September 1999

Letters

Editor:

What's black and brown and looks good on a lawyer? A Doberman. What do you have when you've got 10,000 lawyers at the bottom of the ocean? A good start. What's the difference between a dead lawyer in the road and a dead skunk in the road? There are skid marks in front of the skunk.

In his article on lawyer-bashing ["The Lawyer as Hero: A Pride of Lions, a Justice of Lawyers," Bar News, June 1999, p. 24], Randolph Gordon points out that lawyer jokes, if directed at ethnic or religious groups, would be considered highly offensive. That's certainly true. What I find fascinating, however, is that many lawyer jokes seem to have started out as ethnic or religious slurs.

On many occasions, I've heard a lawyer joke, like the ones above, that is familiar because I first heard it in elementary school as a racist taunt — with the target, of course, being African Americans rather than lawyers. And I don't need to tell you what word replaced "lawyers."

Strangely enough, I think this movement toward targeting lawyers may be a sign of progress. Lawyers are a minority — at least outside Washington, D.C. — but they aren't an oppressed, discrete, or insular ethnic or religious minority. As a result, they seem to have "absorbed" these taunts as our society has become (perhaps) a little less racist and close-minded and (certainly) a little less openly racist and close-minded.

When I identify myself as an attorney, and then hear the inevitable lawyer joke, I try to concentrate on the fact that I'm absorbing some of the societal venom that used to be directed at religious and ethnic minorities. That's not much comfort, to be sure, but at least it's an optimistic approach.

Meanwhile, I'm slowly building up a collection of jokes about real estate agents.

Editor:

I have been reading the recent articles on professionalism and civility. Allow me to share the following with others, so lawyers who may have experienced similar problems will see they are not alone. Hopefully, those engaging in such rudeness will re-think their behavior.

I have been practicing law for four years. The first year I practiced I worked in an Olympia law firm, a very good firm with respected and professional partners. I was working in the area I had dreamed of practicing in — labor law. One of my first cases involved a wage claim by a former Oak Harbor employee. The opposing counsel was well-known and had

many years of experience. I eagerly investigated the case, filed the complaint and waited for an answer. Twenty days passed — no answer. I went to my supervising partner for advice. "Call and remind opposing counsel." I called his office, no less than three times, and never received a return call. More time passed. I again went to the partner for advice. "Call again and tell him you will have to move for default if you don't get an answer." I called again, and still no return phone call. After 30 days I was told to set it for default and see if that generated an answer. I was also told that this lawyer was notorious for doing things only when he had to. I set the matter for default in the correct county, which was an hour's drive from Olympia. The matter was set on a Monday. On Friday at 4:30 p.m. I received a call from an associate in the firm asking if I would delay the proceeding. I did so for one week. The following Friday I again received a call asking for another delay. I said, "No, by the time I get to court it will have been 42 days since I filed the complaint. If I don't have the answer before I leave on Monday, I'm going to court."

Needless to say, I did not get an answer before I left Olympia. The opposing counsel filed an answer by fax at 9 a.m. while I was standing in court obtaining the default judgment. Being the ethical, nice person that I am, I kept checking in the Clerk's office to see if the answer had

been filed by fax. I even checked after I got the judgment. When I checked again after court, the filed answer was there. Being new to the practice of law, I wasn't sure how to proceed. It never occurred to me to go back and talk to the judge. This was, after all, my first time in court. I drove back to my office and asked my supervising partner what to do. I was told, "Well, there are two ways to handle it, but the outcome will be the same. The court will set aside the default because they don't like them. So, you can either agree to set it aside or make the opposing counsel move

to have it set aside." Since it seemed pointless to go back to court, an hour away, I was prepared to agree to have it set aside. I then received a phone call from the opposing counsel, who immediately burst into a tirade. He called me sneaky and unethical, implying I had gone behind his

back to get the judgment. He told me if I continued to practice this way my reputation as a lawyer would be mud. He even swore at me. Then after all this yelling he calmly asked if I would agree to set aside the default. I simply replied, "No." He didn't deserve the courtesy, since he was showing none to me.

I filed an affidavit with my reply to his motion, explaining the unreturned phone calls, the last minute request for delay, and my discovery of the filed answer after I obtained the judgment. We went to court,

where this attorney implied to the judge that I had been unethical. He used my honesty against me and implied that I knew about the answer and got the judgment anyway. I was stunned, shocked and speechless. The judge asked me why I hadn't come back into court with my discovery. Speechless, I didn't know how to tell him I was new, didn't know how to proceed, needed advice, and had never been in court before. I could not believe that I had followed all the rules, been honest, and was being called on the carpet. The judgment was set aside. I drove back to Olympia determined to quit the practice of law. I was disappointed that a system of rules didn't follow its own rules. I was disillusioned that a fellow attorney could be so despicable.

I didn't quit. I garnered much from my first legal experience — all of it bad. I learned that honesty is not always rewarded in the law, and that there are lawyers who are lazy and shift the blame for their inadequacies to others. I discovered that lawyers who should be mentoring and teaching young lawyers sometimes fail in that area.

Now, four years later, I have met many attorneys like my first opposing counsel. I have had my integrity called into question by attorneys who think they somehow gain the upper hand when they malign opposing counsel. It no longer shocks or stuns me. It just disappoints. The law is a system of rules designed to bring order, civility and justice to a society. When lawyers sink to unprofessional behavior and when they yell at opposing counsel, they denigrate the system which I hold in high esteem. I refuse to allow myself to sink so low. I will continue to zealously advocate for my clients in my own nice, honest way. I disagree that civility codes are an effort by some to squelch the voice of the different. Civility and professionalism don't recognize class. These concepts do not belong to the rich and privileged. They belong to every person on the planet. All people deserve to be treated with respect and dignity. Do we need a code? I don't think so. Be civil and professional even when faced with conduct that shocks and stuns. It will wear off on those around you. In the end, legal cases are won or lost on the merits, not on who yells the loudest. And, in case you are curious, my client eventually prevailed and I never raised my voice.

Editor:

Tom Stahl's recent letter to the editor [Bar News, July 1999, p.12] advocating the principle of jury nullification raises interesting questions. That principle allows juries to decide the law as well as the facts. It is most often cited in support of nullifying unpopular laws, and certainly in a few isolated but notable cases, nullifying juries have altered the course of our nation's history, perhaps for the better. However, in other cases, juries governed by passion or prejudice have repudiated the law in convicting innocent defendants because of their religion, skin color or ethnicity. Jury nullification, once unleashed, will be hard to keep on the path of righteousness.

To be intellectually honest, if we embrace jury nullification we must do so without qualification. The consequences of that choice are enormous. Imagine a criminal justice system in which, as Mr. Stahl suggests, juries were truly allowed greater latitude "to hear all of the evidence." Confessions and evidence seized in violation of our constitutional rights would be routinely admitted at trial. The exclusionary rule would lose most, if not all, of its ameliorative effect. Is that what Mr. Stahl and other advocates of jury nullification envision?

As a prosecutor, I have reservations about the sweep of the exclusionary rule as applied in our courts today, but I am not yet ready for the courts to abdicate their role in determining the law in favor of piecemeal interpretation of the constitution by juries in individual cases. The law derives much of its force (and acceptance) through its devotion to precedence and consistency. Jury nullification is the antithesis of those virtues. It is the misguided elevation of "popular justice" above settled principles of law, evolved in a variety of contexts over the generations by our elected representatives and learned jurists, entrusted by the people with the solemn responsibility of establishing the rules by which we live and judge the conduct of others. Jury nullification can only work to undermine confidence in our system of justice.

The rule of law and jury nullification are inherently incompatible. To choose one is to forsake the other. I vote for the rule of law, warts and all.William H. Redkey, Jr.
Seattle

Readers are invited to submit letters of reasonable length to the editor. They should be typed on letterhead, signed and, if possible, also provided on disk in any conventional format. Letters may also be sent via e-mail to comm@wsba.org. Due date is the 10th of the month for the second issue following. The editor reserves the right to select excerpts for publication or edit them as may be appropriate. Signatures in excess of three names will be printed only in exceptional circumstances, at the sole discretion of the editor.

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