Friday, July 3, 2009


Here is some more useless drivel about the (redacted), (redacted) work I am doing. Enjoy if you can.

During the past two weeks, I watched nearly every minute of a rather extensive trial involving two defendants who allegedly smuggled illegal aliens. The trial was a bit of a soap opera and veered close to (redacted) on a couple of occasions. I think it is likely that (redacted), but when it came down to the verdict both defendants were convicted of all three counts of alien smuggling. The most interesting part of the trial was the defense that was being put forward by the defendants. They did not deny that what they did was illegal or that they were the ones doing it, but their defense was that they thought they were working “deep undercover” for law enforcement. I do not know what they really believed or if this was just a defense created from desperation when they knew they were in trouble, but that uncertainty is what was most interesting to me. I firmly believe that the adversarial process is the best way to actually figure out the facts of what happened, but when it comes to beliefs or intent, we must admit that we can never enter the head of another person. As a prosecutor or defense attorney, you have to believe in your case in order to zealously advocate for it, but I often wonder if lawyers who are fighting to win at trial can even allow themselves to truly consider whether the other side is in the right. Can they allow themselves to wonder at all? Any good lawyer knows it is imperative to consider the weaknesses of his or her case, but my point is about whether one can really take the step of considering whether the other party may deserve to win.


Ultimately, I am comfortable with the fact that even if I were a juror for that trial, I would not have really known what those defendants were thinking or what they believed. However, the jury instructions required a reasonable belief, and I do not think it was reasonable for those defendants to believe they were working for law enforcement when they had never talked to any real law enforcement officers. I think the jury got it right. A lot of resources and a lot of time was spent, but the American legal system delivered what appears to be a just outcome after a fair process. Clearly, our system of justice is not perfect; it just seems better than anything else one could imagine.

Despite one’s feelings about our justice system, there is no doubt that it is rife with complexity, which is a topic I have been thinking about a lot lately. While the jury instructions for the trial were presented in what appears to be layman’s terms, it seems that the defense attorneys in their closing arguments did their best to muddy the waters and possibly even confuse the jury. While I do not impugn their efforts and understand their duties to their clients, it seems that the defense attorneys made what the jury had to consider seem more complex and daunting than it really was. And some of the questions given to the judge by the jury during its deliberations showed that it was getting a little confused as to what the instructions meant. Our American method for resolving disputes, which I was as recently as the previous paragraph citing as the best possible system, shows itself to be more complex each day that I show up for work. The sheer amount of law and the amount of complexity within that law is staggering. While it may create some job security for lawyers (if you can get one first, that is!), I fear that the complexity that has been built into the system over time has made it impenetrable to anyone who is untrained (and even many who are). Recently, I have been working on a (redacted) that was filed by a pro se plaintiff. The complaint is largely incomprehensible and does not follow any pleading conventions. It has been more difficult to write a (redacted) for such a complaint because it makes so little sense that I do not know where to start refuting it. I am not arguing that our system should be simple enough to allow anyone to file their own complaint. Such a system would be inefficient and unhelpful. However, my concern lies more with the public’s opinion of the legal system itself. Because of how complicated it is to do even seemingly simple things, the public sees lawyers as a malevolent force and comes to believe that the system is set up to take advantage of the unsophisticated. And sometimes those things are true.

I don’t have an answer. This is simply an observation (and not really that perceptive of one – it is akin to writing an entire paragraph about how it seems like the Pope might in fact be Catholic). But I sometimes feel that things are being made more complex in order to benefit certain groups at the expense of others. Today, while I was reading a case, I had to stop and laugh when the opinion drily stated (with no apparent sense of humor) that “in our circuit we do not use the common sense approach.” And I felt that such a sentence could be included in hundreds of opinions every day. Common sense is not the answer to all of our prayers. And some people would not like my version of common sense, and I would abhor theirs. My answer – which I hope is better than my observations – is to always focus on the fact that as a lawyer the goal is to help people navigate this complexity that has developed and to help them feel as though they are guiding their own ship. I hope I never reach a point where I feel it is wasteful or unnecessary to explain – in understandable terms – what decision the client needs to make and what factors impact that decision. It remains their decision – even if they need me to explain what it is they need to decide. To me, that is the job of being a lawyer and that is the way to help the client. Yes, it is advocating and advising, but I think in the end it is about explaining.

And after explaining, there is of course listening and actually doing what the client wants. But I will have to save that for a couple of weeks from now. That is enough of my observations and theories.