When Being Right Has To Be Enough

Interesting remark from Gamso the other day:

I spent some time on the phone this afternoon with another lawyer offering him some thoughts and experience about making arguments and convincing courts and how it is that being right isn’t enough.

He didn’t say what kind of lawyer he was talking to.  He didn’t have to.  It clearly would not be a lawyer for the government or an insurance company or a bank.  It would be the other kind of lawyer:  the kind that represents the disfavored litigant, such as a criminal defendant or a personal injury plaintiff.

Because if there were any way to succinctly describe the main difference between the disfavored litigant and the favored litigant it’s a corollary to Gamso’s comment.  That is, for the favored litigant, being right is always enough.  Favored litigants most often prevail – at least with judges – when they are wrong.  But they always prevail when they are right.

And there’s a follow up question that ought to be explored at some length:  namely, what exactly is it that the disfavored litigant needs to prevail other than just being right?  What more do you need?

Eloquence?  Persistence?  Good looks?  Bribe money?

You see the problem.  If being right isn’t enough your mind begins to speculate as to what will make it “enough”.  There’s no good reason why any litigant should have to be more eloquent or more persistent or better looking than another litigant, in addition to being right, in order to prevail.  There are only bad reasons, and many of those bad reasons are also unethical or even criminal reasons.

We shouldn’t get complacent about not prevailing when we are right.  When we do that, we’re letting the courts cheat disfavored litigants, and disfavored litigants’ lawyers too.  But the fact that I can even speak intelligibly of favored and disfavored litigants means that systemically we have been too complacent for too long.

Something has to change.  I don’t know why Greenfield thinks it should be one person taking on all the work:

There are many leaders in the ranks of indigent defense, but no one has yet
emerged as a national leader, a spokesman, a teacher. True, they are tied up in
the trenches, fighting for crumbs, trying cases, trying to lighten the absurd
caseloads of their offices. Who has the time to mount a larger effort when there
are human beings marched in and out of courtrooms without meaningful
representation?

 

Some time ago I noted that Gideon, while not formally a dead letter like just about every other pro-defendant Supreme Court precedent from the 1960, had nevertheless been gutted by indirect means.

I don’t have any suggestions other than the one I made then.

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