I have from time to time been invited to present at continuing education seminars. When the invitations arrive, I almost invariably regard them as a mistake. What I do is not rocket science. If you want to learn what to do when you go to court, then go to court and figure it out. I am typically reduced to anecdote at such events, and those are only so interesting. Trying a case is like riding a bike: You either can do it or you can't.
It is even more rare for me to attend a seminar, but my attitude toward that is changing: A good seminar means good reading material. You endure the speakers for the sake of the handouts. I am handling an increasing number of white-collar cases. There's plenty of law to master. Every lawyer is only as good as his library and the time he spends in it.
Last week, I went to the National Association of Criminal Defense Lawyers seminar on white-collar crime in Manhattan, Defending the White Collar Case: In and Out of Court. I came away depressed for the most part: The vast majority of speakers were former Assistant United States Attorneys from big cities working in big firms; many boasted of impressive Ivy League credentials. Few seemed to try cases with any regularity. Indeed, one speaker proclaimed that trial was not a realistic possibility in almost every case he handled.
I was sitting next to another Connecticut lawyer when I heard that. We both looked at one another. What kind of options do you give a client when you decide, before the file is even opened, that trial is too risky or too expensive? If everyone pleads, then is it any wonder we're all complaining about overcriminalization?
During the course of the two days, I grew weary of hearing about all the glittering resumes. I suppose I am a blue-collar kind of guy trying to make it in a white-collar world: it almost seemed as though there was a presumption of cooperation with the Government informing the strategic decisions many of the presenters made. Is this what happens when a prosecutor crosses over to the defense side: the same ethos but at a higher pay grade?
I am, of course, painting with too broad a brush. Among the most impressive speakers was Miami's David Markus, who was on a panel devoted to prosecutorial misconduct. His comments were informed by a battle-tested sense of what happens in the trenches. And Gerald Goldstein of Texas is always impressive. He gave a presentation on closing arguments that made me wish I could try a case against him: There is something inherently competitive about the work of trial lawyers. I wanted to match wits with him.
The high point of the conference was Abbe David Lowell's interview of The New Yorker's Jeffrey Toobin. Toobin is a graceful writer and storyteller. He's even tried a few cases, eleven to be exact, in a brief stint as a federal prosecutor. He's moved from telling stories in a courtroom to telling them in print. I do not know whether he was a good lawyer, but I do know that I have a serious case of Toobin-envy regarding his writing. His book on the Supreme Court, The Nine, portrayed the Court as a fallible yet fabulous institution. His periodic pieces in The New Yorker never disappoint. I like to write, but when I measure my product against his prose, I realize that I will forever remain a part of the stammering class. He has a gift.
It turns out he is also an engaging speaker, at times self-effacting, then shrewdly modest. He worked a room of perhaps several hundred lawyers with grace. I'm not the fawning sort, but had there been a book signing at the event, I would have swallowed my pride and asked for an autograph.
I did not have the same reaction to Eliot Spitzer, who spoke on a panel about the Securites and Exchange Commission. I was suprised to see him on a panel of practitioners. As near as I can tell, he's not stepped foot in a courtroom for some time. His recent past suggests that his priorities are elsewhere. He was filled with himself and combative: I won't be watching his new television show, which debuts on CNN this week, a fact he was quick to tell us.
I came home with a fat new book of material to master, and a list of names to call if I need advice on a tricky questions of law. Perhaps that's all that can be expected of a brief seminar. But what lingers is a troubling sense that in the white-collar bar there are a few too many former prosecutors turning tricks on the defense side. It was not what I expected.