Difficult Questions

Scott Greenfield has a post today about litigation and particular clients and what one might call greater principles and politics and the Supreme Court.  That’s a lot for one blog post.  But then in the end it’s really about him, and that’s just too much for one blog post, methinks.

The ostensible subject of the post:  on the one hand, you’ve got a successful in the trenches style practicing lawyer named Keach who has made a good deal of money and won a great many significant cases, largely class actions, dealing with unwarranted jail strip searches of suspects detained for minor violations of the law.  On the other, you’ve got another lawyer named Lask who may or may not be in the same category who got a client that ordinarily might have gone to Keach because it was the same kind of case.  Evidently the two lawyers even squabbled over it.

Her case goes up to the Supreme Court, and after oral argument it doesn’t look good for the stripped-searchees, which is not only bad for them – nationwide – but also for the Keach’s business, which will almost certainly be destroyed by an adverse ruling from the SCOTUS.

Keach is angry at Lask, and publicly calls her “…an incompetent dolt.”

While I’m sure Scott’s sympathies lay with Keach, he’s not entirely unfair to the opposing viewpoint (emphasis on the word entirely):

As Keach see [sic] it, this was the wrong case brought before the wrong court by the wrong lawyer, and there isn’t an imprisoned butt that won’t suffer for it.  Lask is not without a point, however, as her concern was not the law for posterity (or posteriors), but the representation of one guy named Albert.


There may be a factual error by Scott here in that Lask’s case might also have been a class action, but that’s immaterial.  He does, however, seem to be patronizingly wrong about her failure to appreciate the larger issues at stake, because he quotes her at some length and she appears to understand pretty well that there are larger issues at stake, despite an obvious tendency to commit grammatical and typographical errors.

But on the level of practical judgment – and, it is very important to note, in hindsight now that we know how the oral argument in the SCOTUS went – Keach’s position and Scott’s sympathies appear to have a good chance of being vindicated.  Although you never know.  You can’t always tell from an oral argument how a court is going to rule.  And the SCOTUS, for all its objectionable proclivities, may be reluctant to give carte blanche to every strip search jailers are inclined to do for whatever reason.

Now, for what it’s worth my own judgment on this corresponds to Scott’s and Keach’s.  As I look at the risk-reward ratio, it seems more prudent not to force the issue up to the SCOTUS as currently constituted.  But that doesn’t mean I’m right, or that Scott or Keach are.  Judgments differ, and there are arguable points either way on this one.  It’s a difficult question.

And this is where Scott and Keach and I part company.  Despite Scott’s lip service to the contrary, he sees this judgment call in very black and white terms and with a familiar and increasingly tiresome spin:  there are hard working, gritty, experienced, brash, confrontational, tough, smart, productive, effective and superior “trench lawyers” who walk the walk and so on; and then there are other lawyers who don’t measure up and indeed are seriously and perhaps mentally defective:

There we forget, there are lawyers who either aren’t up to the job, or harbor bizarre ideas (think “internet mobbing”) that could do monumental damage for society.  Whether they suffer from the Dunning-Kruger Effect or some unknown pathology, they are just as capable of petitioning for certiorari as the best among us.  And they are particularly capable of wreaking havoc with society. And they desperately want the opportunity to do so, to be heroes in their own minds but at our expense.


Let’s assume that Scott’s and Keach’s – and for that matter my – judgment turns out to be correct, and the SCOTUS holds in Lask’s case that any poor slob arrested over unpaid parking tickets can be strip searched after the finger-printing and photo.  Did Lask “wreak havoc with society”, or did the SCOTUS?

But then let’s say it goes the other way, and Scott and Keach and I turn out to be wrong and the SCOTUS renders a favorable ruling.  Does this make Lask a “hero”?  Leaving aside the impoverished understanding of the nature of triumph and disaster revealed by posing the dichotomy in these terms, I can confidently predict that the answer in Scott’s mind is “not really”.  Consider his take on the Casey Anthony acquittal:

A word about the much maligned Jose Baez, who was not treated well by much of anybody.  He won this trial. No one can ever take that away from him.  He’s been called a lot of bad things during the course of trial, and he’s had to suffer the criticism of lawyers and pundits who thought they were his better.  But he won, and they didn’t.

This post offers no answers because I have none.  That’s how trials happen sometimes.  Stercus accidit.  That’s our system. Get used to questions without answers.  Or play with yourself and pretend that you know something when you really don’t.  It doesn’t matter, as it won’t change the verdict.


Jose Baez was indeed “much maligned” – which is really putting it mildly – and indeed he won the trial anyway.  In Scott’s mind this merits “a word” – lip service again – before he gives his true opinion:  shit happens.  Jose Baez got lucky.  This is because Baez doesn’t fit the mold, and the rule for those attorneys who don’t fit the mold is:  if the outcome of the case goes against you, it’s because you’re an “incompetent dolt”; if it goes in your favor, it’s because you got lucky.

At bottom, it’s all about who fits the mold and who doesn’t.  The mold, of course, bears a curiously striking resemblance to none other than Scott Greenfield himself, or at least the online persona he has crafted.

Speaking of entirely unfair, it would not be entirely unfair to take a few posts like these and label Scott Greenfield hopelessly and perhaps even “pathologically” ego-centric.  But I think that would be somewhat unfair because that’s not all there is to it.

More seriously, it would not be entirely unfair to describe him as a self serving bully:  lawyers in private practice are easy targets for everyone, other lawyers nursing a misguided competitive zeal included.  Scott’s frequent eagerness to pile on, often with little more basis than rumor or some tidbit or other he picked up in a news story on the internet, is at times both disturbing and professionally repugnant.

Yet this, too, would have only a grain of truth.

Sometimes the most difficult questions of all require pause, careful consideration and some personal introspection.  These are things I think Scott Greenfield is quite capable of, but lamentably does not perform in nearly so prolix a manner as his blog posting.



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Filed under Judicial lying/cheating, Striking lawyers, wrongful convictions

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