Practice Management

I do not know if this is really what they teach in law school, but it seems it is how the world divides itself.  I recently completed a trial and it occurred to me that the arguments pretty much reflect the style of the campaigns during this election cycle.  I am not sure why I did not notice it before, or maybe I did but just never tried to equate the two.

Most trials, and really any litigated matter whether it goes to trial or not, seem to come down to one side that is focused on the objective facts and their application to the law, and the other side it is all about character.

Now, it is not that I do not take a shot now and then, but I am and I have always been and objective facts and law kind of person.  Get the elements down for an actionable claim and apply the objective facts as they connect and enhance the elements.  Time lining is the key for me.  I time line facts so I can see them in logical order.  It is not that some facts are not open to attack or the conclusion cannot be contested, but for the other side it is usually about the character of the other party.  It goes beyond the diacritical nature of the response.  It goes beyond the quintessential facts.  It is all about the personification of the the other side, the other party or the opposing counsel.  It is all about an attack on the moral or ethical strength of the one accusing.  It has little to do with the facts as it has everything to do with the fiber of the other party, the integrity of the opponent, the personality of the one on the other side.  It is all about caliber, constitution, complexion, mettle, mystique, nature, repute, temper, type, tone or trait of the other.

The strategy is to say that nothing that the person says (no matter what the objective facts) can be believed because the one bringing the action is an oddity, a wack, a card, nut, freak, eccentric, queer, spook, clown, basket case, or weirdo.  Maybe the words to describe the other side are not this strong, but the point is made.

I, of course, find this all rather abstruse because, I guess, I try to approach a trial as more emotionless, less personal, more matter of fact, a little instinctive, and maybe too monotonous or standardized.  Witnesses, testimony, exhibits relating back to the elements for an actionable claim.  Maybe the word should be textbook.  It is just easier and more comfortable for me to leave the personalities out of it as much as possible.  And, it is always a little shocking to me how far the other side will go on this character attack track.

I understand fully that some people have been more successful at working toward their character, their values, their honesty and integrity that others.  I understand people of character have strong convictions.  But, there is a always a fine line between distinguishing the character of the parties and coming across as self-righteous.  Besides, the attack repeated trial strategy seems to me to go against the good character distinction at some point.  First, we are not all saints and many, like me, are probably far from it.  But, a person of character believes in the inherent dignity of all people and treats everyone with respect, even those whose ideas and ideologies evoke strong disagreement.  So, when a person of character makes character the point to often and too forcefully, do they not soil themselves with violating this tenant of good character in doing so?

In the long run, I think most judges and most juries can look past the attacks if the objective facts are presented competently, but it takes work. I have learned that if my client has character flaws to just own up to it upfront so we can get past it and get on to the objective facts.

In criminal law during law school we learned that criminal defense attorneys often make the prosecutors, the police, the system, or the law subject of the trial, but I will also point out that most of these defendants lose.  So, I am not sure of the ultimate effectiveness of this tactic.  I just feel more comfortable dealing with the obvious and try to leave the atmospherics alone.  But, like the politics before us, I understand that the character argument is something with which I must deal.