Uncle with the bad lawyering ....

Who are these people and how do we get them to leave?

A couple of years ago I had my first (and hopefully not last) chance to write a petition for cert to the U.S. Supreme Court. For non-lawyers that is a petition [a formal written request] for certiorari [a writ or order from a higher court stating that it will review a lower court decision]. So, in short, I won an argument in the District Court in the Eastern District of Virginia, the other side thought I should not have won and asked the Fourth Circuit Court of Appeals to hear why. I lost that appeal, and I asked the Supreme Court to make things ‘right.’¹

I am proud of the work I did in the case even though my client lost. I’d done all of the work - from arguments that won in the Eastern District, to the briefs for the Fourth Circuit, to the petition for cert, and any work or advocacy in between and I’d been glad to. I love appellate work (where you arguing that an earlier court decision should be overturned or kept) and don’t get shots it.

But it was more than just doing the work - I was proud of the quality of the work. I knew my client was in a litigation arms race with limitless resources on the other side. I knew the other side’s Wall Street firm had a team of attorneys and paralegals working the case and that my client had me. I knew how much my client was paying (a lot) and knew that it was not a drop in the bucket compared to the fees on the other side.

To tell the truth, the absolute truth, the kind of truth that gives you pause before you blurt it out, I think my client had the better attorney. I think I was better than a team of Wall Street attorneys and their paralegals. I think the quality of my writing was better, my knowledge of cases and precedent better, my take on the issues better, and my argument solid (though I still [years later] think about what I wish I had told the Fourth Circuit).

Now, chances are none of the attorneys on the other side will ever see this. But I wouldn’t care if they did, because here is the thing - each of them feels the same way. They are very good attorneys and, if asked, would say they feel the exact way I do … only about themselves and the quality of their work. They, of course, have a victory for their client in the plus column That is one of the reasons why the loss lingers (the main being wanting to have done more for a client). In the world of litigation, the loss is the asterisk that follows that attorney ego-trip.

Being a litigator, one that likes writing and making arguments to actual judges in actual courtrooms, is often navigating the channel between the Scylla and Charybdis² of arrogance and imposter syndrome. Those euphoric moments of not just believing, but knowing, that you are the best at doing what you do, and the paralyzing moments where you really wonder if you could be the worst (spoiler alert, no chance of that any longer). It is a mind-bender when those moments butt against each other.

Maybe those feelings aren’t common among attorneys, but I am guessing that I am not the only one. It is the arrogance, the knowing, that frustrates you while reading briefs or watching arguments because you think you could do better. It’s the fear that wakes you up at night worrying about deadlines or not knowing local rules. Somehow, shooting the line between the two actually helps you do the job - helps you pay attention to the Rules you know because there all the ones you know you don’t and helps you try to make the quality of your work in real life approach the quality of your work in your head. Ok, reading back over that makes me thing that there are a lot of spiders close to the surface - I am going to quit scratching.

If you have made it this far, good for you - but you are also probably wondering ‘is there a point to this?’ There is. Maybe.

I don’t think attorney ego is a bad thing - though it can turn to condescension and an outward-directed arrogance that are the worst things. I think that belief in your own abilities is essential for people that do what I do - and people that do whatever you do too. I want the electrician that believes she is something special - the teacher that thinks they bring something unique to the table - the barber that thinks you are crazy to go anywhere else in town - and the attorney who believes they are the best. But the proof needs to be in the pudding.

That part about being the ‘best’ is relative. The difference between essential confidence and delusion is the difference between ‘best’ meaning ‘really really good and better than most others around’ [the essential confidence bit] and ‘best’ meaning ‘no person alive is better’ [the delusion]. I am confident, but I am not deluded. I know that other attorneys are not only really really good - they are better than me. Better writers. Better on their feet. Now I usually think that is because they are better prepared or have spent more time studying and understanding issues - but better is better and those things are what make a good attorney, not the ability to string words together.

After I filed the petition for cert, I began listening to Supreme Court arguments in a different way - and I listen to lots of oral arguments (you should too). A lot of times I know at least something about the issues in the argument, and I have always loved listening to speakers (whether they be TV preachers, infomercial hucksters, sports announcers, attorneys, etc.) to think about how they present and how they catch an audience. But after the petition, I started listening for clues to an attorney’s preparation, whether readiness for specific questions (the product of countless mooting sessions [the practice arguments an attorney makes before colleagues to prepare for their argument to the Court]) or what seemed to be a photographic memory of past case details, and was in awe.

Even though the odds were extremely stacked against me getting to the Court - the Court only accepts about 1% of the cases where petitions are filed (or 80-100 of the 8,000-10,000 submissions - though it seems many are batting 100 on the shadow docket), I was nervous. I listened to experienced Supreme Court advocates and thought ‘they are really smart … I’m not sure I am that smart.’ That was not a bad thing - it made me want to be that good, to do the job for my client and case that I thought they were doing for theirs. I want to be awestruck when listening or watching people perform their ‘craft’ at that level (whatever that craft is). I want to be impressed with the way overworked judges are prepared for my case and for the way they think. Whether it is in Court now or was in a law school professor’s office back in the day, I live for the questions, turning an idea over and over and pulling it apart and putting it back together.

That is not just true for the law - pick your poison and pride in the work and an expectation of competence³ is crucial. Will we all fall short? Sure. Falling short of the level of performance I expect of myself is more the rule than the exception - but it is the expectation that matters most.

So, why the hell are so many people fine with incompetence. In my world, we have gone in just a few short years from me being awestruck at the competence of attorneys (especially those on the big stage arguing before the highest courts and working at the highest levels of government) to dumbfounded at how utterly incompetent attorneys in those same roles are today. Whether it is the quality of the work product or the arguments presented or their fundamental ability to reason, it is high season for morons. I’m sorry, I am grasping for another way to say it and can’t find one.

What’s more frustrating is that it does not seem to matter.

Fundamentally broken arguments, jumbled up nonsense passed off as legal writing, a lack of intellectual or actual honesty - all of the ‘stuff’ that attorneys used to be scared to death to put out into the world for fear of the reputation it would earn are now the things that typify how Administration attorneys practice.⁴

Regardless of the Party in control of the White House, it seems that we use to be able to have confidence in ability. Maybe you thought that attorneys representing one side or the other were too willing to stretch the law or too slick and clever with arguments, but I, at least, never thought they were stupid or wondered how they got in or out of law school (much less passed a bar). They could have been diabolical, but they were smart. They could have played games with words - but their work still centered on the metaphorical words. They spun the law, but the law was the item being spun.

This current crop of potatoes just turn that whole history on end. Enter the upside down. Outright lies to Courts, willful ignorance of the law, completely intellectually dishonest arguments regarding precedent and history, verbal attacks on judges in legal writing and on the steps outside of the courthouse - all in the service of arguing to a jury of one whom no one would want on a jury in the first place.

This highly polarized climate - with our red states and blue states and then all those with true TDS [Trump Devotion Syndrome] hasn’t meant that we don’t expect plumbers and builders and engineers to be less competent. It has not meant that the general accounting standards or whatever are out the window for accountants (well, not always). It hasn’t meant that nail techs or aestheticians can do their work in reverse order. You don’t pass by random people (whether red or blue) with haircuts half-finished. If you get on a bus and the driver says ‘what road,’ you get off the bus. But in the world of law, we are watching people you wouldn’t trust to water your houseplants (let alone garden) act as if there is no expectation for the quality of their actual work. Why is that? Uncle. Maybe it is because the interaction most have with the legal world is limited to what people on TV say about it or what someone has posted - and at the end of the day all people are concerned with is whether the red flag or the blue flag has been planted a few steps further out.

But whether or not you understand our system of law does not mean that it is any less important. When Dick tells Cade, “The first thing we do, let’s kill all the lawyers,” (Henry VI, Part 2) he could have just as easily said ‘let’s replace all the lawyers with functional idiots’ and the result would have been the same (if less punchy). Dick’s message was that the way to take control was to make sure the lawyers, the protectors of law and justice, were out of the way.

Getting lawyers out of the way does not mean killing them - it can mean silencing them, threatening their businesses by scaring clients away from them, denying them entrance to federal buildings, or taking away their clearances. But getting the lawyers out of the way can also mean making sure the lawyers you have are not constrained by any notions of competence or ethics. Getting lawyers out of the way can mean making sure work product is full of hyperbole and deliberate mischaracterizations of law and history. Getting lawyers out of the way can mean extending this ‘truth doesn’t matter’ and ‘alternate facts’ worldview (we all should have paid closer attention to the inauguration crowd size nonsense in 2017) to the legal system. When there is no longer any objective law we can disagree about, no confidence in the intellectual honesty of those disagreeing, and no confidence in any court decisions that seem to support the other side, then Dick has accomplished his goal without shedding a drop of blood shed (at least no drops from the lawyers).

I get that the country is broken - I really do. Let’s also face facts. It didn’t break yesterday. I think - well, I hope - that we all still believe in some underlying truths and this stuff on the surface is a lot of posturing. I am trying to convince myself that I can take a little bit of that ‘think’ and mix it with a little bit of the ‘hope’ and get some ‘belief’ but haven’t managed to so far.

I am just not sure what happens personally when I totally let go of this naive view that the people I have always respected that are now on the other side of this political chasm, deep down, tear up at the idea of parents and kids being separated at the border or an LGBT kid being bullied to the point of suicide (or countless other things).

Professionally, I am not sure what happens when I let go of the expectation of competence - because then I think I might not have a profession to hold on to. In America, our deeply flawed through line has always been the rule of law and our legal system. Countless have been denied access to that system and countless others have been subjugated by it, but the system that has been the tormentor and downfall for so many has also, over time, offered the metaphorical path to salvation. The system is flawed - but that flawed system also presents the only path we have to fix those same flaws.

When we don’t call out this incompetence - when we normalize it because it happens to align with our political views or expediency - we start tearing up the one road we have to making this system work for us all.

Uncle. Really.

1. And as many colleagues will be able to confirm - I will be glad to tell you to this day (years later) ad nauseum why the EDVA Court was right, the Fourth Circuit dead wrong, and why the Supremes should have taken the case …

2. I’d have to look, but I believe Justice Scalia used that metaphor in Nix v. Williams (which might have been the case about electronic surveillance and the hothouse plants - but I just don’t have the time to look - I am on a roll whether it reads like it or not). Ever since reading the line 23 years ago, I overuse the metaphor. But I like it.

3. I don’t mean competent as keeping your head above water - I mean competent in the Oxford dictionary sense - “having the necessary ability, knowledge, or skill to do something successfully.” In law school, Dean Clark Williams was my civil procedure and conflicts professor. I had and have so much respect for his knowledge and experience and manner of being that the only way I knew to describe it then or now was that Dean Williams, for me, was the model of competence.

4. Take this for example. This is an application for a stay that Administration attorneys filed in the past few days with the Supreme Court. The situation is almost too ludicrous to describe, but the gist is this: There have been a number of proceedings before U.S. District Judge Brian Murphy in the District of Massachusetts.

In those proceedings, the Administration was dinged for ignoring a Court Order that it not deport certain individuals to South Sudan. Murphy then ordered that the Government hold those individuals in South Sudan in the same environment had they been held in the U.S. pending further action. In explaining away their disregard of the Court’s previous orders, the Administration stated that they could do what are called ‘reasonable fear’ interviews of the individuals in Sudan - these are interviews to determine whether those seeking asylum are in reasonable fear of their safety.

Because the Administration said that it would take that action, Murphy put it into an Order - after the Administration attorneys worked with the Court on approving the language in the Order. After the Order issued, the Administration - without taking any action in the Court of Appeals - immediately filed a Motion asking Murphy to reconsider his Orders (with the language that the Administration had negotiated and simply stated what the Administration said it would be able to do. Murphy declined, stating:

Defendants have mischaracterized this Court’s order, while at the same time manufacturing the very chaos they decry. By racing to get six class members onto a plane to unstable South Sudan, clearly in breach of the law and this Court’s order, Defendants gave this Court no choice but to find that they were in violation of the Preliminary Injunction. Even after finding that violation, however, the Court stayed its hand and did not require Defendants to bring the individuals back to the United States, as requested by Plaintiffs. Instead, the Court accepted Defendants’ own suggestion that they be allowed to keep the individuals out of the country and finish their process abroad.

Murphy then cited the transcript portions where the Administration offered to do the very things described in the Orders. The Administration then asked the Supreme Court to stay implementation of the Order (that they not have to do the very things in the language they asked for) until they could appeal to the First Circuit and the Supreme Court.