How to Win Cases – Part IV

Jay Milano, criminal defense, malpractice, and personal injury lawyer and law professor in Cleveland, Ohio teaches how to win cases.

Fifteen years ago Milliard Farmer, a legendary death penalty lawyer, came to Ohio and spoke. He decried the loss of civil confrontation within the courts. He told us that lawyers were becoming afraid to speak their minds, and that justice would pay a price. We were too worried, he said, about our practices to let the bench know when we thought they were wrong. He talked about a spiral where lawyers became more timid and judges less accustomed to open discourse. I don’t know if he was right, but:

I am afraid to write this column.
I am afraid to say that I am afraid to write this column.
Lean over close so I can whisper to you.

Nothing, absolutely nothing, more surely injects fear into the heart of a solo or small firm lawyer than the thought of the suspension of his license.

Even a six-month suspension kills a practice. You must cease work on all cases, notify your clients, and close your office. No income, no realistic ability to find other meaningful employment: you will have to start over. You are publicly and privately disgraced. Your family knows, your kids know, your friends know, their friends know. You dread the most cordial “How are you?” You are unable to pay your employees. They are out of work.

Mark Gardner was suspended for six months for saying bad things about a Court of Appeals. He said them in a brief to that Court. Among other things he stated the the court had a “prosecutorial bent.” The Supreme Court considered it “an unfounded attack against the integrity of the judiciary.” By all accounts Mr. Gardner acted out of character.

It is not that Mr. Gardner was sanctioned. It is the severity of the sanction. He could have been found in contempt with a finite sanction such as a fine or even cooling his heels in jail to consider his intemperance. He could have been reprimanded, as the hearing panel suggested. He could have been suspended with the suspension stayed, as the board of commissioners recommended. Instead, he was suspended from the practice of law. That is a life-changing punishment.

Now, how many of you lawyers will ever say anything critical, even remotely critical, of a judge or tribunal? Who will split the hairs of what is or is not appropriate if the consequence for the first offense is so grave.

I believe that the majority of lawyers will remain silent. I also believe that if that happens, the integrity of justice will be compromised. Lawyers need the ability to speak their mind. Again, it is not total freedom to deride the judiciary with impunity that is important. It is that the punishment fit the crime.

By the way, after you have read Gardner, read Office of the Disciplinary Counsel v. Wrenn, (2003) 99 Ohio State 3d 222. It was decided one month before Mr. Gardner’s case. In that case, Mr. Wrenn, a prosecutor, withheld exculpatory evidence, including DNA testing, from both the opposing attorney and the court. The Court stated at 225:

Respondent breached his duties as an officer of the court and his public responsibility as an assistant prosecutor. He had ethical and legal obligations to disclose discoverable information that was relevant, exculpatory, and not privileged and he failed to do so on more than one occasion. We do not accept respondent’s assertion that it was an innocent misrepresentation. When the court inquired about the DNA test results at the pretrial, respondent failed to disclose that he had knowledge that testing was complete and the results were favorable to Derr [the Defendant].

Respondent’s failure to disclose the information before the first plea was inexcusable and undermined the integrity of the criminal justice system.

Mr. Wren received a 6 month suspension, stayed.

Read both cases. Make an independent decision as to whether they are different enough to warrant so great a disparity in punishment.

Call me. We will talk about it – in private.

Law and Fact
The Journal of the Cuyahoga County Bar Association
January 2004

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