Congratulations to Winning Lawyers

A few months ago, I started congratulating winning lawyers in many of the cases I note. I don't do this because I necessarily agree with the lawyers; I do it because I want to tip my hat to fellow professionals who have successfully served their clients.

Maybe they served the greater good or improvement of the law as I see it, and maybe they didn't. But their job isn't to serve humanity or America or justice writ large; it's to serve their clients, and they succeeded at their job.

I especially feel that because my job is to teach law students, and to teach law students to do a good job for their clients; if some law students read these cases and see me congratulating people with whose positions the students suspect I disagree, all the better. And to the extent it's pleasant for people to see their names in e-print, well, I'm happy to give them such pleasure, which I think they've earned through their efforts (again, regardless of whether I agree with them).

Now sometimes I won't congratulate the winning lawyers, for instance because I don't have the time to look up the details, or because I forget, or because the result is complex enough that I'm not sure it's quite a victory. And perhaps there might be a position that's so remarkably odious that I can't bring myself to congratulate someone who successfully litigated it (though I don't recall this ever happening since I started the practice I'm discussing here). But my general plan here is to acknowledge the professional successes of my fellow lawyers regardless of my views on their position.

(Note that some of this is a bit of an oversimplification; for instance, prosecutors' job is to serve their clients—the public—by seeing justice done, not just by securing convictions, though presumably prosecutors who do win a case generally believe that they were indeed properly serving the public, whether or not I agree. But it's still a pretty good general guide to my thinking on the matter.)

Comments

[Martinned]

This would be more convincing if it wasn't for the fact that most of the lawyers you congratulate are (conservative) ideologues who work for campaign organisations like the Institute for Justice. They pick their clients, not the other way around.

[Davy C]

I don't see what that has to do with it. The client gets served by the attorney whether the attorney picked the client out of 10000 possible cases, or was an assigned public defender.

[Eugene Volokh]

Davy C: I agree with you on this. I don't think that most of the lawyers I congratulate work for IJ and similar cause lawyering groups; but whether or not they work for such groups, they did a good job for their clients. That merits congratulations, I think, for that professional accomplishment, regardless of whether I would have chosen the same clients or the same causes.

[DaivdBehar]

Hey, Eugene, how about trying to make yourself useful? Start posting the legal costs to each side.

[Martinned]

Sure, and what you're congratulating the lawyer for is that they got the outcome they were looking for when they picked their client. A lawyer with an ideological agenda who picks whatever client suits their needs cannot be separated from the arguments they make in court the way any other lawyer can. That is true whether I agree with the ideology in question or not. If you congratulate Al Gerhardstein for doing a good job on Obergefell, what you're doing is congratulating him for getting SSM legalised in the US. There's no other way to see that.

[SimonP]

Right. Eugene, assuming that he is the committed pedagogist he claims to be, ought to grasp that, if his comments are being misconstrued, maybe he needs to alter his "congratulating statements," rather than posting a few hundred word addendum to explain what they really really mean. Certainly, that's what I'd hope he'd tell his students.

Nothing in this post states that Eugene ever congratulates lawyers who achieve outcomes with which he disagrees. He equivocates on that point. Which leads me to believe that this post is yet another argument being made in bad faith by Eugene.

[santamonica811]

An absolutely fair point. I assume this OP was prompted by some of the direct or implied backlash to yesterday's congrats that you offered. Since I'm one of the people who posted about that (because I did have a visceral reaction to it, I confess), I guess I'm a tiny bit responsible.

[AmosArch]

tons of people getting fired or having their lives permanently ruined by a one time verbal slip up or tweet against the SJW consensus sometimes even a completely innocent remark that can be construed as something mildly offensive. Or one wrong off work political position sometimes even if they apologize.

progs: I SLEEP

A dude flaunting the teaching of a rival church who is going to continue unapologetically flaunting it and unlike the above will be able to easily find employment elsewhere and will be hailed a hero.

progs: IM SEEING RED HERE

[bernard11]

While I think you are overstating things, your criticism is not without merit.

[Grifhunter]

Thumbs up, professor. As a trial attorney whose firm assigned clients run the gamut from individual civil defendants to large corporate plaintiffs I have little say in whose case I try. Personal belief in the merit of the clients politics or position is never a consideration. Its 110 % effort, using all my experience and skill to the benefit of the client's interest.

[DaivdBehar]

Griffie Baby, can you stop gaslightin'? You will never attack the other lawyer or the judge destroying the life of your client. To deter. You owe your job to them, not to the client.

You will never question the psychotic doctrines at the core of your worthless, garbage, toxic Mafia, scumbag profession.

[bernard11]

Having raised the issue in a previous thread, I'll chime in here.

While I understand that the lawyer's job is not to serve justice, that doesn't mean it is appropriate to congratulate, or honor, one who achieves an unjust result, as happened, IMO, in the case of the fired teacher.

A court case is not a game. It can have real consequences, often serious ones, for individuals. It is one thing to congratulate, say, a chess player you don't care for on an impressive win, even over a friend. No one got killed, or lost their job, or suffered financial calamity. There was no injustice.

To make a stretched analogy, consider a war, or maybe just a battle. Would you congratulate a general who won the battle, possibly through excellent generalship, if you felt that the cause he was fighting for was unjust, wrongful? Would you be happy to give him the pleasure of recognition, as you put it? (You might study his tactics, of course, but that’s a different matter.)

And, as martinned points out, in many cases the lawyer has chosen the client, often because he explicitly agrees, not just with the legal position but with the ideology. Is the lawyer not then accountable for the consequences of the ideology, over and above legal results.

In short, I don't think lawyers can always be judged separately from their clients. I think the Archdiocese behaved badly, so I wouldn’t congratulate it on its court victory – getting away with it – and thus wouldn’t congratulate the lawyers who helped either.

[The Margrave of Azilia]

We believe for different reasons that the Archdiocese was wrong, but let's imagine a different scenario involving the same principle (I think there are real-world examples in legal history):

Say there's a national religious body (say, a group of Episcopalians) which controls some local parish property on condition that the national body stays in accord with correct religious principles.

Then a local parish secedes and tries to take the property with it, claiming that the national body, with its positions for gay rights, is being unorthodox, and a court agrees and awards the property to the seceding parish? Wouldn't we congratulate whichever lawyers persuade the appeals court to respect religious autonomy and not second-guess doctrinal decisions by religious bodies?

[bernard11]

I don't think it's a question of doctrinal decisions.

I'm not equipped to argue Catholic doctrine with an archbishop. It may well be that everything that happened was perfectly in accord with Catholic doctrine.

But that doesn't make the firing just. An action that is correctly based on religious doctrine is not automatically fair and right for that reason.

Your example, moreover, is not analogous. It is a property dispute between the parish and the national organization. I, personally, see no great injustice either way in the decision in isolation.

IMO if someone often congratulated lawyers they could reasonably congratulate the winners, however the case came out.

[The Margrave of Azilia]

"It may well be that everything that happened was perfectly in accord with Catholic doctrine."

I don't think it was. The Archdiocese has been in the habit of tolerating open (or barely-concealed) gay sex among the people working there. Who knows what prompted the Archbishop to suddenly decide Catholic doctrine was worth enforcing, but one swallow doesn't make a summer.

The Archdiocese and the suffragan bishops were also responsible for catechizing the people but obviously they failed in this duty as well, since if the people of this archdiocese are typical of other American Catholics, most of them don't even believe in the Real Presence, much less in the dignity of true marriage.

The main thing the Archbishop did wrong was failing to resign his office.

[The Margrave of Azilia]

And it was unfair to lure these two guys into employment at a Catholic school without making clear that gay sex was a bad thing.

The very fact that enforcing Catholic doctrine was such a shock to so many indicates that the authorities simply hadn't been teaching, much less enforcing, that doctrine.

[Eugene Volokh]

bernard11: The firing of the teacher may not be fair -- but I think a First Amendment rule that leaves churches free to communicate with church-affiliated schools, even to accomplish unfair actions, is the right rule. An analogy: I don't think it's fair for lovers or spouses to cheat on each other, but I think a legal rule (whether or not constitutionally commanded) that bars (say) intentional infliction of emotional distress claims based on such cheating is the right rule.

In any event, though, even if I thought that the First Amendment rule should be otherwise, and that the church should be liable for interference with business relations based on its conduct, I'd have congratulated the winning lawyer.

[bernard11]

Eugene,

The firing of the teacher may not be fair -- but I think a First Amendment rule that leaves churches free to communicate with church-affiliated schools, even to accomplish unfair actions, is the right rule.

That may be, but rules are sometimes overlooked as a matter of basic fairness. (This happens even in extreme rule-oriented contexts like sports). Invoking such a rule to justify a patently unjust action is not, IMO, worthy of congratulation. It smacks of, "Hey. You found the loophole, so we can fire this guy. Good work." This does not appeal to me.

Tell me. In your mind, what does congratulating someone imply? Merely that they won, without any consideration of the consequences of the victory?

Would you congratulate Rommel on his North African victories?

[Eugene Volokh]

bernard11: Well, no, I wouldn't; but then again, if I were an American soldier, I'd be fully entitled to shoot Rommel dead around that time if I had the opportunity (even if I thought he was on balance an honorable soldier). I don't think warfare, which involves massive slaughter (and a victory that can be an opportunity for still more slaughter) and is conducted basically outside a legal framework (except the very loose one set by the laws of war, such as they are) is comparable to professionals operating peacefully in accordance with the rules set forth by our own legal system -- and indeed fulfilling the roles set forth for them by our own legal system.

[bernard11]

But the issue is not warfare or the specific rules, it's the result.

Would you congratulate a Nazi who legally and peacefully got himself elect Prime Minister of some country? Or, as a different and maybe more plausible example, a US politician with particularly odious views who won a gubernatorial election - a David Duke type, say?

[Absaroka]

Hypo: you are a prosecuting a difficult case. The defendant is unquestionably guilty - he gave a confession accurately describing details that could only be known to the killer. Unfortunately for you, the confession is suppressed for whatever reason. The defense lawyer conducts his case brilliantly - his motions could be used as examples in law school, he dredges up obscure precedents that are directly on point, and his cross examinations put Perry Mason to shame. The jury acquits.

Do you shake his hand and say 'Congrats, counselor, your defense was brilliant' even though you both know an evil criminal is being set free[1]?

You could come up with similar things - a surgeon who masterfully saves the life of a spree killer, the coast guard folks who conduct an against-the-odds rescue of Epstein off his sinking yacht, etc, etc.

I think the notion that we expect people to do their job well even when we would prefer a different outcome is pretty widespread.

There are probably limits on this - I dunno if I'd congratulate the Auschwitz contractor ('Ahead of schedule and under budget, great work Hans!'). But I don't think it's out of order to congratulate Johnny Cochrane even if I think OJ is guilty.

[1]He hopefully replies 'Thanks, this isn't one I'm happy about'.

[bernard11]

Do you shake his hand and say 'Congrats, counselor, your defense was brilliant' even though you both know an evil criminal is being set free[1]?

I don't, especially if I am an observer, not the prosecutor. The prosecutor might do it as a professional reflex, I guess, even if he shouldn't, but for the observer it is completely gratuitous.

But I wouldn't generalize that to all acquittals in criminal cases, even where I think the defendant is clearly guilty, because I think the various protections defendants have are extremely valuable, and so an acquittal too may serve justice.

When we talk about specific cases I draw a fine line, obviously, based on my own notions of justice. But the principle I'm advancing is that we shouldn't congratulate lawyers (or anyone) for achieving an unjust result. I'm not saying you have to agree with my evaluation of an outcome.

[David Welker]

Your reasoning here fails just as soon as you say you would congratulate them even if they achieved a bad result, in my view.

First if all, “winning” is defined as getting a judge to agree with you. But the better lawyering could happen on the losing side. When I took Alan Dershowitz’s class in law school, the one comment I remember was that if you never lose, it just means you are never taking a hard case.

From this perspective, it doesn’t make sense to congratulate someone for being on the “winning” side. Ultimately, the decision was the judge and the judge may and likely will decide based on factors other than advocacy. (We wouldn’t really have a rule of law if the winner was always the side that had the best lawyers, would we.)

The people who deserve praise pursue justice, not injustice. I don’t have any objection to whomever you choose to congratulate. But to me, it doesn’t mean anything since I do not believe you have good criteria.

[JasonT20]

Your reasoning here fails just as soon as you say you would congratulate them even if they achieved a bad result, in my view.

David,

After having read much of the back and forth, your take on it seems about right to me. Eugene is making it seem like the goal is to model for his students being gracious to other attorneys for doing their jobs well. And that they should, regardless of whether they agree with the arguments or the position of the clients in those cases. Even taking that as a valid goal, then it shouldn't be about whether the case was won, but whether those being congratulated represented their clients with skill and knowledge beyond reasonable expectations and well within the bounds of ethics. Taking on a case that they should lose on the merits, and doing better than anyone could have expected might be worthy of acknowledgement even if they do lose. If they make a particularly novel or clever argument, that might be noted and congratulated as well. But simply winning could be no more than having taken the side with the best case, as you say.

And, from a point of view about offering praise or congratulations, I would certainly only do so if I agreed that the winning result was desirable. I congratulate people on their professional achievements when I am happy that they achieved that thing, not just because they 'won' or succeeded.

[tkamenick]

Even though I disagree with the church here, I have a very hard time seeing the result as unfair or unjust. This wasn't a surprise. The teacher took a job with an organization he knew believed what he wanted to do was wrong, knew if he did that thing the organization could and would fire him, and went ahead and did the thing. He wasn't given an unfair shake, he got exactly what he knew he would get and frankly agreed to get by taking the job.

[bernard11]

This wasn't a surprise. The teacher took a job with an organization he knew believed what he wanted to do was wrong, knew if he did that thing the organization could and would fire him, and went ahead and did the thing. He wasn't given an unfair shake, he got exactly what he knew he would get and frankly agreed to get by taking the job.

I don't think the facts support this at all.

First of all, Payne-Elliott worked at the school for 13 years. Can anyone seriously claim no one knew he was gay? That seems wildly unlikely to me.

Second, he got married in 2017, and his contract was renewed *twice thereafter. And there is nothing in the decision to suggest he was placed on notice before getting married that the marriage would lead to his discharge. Note too that his spouse, Brebeuf, was not fired from his job at a Jesuit school, despite pressure from the archbishop.

So no, he didn't know the marriage would lead to his firing.

My own conjecture is that this was a consequence of some ill-feeling between the archbishop and the Jesuits - not uncommon as I understand it given the governance structure. When the Jesuits refused to fire Brebeuf someone said, "What about Payne-Elliott over there at Cathedral?" and that was it.

I also find it interesting that it was not the marriage, or the homosexuality per se, that led to the firing, but the fact that it would be publicized.

On June 23, 2019, Cathedral’s president informed Payne-Elliott that, according to this directive, Cathedral was terminating his employment. The president stated that the sole reason for his firing was that “the Archbishop directed that we [Cathedral] can’t have someone with a public same-sex marriage here and remain Catholic.”

OK to sin in private, I guess.

*It's not entirely clear how many times the contract was renewed. The decision says:

From 2006 until June 2019, Cathedral employed Payne-Elliott as a world-language and social-studies teacher under a contract that was renewed annually. Payne-Elliott, “a homosexual male”, married his same-sex spouse in 2017; his spouse teaches at Brebeuf Jesuit Preparatory School, also in Indianapolis. Cathedral continued renewing Payne-Elliott’s teacher contract through May 2019 for the 2019–2020 school year. The archdiocese knew about Payne-Elliott’s contract with Cathedral.

[DaivdBehar]

Excuse me? Firing that popular and effective teacher is a benefit and not a damage. With a quarter of positions unfilled, he will get a salary double that of the Catholic school, with tremendous benefits and job security.

[David Welker]

bernard:

I agree with you. Why congratulate people who waste their life and talents producing injustice?

A life well-lived isn’t one where we make the world a worse place than before we were in it. And if you happen to be unusually talented and use those talents for evil, you do not deserve positive recognition.

[Ed Grinberg]

re: "evil"

https://reason.com/volokh/2022/09/02/first-amendment-protects-catholic-archidoceses-pressuring-catholic-school-to-fire-same-sex-married-teacher/?comments=true#comment-9682929

[Ed Grinberg]

"Evil" and "injustice" are in the eye of the beholder.
(Take a look at the exchange below between TutorFrank and Noscitur a sociis.)

[David Welker]

Although people have different opinions on the topic of evil and injustice, I would not be so radically morally relativistic as to say they are completely in the eye of the beholder.

[legalizeshrooms]

It would be kind of nice if judges could specify a maximum amount that can be spend by each party on lawyers.

[legalizeshrooms]

Or, better yet, one side should not be allowed to spend more on lawyering than another.

[legalizeshrooms]

Equal justice requires equal resources

[Martinned]

In normal countries the losing party pays the (reasonable) legal fees of the winning side.

[David Welker]

Which discourages some lawsuits with merit, right?

A person without deep pockets may decide they don’t want to take the risk. In the United States, some plaintiffs have lower risk because their attorney takes the case on a contingency. In that case, the downside is limited.

Ultimately though, we really haven’t figured out a way to make litigation fair despite asymmetries in resources.

[David Welker]

I should say “perfectly fair.”

[Eric VonSalzen]

When I was practicing, I can't recall that I was often congratulated for a win (the few times it happened, I appreciated it). The other times I just hoped the bill would be paid.
Prof. V, what you are doing is good. Keep it up.

[The Margrave of Azilia]

Usually it's in the public interest (as well as the lawyer's interest) to take on lots of clients and causes from different directions, because if one side isn't zealously represented, the chance of a bad decision goes up. If both sides are zealously represented, it's more likely (though not certain) that the court will correctly identify which side's case is better.

But sometimes we get to extremes. "I would like to congratulate Reverdy Johnson and Henry Geyer for their victory in the Dred Scott case."

[The Margrave of Azilia]

In the case of that Archbishop, to illustrate how wrong he was, imagine a Mennonite congregation which failed to preach pacifist doctrines, looked the other way as employees took National Guard training, and ignored surveys showing that the people in the pews dimply didn't believe in pacifism...but the congregational leaders thought the donations of the "faithful" were too important to risk provoking them to leave and take their wallets with them.

[TutorFrank]

Your notion of the lawyers job is exactly what is unethical about the legal profession. Every ethical person, lawyer or nonlawyer, has a duty to serve the greater good in their job, whatever that job is. I might congratulate a lawyer who I thought did harm, if I thought that they thought they were doing good. That is what it looks like to treat your ideological opponents with respect. But I would not congratulate a lawyer who knowingly served their client at the expense of the greater good. And if the legal profession stopped tolerating such behavior, the world would be a much better place.

[Noscitur a sociis]

Fair enough, but we need a system to figure out whether or not a client is so antithetical to the greater good that a lawyer shouldn't take the case. To get the best results, we should probably have advocates on either side trying to present the best argument for or against.

[Commenter_XY]

LOL, LOL, LOL....that was funny. 🙂

[TutorFrank]

Isn't the system to let every lawyer decide for themselves whether serving each potential client would serve the greater good?

[JasonT20]

I think you missed the joke. First, cases are brought into courtrooms so that an adversarial process will occur and advocates make legal arguments and present evidence so that a judge or jury can decide which side should prevail to best serve the greater good. But you are saying an ethical lawyer should not represent the side that would be against the greater good. Noscitus then responded that we would then need a way to determine when a particular side (client) "is so antithetical to the greater good that a lawyer shouldn't take the case." The solution he suggests is to have an advocate for the lawyer taking the case go up against an advocate against him taking the case, in order to achieve the best results.

See the issue now?

[David Nieporent]

Every ethical person, lawyer or nonlawyer, has a duty to serve the greater good in their job, whatever that job is.

"The greater good" is above pretty much everyone's pay grade, except possibly the Pope's. I do not want firefighters to decide whether allowing a particular person's building to burn down is the "greater good." I want them to put out fires to the best of their ability. I do not want surgeons deciding whether saving a particular person's life is "the greater good" than letting that person die. I want them to save lives to the best of their ability. And I do not want lawyers deciding whether helping their clients is "the greater good."

[David Welker]

Here is an example of a lawyer who won a case that does not deserve positive recognition:

https://www.abajournal.com/news/article/backlash-follows-lawyers-recorded-celebratory-comments-about-how-he-won-his-case

[The Margrave of Azilia]

"Maybe they served the greater good or improvement of the law as I see it, and maybe they didn't."

These lawyers won support for the concept that churches in the state of Indiana are free to affirm a man/woman definition of marriage which not so long ago was accepted by Christians, Jews, Hindus, atheists, Rastafarians, crystal-gazing New Agers, Republicans, Democrats, liberals, etc., etc. A definition which, back in the Swinging Seventies, was considered so obviously right that a challenge to that position didn't even raise a serious federal question.

And Indiana isn't even going back those bad old days of the day before yesterday - it's just that religions can uphold the old-timey, reactionary definition as part of their faith, and can't be forced by secular authorities to recognize same-sex unions as part of their religion.

If Professor Volokh isn't willing to endorse *that* - a minimalist religious-freedom position - then what parts of the First Amendment *is* he willing to enforce?

[Noscitur a sociis]

The guy who writes Short Circuit has a very distinctive ideology that very clearly shapes his coverage.

It's not an ideology that's shared by many mainstream political figures, but it's definitely there.

[DaivdBehar]

I congratulate lawyers to encourage students to serve their cliebmnts well.

More Hemingway, less Faulkner.

[AmosArch]

Translation: I got my fee-fees hurt that anyone would agree that a church (other than my post modern social justice church) can't be forced to employ people who openly flaunt their teachings. So I'm glad that Volokh made what I imagine to be an apology post kowtowing to my rage against freedom of religion and association. Of course if things had been reversed and it was my religion/cult's freedom of association being threatened I'd be totally pissed off at him now.

[bernard11]

Napoleon is admired for his brilliant campaigns, even though he was an evil aggressor. Rommel is admired for his WWII exploits even though he was serving one of the most evil regimes of all time (as well as for his WWI exploits, which are more morally neutral). Caesar's campaigns subjugating the indigenous people of Gaul are admired, even as subjugating indigenous people is condemned.

True, but there is a difference between admiring someone for their skill, even studying their successes, and actually issuing congratulations.

To me, the latter implies approval - that the thing accomplished was worthwhile, the effort noble. It doesn't have to be world-shattering, but shouldn't be odious.

Saying that Rommel was an excellent general is one thing. Shouting out, "Way to go, Erwin baby!" is something else.

[Absaroka]

A fair point.

Napoleon surely deserves all the blame for his conquests, since he was also the HMFWIC; he wasn't just the dutiful soldier obeying his country's civilian government. Rommel is a little more ambiguous; after all he was eventually killed (well, told if he took poison his family would be spared) for involvement in a plot to assassinate Hitler. You can argue either side of that, I suppose.

[The Margrave of Azilia]

The Pope on this issue is acting as if the Church is a Marxist-Leninist political party, requiring members to *deny* a doctrine one day, then requiring that they *affirm* that same doctrine.

"We have always been at war with Eastasia, and we've always opposed the death penalty."

[Martinned]

What does him being "mild and easygoing" have to do with ideology?

[Noscitur a sociis]

I'm sure he's a nice guy. He's also a textbook ideologue.

[MatthewSlyfield]

I don't even recall hearing about that story before. I looked it up. It's a real story.

My $0.02:

1. He starts an argument by ranting at a low level employee in a drive through. Did he imagine the person working the drive through window has any kind of say in corporate policy?
2. He then posts his rant on-line where it will live forever compounding his stupidity.
3. That people started calling his employer with death and bomb threats is absolutely despicable.
4. Given that 3 happened it's kind of understandable that he got fired and that no one else wanted to employ him. He's simply too much of a liability risk. Most companies can't justify the cost of the kind of security that would be required over just one employee.