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Thursday, June 09, 2011

Fools, lawyers, and Johnny Reid Edwards

Slate's Brian Palmer asks, in his "Ask the Explainer" column, If John Edwards Were To Represent Himself, Would He Have a Fool for a Client? And then Palmer spends some 600-odd words to say "maybe yes, maybe no." For example:

As with so much in the world of lawyering, there are arguments for and against attorneys representing themselves, but little data.

If you ever are in serious need of a lawyer, may a merciful God spare you from one who bases your defense on "data" in the sense that Palmer means that word.

John Edwards en route to initial court appearanceI will admit that it would be absolutely in character for John Edwards to try to represent himself — except that he has never shown an ounce of courage in connection with this affair. The kind of guts it takes to argue to a jury on behalf of a personal injury client* is nothing compared to the kind of guts the same lawyer would need to represent himself in a criminal case like this. That's why I think he not only won't represent himself, but he'll plead out even if it means jail time. (He'll be looking for the comparatively light, safe, friendly, and shower-monitored confines of one of the nicest federal pokeys, and he might get that.)

But let me give a much shorter, much wiser, and much more unequivocal answer to Palmer's question:

Yes!

With due respect to Palmer and anyone he consulted, every pro-self representation argument Palmer mentions is trivial, and laughably so, compared to the monumental detriment Edwards would incur from losing the specialized experience and, especially, objectivity of a seasoned criminal defense lawyer. It is not a close call. 

And Palmer underestimates — massively — the degree of difference between a civil personal injury law practice in the state courts and the defense of a criminal election-law finance prosecution in federal court. Not only would the lawyer have a fool for a client, he would be committing obvious malpractice on behalf of the fool. And I say this as someone who's had at least as much civil trial experience as Edwards himself, although I don't have anything like his personal fortune to show for it. I keep a carefully considered criminal defense lawyer (and good friend) on my speed-dial at all times, and I'd frankly advise anyone who thinks he or she has much to lose from a criminal prosecution, and everyone who ever is likely to be within six feet of an alcoholic beverage within 12 hours of driving, do the same. It costs you nothing to be prepared, and the most valuable words in the English language may be "I decline to answer until I've had advice from legal counsel, may I please contact counsel now?" — even if you are innocent as the driven snow.

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* Arguing for a personal injury plaintiff is, by the way, something which I've had occasions to do myself, although much less often than I've been on the defense side. But it's something for which I have a healthy respect when it's done well and ethically. I'm not passing judgment here on whether Edwards' past arguments meet that standard, and I would never presume to do so without, at a minimum, reading the full trial transcripts of his past cases. Those who would, without investigation, jump to conclusions about Edwards' record as a practicing lawyer may be showing insufficient respect to North Carolina defense lawyers, jurors, and trial and appellate judges. I despise the guy, but don't quote me snippets about channeling spirits of departed children or whatever during closing argument. He may have done over-the-top things that you guess the jury bought when it shouldn't have, when in fact it was something else entirely that resulted in the jury's decision; they might even have agreed with you about Edwards. My point is that I don't know, and I doubt you do either. By contrast, I'm confident that I have an ample basis to support my opinions of Edwards as a husband, a man, and a so-called public servant.

Posted by Beldar at 05:23 AM in Law (2011), SCOTUS & federal courts | Permalink

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Comments

(1) Beldar made the following comment | Jun 9, 2011 6:27:10 AM | Permalink

It occurs to me, belatedly, that "Fools, lawyers, and Silky Ponies who are both" would have been a better title for this post. But that's just the early-morning snark in me talking.

(2) The Drill SGT made the following comment | Jun 9, 2011 10:51:28 AM | Permalink

I keep a carefully considered criminal defense lawyer (and good friend) on my speed-dial at all times, and I'd frankly advise anyone who thinks he or she has much to lose from a criminal prosecution, and everyone who ever is likely to be within six feet of an alcoholic beverage within 12 hours of driving, do the same. It costs you nothing to be prepared, and the most valuable words in the English language may be "I decline to answer until I've had advice from legal counsel, may I please contact counsel now?" — even if you are innocent as the driven snow.

I'm not rich enough or in trouble enough to know any criminal defense lawyers. However whenever my wife (a contracts attorney) go somewhere alcohol is being concerned I always drive home (also body mass advantage as well). Though she doesn't know criminal law either, we consider that it would be very hard for the police to ignore her, when I point and say, "that's my attorney, I wish to make no statements.".

On the other hand, a former Commanding Officer, (in Texas, BTW), took a different approach. He always let his wife drive home. his view:, "We can afford to pay her fine, we can't afford to find me a new career (1 wage earner, 5 kids)"

(3) Gregory Koster made the following comment | Jun 9, 2011 2:56:56 PM | Permalink

Dear Mr. Dyer: I have a limited disagreement with you. Edwards would do well to rep himself provided Brian Palmer was prosecuting the case...Your point about the complexity of the trouble Edwards is in versus the trouble the typical pro se defendant is in does the trick.

On a related question: like you I detest Edwards, but not to the point where I think he should be prosecuted for campaign finance law violations. This prosecution seems quite a stretch to me, the more so since the optics are bad (the US Attorney running the case is a Geo. W. holdover.) If Edwards should be prosecuted, let it be for that phony "poverty center" he set up at the University of North Carolina. Plenty of money ran through that organization that stuck to Edwards. I should think the IRS would have plenty to sniff around there.

The answer to this shameful business should have been the press exposing Edwards's shenanigans. That it didn't shows how corrupt and bigoted our journalists are.

I think you are right about having the number and possibly retaaining in advance a good criminal lawyer. Should you ever feel the urge, why not write a post "How to choose the lawyer for you." I ask this favor as I've frequently been asked this question while working as a public librarian. The yellow pages and Martindale-Hubbell don't seem completely adequate to me. Hugh Hewitt spoke about this on his show once, but his advice has vanished behind the Hughniverse pay wall. Certainly if you are in the jug, the time and capacity for reserch is limited just when you need it most. Give this request some though. Naturally, I don't mean you provide everyone with names. Instead:

a) who and where to ask
b) what you should be looking for
c) can you hire one lawyer to find you another lawyer (that was what Hewitt suggested, if memory servies.)

Give this request some thought.

Sincerely yours,
Gregory Koster

(4) Beldar made the following comment | Jun 9, 2011 3:12:18 PM | Permalink

Drill Sgt. (#2), those are good points. But I'd advise against naming your spouse as your lawyer if you're in the driver seat and she's in the passenger seat. Even if she were the criminal defense lawyer you'd want, she couldn't possibly give you the objectivity you'd need, and in some ways you're actually better off being without counsel (but with mouth firmly shut) than you'd be with counsel who's not familiar already with the roller coaster you're about to ride, or with counsel who's not able to ride it with you to the getting-off point (sorta, metaphorically anyway). I also agree with your CO's take: Not everyone is equally at risk, and some have way more to lose than others. Your CO is engaging in prudent risk mitigation and management.

Mr. Koster (#3), your suggestion is a fine one, and I'll give some thought to a post with some recommendations on finding lawyers. A short answer, though, is that it's very often an excellent and economical plan to enlist a lawyer whom you trust, even if she/he isn't qualified to handle this particular matter, to in turn help you find someone whom you may also trust and who is qualified. Several of the recommendations I'd likely make would be variations on that theme.

As it happens, I've been hired on several occasions by regular clients who wanted me to represent them, but who I had to turn down because of taste issues (short of a formal conflict of interest), and for whom I've then agreed to represent them on a limited basis to conduct talent searches and beauty pageants. This has included extremely sophisticated corporate clients, sometimes when they're part of a group of similarly situated companies who want to share counsel, but none of whom wants the others to have "their regular team."

Being the lawyer advising clients on the hiring lawyers is a fascinating variation on my normal practice of law, and on a couple of occasions it's made me feel like the prettiest girl at the dance, arranging everyone else's dance card after spraining an ankle.

The overwhelming number of referrals I've made, however, have not involved any payment to me by the person looking for counsel, nor any referral fee or fee splitting between me and whoever ultimately gets hired. Most lawyers I know view making referrals and recommendations as part of the inherent public service duty which attends the privilege of bar membership, and if we can put someone in touch with the "right" lawyer, that's ample reward in itself.

As for the charges against Edwards: I'm not a particular fan of the election laws under which he's been charged. But I don't disagree that as those laws are written, they should and do cover (and criminalize) the conduct he's been alleged to have engaged in. Campaign finance laws keyed to disclosure, in particular (as opposed to heavy-handed and inevitably unsuccessful attempts to actually channel or block money), are more likely to survive constitutional challenge. And as will be said again and again if Edwards exercises his rights to a jury trial: "It's not the crime, it's the cover-up." That's not exactly true here, but it's close enough to Edwards' situation to be a non-silly observation. If he'd disclosed the ~$1 million in "gifts," he'd be in a substantially better position now. But then again, the campaign forms don't have a line item for "Mistress Money" in between "make-up" and "moonshine" — and we all know every campaign spends lots on those items.

(5) The Drill SGT made the following comment | Jun 9, 2011 7:14:55 PM | Permalink

Beldar,

I wasn't implying that I was going to keep her as my counsel much farther than the county jail... My point is that by initially announcing that she was my counsel, it keeps her from getting the "why don't you just stand over there little lady and let us handle this". She would be able to provide advice and be a witness through the process. And do the "my client does not wish to make a statement. I demand to be there when you interview him". swapping her out ASAP of course.

(6) Beldar made the following comment | Jun 10, 2011 10:39:07 AM | Permalink

Drill Sgt (#5), I didn't make my point very clearly. You're worse off with "temporary counsel" than with no counsel at all.

No one needs a lawyer to assert his/her right to remain silent. Her saying it is no more powerful than your saying it, or your simply refusing to say anything at all.

And other things that they might coerce or persuade you into doing when she's present, even as your temporary counsel, you might lose your right to challenge because her presence will actually imply some sort of waiver.

Just having someone who's got a bar card is no help, is what I'm saying. And someone with a bar card who doesn't know how to help -- and I don't, myself! -- is worse than having no one at all.

She can be a witness without being your lawyer.

(7) Norman Rogers made the following comment | Jun 13, 2011 11:30:53 AM | Permalink

Dear Beldar,

Yes and no -- and I'll explain.

There really are many, many times when it's more profitable to represent yourself -- typically in long term civil litigation with lots of motion practice -- if the other side is hemorrhaging cash and you're competent at what you're offering.

But, you never ,ever want to represent yourself in a criminal matter because you cannot separate fact from argumentation. If words come out of your mouth -- THEY'RE FACTS! If a lawyer speaks them, they're arguments.

(8) Beldar made the following comment | Jun 13, 2011 11:40:33 AM | Permalink

Mr. Rogers (#7): Your point is a very good one. Individuals make decisions, take positions, negotiate, and argue on civil matters constantly as a part of daily life. Lawyers and laymen alike constantly represent themselves in transactions that have civil-law ramifications. The stakes and the economics are different, and the prospects of jail typically extremely remote.

Even in civil litigation, however, there are huge risks from the lack of independent judgment that's inherent in self-representation. In serious civil litigation, and sometimes even in other serious civil contexts, it's quite possible that the self-representing lawyer may still have a fool for a client.

(9) Michael Brophy made the following comment | Jun 18, 2011 9:50:34 PM | Permalink

One effect of Mr. Edwards lawyering in his state was, if I recall correctly to drive the rate of C-sections to 12% of births. He was able to convince people that cerebral palsy was the result of inadequate oxygenation which could have bee prevented by a C-section. Sigmund Freud in his early years as a neurologist wrote that the poor breathing of infants who would later show cerebral pasly may have been due to a neurological problem which underlay both the poor breathing and the later evident cerebral palsy. The neonatal brain is not as near dependent on oxidative metabolism as it wil be later in life. The American College of Obstetricians has said that the practice of doing C-sections to avoid this outcome is in error and that a rate of C-sections of 12% is an excess of what likely should be medically useful. Once a woman has a C-section she can safely have maybe have 2-3 more pregnancies. His lawyering has been destructive to the health and economics of the population.

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