The Texas Prosecutor, March-April 2018

Defense lawyers as friends and foes

To be successful in life, you need good friends. To grow and be successful in the courtroom, you need to face great foes. This sentiment sums up my relationship with legendary trial lawyer Doug Mulder. Although he was probably the finest trial prosecutor of his generation,1 he was already a criminal defense lawyer by the time I first met him in the early 1990s. It was as a defense lawyer that Doug had such a huge influence on me as a prosecutor. He was not only a fast friend to me, but he was also a formidable courtroom foe. Doug taught me by the example he set as an adversary. He was a zealous advocate, but he never lost his cool. He always kept his quick sense of humor no matter how serious the case or the situation. I loved prosecuting cases against him—even though he usually got the best of me. He was the finest pure trial advocate I’ve ever seen.
    Sadly, Doug passed away unexpectedly in January. I doubt Doug ever fully appreciated the fact that he made me a better prosecutor simply because he was such a talented opponent—it was not his style to reflect on such things. I miss him very much, and I wish I’d had the chance to thank him and say a proper goodbye.2
    In thinking about Doug these last few weeks, I’ve had a chance to reflect on how we as prosecutors should interact with our counterparts in the defense bar—whether they be a friend, a foe, or both, as in Doug’s case. While I know that I can’t have the special relationship I shared with Doug with every defense lawyer, I do have many good friends on the “dark side.” But more often than not, I’m on the opposite side of a defense lawyer who isn’t my good friend. This type of interaction can run the gamut from courteous and professional to antagonistic and openly hostile. After 25 years of criminal practice I have come to rely on several general principles to govern my behavior with opposing lawyers. These principles have been of enormous benefit to me, and I hope you can find some value in them as well.

Respect the role of defense counsel
A necessary foundation to any discussion of how we should treat defense lawyers is a healthy respect for the critical role they play in our system. Law school taught me about our adversarial criminal justice system in theory, but only after trying a few actual cases did I see the benefit of having a good defense lawyer at the other table. I learned quickly that an able opponent leads to a well-tried case, which generally leads to the right result. Since those early trials, my respect for the role of a defense lawyer has only grown. I now find that it is both a relief and a pleasure to try a case against a talented courtroom foe.
    Often I hear young prosecutors complain about what they think is disparate treatment. They might be bitter about a lenient ruling forgiving a defense lawyer for missing a deadline, or they might be mad that a judge granted another defense continuance. They pout that “the rules should apply equally to both sides.” I remember frequently feeling that way myself as a young prosecutor. I was wrong then, and they are wrong now. Our system is slanted toward the accused, and that’s exactly how it should be. The playing field is not level, and it shouldn’t be easy for prosecutors to convict. Defense lawyers enjoy the presumption of innocence on behalf of their clients, while we prosecutors are saddled with a heavy burden of proof. We can’t blame defense lawyers (or judges) for these fundamentally different roles and rules.
    As prosecutors, we should embrace the fact that our job is tough and that sometimes the judge will give every break and benefit to the defense. You will find yourself in a case where it feels like everything is against you—the law, the defense lawyer, and the judge. You must resist the temptation to feel sorry for yourself because “things aren’t fair.” Rather, you must persevere through these situations, secure in the knowledge that you are fighting for justice, even if the result is uncertain. This imbalance can be difficult to accept as a young prosecutor in the heat of battle, but with some experience and perspective, a professional prosecutor learns to appreciate both the unique role of the defense lawyer and the challenges and situations inherent in prosecutors’ role.
    Finally, we must recognize that defense lawyers are not their clients, so we shouldn’t treat them as if they are criminals. Every person accused of a crime is entitled to a lawyer, no matter how vile or repugnant the crime. There is no excuse to take out our anger or disgust with the defendant on his lawyer. Defense counsel’s job is difficult enough.

The defense lawyer as a friend
Many of my good friends are defense attorneys who frequently practice in my county. In fact, I met most of these close friends when we were all prosecutors together many years ago. It seems that in criminal law, today’s teammate is frequently tomorrow’s adversary. Sometimes today’s adversary is tomorrow’s boss. These facts are worth remembering as we continue on in our careers.
    While there is absolutely nothing wrong with being good friends with some of the defense lawyers you practice against, there are several situations that a conscientious prosecutor should try to avoid. First, strive to never mix professional and personal time with your defense lawyer friends. Talk about work when you are at work, but don’t discuss cases with your defense lawyer friends away from the courthouse or after work hours. I never want a defense lawyer, police officer, prosecutor, or anyone else to think my friends get special access or special deals.
    Similarly, we must be vigilant to never give a defense lawyer who is a friend a better deal than one who is not. Every lawyer we deal with must get the same treatment, regardless of any relationship we might have with him. Again, there must be no perception that certain lawyers get better deals because they are friends with the prosecutor. We must also remember to maintain a professional distance with defense lawyer friends while we are in the courthouse. I don’t want to seem overly friendly to a defense lawyer friend when his client, or anyone else for that matter, may be watching. This type of innocent, friendly behavior could be misconstrued as evidence of a “good ol’ boy” network at the courthouse. We don’t want our reputation as prosecutors tarnished by a mistaken perception that certain lawyers have an “in” with us.
    Defense lawyers can also be our “friend” in a figurative sense too. They can be a great source of important information about our case, but only if they trust us. Numerous times in my career, I’ve avoided making a bad decision on a case because a defense attorney trusted me enough to disclose a fact I did not previously know. They trusted me to be open-minded and do the right thing with the new information. This is not only a great compliment if it happens to you, but it will also make you a more effective prosecutor.
    Finally, I view tough or talented defense lawyers as my “friends” because I know that they will make me better. These top-tier defense lawyers serve as extra motivation for me to grind through a thorough case preparation. I know that I will emerge a better lawyer just by trying a case against them and having my skills tested. Simply put, a good defense lawyer will force a prosecutor to grow as an advocate. If we want to be the best, we should look forward to going up against the best.

The defense lawyer as a foe
Dealing with a defense lawyer as a foe is largely an exercise in learning how to disagree without being disagreeable.3 I believe there are some hard and fast rules here that can help us as prosecutors.
    First, we should never argue with a defense lawyer unless we’re in a courtroom. I’ve learned the hard way that arguing with a defense attorney outside a courtroom is a pointless exercise—no matter how satisfying it may be at the moment. Being a “workroom warrior” or a “keyboard warrior” is self-centered and indulgent. It’s a sure sign of an amateur prosecutor.
    Next, try not to plea bargain in front of an audience—especially in front of police officers, victims, or even too many other prosecutors or defense lawyers. The temptation can be for one or both sides to try and put on a show for the assembled audience. Any audience quickly becomes a kind of surrogate jury, and suddenly you find yourself in a useless argument trying to impress an audience that doesn’t have a vote in the outcome.
    Another rule I’ve always tried to follow is to never tell another lawyer how to practice law. This is a combustible act that is sure to lead to instant resentment, hard feelings, and likely hard words. I try hard not to give unsolicited advice, and I stay in my lane as much as possible.
    We’ve all seen those prosecutors who make almost every interaction with a defense lawyer a disagreeable and contentious exchange. It’s been my observation that these prosecutors don’t last very long in this business. They burn out quickly. Their energy for this job gets sapped by repeated skirmishes. They eventually grow to dread the daily back-and-forth with the defense bar, which is a large part of this job. Remember that it’s not all about you and your ego all day, every day. In fact, every contact we have with anyone—including defense lawyers—is a reflection on our elected prosecutor and the office in which we work. If we are undisciplined in dealing with defense lawyers, we will eventually weaken both our boss and our teammates.
    Of course, some lawyers make it easy to be professional and disciplined. For instance, in all the cases I handled against Doug Mulder, no matter how serious the case, we never had an argument or a cross word outside the courtroom. Inside the courtroom, however, was another matter. We had some epic courtroom clashes on some serious cases. Despite this, once we left the courtroom, any acrimony was forgotten. Doug was the epitome of a professional who would never stoop to hold a grudge against an opposing lawyer who fought hard for his client. When it was over, it was over. He was gracious in both victory and defeat. His example of this principle still informs my behavior today. No matter how angry or disappointed I may be in a particular result, I always try not to let it show. No matter how much I may want to gloat in victory, I will always try to be gracious to my opponent.
    Sometimes, however, there are certain lawyers who are always unprofessional or untrustworthy. With these few lawyers, all we can do is resolve to be as polite as we can for as long as we can. That doesn’t mean we are wimps or must suffer baseless abuse. Sometimes we simply have no choice but to stand up for ourselves or for our team. Just be sure that you truly have no other alternative in these situations, and make certain that these situations are extremely rare. As you progress in your career, you will no doubt remember these lawyers and add them to your “sh*t list” of lawyers who are difficult.4 But if we ever find that our list has more than four or five names, we might need to look in the mirror and see if we have become the source of the problem or if we are the common denominator.

Parting thought
Striving for success as a prosecutor is a never-ending journey. In addition to the support of good friends, we also need worthy adversaries to help us grow as advocates and become better stewards of justice. If you are lucky like me, you might find both friend and foe in one great defense lawyer. I am a better person because of Doug Mulder’s friendship, and I’m a better prosecutor because he was such a talented and tenacious opponent.

Endnotes

1  This insightful column from the Dallas Morning News newspaper by Robert Wilonsky is worth a read if you didn’t know Doug Mulder. See https://www.dallasnews.com/opinion/ commentary/2018/01/16/doug-mulder-died-sunday-might-dallas-greatest-attorney-certainly-thought.

2  I’d like to dedicate this column to him.

3   The quote, “disagreeing without being disagreeable,” is frequently credited to Zig Ziglar.

4  It should not surprise us that defense lawyers keep similar lists of prosecutors who are difficult to deal with.