Schrager: Perhaps this is why it’s called the ‘practice of law’

Two years into retirement has given me time to reflect on my 41 years as a lawyer as I attempt to put specific memories into perspective within a meaningful context. In capturing these recollections of otherwise mundane events, the connectiveness of these experiences came into focus. As these events were separately experienced, I did not fully realize at the time that one was built upon another. Viewing them now together enhances my sense of gratitude for the privilege of having been a lawyer.

The impact of these events guided me as a young lawyer and taught me lessons and cues that I applied throughout the remainder of my practice to the last hearing and final jury trial of my career. I am hopeful that the reader may gain some insight as a result into his or her own practice as they experience the journey of being a lawyer.

My first court appearance — June 1980: Handling an uncontested divorce in court (now a court appearance can be waived — a bad idea, but let us leave that for another day) is the simplest of court appearances. Eight name, rank and serial number-type questions are asked before the petition is granted.

The hearing was in an ornate, ceremonial courtroom in northern Indiana. To say I was petrified would be an understatement. The case being called, I started my slow, seemingly endless walk to the bench along with my client. The opposing party and his lawyer did not appear, resulting in an easy hearing becoming ridiculously simple. The judge was a large, mature-seeming man with a substantial shock of white hair. Nearing the bench, my legs weakening out of sheer terror, I was comforted with the sight of a long horizontal bar that ran the width of the bench on which I could brace myself as I would stand before the judge. As I reached to grab the bar, His Honor said, “Get your f—ing hands off the bench!” In today’s world of law practice where softness and sensitivity occupy too large a space, such a comment perhaps would warrant discipline. For me, it was a gift. As I snapped my hand back as if a jolt of electricity raced through the right side of my body, I realized that the judge had scared the scared out of me. Like a football player’s first hit, I was in the game.

My first jury trial in a long-forgotten month in 1982: Living in Bloomington, I commuted 45 minutes every day to Greene County, where I worked as a deputy prosecutor for the princely annual salary of $14,500. Working for David Holt, an outstanding lawyer and a gem of a person, made the salary incidental. (That is easy to say now!) My first jury trial involved felony charges against a brother and sister alleged to have issued bad checks. The total loss amount was roughly $400. Having the scared scared out of me two years earlier enabled me to try the case with a degree of confidence.

“Devastated” and “crushed” would capture my reaction when the jury came back with not-guilty verdicts. When Judge Johnson’s secretary told me, “Mr. Holt just called and he wants to see you in his office right now,” being fired was a foregone conclusion. Life as I knew it was in doubt. As I walked into Mr. Holt’s office, he had a big smile on his face, and as he wrapped his arm around my shoulder he said, “Welcome to the legal profession … and please call me Dave.” He then said, “Let’s sit down and go over what happened as we will learn from it.” He pulled a few beers out of his refrigerator, which we enjoyed as we spent the next two hours going over the trial. Dave made valid and worthwhile points, which I carried forward for years to come. The most poignant took place during the post-verdict face-to-face with the jury that involved the judge, defense counsel and me. The jury foreman said, “We think they were guilty, but the young deputy prosecutor never pointed at them, looked them in the eye and told us that they were guilty.” The jury sensed doubt in me, Dave pointed out, and accordingly found reasonable doubt.

Rest assured that from that day forward, I did what I failed to do in that trial. Crossing over to the defense (or the dark side, as prosecutor friends liked to call it), I never failed to end my final argument behind my client, touching him or her on the shoulders and emphatically saying, “(Using the first name of my client to humanize him) is not guilty.” In so doing, my client was humanized in a small measure after a good prosecutor will have done everything to turn the client into a something less than human, i.e., “the defendant,” “perpetrator,” “wrongdoer,” etc. On the issue of nomenclature, a defense lawyer should never use such words in trial and should strike from their vocabulary the dreaded V-word: “victim.” The use of the V-word is a tacit admission of guilt. “Complaining witness” is far preferred. Do not use her name, particularly the first name.

Know your judge before using first names. Judge Barker, for example, requires the use of sir names only because she recognizes that formality in the court is in keeping with the dignity of a legal proceeding. And in so doing, it manifests the majesty of her courtroom and her reverence for the law. The sense of formality and honor in Judge Barker’s courtroom is sadly lacking in too many others.

For the balance of my practice, I found it helpful to speak to jurors or the judge following a trial. (The former is allowed in state court if the jurors are willing, yet prohibited in federal court.) I always learned at least one gem of information that I carried with me for decades to come.

First federal jury trial — 1985, The Hon. S. Hugh Dillin: Being in Judge Dillin’s court as a young lawyer, and even for those who were more seasoned, felt as if one had reached the major leagues. As my first federal jury trial was scheduled to start on a Monday, Judge Dillin conducted a hearing on our motion to suppress evidence the preceding Friday.

Watching Judge Dillin walk into the courtroom that Friday afternoon made me realize that the scare had not been completely exorcised from me five years earlier. Assistant U.S. Attorney Jack Thar, a wonderful prosecutor and a great guy, sensed my apprehension and described the issues of the case accurately and objectively for me as I stood there in awestruck silence. Warmed up, I put on evidence and argument for an hour. Judge Dillin granted the motion to suppress.

Tom Richardson, Judge Dillin’s outstanding court reporter, approached me at the conclusion of the hearing to tell me that His Honor wanted to see me in his office. As I walked the long green mile to Judge Dillin’s office behind his bench, I thought the chat would be uplifting and complimentary. I was about to be privately face-to-face with a legend. As I entered his outer office, Judge Dillin sat there stone-faced, looking straight ahead, not at me. The conversation was short, limited to Judge Dillin saying, “You had me convinced after five minutes; you wasted an hour. Next week, do not waste my time.” He motioned, as if flinging off the water after washing his hands, that I was dismissed.

The following week, I called no witnesses and limited my cross-examination to the essentials. “Not guilty,” said the jury. That lawyers talk too much and delve into the unimportant was the essence of Judge Dillin’s stark comment following the motion to suppress. Complete unbridled wisdom was the way in which Judge Dillin conducted himself throughout his 35-year-plus distinguished and historic tenure on the bench, having been appointed by President John F. Kennedy in 1961. Practicing in federal court is a privilege, not a right.

Please excuse my seeming lack of humility in the next comment. Over the next 20 or so years, I had four more not-guilty verdicts in federal court. Never once in a federal criminal jury trial did I call a witness or offer a single piece of evidence — not as a matter of policy, but because I determined such was the best course in each case. Judge Dillin’s advice was prescient and valuable. And I so miss him.

Representation of a garden-variety client: Several years later, Magistrate Judge Kennard P. Foster appointed me to represent a young man who was in the Crips club (“club,” not “gang,” for gosh sakes. Federal prosecutors have enough ammo as it is; do not aid their case by using pejorative words that slant in their favor). When describing my plea negotiations that I’d had with the prosecutors to this client, he said that I seemed hesitant and asked if I was fearful of going to jury trial. Responding, “Of course not” to this client did not mitigate his concern and general distrust of me. From that experience forward, I would tell every client during the initial meeting how much I enjoyed trying cases — “being in the action” is like no other, as I would describe it to clients going forward. I took it so far that I would repeat this as negotiations began to heat up. Clients would frequently tell me to calm down and to just get a plea agreement for them. A frequent error made by lawyers is that they lose track of the fact that the case is about the client, not the lawyer. Do not be a distraction. Do not stand in the way of obtaining the best result for the client, be it ego, fear or foolish animus toward the opposing lawyer.

Have some fun: In every criminal trial since the early ’90s, I would  secretly quote a line from a Bruce Springsteen song that was appropriate to the case. In 2002, I represented an individual charged alongside nine others with cocaine and crack distribution in the court of the Hon. Larry J. McKinney. A single snitch, testifying only against my client, had his sentence reduced from mandatory life without parole to 18 months.

In my closing, quoting Springsteen, from the song “The Ghost of Tom Joad,” I said, (the informant), with his cozy plea agreement, “had a one-way ticket to the promised land.” Although I doubt it was this line that put the case over the top, my client was the only one who walked out of court after the verdict a free man.

I kept this going for 15 more years until excellent AUSA Barry Glickman busted me by quoting the Boss in one of his compelling  arguments to the court.

My last hearing — 2021: I was appointed to represent a young man charged with participation in an alleged fentanyl conspiracy. A hearing was to be held on the government’s motion for pretrial detention under 18 U.S. Code § 3142. The young assistant U.S. attorney was brash and confident. Victory was hers, she predicted before the hearing, in a fun-loving and good-natured way, free of arrogance.

Literally nine seconds later, the magistrate judge denied the government’s detention motion. The AUSA brashly rose and orally requested the appeal of the ruling to the district judge. Crestfallen, she left the courtroom. My last hearing in federal court was the first case where the government appealed the denial of a detention finding of one of my clients. A few days later, this young AUSA asked if I would critique her work, which I did with respect and humility. My practice had come full circle.

Parting comment: In writing this article and reflecting on these stories and many others, I remember being fascinated by the law and a lawyer’s work from quite an early age. However, I could not figure out the term “practice of law” or why it was so commonly used. As a young teenager, it seemed that a client would prefer a lawyer who had mastered the craft rather than one who simply “practiced.” In seeing how each of these experiences built on each other and the lessons of each that I applied for years to come guided me along the journey, I realized the “practice of law” proved that a lawyer’s law school education was simply a beginning of one’s law education. And as we “practiced,” the real learning took root and thrived until literally the last moment of our work on behalf of clients. These experiences and the lessons that flowed from them allowed me to develop and evolve my voice and to nimbly develop strategies on which I placed my own signature.

When I retired three months later, I knew I had left it all on the field. No regrets. None whatsoever. Soldier on.•

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Ed Schrager resides in southwest Florida and New England with his wife Pam and two pugs, Pluto and Pixie. He was continuously designated both as A-V by Martindale-Hubbell since 1997 and as a Super Lawyer since 2007 until his retirement in 2021. Schrager can be contacted at [email protected]. Opinions expressed are those of the author.