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THE DARK SIDE: You’ve got to tell it like it is

David Ziemer

David Ziemer

The legal profession is exceptionally diverse.

Some succeed through intellectual brilliance, some through eloquence, some through diligence and preparedness and some through negotiation skills. The list goes on and on.

But there is one type of person the profession has no room for — the molly-coddler.

As the saying goes, if you want to roast a goose, you’ve got to ruffle some feathers. And if you want to succeed in law, you’ve got to be able to tell it like it is sometimes, even if that means ticking people off.

That holds true, even if the person you’ve got to tick off is your client.

Suppose, for example, that you are trying to get some government benefits for an old man from the Veterans Administration, and to do that, you need to show that he is not able to take proper care of himself.

You are in a hearing room — just you and your client, the hearing examiner and a tape recorder. But the tape recorder registers only sounds, not odors or visuals.

So, if your client smells like a dead dog, you’ve got to say point-blank, “Let the record reflect that there is a very unpleasant odor emanating from the applicant.”

That might not make your client too happy. “Hey! What’s the big idea?” he may ask. But you must remain unfazed and continue to make a complete record: “Let the record further reflect that the applicant’s fly is open.”

Like I said, the tape recorder registers only sounds, not visuals.

You must keep firmly in mind that the goal is to demonstrate that your client can’t take care of himself, not to make the client feel good about himself. So, if he’s walking around town filthy and with his fly open, that is relevant evidence that must be put in the record, by whatever means necessary.

Or suppose you’re arguing a suppression motion, and in order to succeed, you must convince the court that, at a particular moment in time, your client was “in custody.” To do that, you must convince the court that a reasonable person would not feel he was free to leave under the circumstances.

You are making your argument, and the judge counters, “But your client did leave. He told the officer to go pound sand and went skipping down the street.”

Don’t flinch, and don’t pander to your client’s feelings. Respond instead, “Your honor, my client is not a reasonable person. He is a bat-guano-crazy murderer. What he does and thinks is not relevant to what a reasonable person would feel under the circumstances.”

As you can see, winning suppression motions is not for the meek, or for those who come from the school of self-esteem enhancement.  A litigator has to keep his eye on the target and fire without flinching, even if it hurts the client’s feelings. Suppressing incriminating evidence against the client is important; the client’s self-esteem is not.

Fortunately, there are many other things that molly-coddlers can do in this world. United Nations peacekeepers molly-coddle mass murderers all day, every day. But there is no place for them in the courtroom.

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