Political update for October, 2013 - Paradox and the fourteenth amendment

When I was in law school I had no political understanding. I don't mean I didn't have the basic political knowledge we hope (against experience) everyone has, that is, things like separation of powers and the three branches, what democracy is, blah, blah, blah - unless you are resistant, you get that by osmosis and the little bit that is covered in school that even people like me who weren't really listening can't help but absorb. But, I was already heavily invested in the partisan warfare on which I was raised (in my case, very much on the left) and which I now regularly decry and did not understand what lay underneath it all - particularly what the other side thought important. I had long been very conversant with history up to about  the 1700s. But, despite being an American law student, I knew very little about American history. Don't think I was alone - it apparently isn't necessary to know much about history or politics at all to be a lawyer and such knowledge is not even tested in applying to law schools. I also had very little understanding about how law worked. One of the things that some professors would talk about that I could understand intellectually, but not in practical terms, was about how policies and values lay underneath the law. To me and I'm sure many other of my fellow students, it should be black and white.

But, I learned, more from self-teaching and practical experience as a litigator than school.  Now, when I read cases, that is the first thing I try to understand.  When I briefly taught some college classes in constitutional law I tried to imbue that understanding in my students as much as possible for two reasons. One, because I felt I was not taught this very well in college or law school (though I was such a lazy and disinterested student, maybe I just didn't notice) and two, because it is really important. Last, it makes it so much more exciting.

There is a case before the court now that brought all this to mind.  If you don't think it is really about policies and values, take a look at the lead respondent's name:

Bill Schuette, Attorney General of Michigan, petitioner

                                             v.

Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary (BAMN) et al.

Seriously, that's the name of the respondent. If you were casting a movie, you might market it as a battle between the stodgy legally constituted represented of the state majority and the scrappy minority advocates who could care less about the rules if they hold back what they see as the interests of minorities. Sounds a little like the movie Footloose.

Technically the case is about a constitutional amendment to Michigan's constitution. You may know that Michigan has been the locus of some of the most important Supreme Court educational affirmative action cases.  These cases, of course, concern race.  

In Grutter v. Bollinger (2003), the Supreme Court held in an opinion written by Justice O'Connor (at the time, the swing vote on the court - a conservative who occasionally voted with the liberals) which was joined by the four liberal justices, that Michigan's state law school could have an admissions program that favored underrepresented minorities but also considered many other race-neutral factors, was constitutional because it had a compelling interest in promoting racial diversity, which was the official legalistic question. I'm not going to go into what compelling interest means legally, but just go with this - is promoting racial diversity in colleges so important that we will allow racial preferences for certain minorities even though it violates any reasonable interpretation of the meaning of equal protection under the law in its discrimination against whites and also Asians.

Justice O'Connor started out by discussing the last affirmative action case from 1978, University of California Regents v. Bakke, in which the court banned quotas or set asides for racial or ethnic groups. In a very divided court, Justice Powell wrote an opinion which included a statement that seems like common sense: "[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal." He also held though, that it there could be racial preferences  if there was a compelling interest that was "precisely tailored" to serve that purpose and which was not unduly burdensome on others who bore no fault in our racially divided history. 

Leave aside the silliness of a majority of judges on a court deciding what is a compelling interest or too burdensome to others rather than state governments, individuals or even congress, but he found only one proffered interest which fit the bill - the schools interest in a diverse student body. He was careful to note that race/ethnicity could only be one factor among other race neutral ones.

Nevertheless, jump back to 2003 when Grutter and its sister case Gratz v. Bollinger were decided. There Justice O'Connor noted that her opinion was a deviation from a central purpose of the fourteenth amendment to do away with racial discrimination of all kinds. It astonished me and many others that, reasoning that it had been about 25 years since Bakke, she concluded that: "[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

In other words, we will continue to break the constitution for twenty five years. After that minorities will be caught up and we can have equal protection as required by the Constitution.

Say, what? Even two of those who joined her opinion, Justices Ginsburg and Breyer, wrote, essentially, how would we possibly know that ("one may hope, but not firmly forecast"). Though it is impossible to listen to Justice O'Connor and feel any personal hubris, this is an incredibly hubristic or arrogant statement. It would be as astonishing as if a president made the statement in 1978: "[W]e entered intervened in Vietnam in the past 15 years or so, and there are many regrets of having done so.  We expect that fifteen years from now the United States will no longer invade other countries."

Of course, other judges opposed to the majority felt very differently. Justice Thomas wrote what I thought was one of the most interesting opinions of the last decade. He quoted the former slave and then abolititionist, Frederick Douglas:

"'[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us... . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! ... And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! ... [Y]our interference is doing him positive injury.'  

Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators. Because I wish to see all students succeed whatever their color, I share, in some respect, the sympathies of those who sponsor the type of discrimination advanced by the [law school]. The Constitution does not, however, tolerate institutional devotion to the status quo in admissions policies when such devotion ripens into racial discrimination. Nor does the Constitution countenance the unprecedented deference the Court gives to the Law School, an approach inconsistent with the very concept of 'strict scrutiny.'

No one would argue that a university could set up a lower general admission standard and then impose heightened requirements only on black applicants. Similarly, a university may not maintain a high admission standard and grant exemptions to favored races. The Law School, of its own choosing, and for its own purposes, maintains an exclusionary admissions system that it knows produces racially disproportionate results. Racial discrimination is not a permissible solution to the self-inflicted wounds of this elitist admissions policy.

 The majority upholds the Law School's racial discrimination not by interpreting the people's Constitution, but by responding to a faddish slogan of the cognoscenti. Nevertheless, I concur in part in the Court's opinion. First, I agree with the Court insofar as its decision, which approves of only one racial classification, confirms that further use of race in admissions remains unlawful. Second, I agree with the Court's holding that racial discrimination in higher education admissions will be illegal in 25 years. . . I respectfully dissent from the remainder of the Court's opinion and the judgment, however, because I believe that the Law School's current use of race violates the Equal Protection Clause and that the Constitution means the same thing today as it will in 300 months."

It's ten years later. Now the court is determining whether a state may have a constitutional provision, voted upon by its people, banning racial discrimination. And the respondent not only rejected this constitutional amendment as being discriminatory itself -- but it won. You heard me - it won! The Sixth Circuit court has held that the constitutional amendment is discriminatory and violates the federal constitution, which requires equal protection under the law.

You already know without my telling you that lawyers and judges can so pervert the meaning of the law by  "a specious and fantastic arrangement of words, by which a man can prove a horse-chestnut to be a chestnut horse."  I love to quote Lincoln with these words, though, admittedly, his use of them to argue that he was not for the political or social equality of blacks kind of takes the sting out of it. Nevertheless, the abstract point is, when a court tells us that black means white or wrong means right, we lose faith in the institution.  Yet, the Sixth District Court of Appeals has said so. Will the Supreme Court? As so often has happened since Justice O'Connor's retirement, the answer may fall upon the shoulders of Justice Kennedy, the ultimate swing vote.

I can fantasize that everyone who wants to argue about a case has to read the briefs first.  Hah. And they are interesting here. Michigan argues a common sense reading of the equal protection and case law: "They claim that the elimination of race-based policies is endorsing race-based policies."

The Sixth Circuit relied on what is known as the "political process doctrine." Whenever I write about legal topics I have to do a lot of editing and cutting and foolishly feel as if I should apologize for doing so. I do my best to be fair but even my own self imposed if verbose space limitations don't let me put down what everyone argues and opines, and try to here even if it is an impossible task. In short, the doctrine holds that laws (including State constitutions) which targets a program or policy which primarily benefits minorities or changes the political process in such a way that it puts burdens on a minority's ability to achieve his/her goals through the process, violates the federal equal protection clause. That sounds like it might be fair at first blush - but only in a vacuum.

A former litigant, Eric Russell, submitted a "friend of the court" brief at an earlier stage which provided a litany of reasons that this doctrine leads to absurd results, but I will submit my own summary of his: If  the  doctrine is a fair interpretation of the fourteenth amendment equal protection clause, probably any modern law that tries to eradicate race as a factor automatically unconstitutionally prohibits the many laws aimed at affirmatively benefitting minorities even though, as Justice Powell wrote in Bakke and pretty much everyone agrees, one of the core purposes of the equal protection clause is to eradicate race as a factor in our laws. In fact, if you take this doctrine to its logical conclusion - the equal protection clause would itself present a paradox - by its very own terms it would itself be unconstitutional. Of course, that is not the case once you recognize a point made by Michigan - "To begin, this Court has applied the political restructuring doctrine only to laws that impede protection against unequal treatment, never to laws that preclude preferential treatment." All of a sudden, it makes sense again and I believe that may, if the case goes to the State, will be the deciding distinction.

On top of that, if the doctrine applies as the schools and other advocates desire, then neither the democratically elected legislators of a state, nor the people through an amendment of the constitution have no say once an unelected state administrator puts a policy into affect that favors a minority.

The respondents in the appeal - that is the successful plaintiff in the case - argue in a different tone than the state, though much in that of some quite famous civil rights advocates. Yes, it argues black letter law it interprets as supporting it - but it starts with a quotation from one of our presidents that I believe states one of the basic tenets of what we call liberalism or progressivism:

"Men and women of all races are born with the same range of abilities. But ability is not just the product of birth. It is stretched or stunted by the family you live with, and the neighborhood you live in--by the school you go to, and the poverty or richness of your surroundings. It is the product of a hundred unseen forces playing upon the infant, the child, and the man. . .

For Negro poverty is not white poverty. Many of its causes and many of its cures are the same. But there are differences--deep, corrosive, obstinate differences--radiating painful roots into the community, the family, and the nature of the individual. . .

Freedom is the right to share, fully and equally, in American society--to vote, to hold a job, to enter a public place, to go to school.  It is the right to be treated, in every part of our national life, as a man equal in dignity and promise to all others.

But freedom is not enough. You do not wipe away the scars of centuries by saying: Now, you are free to go where you want, do as you desire, and choose the leaders you please.

You do not take a man who, for years, has been hobbled by chains, liberate him, bring him to the starting line of a race, saying "you are free to compete with all the others," and still justly believe you have been completely fair.

Thus it is not enough to open the gates of opportunity. All our citizens must have the ability to walk through those gates.

This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity--not just legal equity but human ability--not just equality as a right and a theory, but equality as a fact and a result."

And should this case go in favor of the schools and groups advocating for minorities, I believe that perspective will be the deciding factor.

But, I want to argue something more. The two different perspectives in this case are central to the two prevalent ideology's views on the equal protection clause when it comes to discrimination.

In the general conservative's perspective, the clause requires equal treatment now, incorporating only present intentional discrimination, and not taking into consideration the past inequities of our country's racially unfair past. No one starts in a precisely equal status or providential circumstances with anyone else - and that is life - what counts is that they now have equal opportunity under the law. Thus, racial preferences are not permitted because they unfairly prejudice others who have no deserved guilt of their own in past unfairness.

In the general liberal perspective the past matters because it must by necessity have an effect on present circumstances. Where all cannot start in as equal circumstances, we must remedy it by providing benefits which are apparently unequal but allows for groups that have been traditionally discriminated against and have not flourished to do so. Most especially it must remedy past inequities due to skin color and ethnicity, even where the beneficiary has less merit than an excluded majority party or has not suffered at all from racial prejudice.

You could phrase the central issue a number of ways - for instance, you could say that one side sees "equality" as meaning everyone now has the same rules, though it be inherently unequal in result, and the other side believes equal means that past inequities must be remedied, perhaps hypothetically perfectly, even if it means that different rules apply to different races.  

 

You can agree or not with these perspectives. I believe they are presently considered more important in our national debate than any other constitutional issue and I am including those surrounding abortion. They have now been so engrained in us that they dominate the conversation legally, politically and culturally. I am not arguing here that it is deserving of this primacy or not.  It just is.

Ironically, the two perspectives are also completely the opposite of  the chronological directions the two ideologies traditionally look to - conservatives backwards and progressives forward.  But, this is no surprise as rule number one of partisan ideologies - they can switch their policy preferences on a dime if it suits them politically. But that is not the point of this piece and I'll visit it again another day.

While writing this post I happened to also watch Bob Costas give a little opinion piece on sport team names which contain indigent Americans or Indians references.  Costas clearly aimed at being balanced and first argued that while a number of teams have changed their names, those that remain are generally devoid of any ill intent. In fact, they were admiring and respectful just as are team names like The Patriots and The Pirates. This perspective is in accord with conservative perspectives. Then he said, but look at the name "Redskins." It is different than other similar team names and there is nothing respectful about it. It is still a slur even if the present usage is purely benign. Can we imagine a team named black skins or white skins? This perspective, which ignores whether the intent is innocuous or not, is from the liberal ideology - past prejudice counts and is not wiped clean by present intentions. Again, agree or disagree. My point is the centrality of the issue in our lives.

And though it is certainly  far more complex and concerns any number of issues, the central political debate this past month also is affected by this argument. For, much of the question of whether the government spends too much and whether it is worthwhile to suspend some of our government in order to demonstrate the importance of reducing spending, often concerns the issue of so-called entitlements and protecting the economic prospects of the lower class, a high proportion of whom are minorities.  

This debate should not be unexpected. It was inevitable. There was no equal protection clause in the original Constitution or Bill of Rights. It was written in the fourteenth amendment primarily in order to protect the rights of black Americans after the slaves were freed. Nevertheless, we could apply it as it is written, neutrally, without favoring any group. It is a basic tenet of equal protection cases that it protects individuals, not groups anyway.  But, on the other hand all three post Civil War amendment had remedial clauses empowering congress to enforce its provisions, and, logically, this can only be done by legislating as to groups, not individuals. For some, it takes little legal razzle dazzle to apply that to judges who now regularly act as legislators. The puzzle is endless as what doing so can result in is appointed judges not subject to election determining the validity of their constitution amendment as directly voted upon by the people of the State of Michigan, and, in the name of equality, ruling that only inequality of law is necessary to achieve a hoped for equality in fact.

As they say about quantum physics - if it makes sense to you, you don't understand it all.

Lawyering - 29th year

From time to time I write about law here, but not that often. Rarely is it about my own career. But, I did write Ten Things You Didn't Know About Lawyers (and may not want to) almost four years ago on 10/26/09, which did cover a few things that have happened to me.  Even though the chances of anyone (a) having read it, and (b) actually remembering it, are small on the quantum particle scale, I will try not to repeat myself too much.

As of  September 12, 2013 I was admitted to practice law in the State of New York for 29 years. It's not a round number, but so what. I know how long it has been because when I was admitted to practice in 1984 the judge who swore us in told us to remember that date as if it was our birthday. So, I did.  I also remember when I was a newly admitted lawyer having an adversary in a case who had been practicing 30 years. I was shocked how old he was and that he still could be practicing. I don't think I will be feeling that way in one year. I also remember how old I thought my two bosses were. But I am now about three or four years older than they were when I met them.  Holy smokes.

Twenty nine years is a fairly long time. I could probably write dozens of autobiographical pages of my experiences.  Fear not.  I think I will celebrate this anniversary by writing merely about my first jury trial and leave it at that (if you don't include the diversions - you know I can't help myself).

Somewhere about ten to thirteen years ago my older brother, not figuring to live so long for a number of reasons (and he was right) wrote his own quirky last will and testament. He ended it pretty much (could be exactly) like this: "On the whole, life wasn't so good. But, it wasn't so bad either. May the force be with you."  I can't say I feel that way about life but I thought it was pretty good writing, so I am going to steal it with his posthumous permission (checking . . . hold on . . . he says "okay" but to give him credit). So, on the whole, being a lawyer wasn't so great. But it wasn't so bad either.  May the force be with you.

There's not too much I have to complain about. I earned a living and met a lot of great people some of whom were even technically adversaries. I worked with people who have become lifetime friends.  At some point I realized almost everyone in my life I knew other than a few high school friends was because I was a lawyer. I also learned a lot and learned to work really hard for the first time in my life, to the degree that I could disregard almost everything else while focusing on a trial (even eating - the only thing other than heartbreak that ever made me forget about food). The theory of law is wonderful, creative and can be fun. When law works as it is supposed to, it is a marvelous, even a beautiful thing.  A successful cross-examination after which the jury or judge just can no longer believe a witness, or winning a difficult motion or appeal is exhilarating.  Helping a client you like, particularly a friend, is about the best part of it. I've been luckier than unlucky, more successful for my clients than unsuccessful and that feels good. On the other hand, there is a lot on the down side. Losing always feels bad.  Most lawyers I know are overstressed, fed up with judges who don't follow the law, clients who are their own worst enemies, other grumpy lawyers, exhaustion and pressure, too low pay for too much work. And for those in the corporate world . . . arrrrgggghhhhh!!!  The frustration is unending and exhausting.

I read a poll taken years ago of lawyers in California. I can't remember the exact statistics, but it was something like 4/5 were unhappy with their career and 3/4 would not recommend the field to their child. That is not much of an advertisement.  Trust me it has gotten worse. 

My first job was great though sometimes more than a little crazy. My two bosses  were partners and had been so for a long time. But other than that they had gone to school together they were as different as Oscar and Felix. So, let's call them that. Oscar was the great trial lawyer gunslinger (still is) who more than once was front page news, and Felix, now a retired judge, the more serious worker bee who kept the place operating. I learned different things from both of them about trying a case, but foremost among them from Felix that if you do not have an outgoing personality, you need to convince a jury that you are sincere.  The best way to do that is to actually be sincere. From Oscar I learned that it was okay to emote in front of a jury (even cry) so long as it was genuine.

I have not actually cried in front of a jury. I did get emotional summing up once representing a burn victim, and that worked out pretty well, and on another case I got teary in my own home rehearsing my opening in a mirror on a death case precisely because I did not want to do it in front of the jury later that day. My co-counsel was a nice man, but a stone cold former homicide a.d.a. and I sure knew he wasn't going to cry (it settled anyway at the last moment).  The closest I came to publicly letting flow was a case I was trying with an associate helping or "second seating me."  I had the injured plaintiff's wife on the stand.  She was describing how they got together as teenagers and how he had changed as a man after being burned. It was pretty emotional. I saw the court officer walk away, eyes brimming. I saw the judge turn his chair around so he could not be seen blubbering. I was doing everything I could not to let my voice break when from my associate's chair a great sound burst forth.  "GULP!"  Later it was funny. But right then, he almost got me.

The third thing I had to find out for myself - it takes a while to learn to be yourself in front of a jury. At first you are imitating other lawyers, perhaps even those you have seen in film. Well, maybe there are some people who get it immediately, but I haven't personally seen any young lawyers accomplish that. And it certainly wasn't the case with me.

My first jury trial was tough to get through. It was a case my bosses took simply because the same clients had another better case. It was a dental malpractice action and I was handicapped in several ways. First, back in the 80s, before they revamped the system, you could delay bringing a case to trial, if not forever, for a long time. But, even then, there were limits. This case was 17 years old. The judge who ordered me to trial was not concerned that I was in grade school when the incident happened.  I distinctly remember him saying "The sins of the fathers are visited on the children," referring to my bosses.  It was not a big case that one of them was going to try. For one thing, though the dentist had been a jerk to my client and caused her a little pain, he really did not permanently damage her teeth.  In fact, some 17 years later, she had one of the nicest set of choppers I've ever seen. Good for her, but not what you want to show a jury at all in this type of case. Second, my bosses were not very fond of the clients and vice versa. They seemed nice to me, and frankly, they were kind of justified in being a little testy by the 17 year delay. Nevertheless, at the time I was seeing things from my bosses' perspective. 

Oh, one more thing.  I really didn't know what I was doing.  I knew I could cross-examine someone, because I had done it in bench trials (no jury, just a judge).  In my first bench trial ever I was representing a divorced mother whose dirt bag ex-husband had a successful business he could hide through his brother and was paying her almost nothing in support, pretending to be poverty stricken. My adversary was the leading divorce attorney in that county at the time.  I called his client to the stand. He claimed to make a few hundred dollars a month. I asked him how he managed to eat on that pittance and he said he always ate at a friend's or relative's house for free. So, we went through his week - Sunday, Monday, Tuesday, Wednesday, Thursday, Friday and Saturday. On each day he described to me with perfect recall whose house he had eaten at. When he was done, I said, okay, let's do it again. And, of course, having made the whole thing up, he could only stutter - "Whatever I said a few minutes ago." The judge was looking at him darkly and then I asked the next question which I had in my pocket - who owned the corvette he had driven up to court in? The judge called both counsel into chambers and made the other side settle immediately. But, I have digressed in a war story, which is unfortunately, a very contagious disease in my profession. Back to my first jury trial.

I prepared for the case for days. Oscar told me not to worry when crossing a medical witness because though they may have more medical knowledge, I knew my own field better.  He was right. Doctors and dentists have been some of the worst witnesses I've seen and crossing them count among my favorite memories as an attorney. 

We had our own expert witness, a dentist, and a very nice man. I went to his house that weekend to prepare him. Despite what was ridiculous treatment by the defendant dentist of my client, our expert couldn't seem to agree that he could find any deviation from good and accepted dental practice (the magic words the judge needed to hear not to dismiss the case). Though I found that astonishing, I had to go step by step through the evidence and ask him for each act if he would have done what this dentist did? He said no each time. Finally, he agreed, it wasn't good and accepted dental practice. Phew. Without that I had no case.  It was far from the last time I had to explain an expert's theory to him. I could write a lot about expert witnesses here, but perhaps another day. On the morning of the trial, while I was preparing in the office at 3 a.m., one of the partners, Oscar, came into the office. He worked very little, but made his money in big lumps when he tried a case. When he was working, he often started before dawn, when he was most awake.

He asked me when I had gotten there that morning and I said I had never gone home. He asked me if I was nervous and I said no, I was too busy trying to figure out what to do. He told me go home, get some sleep and to get nervous or I'd be no good to anyone. Being nervous is a good thing on trial so long as you keep it in check.  It is motivating and keeps you in that zone you need to be in to come up with arguments and retorts you might not have thought of if you were completely relaxed or unworried.  Oscar had himself had told me a few stories of his early years of practice which helped me understand that being nervous came with the territory. As well known as he was in his field then, he had told me that when he had his first trial he pulled over on the side of the road on the way home the first day and puked. The first time he had a medical malpractice deposition (where you get to examine the other side under oath) he was so worried he repeatedly canceled it.

And, I was a little nervous going in. But, truth be told, despite my lack of experience, it wasn't all that much either. Not that I don't get nervous on trial, but I have known since school days that at least relative to other people, I am fairly calm. That may be part natural disposition and it may be self training I did back in high school when I first contemplated how you could react to things without freaking out. I was very influenced by eastern philosophers (I'll include the ancient Greek stoics) even then.  I do believe there are limits to their claims and that like most every philosophy, you should take what works for you and chuck out the rest.  But I think it is pretty clear that training and focus can help us to relax in tough situations.  I've failed at it a few times in my life, but I'll leave those for another day too.

What was true then is still true for me when trying a case. The moments I feel a little nervous are when I stand up to meet the jury in what is called voir dire, or jury selection, when I stand up to do my opening and when the verdict is coming in. To be fair to myself, I think it is pretty normal for attorneys to be most anxious at those times, as we are when we are beginning just about anything.

I had not the first clue how to pick a jury.  Oscar taught me how, one of the few times he ever intentionally taught me anything legal related (he did give me one piece of child raising advice I took to heart and have passed on to others - when it comes to music, sports or education, there are no limits, within reason of course, to spend on your child). But, like with Gibbs on NCIS  (I admit to a non-fatal addiction to the show), you learned by watching him.  He was not the attorney to go to for technical legal information or even simple things like closing a real estate deal. The intentional bread and butter legal training I got from Felix, who was very organized and deliberate and more of a friend. He was delighted he had a young attorney who would work endlessly (hard to believe, but I would then) and could write well.  I know this because his wife told me.  I rarely see him anymore - once every few years, but at the time we were very close. He was a very cranky guy when I met him, as his partner was involved in a major case of national proportions and not bringing in money in the meantime. Between my taking some load off him and the big case ending soon after I arrived, he got to be a lot more fun.  Oscar was almost always entertaining, but also dangerous, and he could be both a little arrogant - maybe deservedly so - and frustrating, because he was very absent minded - worse than me - and that's very absent minded.  He once told me there wasn't any place in the firm for two absent minded attorneys and he was there first. I told him the difference between us was that when I lost or forgot something I knew it when it came up, but with him, it was as if it never existed.

I had actually worked there as a law school clerk on their big case before I was admitted and a paralegal who had a crush on me (I know, that's hard to believe now, you bastards, but go with it) and a senior attorney who liked me well enough told me that Oscar was offering me a job and to come in and start working.  I was surprised because he didn't know me very well, but I did.  My first memory is the paralegal handed me a file and saying "work it up." When she left the room I squeezed it a few times as a joke to myself, because I had no idea what "work it up" meant. I drafted some papers and when I left almost 4 years later, they had not even been typed up yet. Yeah, it was a little crazy.  At the end of the first week I asked Oscar if I could speak to him privately. He said, "Sure." I said, I understood he was offering me a job.  He looked at me kind of funny and said - "I did?" He hadn't, but being him, hadn't even been curious why I had been around all week.  It wasn't a large office and he had to notice. But the paralegal and attorney knew what they were doing. He added, "Okay, welcome to the family." He then gave me a salary that would depress an assistant grocery bagger. But I was elated.

As talented as he was, he had some personal problems back then, and caused a lot of trouble for himself and others. At heart, he is a good person and despite that he was kind of up on a pedestal compared to the rest of us I recall once when I stood up for myself after he made the mistake of blaming me for what was really his fault, he sincerely and unfortunately endlessly apologized for a day.  Whatever his faults, he was also incredibly charming and a brilliant trial attorney with a natural charisma unlike I've seen with any other attorney. When you watched him, you learned by osmosis, though you really could not imitate him (some try) without looking foolish because you didn't have his personality.  Once I recall him getting angry with me because I didn't say something to a jury he wanted me to (too long ago; no idea what). It would have been a disaster if I had. I wasn't him and would have looked like a little boy putting on his father's clothes.

It took me a while to learn how to get along with jurors, to ask them personal questions without pissing them off, and even to get them to like anything about me. This is where learning to be yourself comes in handy.  After a few years I started to get creative with it and have fun. Most attorneys follow some well tested scripts we all learn. I pretty much do too and try and to get the panel to laugh a little. But, I've developed some lines of questioning that are my own and I think are pretty good because other attorneys who have opposed to me in selection have asked me if I minded if they used them.  Why would I say no? They would just do it anyway.  You don't get to copyright this kind of stuff and we all borrow or steal from one another.  Nowadays, though I don't try many cases, I notice my grey hair and craggy face gets me a little more respect with jurors.  I'm hardly an old man, but there is something to getting older that works (occasionally, anyway). Good thing because almost everything else about aging is not so much fun and most judges could care less.

In my opinion attorneys have too many rules about what jurors they will accept or challenge. There are even unofficial racial and ethnic rules, believe it or not, and many attorneys still go by them. Most are  ridiculous although I've had a couple of trials where I think race played some role.  On one of my next trials I called Oscar up during a break in the selection process and asked him what he thought about my taking on the jury the wife of an insurance adjuster. He said don't worry about the stupid rules. If you like her and more importantly, think she likes you, take her. I've followed that ever since.

 In this first case, my memory about jury selection is very thin. I know I wasn't any good at it. My adversary was a very serious middle aged man who had a reputation for being gruff. I remember his name but will call him Bob. Actually, he was really nice to me,  and I told him after the trial I thought he had gone easy on me and appreciated it. When we had selected six jurors and two alternates I felt that I had lost the jury selection aspect of the case - which might be the most important factor. There was one man in particular I felt really didn't like me - I'll call him Roy. Why had I left Roy on the jury? Mistake.

When we began the trial I didn't know where to sit and Bob had to tell me. I had my clients, husband and wife, sit next to me at the table, which you really don't do either, but I didn't know better.  The judge was a fairly kind man, perhaps in his late 50s, early 60s at the time. Many years later I bumped into him and reminded him of the trial. He was elderly then, a semi-retired referee, and had no memory of it, of course. I remember it because it was my first. It was one of many for him. He appeared to know my adversary well at the time, but he was fair and I have no complaints.

The first real opening I ever heard in my life was the one I gave. That's not a good idea, let me tell you. I know I was bad, perhaps terrible. When it was over Bob asked the judge if he could make a motion outside of the presence of the jury. When they left the room he said that although it was highly unusual, he was making a motion to dismiss the case after the opening. There just wasn't sufficient reason to go forward. I was mortified. Was I that bad? I don't think I said anything in opposition. The judge mulled it over and then said, "It was inexpert. . . " Now, remember, my clients were sitting right next to me. All I could keep repeating to myself after the first few words were, "Please don't know what 'inexpert' means. Please don't know what 'inexpert' means."   Then he finished his sentence with ". . . but I think there is enough to go forward." There are no atheists on trial. Thank God, I thought.

Oscar had told me to call the defendant dentist as my first witness. I did. Fortunately, though obviously smart enough to become a dentist, he was socially inept and a strange, pompous man.  Honestly, and I know this is politically incorrect to say, but he came off almost "retarded." However badly I must have looked to the jury, I was pretty sure he did worse.  My own expert did pretty well, and at least said the magic words that the judge needed to hear so I could go forward with the case. The last witness was the defendant's expert, another dentist in the area with a lot of experience on his resume. He was not contentious at all (some foolishly are, trying to play lawyer). When I crossed him, I asked him the key question about something the defendant had done during treatment - "Was that good and accepted dental practice?" Of course he was going to say "yes, it was," because experts almost always help the side that is paying them.  But he said "No," which flabbergasted me.  Thankfully,  I had at least enough sense to move on, pretty sure that the judge and the other attorney weren't even listening. Later I told Oscar what had happened and he instructed me to order the minutes from the reporter to use the next day so I could read it to the jury. If I read it, everyone would know it was true, rather than if I just told them it. I had not known that.

Bob summed up, telling the jury that this case should have been in small claims court. He was probably right. The dentist had treated her badly and screwed up on her dentures and maybe caused her a tiny bit of pain. But, this was a malpractice case in the New York Supreme Court.  It wasn't, he said, worth anything.  Essentially he was saying that I had wasted everyone's time with this case that was 17 years old.  I knew the judge, nice as he had been to me, agreed.

I got up to give my closing with no small amount of dread.  I had that one page of transcript with me, which I knew would at least keep the judge from dismissing the case, something he was more likely to do after the testimony was in than at the beginning.  Unlike with the opening I had actually seen a few other summations before, but there did not seem like there was anything here to get a jury whipped up about.  And, I generally knew I had to remind the jury what they had heard and persuade them to give me a verdict after the judge instructed them on the law.  Don, whose comments sometimes now grace this blog, had just started with the firm and was in the courtroom. He later told me I was so befuddled I reminded him of the television character Columbo - NOT WHAT YOU WANT TO HEAR AFTER YOUR FIRST TRIAL!  But, I'm sure he was right. I couldn't find any of the documents admitted into evidence that were laid out behind me on the table to show to the jury without rifling through them like a Woody Allen character on a first date and for some reason I kept slapping my forehead, as in "Oh, I almost forgot." (I guess that may have brought on the Columbo reference.) I'm not exaggerating this.  I was really bad.

Roy, the juror who didn't like me, had frowned the whole trial and was sitting in the front row right in front of where I was standing to sum up. Almost every juror I have ever had stares blankly during the case to show their dedication to impartiality. But Roy was glaring at me like I had showed up to his wedding in lederhosen with a pinwheel hat on my head and carrying a hog under my arm.  I finally read to the jury what the defendant's own expert had said.  I could tell with a glance that Bob and the judge were surprised. They really hadn't been paying attention when it happened. I started to finish up, to tell the jury the terrible ordeal my client had suffered (it was really nothing). Would any of it matter?  It really was a silly case.

And then something amazing happened that taught me forever that you really just never know with who you pick for the jury.  Roy stopped glaring at me for a second and a tear formed in his eye and trickled down his face. What?  I kept going, haphazardly I'm sure, and finished with a humiliating statement that must have been plenty obvious to the jury, and which Oscar had instructed me to say, because you can only get away with it once - I said it was my first jury trial.

After the judge did his thing the jury went out. My clients, who had done okay on the stand, and were also not oblivious to my lack of legal sophistication, came up to me and said to me in a very heartfelt way that whatever happened, they thought I did a fantastic job and given it my all. I really appreciated it. Bad as I was, I had done exactly that - given it whatever I could.  

The judge and Bob were talking, literally wondering out loud why it was taking the jury so long to come back with the defense verdict. Well, they had been nice, but I guess I couldn't ask them to make believe for my clients' sake. It was almost certainly going to be a defense verdict and we all knew it. Even if I had some facts and testimony on my side, what had happened was so de minimis, I was almost worried the jury would give the dentist money for wasting his time (not that was an option for them).

You sit there and you go over what you did and what went wrong and what could have been better. Did I come across sincere? I hoped so, but you don't really know what other people are thinking anymore than I knew what Roy was thinking.

Finally, the jury came back. It seems like it takes forever for the foreperson to give the judge the note, for the judge and the clerk to read it, and then to give it back to the foreperson so the clerk can ask him to answer the questions. In order to break the tension I always pre-mark on my verdict sheet the answers which mean I lost so if it happens, it's as if I already knew it. I'm not saying that is all that rational but it does seem to work a little.  Now, the clerk asked the foreman if the defendant had committed malpractice and the foreman said "Yes." He asked him if it was the proximate cause of my client's injuries (laughable) and he said again "Yes."  I was elated but dumbstruck at the same time. I had won. 

The clerk asked for the amount of damages and the foreman said "Five thousand dollars." I was green, but I wasn't an idiot. I knew that had to be one of the smallest verdicts the court had ever seen since I had been practicing anyway.  But, it was probably $4000 or so more than my client should have gotten in the real world. At least it paid our expenses and left a little over.

So, all's well that ends well, right. I went back to my office. We were all so sure I was going to lose that the head secretary, who was about 20 years older than me, had jokingly said that if I won I could fondle her heaving breasts.  I called her into my office when I came in and after doing the requisite sad face, told her the bad news for her. I didn't really touch her but made believe for a second or two that I intended to collect, just for the laugh. Then I told the office and they were appropriately gleeful.  

It wasn't much of a victory but a win is a win. I did lose my very next case I tried though I was much better that time and had even gotten a compliment from the judge after it was over.  I had been feeling sure I was going to win, so he also told me that I was the only one in the courtroom who didn't realize what a liar my client was. Okay, you do talk yourself into believing in your client because, within reason, it's your job and also human nature.  

But that would be a month or so later. As for now I was 26 and had just won my first jury trial. I have known some attorneys who lost their first case and have trouble trying another; sometimes they never do but have successful careers anyway. I didn't have to go through that challenge and I'm grateful.   

Oh, they'll be more of this autobiographical stuff next year when it is 30 years. 30 years. Yikes!

Partisanship and the Justice

Was Justice Roberts’ joining with his liberal brethren in the healthcare case a decision born of political ambition or political courage? Conservative partisans have leaped upon Justice Roberts for writing the majority opinion, finding the requirement that adults either purchase or have healthcare or pay a sum to the IRS to be a constitutional tax, yet, at the same time, finding that it is not a “tax” for purposes of the Anti-Injunction Act which would have prevented any suit until a tax was paid (not until 2014).

Even if I am the only one in America who disagrees with him but still wants to defend him, I will do so gladly, because much more than many a wrong decision that a judge can make, I deplore the reflexes of partisanship shared by both sides of the ideological spectrum which are dominated by character assassination and demonization, whenever someone makes what they believe is a principled decision not in accord with their usual fellows of like mind. 

Many conservatives believe that his decision stems from ulterior motives to impress liberal journalists, or increase respect for the court, or his lack of character in seeking to be more important.  I have myself occasionally wondered if Roberts was ever discouraged that his court was so dominated by Justice Kennedy’s swing vote and if he might desire to somehow make himself more relevant. But Roberts, whose intelligence no one doubts, had to know that his decision would make him no one’s hero, but a large target for conservative partisans. He’s just not dumb enough to think that they would love him for his independence. Sure enough, he’s been attacked relentlessly. Just as examples, Michael Gerson wrote that his decision “was an act of judicial arrogance.” Pat Buchanan wrote that he “does not want Anthony Kennedy, the swing justice, to be making history, while he is seen as a predictable conservative vote.” Byron York wrote that he “wanted to uphold Obamacare, even if it meant venturing deep into the forbidden land of the sophists.” There are many more.

Personally, I admire it when a politician or a judge makes a decision that goes against his or her own political side, even if I think they are mistaken. Going against their own side takes courage because they know their friends are going to be ever so mad at them; madder than they'd even be at their actual political opponents. And, it may be true that Justice Roberts changed his mind while considering the case, as reported by a CBS reporter (on the word of two witnesses from within the court itself - justices?). But, a justice changing their mind is hardly rare. Besides, when has anyone ever cared that someone else changes their mind when they now are in agreement with them?

For many partisans on the left or right (and that includes many if not most of my good friends and family) not “going against the family” seems more important than most anything else. Almost anytime one of their clan goes along with the “enemy,” they attribute it to some character flaw or nefarious desire. Liberals did it with Lieberman, conservatives with McCain, both of whom acted out of principle. Both sides have alternatively raged against Specter, who completely changed sides twice for political advantage. I can't say I admire him for his purely political act, but I did enjoy it, as the harm that partisan politicians do is far worse than anyone who merely changes sides. If you are partisan, and reading this, you probably disagree. You think it is only the other guys who do that and that your team was genuinely stabbed in the back. In fact, you might even disagree that you are partisan - you are just right about the other side being evil. But, that is why you are partisan. Your glasses are either red or blue colored.

The idea that the “mandate” is constitutional under congress’s taxing power is hardly revolutionary, even if wrong. The court itself went so far as to hire an attorney to argue that the mandate was a tax as both sides had argued it wasn’t for their own litigation purposes (although the government said it both was and wasn’t a tax, depending on the issue). In fact, the Fourth Circuit had already ruled that the Anti-Injunction Act applied. Justice Roberts reasoned that since both the Affordable Care Act and the Anti-Injunction Act are creatures of congress, it can determine how the two interact, and that while it had the power to make this law under its taxing power, it did not intend the Anti-Injunction Act to apply when it did not call the mandate a “tax.” Justice Scalia’s dissent called this “judicial wizardry,” and I somewhat agree with him, but stop short of his use of “sophistry,” which implies intent to deceive.

Justice Roberts may have been wrong in his decision, but I trust that he meant to be right.  I seriously doubt hes will turn out to be the third coming of Justices Blackman or Souter, as has been suggested, and regularly join his colleagues on the left in hotly disputed cases. His old boss, the very conservative Chief Justice Rehnquist once wrote the opinion in a case that upheld Miranda, an interpretation that the right hates. He did so mostly because it had been around for a while and everyone, including the police, were used to it. Not much of a constitutional argument. At that point though, his credentials were so thoroughly vetted, no one bothered to suggest that he was not conservative enough. This decision probably came to early in Justice Roberts' career for that to happen. Ironically, though Justice Kennedy more often sides with the left, the right is so used to it, they don't often react with this kind of vindicativeness against him. Partisans are rarely fair. But, until now, Roberts has been seen as extremely conservative by the left and I expect he will again.

I did not agree with his decision and I don't like the Affordable Care Act for many reasons (as much because I believe it will have the opposite affect on healthcare costs than which are intended than for its unconstitutionality). It is hard for us to acknowledge, at least not without an effort, that someone might disagree with us for rational reasons. But after a little reflection, I have no problem believing he thought he was right. We might all reflect on times in our own lives we have been accused of making decisions for reasons other than what we claim, almost always by those who don’t like our decision. I don’t like it much and I doubt anyone does. If there is any lack of integrity, it is more likely to be found on the part of those who attack his character simply because they disagree with him on a case that is important to them, regardless of whether they are on the right or the left. Character assassination is the hallmark of partisanship. In the long run, that political reflex is more dangerous to us than a bad decision.

In my opinion, you could argue this was a tax or a penalty with some justification. But, judges have to make judgments and usually don't have the luxury of saying, I can't tell. If this was a tax, though, it was direct tax (which Justice Roberts denied for what I think faulty reasons). And, as such, it needs to be apportioned by state pursuant to Art. 1, Sec. 3 of the Constitution. It isn't and is therefore unconstitutional.  I agree with Justice Roberts and the other members of the usual conservative majority that the mandate to purchase insurance is too far to justify under even the expanded interpretation of the Commerce Clause, past even that of the controversial Wickard v. Filburn case. I would agree with Justice Thomas that the “affects interstate commerce” interpretation of the Commerce Clause should be thrown out, but we have a system of precedent and they are not likely to ever do that short of a Constitutional Convention that no one wants to see (if the other side gets to propose changes too).