I write today to thank on old friend for teaching more about the practice of law in a single moment than I learned in three years of law school. His name is Jon Travis Brooks. I am not sure where he is now. We were students together decades ago. One of his passions was diplomatic history. His lesson: Always give your enemy a way to salvage his pride.

I didn’t appreciate the advice at the time. Total war struck me as the preferred strategy. Scorch the Earth. Plunder. Destroy. Leave no blade of grass standing. Winning is a zero-sum game, is it not? It is only if you can extinguish your foe, eliminating him entirely. Life and conflict just isn’t like that. At least among lawyers. We always live to see another fight.

At least we live to see another day in our jurisdiction.

I walked into a Manhattan courtroom the other day to appear pro hac vice in a criminal case. I knew no one, not even the lawyer sponsoring me for admission in the case. It’s been a long time since I walked into a courtroom in a state of terror. I did that day. I was a stranger, far enough from home to feel unwelcome. And I was dispensable, too. I could count on no diplomatic courtesy from court or counsel. They might not see me again. What would they care about maintaining a relationship?

In the end, things worked out. I am in the case. I’ve learned what this particular judge is looking for. I’ve sat and discussed the merits of the case against my client with the prosecutor. The hard and unstated work of learning to get along in the midst of a fight has begun.

But that’s the point: We are paid warriors, always fighting on behalf of others. We survive each fight, although the clients may not. We are expected to adhere to a set of standards governing conflict. Call them rules of diplomacy, if you will.

So Travis was right. Yes, fight and fight hard to win. But try to maintain civility enough, or at the very least, professionalism enough, to live to fight another day. I got that after appearing in Manhattan, or at least I thought I did.

No sooner had I unpacked my briefcase after my trip to the Big City than I was in Danbury, arguing motions in a criminal case. My adversary rose to speak. She is a young woman of exceptional promise. I respect her. But the arguments she made the other day struck as particularly bad. So I was on my feet doing what I do far too often: interrupting, poking, making remarks that will be painful to read on the record.

I drove home that evening persuaded I had confronted an ass in court that day. When I checked the rearview mirror, there was little doubt the ass was staring back at me.

One of the most memorable scenes I ever saw in a film depicted a meeting between Japan’s ambassador to the United States and Cordell Hull, the United States Secretary of State at the time of the attack on Pearl Harbor. The men were saying goodbye to one another after war was declared between the two countries. They sat civilly, shook hands, and wished one another well. They were representing countries at war with one another in what would be a long and bloody struggle. Yet they parted as members of a diplomatic corps bound by an ethos of respect and honor. I was amazed.

Lawyering is hard and often brutal work. We busy ourselves with the dark side of life. Sometimes the darkness swallows a lawyer whole. Thus alcoholism, drug abuse and the stress-related excesses that bring some low. What’s more, some clients demand that we hate our adversaries as much as the clients do. Hatred is the cheapest drug on the market, but is also among the most destructive.

Civility for civility’s sake interests me not in the least. I believe that civility is good not just for the soul but for clients as well. Yes, today I fight to the death for the client standing to my right. But tomorrow there will be another case. Odds are I will see the same adversaries many times in a career. Are clients truly served by demonizing the lawyer on the other side of the aisle?

There is plenty about the law I do not get. I doubt there will be time enough to figure it all out. But I write today to acknowledge the wisdom of an old friend. Thanks, Travis, for telling me about diplomacy. Some day, I hope to have mastered the lesson; I am still working on it.

Reprinted courtesy of the Connecticut Law Tribune.

Thomas E. Perez at the United States Justice Department might be a genius, but, then again, he might not know what he is doing. I keep seeing his face in the New York Times announcing litigation of one sort another against public officials. The problem is there is no principled basis for determining just what the Justice Department is doing. Perez sits atop the civil rights division of the Justice Department, so presumably he is making decisions about who and whether to prosecute folks for civil rights violations.

Consider the new civil suit against Joe Arpaio, the Sheriff of Maricopa County, Arizona. The Justice Department sued Arpaio civilly, claiming racial discrimination in the performance of the sheriff’s job. The sheriff’s men have referred to Latino’s as “stupid,” engaged in derogatory humor, used ethnic profiling in policies regarding the stopping and detention of folks in the county. If Arpaio loses this suit, he pays money damages.

Forget for the moment that Arpaio is on the front lines of the nation’s failed and incoherent immigration policies. Assume for the moment he’s motivated by ethnic animus. Why is he getting the kid glove treatment by the feds?

In East Haven, Connecticut, Tom Perez appeared at a press conference not long ago to announce criminal charges against several rank and file members of the local police department for engaging in conduct virtually indistinguishable, and less pervasive, than the accusations against Arpaio. Perez and company want to send some rank and file cops to prison in Connecticut; yet they want only to slap Arpaio on the wrist. Why pay favorites in such a manner?

I represent one of the East Haven cops, so I have a stake in the game. Jason Zullo is my client. He and three officers are accused of engaging in racial profiling for stopping cars in which Hispanics were passengers. The case will turn on whether the cars were stopped because the passengers were Hispanic, or whether the cars were stopped because they had illegal license plates, were unregistered vehicles, or had otherwise broken motor vehicle laws. 

But here is the rub: If convicted, Jason Zullo will go to prison. He faces criminal charges. He is a thirty-something street-level patrol officer making split-second decisions on the about whether there is probable cause to stop someone. When his department noticed a rash of illegal license plates in town they investigated. Does this make Zullo a criminal? 

I think not. I suspect he will prevail at trial.

But why is a rank and file cop facing prison for doing his job while Joe Arpaio faces mere civil penalties? When Zullo was arrested, he was briefly detained and placed on administrative leave from his job. He was required to post bond. He is now on limited house arrest with strict conditions on who he can talk to and where he can go. Arpaio gets sued and he still runs a sheriff’s department?

Why the double standard, Mr. Perez? Is Justice a petty bully prepared to wind up for a big punch against a rank and file cop, but prepared only to slap at a man who regards himself as “America’s toughest sheriff”? Total war against a little guy, but half a slap against the sheriff?

Why this selective application of the criminal law?

Thomas Perez has some explaining to do, and soon. I’d call him stupid for the decisions he’s made thus far. But given the schizophrenic climate in the Justice Department right now, that might get me sued for insensitivity, or perhaps charged with a crime. 

I mean, Perez is Hispanic right? He apparently gets a pass if he drives a car with expired plates or otherwise engages in the routine violations of the law that get the rest of us stopped. When Jason Zullo returns to the police force after he is acquitted, I’ll bet he thinks twice before stopping a car driven by a person whose skin is just a little darker than his. Why does Tom Perez get a pass when he behaves like an ass?