Friday, July 31, 2009

66A Installment. Officer-of-the-court jurisprudence

Second in the Mark Brennan Series

Judge Robert E. Blackburn's complaint in the Mark Brennan disbarment case permits a glance at the jurisprudence grounding judges who seek to impose state-bar discipline for ordinary trial conduct. Judge Blackburn approvingly quoted the Polansky court ("Complainant's Response to Respondent's Motion To Dismiss"):

Too often a lawyer loses sight of his primary responsibility as an officer of the court. While he must provide "zealous advocacy" for his client's cause, we encourage this only as a means for achieving the court's ultimate goal, which is finding the truth.

(Polansky v. CNA Ins. Co. (1st Cir. 1988) 852 F.2d 626, 632.)

The Polansky court and Judge Blackburn express three opinions that are contrary to professional consensus: 1) A lawyer's primary responsibility is not to his client but to the court; 2) zealous advocacy is encouraged only as a means of reaching the court's goals; and 3) the court's ultimate goal is truth.

Usually, first-year torts classes dispose of the cartoonish view that the court's ultimate goal is truth. Many public-policy considerations having nothing to do with truth's pursuit drive civil procedure, but although the Polansky court and Judge Blackburn are outside the professional consensus, the consensus makes a dangerous concession in accepting that the adversarial element serves truth finding: truth emerging from conflict. Our legal system as a whole obviously doesn't subordinate all interests to truth finding, yet many lawyers believe adversarial procedures exist to promote truth. This view leads the consensus toward endorsing Polansky's conclusion, while rejecting its reasoning — leads to limiting legitimate adversarial conduct to what furthers truth finding; but truth finding isn't adversarial procedure's distinguishing function or its overarching purpose. In overall accuracy an inquisitorial system is inherently superior to an adversarial one: does anyone think that testimony from hired gun experts better informs a jury than neutral investigators chosen by an unbiased judge? A trade off of lower accuracy for less rights-violating injustice, adversarial procedure favors rights protection over truth finding. Rights protection, not truth finding, justifies adversarial process.

Judges who believe fealty to the court's truth-finding ideals outweighs loyalty to client will consider extraordinary loyalty as misconduct. These judges' naive moralism doesn't promote precision; the judge espousing an open-ended duty owed the court is subjective. A court holding an officer-of-the court jurisprudence will be dissatisfied for the same reason a client is unhappy: the lawyer's limited zeal for itself.

In contrast to the moralism of Judge Blackburn and the Polansky court, the Koufakis trial court (unfortunately reversed) took a sophisticated, nonmoralistic perspective in deciding an attorney's conduct didn't warrant a new trial. Pointing out that "wrenching little pieces of argument out of a long record like this doesn't properly reflect the entire flavor of the trial, and in my opinion there was not the prejudice [which the defendants] suggest," the judge further explained to the attorney moving for an order declaring mistrial:

Your style is entirely different from Mr. Berg's, and, again, without criticizing Mr. Berg, obviously, I prefer your style which is the very careful understated reliable way of handling argument and presentation. ¶ Now, Mr. Berg has an entirely different style. It is going a little out of fashion now, but in any case of this kind where it runs as long as it did, the Jury becomes adjusted to that style. ¶ If you had mentioned the Mafia, then they would have taken you literally. ¶ Mr. Berg's mentioning the Mafia or using this kind of charge was looked on with a smile by the Jury. ¶ They simply didn't take this kind of analogy seriously. ¶ This is the kind of exaggeration that they had come to expect from a flamboyant individual.

(See Koufakis v. Carvel (2nd Cir. 1970) 425 F.2d 892, 901.)

The trial judge candidly admits he prefers the less flamboyant style — it's easier on the judge. When a less insightful or less honest judge replaces concrete legal reasoning with moralistic judgments, often they screen for the judge's prejudices.

Click for entire Mark Brennan series

Ten-Day Sale

I live in the high desert of California, where this time of year the temperature regularly climbs above 100 degrees. One seldom ventures outside in this weather, leaving abundant time for work. Seeking more work to occupy more time, I'm declaring a ten-day sale on legal-writing projects. This sale, ending after August 10, features a $50 per hour fee. For any state-bar or vexatious-litigation matters, the price is only $30 per hour.

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