In Defense of a Well-Timed Stink

by Jamison Koehler on September 21, 2014

Clients love the courtroom theatrics.

There was a criminal defense lawyer in Philadelphia – I will call him Larry — who could put on the best show you have ever seen.  Larry was fearless and he was funny.  He would talk back to the judge.  He would dress down the prosecutor for interrupting him:  “You had your turn.  Now it is my turn to talk.”  And people would follow him out of the courtroom after every appearance asking for his business card.

But, as it turns out, showmanship was about the only thing he was good at it.  Larry had no clue about criminal law or procedure.  And no one at the Philly PD’s office — there were a lot of us and we were in every courtroom all the time – had ever seen him actually try a case.

The theatrics can get old pretty quickly.  You might think you can get away with it if you are new to the jurisdiction and you haven’t already tried the patience of every judge with your routine.  But you have no reservoir of good will to draw on either.

Last week a judge decided to detain my client. Although my client was charged with some pretty serious offenses, I spent some time with the prosecutor’s supervisor — and a roomful of other prosecutors and law enforcement personnel – working out a deal with the government that would have allowed my client to remain in the community pending the next hearing.  It was a good deal for both sides, and I was excited about it.  So was my client.

It is rare that the government and the defense agree on anything.  The government argued first.  Then I took up the case.  But the court refused to go along.  I asked the court to re-consider.  Then I asked the court to re-consider a second time.  Maybe I was unduly influenced by the look of relief in my client’s eyes when I explained the deal we had struck.  Or maybe it was the flicker of panic when the judge balked.  But all I got was an exasperated look from the judge.

I resisted the urge to hold my breath and stamp my feet, but let me put it this way:  I am not proud of my behavior.  I had assumed this was a done deal so, not having prepared my arguments more carefully, I was not as articulate as I would have liked to be.   Somewhere in there I think I uttered something incomprehensible about him being safe at home in the “bosom of his family.”  I annoyed the judge.  And, of course, I was ultimately unsuccessful.

In other words, this was not my finest moment.

But the client loved it.  So did his family.  The client nodded his thanks as he was led out of the room, and the grandfather slapped me on the back as we stepped out into the hallway.  This is gratifying.  And it solidifies your relationship with the client and his family for the ordeal that is to follow.  Maybe Larry knew something the rest of us didn’t.

We do these things so often that we can become inured to the human impact of the decisions that result.  It is not only that clients like it when we stand up to the judge on their behalf or dress down the police officer who humiliated them during the arrest.  It is also that – notwithstanding my most recent experience – a well-timed stink can sometimes have the desired effect.  Passion is not necessarily inconsistent with analytical rigor, and if the judge knows that you are normally very reasonable – and that you won’t go to that well too often – a little passion can sometimes do the trick.

More Like This:

On Developing a Trial Persona That Works For You

Leaving the Drama and Surprises for Closing Argument

3 Comments on “In Defense of a Well-Timed Stink

  1. I can just about guess the judge from your experience – and if it’s the one I am thinking of, she is almost constitutionally incapable of conceiving a defendant remaining free pending trial. I think that sometimes we need to annoy the judge – it shouldn’t always be comfortable to lock up someone.

  2. J:

    I haven’t stopped by in a while. Glad to see you are still writing well-crafted, sensible stuff.

    Be well…

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