Every litigation attorney faces this question on a daily basis: what are the client's chances in court?
Of course, by ethical rules, the lawyer is prohibited to give the client any guarantees by success, a rule that many lawyers breach, as far as I can judge by what my clients who come from other lawyers, tell me.
My clients often are put off (at first) by my statement that I cannot guarantee the outcome of representation.
I have to explain to them that this is the ethical rule, binding upon all lawyers, not to give any guarantees of outcome.
That the only thing the lawyer can promise is to work diligently and to the best of his/her ability.
I usually put a lot more hours into my work than I can ever bill my clients for. My clients know that I am, if anything, a compulsive researcher and that I will not leave any stones unturned, so to say, to look under them for evidence or arguments in favor of my clients. My clients also know that I always absorb research costs and never bill them for costs of research that I incur, and they were, over the years, considerable.
Yet, all rules observed, a lawyer can still weigh the chances of his or her client and say at least whether it is likely or unlikely that the client, given his facts and the state of applicable law, will succeed in court with his or her case.
One thing I cannot predict though is the "rule of whim", and I see on a daily basis that the rule of whim has swallowed the rule of law in New York state and federal courts.
Female law students are advised to participate in "fashion shows" where they are showed how to dress and how not to dress for a particular judge, whether a judge likes female attorneys in skirt-suits or in pant-suits.
Is is sexist? Of course, it is. Is it the reality of the courtroom that seasoned attorneys teach law students to consider? Yes, it is, too.
Very seasoned attorneys in the area told me tales about a certain judge (since retired and now deceased) who was very much into feminine charms, so to say, of young female attorneys, and that was at times when female lawyers were still a rarity.
What male partners in law firms did then, was to hire a young female associate, instruct her to dress up in court in a way to show her "feminine assets" to the greatest advantage for the judge looking down from the bench (including low-cut blouses showing off the female attorney's cleavage), and put her in front of the judge. As I was told, success was guaranteed.
Naturally, when a judge is giving advantage in litigation to a female attorney (and her client) because she is a young pretty girl and wears what the judge likes (a skirt-suit, not a pant-suit, for example), such a preference and advantage in litigation has nothing to do with the law.
Naturally, if a client asks an attorney about his or her chances in court, if an attorney tells him that such a sexist preference can happen, the attorney, most likely, will be disciplined for "impugning integrity" of a judge who will, of course, claim that he has no such preferences.
What happens when judges with such "preferences" are allowed on the bench, with impunity, for a long time, has been described in my blog here, here, here and here.
Yet, most of such "preferences" occur in the judge's head, are improvable and do not make headlines.
Judges might have other preferences, which are not necessarily related to the mode of dress of female attorneys. And the whole country of lawyers pay money to learn judges' whims and quirks in order to win cases, and that is considered "Continued Legal Education", with an ethical (!) component in it.
If that is continued "legal" education, then law schools should be closed because the only thing one should learn is courses in brown-nosing, and that is not taught in law schools.
When attorneys are admitted to practice law, they take an oath of office, even if they only intend to practice law as private attorneys.
They still take an oath of office as "officers of the court" to pledge loyalty to the Constitution of the United States, of the state where the attorney is licensed, and of the applicable laws.
Nobody asks an attorney to make a pledge of loyalty to the government, including its judicial branch.
And, the government, as public SERVANTS, are just that, SERVANTS of the people as a sovereign, and, as every SERVANT, the government can err, underperform, commit misconduct, do a sloppy job.
And, as can be foreseeable in the human nature, the less accountable a particular public servant or class of public servants are, the more misconduct can be expected from the and the more sloppy their performance becomes.
Any MBA student and any business owner in charge of any number of staff, as well as any parent will confirm that to you: the less accountability translates into the lower job performance.
Our judiciary has a virtual zero accountability. Moreover, judges, as public servants, are also given an uncontrollable right to strike against people who criticize them, to the point of taking away their livelihood if those people are attorneys.
For that reason, the practice of law has become a popularity contest and a contest of scraping and bowing.
Of course, there is an easier way to fix all problems, for yourself or your clients - just marry or befriend a judge, and, as my experience shows, the law will be bent your way and against your critics no matter what you do and no matter how right they are and how wrong you are.
For those attorneys who are not married or befriended to judges, the practice of law remains a popularity contest and a contest in scraping and bowing and catching the judge's attention with silly smiles, silly jokes, campaign contributions, wearing clothes that the judge might like and, of course, failing to criticize any mistakes the judge may be making.
And, under such circumstances, the main features distinguishing the rule of law from the rule of men (absolute arbitrary power of individuals) which was the reason why this country announced its independence from a monarchy to begin with - predictability - disappears and what remains is the rule of men, the rule of whim, the rule of "discretion" understood by judges as an absolute power to do whatever they want.
"It is MY courtroom," "I will not allow you to do that (usually, trying to make legal argument to preserve your client's rights for the record) in MY courtroom".
So - the honest answer that an attorney should give a client seeking advice as to his chances in litigation is "I don't know".
After all, how can the attorney know whether the opponent will or will not present a particularly attractive female (for a male judge) or male (for a female judge) to make their arguments, whether the particular judge has been wined and dined through some secret social networking organizations by your opponent, whether the judge, his relatives or friends have a grudge against the party, his relatives or friends, or his or her attorney.
Predictability of the law became the same kind of myth as the U.S. and state Constitutions which are used nowadays only as tokens to administer oaths of office and, thus, as tokens to grab the power and financial perks that come with that power - but not the responsibility that must accompany the office.
So, your chances in court are as good as the chances of your attorney to get on the good side of the judge. Is it the law? No. Is it the reality of court proceedings in the United States? Yes.
THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.
“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).
“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.
It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.
" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.
"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.
“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.
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