by Justice William W. Bedsworth
It was my second felony trial. I’d tried a couple dozen misdemeanors and one felony, but I was still so wet behind the ears you could have grown rice on my neck. I wasn’t yet smart enough to know how much I didn’t know.
I’d won my only felony trial, but that was because it was a handoff from Frank Briseno. Frank was one of the stars of the DA’s Office at the time, and whenever he had two trials’ answer ready on the same day, he would hand one off to a new lawyer, a misdemeanor deputy.
Nobody ever lost a Frank Briseno handoff. Frank always kept the tough case for himself and gave away the slam-dunk. That’s how you become an icon. That’s how you get awards named after you.
My second felony was a handoff from a different guy, but it still looked easy. It was the retrial of a conviction that had been reversed on appeal. How tough could it be? It had already been won once.
The only red flag was that defense counsel was Syl Aronson. Syl was one of the best lawyers in the criminal defense bar, but he rarely tried felonies.
He had figured out there was a lot of money to be made in DUI defense. The clients generally had money to pay;1 the prosecutors were, by definition, inexperienced lawyers learning their trade by trying misdemeanors; and the cases could be too complex for his opposition (expert testimony, scientific evidence, chain of custody, field sobriety tests that could be made to appear complicated and unfair).
Syl was a shark swimming amongst tuna, but he was also very good. His one weakness was that while he was a racing bike with fifteen gears, thirteen of them were obnoxious. His ego was bigger than thirty-seven states and was constantly being expanded by victories. I’d dealt with him enough in municipal court to be confident I could use that to my advantage.
Instead, he struck me out with a bunch of slow curveballs. I never saw his egotistical fastball because he never showed it in front of the jury and charmed their socks off.
Instead of having Jack the Ripper on the other side of the counsel table, I had Mother Teresa. It was like being in trial against Alex Polsky.2 He was sweeter than pink lemonade.
But a couple of days in, I almost got him to pull down his merchantman colors and show his pirate flag. I ran into trouble trying to introduce a piece of evidence. Syl objected successfully that my foundation was inadequate, and my attempts to fix it made it clear to him that I did not know what was lacking. He smelled blood in the water and couldn’t resist making me look foolish.
I tried over and over again to repair the foundation and introduce the evidence. Each time Syl objected. Each time the court sustained the objection. Each time I started over and tried again. I needed the evidence and couldn’t just move on.
Finally, the judge, whose patience was rapidly evaporating, threw me a lifeline. “Mr. Bedsworth,” he drawled, “would you like a recess?”
And, with the suicidal wounded pride of youth, I responded, “No, Your Honor, I’ll get this right eventually. I can tread water just as long as he can make it rain.”
The judge smiled broadly and said, “We’ll take fifteen minutes. I’d like a recess, and I suspect the jury would, too.”
The jury filed out and I started to the back hallway to go to my office and ask someone with more experience what I was doing wrong.3
But Syl stopped me, identifying the flaw in my foundation in a voice so snide it made the hair on my arms stand up. His explanation of what I was doing wrong dripped with so much sarcasm that the floor had to be mopped before we could continue, but it still seemed like a kindness. I was grateful and said so.
And his response, in a tone of voice which the jury never once heard during the trial, was thirteenth-gear Syl Aronson: “Don’t thank me; I just couldn’t take the smell of you peeing in your pants all day.”
When the jury returned, Snarky Syl disappeared and Beguiling Syl returned. After two more days of trial, the jury acquitted his client in three hours. They probably only stayed out that long because they wanted the free lunch. I was carried out of the courtroom on a stretcher.
To his dying day, Syl never tired of telling how he had “TOLD BEDSWORTH HOW TO GET HIS EVIDENCE IN AND STILL BEAT HIM.”4 My ego shrank every time he did it.
The law is a strange profession in that regard. It attracts people with big egos and then reduces them as surely as hammer and chisel reduce stone.5 My own ego started out the size of Pike’s Peak but has been sculpted over the years to about the size of The Pieta: still bigger than real-life, but no longer big enough to host automobile rallies.
And it can happen when you least expect it. My friend Paul Meyer, now defense counsel to the stars, started his career alongside me in the District Attorney’s Office. He tells a wonderful story about putting on a preliminary hearing against four of the best criminal defense attorneys in the county—and one of the worst.
As Paul tells it, the case was overwhelming and the four good attorneys—a small all-star team that included Alicemarie Stotler, Jim Riddet, Marshall Shulman, and Keith Monroe6—knew there was nothing to be accomplished at the prelim except laying the groundwork for later impeachment of the prosecution witnesses. Having accomplished that, and having no basis for opposing the motion to bind the defendants over to Superior Court for trial, they offered pro forma opposition with a few comments wisely directed at maintaining their clients’ freedom on bail.
But the fifth lawyer, a man whose arsenal of legal skills was about as effective as Wile E. Coyote’s bird-trapping ones, made an impassioned argument for dismissal under Penal Code Section 1118.1. It was tent-revival, fire-and-brimstone, Cross of Gold rhetoric that did everything but ascribe a log-cabin boyhood to his client.
It did not, however, take into account the fact an 1118.1 motion cannot be made at a preliminary hearing. It can only be made at trial.
Paul’s response was to note that “Counsel is apparently not a strict constructionist when it comes to the Penal Code.” A thoroughly bemused judge, flabbergasted that a criminal lawyer’s knowledge of procedure could be that shallow, shook his head ruefully and denied the motion.
Five minutes later, in the hallway, the four all-stars were loudly harangued by their clients for failing to put up a good enough fight. “You were just a bump on a log. That guy [pointing at the bad lawyer], that guy fought for his client! He earned his fee! He did what you should have been doing. I wish I’d hired him.”
All of this in voices so loud that there are people in Riverside who will go to their grave insisting God once spoke to them, and He said—inexplicably—“He did what you should have been doing.”
So the ego-sculpting is not always related to poor performance.
This is a point my wife makes in explaining why she left litigation after a dozen years to become a Court of Appeal research attorney. Let’s call her story a hypothetical, since some of the hypothetical people may not yet be hypothetically dead and might have access to hypothetical libel lawyers:
Guy walks into your office and says a regulatory agency has accused him of polluting. Says they’re threatening a million dollars in fines and fees. You listen to his story, which includes an astonishing amount of self-serving, exculpatory claptrap. You agree to do some research and make an appointment for him to return.
Your research verifies your first impression. The guy is the worst polluter since the Exxon Valdez. He’s lucky the agencies aren’t prosecuting him criminally. He richly deserves to go to prison, and you hope like hell you can arrange a quiet settlement before some local prosecutor gets wind of this environmentally catastrophic operation and considers criminal charges.
But when you try to explain to your client what hot water he’s in, he denies liability. Everything he’s done is “completely reasonable” . . . “what everybody does” . . . “completely legal based on my research” . . . or somebody else’s fault. He’s been building this innocence mythology for ten years and has completely convinced himself of its believability. He’s certain he’s bulletproof.
You do some great lawyering and the agencies agree to settle the case for $250,000. It’s a settlement you would brag about all your life. Your client flatly refuses. Who would take the word of his “wetback employees” and a bunch of “civil servant investigators” over his?
The case goes to trial. You’re magnificent. Your heart’s not in it, but you give it everything else you’ve got, and in trying to get him fair treatment, you over-achieve. The jury socks him for $50K and your jaw drops all the way to your waist when you realize how brilliantly you’ve succeeded. You’ve saved this jerk a ton of money and kept him out of jail.
And he spends the rest of his life telling people, “Whatever you do, don’t hire her. I hired her and she lost me $50,000. She’s a complete incompetent.”
Anybody who’s spent a lifetime in the law has a story like these. Scars and skidmarks come with the territory.
There is satisfaction, vindication, and a limitless number of possibilities to do good for others. There is what Aristotle called eudemonia: the happiness that comes from a life lived to its full potential. But no one escapes unmarked.
Fortunately, for every chunk and chip the chisel takes off your ego, there is another case, another cause, another day that brings reward and fulfillment. If you practice ethically and honestly, your heart and mind expand to fill the space previously occupied by your vanity.
Michelangelo said sculpture is “an art that takes away superfluous material.” So is the practice of law.
William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at firstname.lastname@example.org. And look for his new book, Lawyers, Gubs, and Monkeys, through Amazon and Vandeplas Publishing.