Another mostly thoughtful critique

Grits for Breakfast doesn’t like the strike idea, either.

While I am a fan of the site and I believe it has argued the points very well, I must say I think it is wrong on each and every point.

I note as a preliminary matter that once again, there is no counter proposal.  It is acknowledged that the system is “corrupt and dysfunctional”.  All right.  What then?  Another conference?

“Responsible leaders” don’t “experiment with people’s livelihood or the fate of defendants.”, says Grits.  That sounds good but it’s way off.  I’m not engaging in “leadership”; I’m gathering information, picking a date and disseminating it.  I don’t presume to “lead” other lawyers.  They know better than I do who and what they’re dealing with. They’re going to tell me, not the other way around.

Beyond that, every day practicing criminal defense law is an “experiment with people’s livelihood” and “the fate of defendants” and the deck is stacked.  I don’t imagine this will unstack it.  It might move the deck in that direction somewhat.  More than another conference, if we’re lucky.  The alternative, so far, is to continue with the same remedies, if any, that have admittedly resulted in a “corrupt and dysfunctional system”.  There’s no reason to believe that could ever yield a different result.

Grits takes issue with the potential effectiveness of “direct action”, though he admits that there are more plentiful examples of success in the labor contract setting.  Yet this proposal is most closely analogous to that.  This is not mobilizing the general public or a broad political constituency around a political goal; this is an appeal to a discrete, relatively small and already well educated group of players.  There are about 83,000 lawyers in Texas.  I’m just educated-guessing, but it’s likely only about 10,000 or less engage in day-to-day criminal defense.  That’s a small enough group that a lot of them know each other.  And if they refused to participate in numbers, even briefly, that would cause enormous problems, unlike gathering at the prison protesting an execution, no matter how many people you got.

Word would easily get around with the right outlets.  After that, each lawyer would have to decide for himself, based on his own assessment of what is to be gained and what the risks are.  Criminal defense lawyers are peculiarly suited to that kind of decision.  They make them every day.  And they’re used to the prospect of serious consequences, too.  If that alone stopped them from acting they wouldn’t do anything.

The “end game”?  If we give even one judge trouble, not to say precipitate a resignation, every other judge – political animals all – will be afraid to get targeted.  Right now the judges are afraid only of the police, their unions, the prosecutors, the insurance defense bar, other government agencies and their lawyers.  They are not the least bit afraid that ruling against the weaker litigant will have an adverse impact on their career – quite the contrary – and in that they are certainly right.

Every experienced disfavored litigant’s lawyer, in their heart of hearts, knows that this imbalance is the single biggest problem he has to deal with.  It is the biggest problem with the system.  You can’t even it out by reducing judges’ fear of the more powerful players; you can only even it out by increasing their fear of the less powerful.

Being less powerful, though, what are their options?  This is one.  I have yet to hear of another.  They do it in India, and elsewhere.  Are lawyers in those countries irresponsible and cavalier about their clients?  Do they spend years organizing and building coalitions before they even try?  Do the critics of this idea therefore subscribe to American Exceptionalism?  Even in Texas, where Judge Keller embarrassingly sits in judgment of others on the state’s highest court of criminal appeals?

Criminal defense lawyers are prone to reflexive nay-saying.  It’s part of their nature.  But when things are bad enough maybe they can get past that.  In Texas you have Judge Keller.  Is that bad enough for you?  If it isn’t, what would be?




Filed under Striking lawyers

5 responses to “Another mostly thoughtful critique

  1. Jennifer

    Can you tell us exactly how you plan to deal with your cases that are scheduled for hearings on November 17? Will you be requesting a continuance, in advance? Will you and your client just not show up? Or will you send your client (to avoid them getting a bench warrant) but not go yourself, causing your motions and issues to be waived?

    Will you be refusing to file any pleadings on Nov. 17? If that date is the deadline for a filing, will you file it on Nov. 16 instead?

    What about your clients who are in jail, and are planning to plea on November 17 to a deal that will let them go home? Will they have to sit in jail until the next time the judge is available to take their plea?


    • I have no plans since I don’t practice in Texas and have no clients there. It’s one of the reasons I can’t be a “leader” and don’t intend to try.

      I think deadlines and people in jail, and any other must do appearance would be case by case exceptions to a strike. I believe lawyers would make those kinds of judgments for themselves and their clients, leaving open the possibility of a significant impact anyway. A relatively small percentage of appearances cannot be postponed without tangible harm to a client.

      Thank you for the thoughtful question.


  2. You’re calling for a “strike” – setting an agenda and attempting to get others to follow you. That’s attempting to engage in “leadership.” You’re not just disseminating information you’re trying to organize a very specific action. What’s more, you’re not asking attorneys if they should strike, you’ve already set a date!

    And as far as I can tell, “giving one judge trouble” is a meaningless statement: What trouble will it give her? At most a day off. Paid. My critique that there’s no “end game” is precisely that’s there’s no logical connection between the action you suggest and forcing her resignation or any other outcome that would remove her from the bench. If you want to give Sharon Keller trouble, oust her in the 2012 election. She’ll be running.


    • Man. And people have accused ME of being “angry”.

      I should call for a strike against this blog. It would go over a lot better. Sharon Keller? Who’s she?

      The “logical connection”, of course, is that if it were successful Keller would be seen as the cause of the disruption and not the strikers. That could wind up forcing her hand, or forcing someone else to force hers.

      Logical doesn’t mean necessary, of course. You were right in your article that relatively speaking this is a “high risk” tactic. Strikers often don’t get what they’re after, and they’re taking a risk, sometimes a big one. To the extent that’s your point, I agree with you.

      Mark Bennett mentioned on your site that the whole tactic might backfire and wind up benefiting her in the next election. That’s something I hadn’t thought of, and I agree it’s a real danger. Maybe enough of a danger to pull the plug on the whole idea. I’m going to sleep on that.

      I don’t get the antipathy, though. Transference, perhaps. Anyway, I’m just trying to help. I feel badly for the lawyers of Texas (to say nothing of their clients) when the system sh*ts all over them and Keller crows about it.

      Maybe the idea is ill-advised and doomed to failure, but a lot of worthy things and good ideas look like that going in. “Cowardice”, “stupid” or “crazy” – these are Bennett’s characterizations – is unfair, but, you know, this is the internet and people say those kinds of things.

      At least someone has come up with a counter-proposal: wait for the 2012 election and try to oust her. Somehow that doesn’t seem satisfactory in light of what she has done, but it may be all there is.


      • I’m not angry about it, I just consider it ill-advised. But you should understand you’re asking lawyers to participate in a tactic that can easily be seen as unethical given their duty to their clients Jennifer mentions. And learning you don’t have any skin in the game (i.e., clients of your own here) does lessen your credibility, particularly coming from an anonymous source. That’s the reason for some of the harsher responses.

        I don’t believe that Keller being seen as causing such an action would do anything to oust her (and as Bennett said it could help her). She’s been publicly embarrassed over this for two years and kept on rolling. By now it’s clear she’s utterly shameless and won’t leave until voters make her. The reason strikes work in labor negotiations is they shut down the company’s income until labor gets what it wants (or the strike is busted). A one day strike that doesn’t hit the target’s pocketbook is merely symbolic and won’t have the same leverage to force anyone’s hand.

        For my part I’ve just been around this block too many times and too often seen civil disobedience (which is essentially what you’re suggesting, more than a “strike,” since the lawyers would be risking contempt of court) backfire much, much more often than it succeeds, usually destroying the groups that engage in it. Sometimes folks who propose direct action that would put their constituents in harm’s way are actually disingenuous provocateurs, other times just naifs. In my younger days I was admittedly more tolerant and believed good intentions mattered in such circumstances, but anymore, when the end-result is the same, I don’t find that a helpful distinction. The road to hell, after all, is paved with good intentions.

        Don’t know if you’ve ever read Sun Tzu’s the Art of War but if not I’d encourage you to do so, particularly regarding the subjects of when (and when not) to fight and criteria for choosing tactics.

        As for whether beating her in an election is “satisfactory,” trust me, if it were possible to pull it off, come election night it would be one of the most satisfactory moments imaginable. The gratification wouldn’t be so immediate, but much more substantive.


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