|Oregon State Bar Bulletin JANUARY 2009|
By Ronald Talney
I recall when my son informed me that he was changing his college major from engineering to pre-law and political science and was planning to go to law school. I had mixed feelings at best. On the one hand, I was pleased that he had watched me practice law for so many years without having developed a negative view of it, and, on the other hand, concerned that I knew too much of what it takes out of you to want him to follow on that path.
I recalled, too, that law school, however difficult and demanding, was the finest educational experience I had ever had. It was the study of history in the particulars. Not the broad range of specific battles waged, of wars fought, of kingdoms rising and falling, but the day-to-day lives of ordinary people caught up in their individual struggles with one another. To my mind there was no study more immediate and stimulating than the study of law.
So I knew my son would no doubt enjoy law school. But then there is the practice of law. Entirely a different matter. And it was this that gave me pause to wonder if my child should follow in my footsteps. Of course, my wife knew something of the toll. She had watched me pace the floor during the early morning hours before the start of a trial. She had seen me pouring over the pleadings, framing an opening statement before the mirror while shaving, muttering my cross-examination questions in my sleep, heading out the door with my briefcase jammed with papers and books and my eyes glazed over. And saw me coming home at the end of the day exhausted and either elated or defeated, depending on the findings of some judge or jury.
But only I knew the real cost of a trial practice. The cost on the inside. Only I, like every practicing lawyer, knew the ethical challenges one faces each and every day, with each and every client and each and every cause and case. Moment-to-moment decisions must be made. You have a client and his or her needs are paramount in your mind. Your task is to represent those interests as diligently as you can within the law and the ethical constraints of the profession. But often those lines are blurred and unclear, and the desire to win is strong. Only I know the times I nudged that line and the few times I may have crossed it. And only I know the real cost of having done so.
Years ago a surgeon friend once told me that in order to be a really good surgeon one has to actually enjoy putting a knife into living, human flesh. At the time I didn’t understand what he was really saying. But now I think I understand. I once cross-examined a witness for the prosecution in a misdemeanor trial with such vigor that she, to her distress and my horror, lost control of her bladder while on the stand and urinated on herself, a large puddle forming beneath her on the floor, in the presence of the jury and a courtroom full of spectators. The judge halted the proceedings and called a mistrial. The prosecutor decided not to retry the case and, as a result, she was relieved of having to testify a second time. As a result my client went free. I won.
While I can not say I enjoyed putting the knife into living, human flesh, I did what the situation required of me. I challenged the woman’s testimony, which was my sworn duty in defense of my client. If I had done less, out of concern for her, or for whatever other reason, I would have been violating my duty as an attorney and as an officer of the court. My client was entitled, by law, to a vigorous defense. But deep down I was wondering if, in fact, I had enjoyed putting the knife into living, human flesh.
And that experience has stayed with me, along with others. Despite the fulfillment of my ethical obligation to my client, those instances have cumulatively over time diminished me in some vital way. It was this that I remembered and regretted when my son told me he intended to become a trail lawyer.
Today he is a trial lawyer, specializing, as I did at one time, in criminal defense work. From time to time, I ask him how the work is going. I ask him whether or not he is having any cases of special interest. But I love him too much to probe him for details. Occasionally I see his name in news articles about certain trails he is involved with. And I have to wonder what the cost is to him personally. Is he too finding that his better self is somehow sometimes being compromised, being eaten away, bit by bit, corroded by the demands of his work? What price is he paying to meet his ethical obligations as a trial lawyer?
Or, worse yet, like my surgeon friend, has he come to enjoy putting a knife into living, human flesh? I hope not
Ronald Talney of Lake Oswego is a former public interest lawyer, now retired. He has published poems in numerous literary magazines and anthologies, and has published two books of poems, The Anxious Ground and The Quietness That Is Our Name.