Advocacy: What it Means to Different Trial Attorneys
I can hear my law professor screaming about that title right now. She hated the term ‘zealous advocacy.’ As an attorney in training, I only had some very vague idea of why ‘zealous advocacy’ might not be the best possible term. The preamble to the Model Rules of Professional Conduct (MPR) does mention zealous advocacy. However, the rules themselves only state that an attorney must be competent, diligent, and communicative with their client. The rules also require that an attorney have candor toward the tribunal and be fair to opposing counsel. As a real life attorney, I understand my professor’s distaste for the term ‘zealous advocacy.’ While I am sure I can be competent and diligent while being honest and fair, I’m not entirely sure I can always be zealous (whatever that means) and in line with the MRP.
My colleagues all interpret the duty to act as zealous advocates (a duty I’m not sure anyone actually has) in different ways. However, since the term isn’t at all defined and attorney types tend toward neurosis, the average court room is filled with various perversions of zealous advocacy. Some of the more hilarious/annoying (depending on your mood and gallons of coffee consumed before court) of these are:
The Proud as Peacock Attorney
This attorney walks into the courtroom with their chest puffed out to the point where you always get the vague sense that they are some sort of animal seeking a mate. It’s their belief that zealous advocacy is strutting around with an air of self righteousness and infallibility. Their soundtrack is Razzle Dazzle from Chicago. These attorneys pound their chests frequently and speak only imperatives.
Generally, if you acknowledge how impressive their feather are, these attorneys feel as though they have done their job for their client and will be much easier to work with. Sure, maybe you feel like that’s a blow to your ego, but let’s face it, you are an attorney, so you never had much self-esteem to start with. Better to just fluff their feathers, so you can get some work done.
The School Yard Bully
This is the type of person who went to law school because they loooooved arguing. They were constantly starting verbal sparing wars with everyone they knew. In grade school this generally made them the most picked on. But they always knew their willingness to verbally harass anyone about anything would one day make them rich. Naturally, they and everyone around them assumed they would make great lawyers. That’s all lawyers do right? Fight pointless verbal battles?
Their idea of zealous advocacy is to belittle and demean anyone whose position is different than theirs. When discussing a possible settlement, this attorney will generally alternate between laughing at opposing counsel’s suggestions and making personal digs at their competence. They believe that zealous advocacy is pounding the table and picking fights. You wont be able to get anything done with them until they feel that they have started enough quarrels to warrant their legal fees. So, it is always best, when deal with this type of attorney, to create a series of pointless battles at the start of the case so when things get real, they can feel they have met their argument quota and just get to work.
The Emotionally Enmeshed Attorney
This attorney either believes that taking on their client’s emotions is zealous advocacy or they simply can’t help themselves so they hope that it is zealous advocacy. This type of attorney regularly reports not sleeping for days on end because all they could think about was their client’s problems. This attorney walks around in the courtroom with a heavy heart. They are not above resorting to begging and pleading for their client and can be brought to tears when things don’t go well.
When working with this type of attorney, always speak in soft tones. Reassure them that their client will be alright. Understand that they are feeling everything their client feels, so do not get upset with them when they are overly invested in a position that is unwinnable. Instead, encourage them to see how that position actually hurts their client and express your sympathy when they realize their client won’t get everything they want.
The Desperately Clinging to Their Bar Card Attorney
This attorney has some sort of delusion that it’s actually easy to lose your bar card. Karry Steigerwalt, famous in San Diego for reassuring attorneys everywhere that they will not lose their bar card, took money from approximately 6,000 clients and did not perform any legal service for them. His defense was that not all of them had paid in full. He got a one year license suspension and was put on probation. So to recap, straight up taking money from your clients and then doing nothing gets you, at most, a one year license suspension.
However, every courtroom has the attorney who, despite these facts, lives in perpetual fear of losing their bar card. They believe that if they do not fight everything (regardless of the merits of the fight) they will lose their license to practice law. They do not believe in picking their battles. These attorneys do not analyze facts and then apply the law. Instead, they simply object to everything. No matter what.
I have no advice for you on how to deal with this attorney. They will just simply make your life harder if you happen to appear on a case with them. Everything will take longer. However, rest assured that juries and judges do not like to have their time pointlessly wasted any more than you do. So, you certainly have a foot up on them.
The Terminally Afraid of not Being a Good Attorney Attorney
And the M. Night Shymalan twist here is that this attorney is every attorney. This category even encompasses the above bastardizations of the zealous advocate. Because, no one knows what zealous advocacy means! It’s not a real thing. And attorney’s are not confident souls. They wouldn’t need to puff their chests out and act like peacocks if they were. And even if we were filled with confidence, how do you be something when no one knows what that something is?
Instead, we all constantly worry that we aren’t doing the best thing. We are racked with guilt when we agree to a settlement in a case where we didn’t know if we could win at trial. The thought that maybe we could have won digs into us at every turn. We have to constantly asses the value and winnability of cases, but we don’t have crystal balls and we don’t actually know what a judge or jury will do. We are advising people on best guesses and we are terminally concerned that our best guess wasn’t good enough. None of us know know what a zealous advocate is and we aren’t at all sure that’s what we are.
(image: businessman and businesswoman having a quarrel via Shutterstock)
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8th Circuit Grants Voluntary Dismissal Of Health Care Act Suit
Ask Liza: Annual Gifts and Lifetime Gifts
Dear Liza, I would like to give my son $200k to upgrade homes. Can me and my wife each give $13,000 to my son, daughter in law, and two grand children? That would be $102,000, and then apply the remaining $98,000 to the unified tax credit. Can I write…
3rd Circuit Declines To Stay Mandate In Health Care Act Case
Ask Liza: Annual Gifts and Lifetime Gifts
Dear Liza, I would like to give my son $200k to upgrade homes. Can me and my wife each give $13,000 to my son, daughter in law, and two grand children? That would be $102,000, and then apply the remaining $98,000 to the unified tax credit. Can I write…
Texas Federal Judge Allows Intervention In Health Care Act Suit
Ask Liza: Annual Gifts and Lifetime Gifts
Dear Liza, I would like to give my son $200k to upgrade homes. Can me and my wife each give $13,000 to my son, daughter in law, and two grand children? That would be $102,000, and then apply the remaining $98,000 to the unified tax credit. Can I write…
Fla. Federal Judge Dismisses Antitrust Suit, Says Claims Released By Settlements
Ask Liza: Annual Gifts and Lifetime Gifts
Dear Liza, I would like to give my son $200k to upgrade homes. Can me and my wife each give $13,000 to my son, daughter in law, and two grand children? That would be $102,000, and then apply the remaining $98,000 to the unified tax credit. Can I write…