The D.C. Bar will be closed for the holidays December 24–January 1
 

Washington Lawyer

Legal Spectator: Table Talk and Maturity

From Washington Lawyer, January 2009

By Jacob A. Stein

Legal Spectator

Talk, talk, talk, Of peace and war, health, sickness, death, and life, Of loss and gain, of famine and of store… Of turns of fortune, changes in the state, The falls of fav’rites, projects of the great, Of old mismanagements, taxations new: All neither wholly false, nor wholly true.

—Alexander Pope,
“The Temple of Fame”

Lawyer talk occurs at odd times and places. It takes place in courthouse corridors. It takes place while waiting for the jury to return its verdict. It takes place at chance meetings on the street, in airports, at Union Station, and at funerals.

At lunch, the table talk is of law firm breakups, politics, judges, obituaries, whatever happened to what’s-his-name, and did you see who just walked in. The talk inevitably turns to a discussion of the current front-page perjury trial. Will the defendant take the stand in his own defense? If he does, the prosecutor will cross-examine the defendant on matters that otherwise would be inadmissible. If he doesn’t testify and there is a guilty verdict, he will insist to his lawyer and everyone else that he would have been a great witness and would have acquitted himself. Experienced criminal lawyers put on the record, outside the presence of the jury, the defendant’s own statement that he chooses not to testify.

If the defendant insists on testifying, he must avoid the words never and absolutely. (Life does not deal in absolutes, especially when one is testifying under oath.) To say something never happened is a challenge the prosecutor absolutely and enthusiastically accepts.

In English trials, judges and prosecutors are permitted to draw an unfavorable inference when the defendant does not go into the box. Our rules forbid this.

The talk then turns to what the government must prove to get a perjury conviction. One of the senior lawyers at the table takes charge. He opens by saying that unless you have tried and lost a perjury case, you have never been in the big time. He uses words such as materiality and criminal intent. He lets it be known that his favorite case for his defendants is Bronston v. United States. He casually tosses off from memory the citation—409 U.S. 352—and launches into a set speech about the case in which the Supreme Court reversed Bronston’s conviction. Bronston’s answer under oath was in fact true but intentionally misleading, and a defendant cannot be convicted of perjury when what he said was actually true.

He concludes his much-too-long story by saying President Clinton relied on Bronston when he famously declared, “It depends on what the meaning of the word ‘is’ is.”

What if there is a young lawyer present at the table, a lawyer consumed by ambition, a lawyer who recently had read a law review article about perjury trials? He is anxious to enter the discussion and correct the speaker on the way the courts have been interpreting Bronston by narrowing its application. Should he speak up? He should not, for at least two good reasons. First, Mr. Know It All would be offended. He will never refer a client to this upstart.

Second, the man sitting to his left gives signs of remaining ostentatiously reticent. That is his style. He always chooses to speak last. He will demonstrate that each of the previous speakers missed the key point.

Max Beerbohm, in an essay quoting from James Boswell’s The Life of Samuel Johnson, tells us what happened on the afternoon of April 7, 1778, to an unnamed clergyman who did speak and had the audacity to challenge Samuel Johnson:

Fragmentary, pale, momentary; almost nothing; glimpsed and gone; as it were, a faint human hand thrust up, never to reappear, from beneath the rolling waters of Time, . . . Nothing is told of him but that once, abruptly, he asked a question, and received an answer.

Beerbohm next quotes Boswell:

Boswell: What I want to know is, what sermons afford the best specimen of English pulpit eloquence.

Johnson: We have no sermons addressed to the passions, that are good for anything; if you mean that kind of eloquence.

A Clergyman, whose name [Boswell does] not recollect: Were not Dodd’s sermons addressed to the passions?

Johnson: They were nothing, Sir, be they addressed to what they may.
Then, Beerbohm closes the ring:

The suddenness of it! Bang!—and the rabbit that had popped from its burrow was no more.

There happens to be a woman present during our table talk, a woman with a distinguished legal career. She is privy to client secrets that The Associated Press would like to have. She thinks that if she were younger, she would drop a few hints here and there to show she is the person people in trouble must consult. But now she has reached the age where all her ambitions have been fulfilled. She has seen good times and bad times. She has outlived any envy she may have had. She enjoys sitting back and watching others perform—the know-it-alls. If there is such a thing as Legal Nirvana, free of hatred and delusion, she has reached it. She enjoys the warm contentment of certainty held in reserve. She is mature.

Reach Jacob A. Stein at jstein@steinmitchell.com.