My Month of Many (well, three) Releases is nearing its end: my updated and slightly retitled nonfiction book, Closest to the Fire: A Guide to American Law and Lawyers, comes out on July 30, 2021. (What's retitled is the subtitle, which originally read A Writer's Guide to Law and Lawyers. The 2015 edition grew out of a series of blog posts about how to write about the law and get it right. It took me quite a while before I not only realized that the book could be of interest to a larger audience, but accepted that the subtitle was failing to alert that audience.)
This is a big brick of a book, in its paperback incarnation, and a long one as an ebook. A few excerpts amount to rather less than a drop in the bucket. But I'll try to pick a few that give some idea of the book's content and approach. Starting with . . .
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D. Defending the Guilty
As mentioned already, there’s one key fact you must understand about criminal defense work: most of a defense lawyer’s clients are guilty. If a law student somehow doesn’t learn as much before undertaking to represent criminal defendants, they will end up disillusioned in a hurry. And stories where an experienced defense attorney crumples in anguish and doubt because the defendant may be guilty are, in a word, ridiculous.
That isn’t to say that innocent people never get charged with crimes – unfortunately, they do. But that happens a good deal less often than the cops catching someone who’s guilty of at least some of the charges that end up being brought. As explained in 9.A., the plea bargaining dance frequently includes prosecutors tacking on a few dubious charges to intimidate the defendant and create some bargaining room. Why would anyone knowingly make a habit, and a business, of defending the guilty? There are several reasons, any of which could matter more or less to a particular lawyer: >> Even with all the plea bargaining, criminal defense work is likely to involve a fair number of trials. If trials are what get a lawyer’s blood pumping, they may choose criminal defense. >> There’s an unending supply of clients. Most of them don’t have “deep pockets,” but a sizable percentage will have some resources they can tap if the lawyer doesn’t charge too much. And in a county with overburdened public defenders (see 2.F. and 2.M.), the courts may regularly appoint private attorneys to represent criminal defendants, for a modest fee that’s still considerably better than nothing. >> There is, in fact, a place for idealism in criminal defense, but it’s about defending basic principles rather than defending lots of innocent individuals. If we value the idea that the government must prove a person guilty beyond a reasonable doubt (see 20.C.) before depriving that person of life, liberty, or property, someone needs to hold the state to that high standard in every single case. The accused must receive a zealous defense, not because they necessarily deserve it, but because we as a society — as well as the occasional completely innocent person charged with a crime — do deserve it. Such legal idealism can be severely tested when a defendant is generally believed guilty of a particularly horrific crime. Robert Redford's movie The Conspirator chronicles one such situation, although I can't attest to its historical accuracy. After President Lincoln's assassination, Mary Surratt, who owned the boardinghouse where the conspirators often met, was one of those arrested, in what may have been an attempt to lure her son John out of hiding. A young Northern Civil War veteran, Frederick Aiken, was appointed to defend Mary, and (according to the film) was much vilified for performing that duty, eventually losing his girlfriend as a result. (The movie, which I haven't seen, may also use the "lawyer appalled that client may be guilty" trope I criticized above, but at least it doesn't attribute such sentiments to an experienced criminal defense attorney.) A similar and more recent occurrence involved alleged terrorists detained at Guantanamo Bay in the years following the 9-11 attacks. Many attorneys from well-known law firms volunteered to represent the detainees pro bono (without charge). A senior Pentagon official publicly expressed his dismay and suggested that the law firms' corporate clients should boycott these firms. His comments generated an immediate and powerful backlash from prominent lawyers and legal professional associations, as well as some politicians — but whether any corporate CEOs followed this advice is unclear.
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That's a pretty serious topic, and the excerpt reflects the fact. So here's one very short piece that's lighter in tone.
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E. Pit Bulls and Puppies: Variations in Style
Many clients want an aggressive, take-no-prisoners attorney, particularly in litigation. There are some of those out there, but for quite a while, law school trial practice courses have discouraged that style as counterproductive. The client is usually better off with one of the many lawyers who speak softly and carry a sense of proportion and good people skills.
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More tomorrow!
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