The Club

Gerry Spence spoke today at the end of the Texas Criminal Defense Lawyers Association’s annual Rusty Duncan Seminar. I could see why they put Gerry last—if he spoke first, most of the lawyers talking about lawyer stuff would seem largely irrelevant or quaintly unself-aware.

One speaker, for example, advocated telling jurors who gave “good” answers on voir dire: “Have you served on a jury before? Because most people wouldn’t think of that.” What is that, a juror pickup line? Worse, he suggested that line after advocating not talking down to jurors. Could you find something more condescending than that to say to the jury?

One of Gerry’s themes was that the trial is about credibility. (Of course it is.) What does sucking up to a prospective juror do for the lawyer’s credibility? Squat. It must work for that particular speaker, though, since TCDLA invites him to speak at its seminars; there’s no accounting for taste. (His definition of “good” answers seemed to be, “answers that show me that the juror is on my side”, which reveals a less-than-advanced understanding of jury selection.)

Gerry talked about “The Club” of lawyers—prosecutors, judges, defense lawyers—in a community. If he were in trouble in a community, he said, he would always hire a lawyer from outside that community—which I took to mean an out-of-town lawyer—to defend him. His reasoning was that members of The Club want to stay in the good graces with The Club, and might choose their relationships with the other members of The Club over their clients’ best interests.

I reflected on what this might mean to defendants hiring lawyers. Often lawyers tout their good relationships with the judges and prosecutors as a selling point. But the client has no reason to believe that, when his own interests become incompatible with the good relationship between the lawyer and the prosecutor, or between the lawyer and the judge, the relationship will yield to his interests. (Yes, I recognize that sometimes good relationships between adversaries are built on mutual respect, but how is the client to identify the lawyer who has a good relationship with the prosecutor because each respects how difficult the other makes his job, rather than because each appreciates how easy the other makes his job?)

Some people accused of crimes, especially those in small towns, are wary of The Club. In smaller communities the back-scratching among members of the bar is more obvious to non-lawyers. In larger communities each lawyer is less dependent on each other lawyer for her continued livelihood and practice so, while there is still interdependence, it is diminished.

There are many lawyers who are clearly not part of The Club. They annoy the hell out of the bench and the opposing bar, and burn all possible bridges at every opportunity. Some of them go what most people would consider too far.

One Houston criminal-defense lawyer recently challenged a judge to come down from the bench and fight him. Maybe calling the judge out gave that lawyer some tactical or strategic advantage that I don’t understand; he won the case. Do we have to go too far to go far enough? Maybe we should all go so far to disavow membership in The Club. Most of us who fancy ourselves trial lawyers rather than plea artists should go farther than we do.

I don’t believe I’ve ever sacrificed a client’s interest to my relationship with a prosecutor or judge. My guiding principle for the last five years of my practice has been to find the truth that helps my clients, and then tell it. It has gotten me in trouble (held in contempt, even) but it has generally worked.

There are damn few prosecutors and judges who have ever done my clients
a favor on my behalf. Those that have, have done so out of respect
rather than gratitude; my clients aren’t going to lose anything if I
tell the whole truth.

I don’t consider that I owe any judge or prosecutor anything beyond the
dignity and respect with which all humans should treat each other. Too
often those in power betray those values in virtual darkness. The only
antidote is exposure.

I’ve probably been too diplomatic in these pages. I’ve had a policy of not naming names unless my subjects have put themselves in the public eye or abused their power, and even then generally avoiding doing so. I’ve sought to avoid hurting the feelings even of people who’ve done wrong.

In doing so I’ve left out an important part of the truth.

0 responses to “The Club”

  1. I agree about “The Club” in some ways. However, I believe that in some small towns, a connection (for a guilty client) is a good thing. For example, where I am from – assuming my client is guilty or looking at a MAJ or MRP – he is better off with me, or a local lawyer. I go to talking the talk about my family there; I know a couple of judges from when I was a small kid; my ex-brother-in-law had a case once; I keep up with some of the goings on there & lots of my old high school chums are still there. I know a lot of local lore & “big” news. Bring in a lawyer who says they are from Houston (like the guy I saw there the last time I went – in a bow tie!), and they look for ways to screw them. (That defendant thinks he’s going to bring in some outsider type of mentality.) There is still a lot of racism in that & many small towns, too.

    Different story if the client is not guilty, or has a BAD case like intox manslaughter (and one has hired the likes of Troy McKinney). They are not so sure of themselves in trial. They start being a bit easier to work with (although I will tell you that jurors there have a similar mindset as prosecutor about the “big town” lawyers. They like me cuz I’m the little local gal done good & still come back there regularly . . .)

    As for Houston, it is large enough that I find I don’t know half the prosecutors. While I know most of the criminal judges fairly well, I don’t hesitate to push the limits in trial if that is what it takes. (Your readers can check out my blog – – where I wrote a series – team prosecutrix v. me in which I took on a judge that was VERY State’s oriented. One must go back to the first entry & read forward to make sense. I think it started in March & consists of 15 mini stories of a trial.)

    I do some appointments but I get dismissals & special expenses on many cases because those who I’m “in the community” with know me well enough to know that I will push push push & that I WILL try a case. And, as I respect them, they also respect me & my opinion. I don’t try to snowball them but I do want the best for each & every client. I am finding that the attitude of the prosecutors I have dealt with lately have been far more positive. (There is an exception for a couple of recent dealings – perhaps blog material.)

    So I agree with you that it is not that they are doing me a favor, but they respect me (& have no question about whether I will just submit or fight.) I would never ask a prosecutor or a judge to “do me a favor” on a case, & I don’t expect that they would. I do expect that they will believe me when I tell them something – I have a good reputation – & they will consider my arguments & theories because I do research & I do know a lot of law.

    (It is sad to say that some of the judges will never grant a motion to suppress that essentially finds that the cop is being dishonest – which I think is dishonest. They are presuming the officers are telling the truth. Frankly, I’ve had too many “failed to use blinker” cases observed by narcotics officers who then get a patrol car to make a stop to believe they are truthful. They are part of that bad apple rotting the barrel saying, in my opinion.)

    Keep up the great work with your blog! I know how much time you contribute to keep the people informed. I hope that they appreciate it.

  2. Mark,

    Thanks for the advice and this post. Everything you told me and wrote hear continues to resonate with what is happening. The local bar keeps trying to remind me that you catch more flies with sugar, but I am not trying to attract flies. I guess it will get worse before its gets better but in the end no matter what the outcomes are I will make sure that I am able to walk with my head held high because I did what was right, not what was good.


  3. This is a difficult balancing act, but isn’t there something to be said for picking your battles? You need to stand up for your client’s rights and not just “go along” just to get along. In a perfect world, the judges and prosecutors would understand that you are just doing your job, it’s nothing personal, and you’re not trying to be an asshole…as long as you’re not BEING an asshole while doing it!

    But of course our world is far from perfect, and some people take it as an affront when you inconveniently assert some fundamental right for the person you are ethically charged with protecting. Still, the way it is, I see more benefits from being in The Club than outside it. Members, as well as their non-legal colleagues such as clerks, court reporters, bailiffs, etc., tend to make life miserable for those outside The Club, particularly if they catch the faint (or in some cases rancorous) whiff of superiority coming off of the interloper. And if you don’t pick your battles wisely, you quickly lose credibility with the opposition and judges. i.e., if you are ALWAYS arguing reinstatement for your clients facing MRPs/MAGs, regardless of how egregious their violations are, you are more likely to be ignored when one comes along who has a more legitimate argument for staying on probation.

    Mark, it may have been a bit stream-of-consciousness at the end, but that last line sounded a bit ominous. Were you warning someone or just feeling mildly grumpy?

Leave a Reply

Your email address will not be published.