Comments on: 11. Be (intellectually) honest

By: Kathleen

Kathleen — Sun, 14 Dec 2008 21:45:32 +0000

The transcript shows that the justices put it on the table, to coin a phrase, with their first question, through Justice Stevens: “…Do you agree that the evidence shows that this evidence was deliberately suppressed?” This is a question that the attorney and her handlers should have foreseen. “Our position is that it does not, but I see how it appears that way,” may have been a good answer.

BUT they would have gone after her with hammer and tongs anyway, which is foreseeable. This wanted a very frank discussion before the argument with her collegues who were probably in love with their case. Anyway the best answer was “Yes.”

And back home attorney Smith could shrug and say, “they put it on the table. So fire me. My integrity is important. To me!”

By: Kate

Kate — Sat, 13 Dec 2008 02:20:33 +0000

And this is why we should have more oral advocacy skills classes in law school.

By: Kathleen

Kathleen — Fri, 12 Dec 2008 16:53:28 +0000

Admitting problems with the case up front is what appellate judges expect us to do.

By: Gideon

Gideon — Fri, 12 Dec 2008 05:28:43 +0000

Well, we’ve all certainly been in the position where we’ve had to defend a position we’re uncomfortable with. It certainly gets more difficult to toss the script before SCOTUS.

By: Kathleen

Kathleen — Thu, 11 Dec 2008 19:09:10 +0000

Great post Gid. I disagree with your conclusion. The resistance is not only institutional, but also personal. Think it through. Attorney Smith had options. She does not have to play every deck that the institution hands her. She could have handed it back, and said “I’m not going in there to get hosed.” Or she could have taken the deck, and, at the podium, stood on her integrity.

That would have meant keeping the thought to herself, and the plan to toss the script, wouldn’t it?

By: S.cotus

S.cotus — Thu, 11 Dec 2008 17:51:10 +0000

At the County Courthouse, reputation of a given attorney is MORE important, as the attorneys will appear again and again, and even if they go on to another job they will still be in the same bar.

At the Supreme Court, even now, with lawyers like Goldstein, most lawyers do not have a long-held reputation before the court for honesty or dishonesty. There just isn’t the caseload.

What the above case demonstrates, IMHO, is not personal honesty or dishonesty, but rather the nature of representing an institutional client. Once the line prosecutor lost control of the case, it started being about the institution’s interests, rather than that prosecutor’s credibility.

By: Sharon

Sharon — Thu, 11 Dec 2008 15:49:51 +0000

Putting the problems w/the case up front and confronting them shows honesty. It says “yeah, there are problems and I know they are there so here is what I’ve done with them and what I’m doing to address them.”

Hello, its SCOTUS. This isn’t the County Courthouse.

Sometimes smarts don’t translate to common sense.

By: Gideon

Gideon — Thu, 11 Dec 2008 15:33:28 +0000

Yeah, it’s pretty bad. Although Tom Goldstein, representing Petitioner, didn’t fare that much better. He was getting some harsh questions, too, but at least he wasn’t intellectually dishonest. He put the problems with his case up front and confronted them.

By: Sharon

Sharon — Thu, 11 Dec 2008 06:42:12 +0000

Being dressed down is one thing, having it done by SCOTUS is a new ballgame. My guess is that she’s not done this only once but several times. How she managed to get to SCOTUS and do it is beyond my comprehension.

And here I thought getting a new body cavity chewed by my manager was a bad day. Wow. She’s raised the bar for all of humanity.