Chapter 13
Lawyers and the Adversary Process
Intro
Define "adversary process"
Duty of loyalty to client
Rule 1.6 Duty of confidentiality
Rule 1.7. Avoid conflict of interests
Role of judge
Advantages and disadvantages
13.1 Ethics of Advocacy, Curtis
Compare role of lawyer to priest, doctor, or banker
Duty of loyalty to client
Government as client
Corporation as client
Private clients
Duty of loyalty to court?
Court enforces duty to the client
Examples
Client is fugitive from the law
What if client won't turn himself in
What if police ask if
What if family asks
Rule 1.6
Question
3,
What does society get from this?
Judge gets the facts wrong
Lawyer had docs, other side did not ask for them
Judge makes incorrect factual finding
What should lawyer do?
Contrast if judge makes factual finding
Rule 3.3. Duty of candor to the court
Purposes beyond seeking truth
Loser needs to believe got best shot
Justice vs. truth
Lawyers' job
Something to prove
Colors the review of documents, witness interviews, legal research
Role of settlements
Persuading yourself
Do you know if case is bad until the ruling?
Ethics of taking a bad case
Difference between morality for self and ethics of advocacy
Stoics vs. Christianity
Stoic: Service to brethren, not concern
Willing to endure any hardship, but for duty, not love
Is it all a game?
13.2 Fight Theory v. Truth Theory, Frank
To make rational decisions, court must have all the relevant evidence
Does court get all the relevant evidence?
One view, when both sides fight for their side, all important facts come out
Lawyers hide evidence
Lawyers have techniques to minimize damage, maximize advantage
Witnesses intimidated by situation
Different attitudes on direct exam and cross exam
Techniques, like rapid cross, to discredit witness
Playing on personalities, egotistical, control freaks
Witness preparation
How to answer
Demeanor
Use of surprise tactics
Trial practice guides are full of tips on how to do this
Court is not private, it has the government's and society's backing
13.3
The Criminal Lawyer's Different
Facts, from victim
V was returning home from work in early morning hours
D took her at gunpoint, took a watch from her wrist
He took her to vacant lot, told her to take off clothes
Ground hurt her, so she asked to go to his place
He raped her in the apartment
D said they had to leave to avoid being seen by D's girlfriend
V waited around to try to get watch back, but never got it back
Facts, from defendant
He said he had nothing to do with it
He had never seen woman before
He
visited his aunt earlier, then went to a bar in
Could not have sex due to gunshot wound
Lawyer's investigation
Some of V's story does not make sense, but how would she know so much about D and D's apartment if she had not been there
Thought D was lying
Why? No advantage, or might hurt cause in court
What if consent? Problem with girlfriend?
Asked D again, what happened? Even suggested "right" answers
Alibis did not check out
D says aunt will change story to correct time
D later admitted his guilt (note he says it does not matter)
Lawyer's Tactics
Disrupt state's case (Rule 3.1)
Preliminary hearing
V stuck to her story, and it looked credible
Case then goes on hold, NYC's system very slow
New tactics, after D said he did it
Mistaken identity
Consent (looks like the better defense, based on facts in V's story)
Should D testify? No way
Attack V's character? He decided not to, but maybe he should have
Rape
shield laws, (
Resolution
Court system was overwhelmed
State agreed to a weapons charge only
13.4 Nothing to do with justice
Martin Erdmann, Legal Aid defense attorney, early 70's
25 years, 100,000 criminals
Nothing about justice, just get best deal possible for client
Discuss the robbery case
2 guys accused of robbery
Guy was in jail for 10 months
If deal was one year, with good behavior, he walks
Has to admit he was guilty of something
Does not seem rational, went to mental hospital but they sent him back
Wants a trial to find out if he is guilty or not
By the time of trial, he would be out if he takes the deal
If goes to trial, faces 5-10 years in jail
Cynicism
Defendants are always "just finding" all kinds of things
Don't lower bail, you'll never see the defendants again
Guy has plea deal in place before lawyer knows what he looks like
One year for attempted rape of 4 year old girl
The client may lie as much as he wants
13.5 Rambo Litigation
You have to be a jerk
Gamesmanship and the adversarial model
NITA
Acting
Intimidation
Sometimes, you have to be mean to a hostile witness
Strategic friendliness
Sometimes being mean will get you in trouble