I recently argued a big motion in basically our biggest felony sex case. Big as in a whopping 35-count indictment, and 2 co-defendants. And I argued it at 26th & Cali, from a rather weak position, and I argued it the day after the verdict in the Steubenville rape case.
So … yep.
It wasn’t a great situation. There wasn’t really a way to spin it to become a great situation. All I could do, really, was do my best to spin it to be a not-so-terrible situation. And that was what I attempted to, and what I’m fairly certain I accomplished, despite the loss.
I thought about it all weekend, and kept writing about it until I refined my ideas and my argument, which is my normal strategy when it comes to developing this sort of thing and fleshing it out, whether I’m working on an argument or a motion.
And then, wouldn’t you know it, the morning I was to argue this big motion, the weather conspired to cause me to be (almost) late for the call. That’s what sucks about driving into the city from Naperville, but I won’t be out here much longer. In May, I’ll be living in the city, inshaAllah, so that will be nice.
Anyway, here’s what I looked like that morning (and also, here is proof that I exist as described and am not, in fact, some 47 year old man from Butte, Montana, typing all of this on a sticky keyboard).
Rest assured, I did remember to put on some damn lipstick before I walked into court.
Anyway, back to the important stuff. My big honking motion and big honking argument to go with it.
I did whatever I could, really. I know that. At our last status date, the State tendered about 200 pages of discovery. I went through that shit with a fine-tooth comb and wrote out a synopsis, and then went through that synopsis and wrote down what I think of as a mitigation list – bullet points about how shit that looks bad for us isn’t actually all that bad, and can be explained (as opposed to excused or justified away).
The State’s response to our motion contained a portion of the discovery tendered at the last date, and I had a few minutes to glance over that shorter report before my argument.
I knew that crap backwards and forwards. I had all the arguments plotted out in my (flowery) notebook. I had all those arguments in my head. I had my client at my side, in his prison jumpsuit, and I was ready to go. I went into my schpiel by explaining that I was going a little out of order – that is, I wasn’t going to start with the positives of the situation and the affirmative part of my motion; I was going to start with the negatives.
And then I just attacked the State’s position.
I went through the parts that I referred to as “an overstatement of the facts,” the parts I felt were “patently unfair” and “perhaps not wholly accurate.” After I was done attacking the motion itself, I went through the pertinent portions of discovery and the attached reports, listing as many mitigating factors as I could while doing my best not to bore the judge.
Then I moved on to the positives of my argument and my affirmative position. I went through all the actual mitigation – not the stuff trying to explain away the negative aspects of our position, but the actual mitigation meant to bolster our position. I moved on to societal arguments and wrapped it up with my prayer.
The State responded with their points, and I listened, plotted my response, and then hit back. I made almost all the points I wanted to make (said in hindsight, of course, because I am my own worse critic and am absolutely brutal in my Monday-morning-quarterbacking). And I know that the points I didn’t make were ones that the judge already knew or figured out from the way we argued it out.
I wrapped up with a reiteration of my prayer, and then suggested that if the Court were on the fence, perhaps the Court would instead consider [slightly watered down version of my prayer].
I basically threw everything I had at the wall to see what would stick, if anything. If I could plausibly say it, I did. Meanwhile, my boss (who is just an incredible litigator, an absolutely brilliant attorney), is standing behind me watching this like,
And I lost.
Which I was expecting.
And which my boss was expecting.
The kind of motion I was arguing today was one that is very, very difficult to win. It’s very, very difficult to win even with circumstances better than what I had to deal with. My boss has done hundreds of these motions, and, stunningly brilliant litigator that he is, he says he has not won many of them. They are very difficult and due to other forces acting on the situation, it’s just an incredibly uphill battle. Particularly in the famously overcrowded and brutal county system in the county in which I appeared this morning.
So my loss was predictable, and I took it in stride. I feel bad for my client, but we prepped him beforehand and explained the likelihood of the loss, and what would happen if we lost. He understood and even though I’m not happy about it and I’m not trying to make light of the situation, he will be okay.
I got beaten up, and that was okay. I’ve gotten beat up a hell of a lot worse, and I expect to get beat up many, many more times for the rest of my career as a criminal defense attorney. Comes with the territory, and all that matters, really, is how I deal with it.
So the plan is to shake it off and take it in stride (done), and do better next time. Which I absolutely will. And I’ll do better next time and still lose, and that’s just how it goes.
As for self-critique, well, that’s never been my problem. I’m my worst critic and always have been. It’s kind of amusing, because I’m so exceptionally gentle with the feelings and self-worth of others, but I’m so incredibly hard on myself. There’s not a single awful thing you could ever say to me that I have not thought about myself at one point or another.
But all things considered, it worked out well and was a good experience.
I’m POSITIVE there was a slight tremble in my voice. I’m cackling just thinking about how I must have looked and sounded. You guys know what I look like – I’m 5’1″, pretty scrawny, bespectacled, and look absolutely cartoonish peering up at a judge on the bench. And my voice wasn’t as strong as it normally is because I failed to squelch a small case of butterflies like I normally do.
But I expect that will get better in time. I will be ruthless about those butterflies the next time.
It was a good experience, though. The judge was patient and gave me a great opportunity to be heard. She yelled at the people in the gallery to shut up while I was talking. She was, I thought, rather gentle when she made her ruling.
(I have to wonder if she was worried that I’d burst into tears if she was just like, “Denied, defendant will be blah blah blah.” I mean, I wouldn’t have. I’ve already gone through that holy-crap-I-am-going-to-start-sobbing-in-front-of-this-judge-in-twenty-seconds experience, thank you.)
Afterwards, one of the courtroom sheriffs that brings inmates in and out of the holding cells in back and sits through the morning calls every day was a super sweetheart. He told me I did a great job and I was a wonderful attorney. He didn’t have to say it but it was kind of him to do so.
The special prosecutor was lovely, too, despite the fact that I basically repeatedly called her a liar. (That was what the whole, “not wholly accurate,” “overstatement of the facts,” etc stuff was about. It’s how lawyers yell, LIAR LIAR PANTS ON FIRE SITTING ON A TELEPHONE WIRE. See the landmark ruling in the case of Sticks v. Stones.)
She spoke to me briefly afterward and said I did a great job and my presentation was good (HAHA NO IT WASN’T MAYBE NEXT TIME I WON’T BE SUCH A NERVOUS NELLY) and I delivered it strongly and such. I was glad to hear it, and it was very sweet of her. She’s a nice woman and I like her quite well on a personal level. She’s sweet and friendly, and a good attorney, totally on the ball, and a consummate professional. She’s fair and shoots from the hip, but is not a softie by any means. It was very nice of her to say what she did.
Although, honestly, I don’t mean to sound like a total jag, but at the end of the day, I don’t really care what anyone else thinks of my lawyering. I basically only care what my boss thinks – especially if he happened to be there while I was doing it. He’s my employer, sure, but he’s also my mentor and an absolutely brilliant attorney. If he says I did well, which he did – repeatedly – then I know he’s not just stroking me and that he actually means it.
And he was very happy with me (though he had a critique, too, obviously, which I always appreciate), and that’s what matters to me.
Today reminded me that I’ve been pretty fortunate so far in terms of colleagues – and by that I mean opposing counsel.
Yes, I’m often bitter and gnashing my teeth over the jerk-prosecutors that are entirely dismissive and condescending as hell – perhaps because I’m a woman, perhaps because I look 18, perhaps because I’m an associate that’s not the lead on the case and they feel they’re wasting their precious time acknowledging my existence. I don’t know. Whatever. It’s their problem.
But in general, when it comes to the few prosecutors that I deal with regularly – either if I’m handling a case solo from start to finish, or if I’m handling status dates solo, or if we’re communicating back and forth because we’re trying to get our ducks in a row and I just happen to be the one that does it instead of my boss – they’re pretty great.
No, I’m kidding. They’re professionals, and on the personal level, they’re nice people.
There’s a prosecutor on one of our child porn cases who, due to my boss’s conflicts in federal court, has had to deal with me for the past couple of dates. He’s a nice man who’s never once talked down to me. We’ve run around trying to get a protective order and expanded bond in place, he’s handed over a shit-ton of contraband to me, and we’ve sat down and discussed an offer when he indicated his willingness to make one.
There’s another special on another child porn case of ours who I’ve had similar interactions with, and he’s never condescended to me, either. He’s been a total professional, even when the two of us were playing phone tag trying to nail down a time to get together, and he’s even swung by the office and hung out for a while when delivering some contraband, and he sent over some helpful stuff regarding probation terms, too. (Even though he’s gunning for jail time.) It’s always a pleasure to see him and work with him.
There’s an AAG on one of our child porn cases who’s opposed my boss on this case for about two years now, who was actually quite welcoming when I skipped into the courthouse, initially all wide-eyed and bushy-tailed with absolutely no clue what was going on. (Of course, now I know more about child porn than I ever thought I would, but that’s neither here nor there.)
He even gave me a pep talk, from one established attorney to a brand frigging new one, which was actually kind of sweet. Of course, I badly misread him and initially thought he was being dismissive and a jerk, only to later figure out that, no, he was instead trying to be nice to me. In my defense, though, if someone makes very little eye contact with me WHILE he’s talking to me and instead looks around the room over my head, I tend to read it as that person being dismissive and only talking to me because he feels obligated to do so.
Also, add to all that the fact that I’m kind of socially awkward and can’t read men at all, and it’s not a surprise that I misread him.
There are even prosecutors who will call up and have no problem speaking to me about the case, new as I am to the firm, because they’re confident that I know all about the case and where it’s positioned, and that I know what they’re talking about.
I appreciate all of this, especially since for all of these well-mannered prosecutors, there are the jerks who won’t deign to waste a minute of their precious time with me, or tell me a damn thing about whatever’s going on despite the fact that I know that given case backwards and forwards.
I realize I’m rambling, but today’s loss reminded me that I’m fortunate to work with other attorneys who aren’t assholes, basically.
In certain ways, I’m still finding my footing. I’m grateful that I’m surrounded by people who don’t mind in the least, and will actually encourage me and help me get better, rather than exploiting the situation. I expect that sort of patience and encouragement from my boss, and I’ve always received it.
But it really is an unexpected and appreciated surprise to receive that same kindness from opposing counsel.
I realize that this all sounds incredibly naive of me, but, really, I’m not that dumb. No one is going to clam bakes with opposing counsel any time soon, I promise. We’re not sitting around a campfire holding hands, either. I promise I’m not that oblivious to how an adversarial relationship works. Besides, if you jerks have learned anything about me since I started this blog back in law school, it’s that I have no problem sticking to my guns in the face of opposition. So, no worries. Despite the fact that you could probably come down with diabetes from the last few paragraphs.
Ugh. This has become far too saccharine for my liking. WAT. I feel like I barely know who I am anymore. I have to go put my fist through a wall now just to feel more like myself.
Whatever. The game plan now? To keep being awesome.