In a case on appeal, I had to respond to a motion by the other side for monetary sanctions against me. The motion contends that I’m pursuing a frivolous appeal. The motion proposes that my appeal is so ill-founded that I should pay the other side’s attorney’s fees. That’s the claim. And the fact that the judges required me to respond means that they’re considering granting the motion. The motion will be argued at the same time as the oral argument on the merits of the appeal.
This stuns me. I am so far from believing that the appeal is frivolous that I believe that I should win it. I believe that the appeal presents a substantial First Amendment issue. I believe that the First Amendment is under attack by the other side of this case, and that the Court of Appeal must step in to uphold the Constitution.
Before I responded on paper, I had to respond inside. And I had only one choice: courage.
The issue of courage usually arises consciously in my cases when I have to assay courage of my clients. I take for granted that clients have a greater or lesser degree of courage, and I calibrate my advice to their ability to bear risk. Some will fight, some must compromise. A few only want to give up.
I’ve seen cases take a toll on my clients. I’ve seen their health or fitness decline under the stress of prosecution.
I know that the case that I’ve appealed – the subject of this motion – weighs on my client. It’s an emotional case. My client was a CHP dispatcher on the night that a young woman got high on cocaine, stole her step-father’s Porsche, raced down a toll road at speeds of over one-hundred miles per hour, clipped another car, and collided with a toll booth. The collision decapitated her. The CHP took collision-scene photos, including photos of her corpse. My client was given copies of those photos, and he emailed them to friends and family. He wanted to warn them against the dangers of drunk driving.
The photos spread on the internet. Cyber-bullies even emailed them to the young woman’s family, with cruel comments. The family then sued my client. I am arguing that my client was exercising his First Amendment rights to publish these photos, because they pertain to an issue of public importance: the dangers of drunk driving. I lost in Superior Court, and I appealed to a higher court.
My client must dig deep to bear up under this lawsuit, which threatens to bankrupt him. And as his lawyer, I must never have less courage than he does.
So my response to this motion must be strong, uncomplaining. I don’t compare myself to Job, because innocent Job was righteous, and I'm not – although I'm blameless of pursuing a merit-less appeal. I think of a metaphor I use for some of my life-prisoner clients who are trying to get parole. Sometimes I have to make them face the fact that their recent rules violations make it impossible for them to get parole now. I have to make them understand that they are better off waiving their right to parole hearing for a year or so, than risking denial of parole with their next parole hearing many years in the future. Some of them tell me that their rule violation wasn’t their fault. So I tell them the story of the man who got up in the morning, had breakfast, kissed his wife goodbye, got into his car, backed out of the driveway, and got smashed by a drunk driver. I tell my clients that, like that man, what happened to them might not be their fault, but that they have to live with the consequences.
So, too, I have to deal with this motion.
I don’t compare myself to Job, but Ecclesiastes comes to mind, the part that says:
[T]he race is not to the swift, nor the battle to the strong, neither yet bread to the wise, nor yet riches to men of understanding, nor yet favour to men of skill; but time and chance happeneth to them all. [Ecclesiastes 9:11.]In my heart, I believe that I deserve to win this appeal. Certainly, I believe it’s not frivolous, and I don’t deserve to have to pay the other side’s attorney’s fees. But a court case is unpredictable. You never know what a judge or what judges will do. So I know that this could have a bad ending.
If nothing else, if this appeal goes badly, and I have to pay the other side’s attorney’s fees, I’ll have another story to tell my life-prisoner clients. I’ll tell them about the time I filed and prosecuted a perfectly proper appeal and got crushed unjustly. For that reason, I can tell them that I understand their frustration with suffering a penalty that they don’t think that they deserve. Stuff happens.
Another benefit of this ordeal: it teaches me empathy for my clients. It’s too easy to forget what it’s like to be in the cross-hairs, like many of my clients are. It’s valuable to have with them that common ground.
Shortly after I got this motion and the Court’s notice to respond, I watched the classic film The Seven Samurai. The samurai in that film went to a poor village to defend farmers against a band of outlaws. Defending the farmers, the samurai put their own lives in danger, and most of them died by the end of the film. Now that I’m in harm’s way, I guess that makes me a samurai lawyer.
Fine. I think I fight hard for my clients. But it turns out that I fight harder when I’m fighting for my own skin. I wrote a 30-page response to the motion for sanctions, and I poured passion into it. Now I’m writing my final brief on the merits of the appeal, and I’m putting more into it in time and passion than otherwise I might have. Because it’s personal.
I’ve been fighting this case for a long time an maybe my energy had begun to ebb. The other side might yet regret making my energy surge.
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