Sunday, April 17, 2016

What Do You Want - Justice or Simply to Win?

I watched the HBO movie about Anita Hill. I always thought she was telling the truth. Perhaps because of Ms Hill, Congress passed the amendments to the Civil Rights Act which provided for jury trials in discrimination cases. Perhaps, as a result of Senator Jack Danforth's nimonation of Clarence Thomas, and perhaps because of some guilt Danforth felt over the way he treated Ms Hill, Senator Danforth agreed to sponsor the Americans with Disabilities Act. I don't know. I have always respected Senator Danforth, but I don't respect the way he treated Anita Hill. I watched the hearings and I think HBO gave Biden more credit for being decent than he was do. Danforth wanted to win. So, the Senators smeared Anita Hill's reputation.  It wasn't fair. It wasn't just. But they won. Clarence Thomas has been on the Supreme Court for 25 years.

Anita Hill's abuse was no different than a candidate on the wrong side of a politician's campaign. They all want to win. They are taken by the desire. Winning becomes more important than justice, or dignity or fairness. I don't mean to sound holier than thou. Trial lawyers, including me, get taken by the desire to win a trial.  Cross-examination is often similar to a bully beating up a younger kid. Lawyers hone their cross-examination skills for years, pouncing on an unsuspecting lay witness. Usually, it's not a fair fight. I know.  I can cross-examine a witness and wound them to the core, even when it's unwarranted.  When I go to trial, I lose objectivity. I want to win.

I suppose it's my job to win. It's not my job to be just. Justice is the responsibility of a judge and jury. But, when I allow myself to be honest with myself, I am not proud of seeking victory over seeking justice. Trial lawyers, including me, have big egos. I used to tell myself that the big egos only belonged to the other guys, not me. And when I rationalized egotists were "guys," I meant they were men. But, I realize, I merely was rationalizing to convince myself that I have little ego. I admit it now, I have a big ego. Yet, in representing my clients, I am supposed to want to win, for them. I do want to win, for them, and also for me. I don't know how to do this job any differently. Sometimes, when I allow myself to strip the facade, I feel somewhat hypocritical. I don't know how to fix this dilemma. Maybe I can't.


  1. Mea culpa from LBratcher? Moment of self-reflection?

    There's been a theme in your blogging over the past year, namely that you're tired, burned-out at times, and questioning what it's all been about.

    Follow the truth.

  2. There is some truth to your assessment. However, I do believe MLK, Jr.'s statement, "The arc of history is long, but it bends toward justice." I also believe, "An unexamined life is not worth living." I am still proud of the work I do, but I am not Pollyanna-ish.

    1. I appreciate your reply and honesty. While we disagree on most everything political that you've blogged about, I enjoy occasionally reading your postings via TKC.
      Off the top of my head, your two posts which were excellent (besides this one!) involved describing your early years in school, and a poignant multi-point guide to appreciating the truly important things in life.
      May you be blessed with good health, and the opportunities to use your experience to educate young attorneys.

    2. Thank you very much. Your comments made me feel good.

  3. Anita Hill was, is and always will be a liar.

    Lynn, jut loves it in her echo chamber, the facts are not important.

    A whole phalanx of female witnesses who had worked with both Clarence Thomas and Anita Hill came out in support of him at his confirmation hearings.

    One of those witnesses went out of her way to point out that the image that Anita Hill projected on television bore no resemblance to the behavior and attitudes of either Anita Hill or Clarence Thomas that she had seen with her own eyes.

    On the other side, one witness backed up Anita Hill's story by saying that she had been told the same things by Anita Hill when they both lived in Washington.

    But then the fact came out that this star witness had left Washington before Anita Hill went to work for Clarence Thomas, so there was no way that her corroboration could be true.

    There were ways in which different versions of events by Hill and Thomas were quite capable of being checked — but were not checked.

    That failure to check the facts was very strange in a situation where so much depended on the credibility of the two people. Here are the two versions.

    According to Clarence Thomas, he hired Anita Hill at the urging of a friend because an official of the law firm at which she worked had advised her to leave.

    According to Ms. Hill — both then and now — she was not "asked to leave" the law firm but was "in good standing" at the time.

    This too was not just a question of "he said" and "she said." An affidavit sworn by a former partner in that law firm supported Clarence Thomas' version. That was ignored by most of the media.

    Since the Senate has the power of subpoena, it was suggested that they issue a subpoena to get the law firm's records, since that could provide a clue as to the credibility of the two people.

    Senators opposed to the nomination of Judge Thomas voted down that request for the issuance of a subpoena.

    After Anita Hill's accusations, a group of female members of Congress staged a melodramatic march up the Capitol steps, with the TV cameras rolling, demanding that the Senate "get to the bottom of this."

    But "getting to the bottom of this" apparently did not include issuing a subpoena that could have shown conclusively who was truthful and who was not.

    In another instance, there was already hard evidence but it too was ignored. Clarence Thomas said that Anita Hill had initiated a number of phone calls to him, over the years, after she had left the agency where they both worked. She said otherwise. But a phone log from the agency showed that he was right.

    The really fatal fact about Anita Hill's accusations was that they were first made to the Senate Judiciary Committee in confidence, and she asked that her name not be mentioned when the accusations were presented to Judge Thomas by those trying to pressure him to withdraw his nomination to the Supreme Court.

    Think about it: The accusations referred to things that were supposed to have happened when only two people were present.

    If the accusations were true, Clarence Thomas would automatically know who originated them. Anita Hill's request for anonymity made sense only if the charges were false.

  4. "Anita Hill was, is and always will be a liar."
    That is unknowable, & therefore an opinion, though its stated as a fact.

    "But "getting to the bottom of this" apparently did not include issuing a subpoena that could have shown conclusively who was truthful and who was not."
    Do you believe in magic? Only these two know the truth of this, & I consider his subsequent behavior to be suspicious, his silence as if he were a sulking child, even wondering why he isn't being impeached, though finally he deigned to speak after a decade.

  5. What would Ms. Hill look to gain by making the testimony she did? Why would she lie?

    It makes no sense whatever.