Editor’s Note: This article first appeared in the Texas Association for Court Administration Journal, vol. 46, no. 1, January 2018.
We’re all cogs in the same wheel: judges, prosecutors, defense attorneys, court coordinators, bailiffs. Too often, it doesn’t seem to be that way. But, whether we like it or not, we are.
The justice system is a unique animal. Before I chose to pursue a degree in the law, I worked in public accounting, as an auditor. What I discovered during my time as an auditor was that most corporations are designed to work in synergistic harmony. In other words, tens or hundreds or even thousands of separate departments or groups contribute in some small way to a larger whole. Often, I thought of it the same way one might consider an automobile assembly line: someone forklifts a naked chassis onto the line; one person adds seats; another bolts them in place; someone else does interior, electronics, and on down the line until a freshly painted Buick rolls out of production. Everyone has a different job, but collectively, they’re all working to create the same product.
That isn’t the criminal justice system. Our system isn’t one designed to operate harmoniously. Ours is an adversarial system. Each cog in the wheel operates independent of the others. There is an inherent tension that exists—and must exist—for the system to maintain its fidelity. For the wheels of justice to turn properly, each of us must perform our function well. For the wheels of justice to turn smoothly and efficiently, each of us must shoulder a proportionate share of the burden. And for the wheels of justice to turn fairly, we must maintain the adversarial tension with which our system was designed.
But, tension ought not be conflated with rancor.
Throughout my career, I have always done my best to be friendly with those I encounter in the courtroom. Admittedly, in this business, sometimes conviviality is a bit of a challenge. Those days I have, at least, done my best to conduct myself with professionalism. Obviously, I’m not the only one. Despite the daily challenges we all face in the due course of administering justice, the overwhelming majority of those I have encountered and observed have been pleasant and professional. Fortunately, it has always seemed to me that most of us understand what’s at stake.
So, despite the fact that we exist in an adversarial system, my point isn’t to suggest we are adversaries.
Instead, my point is to suggest we are equals.
I have been in counties and worked in courtrooms where the defense bar seems to be treated as members of some other team; that those who appear daily in the same courtroom are cloven together, duty-bound to fight the accused and those that represent them. Fortunately, those experiences are rare. But, they happen. I get it.
The criminal justice system is a grind. Every. Single. Day. It can be maddening, exhausting, and tedious. It can engender the kind of righteous indignation that overwhelms its object to infect larger groups. It can cost a person a fair share of their faith in humanity.
That kind of pressure has been used by militaries around the world, for millennia, to bind fighting men and women together; to create a sense of dependence and brotherhood (and sisterhood). Quite unintentionally, I think, that is exactly the kind of camaraderie I sometimes see developing between and among those who share the same space in this business, day in and day out.
Defense work—at least retained defense work—is, by its very nature, nomadic. I’m not in the same courtroom every day. I’m not in the same counties every day. My personal motto has always been: “Have truck. Will travel.” Though my office is located in Harris County, Texas, there are district and county courts here I haven’t set foot in for years. That isn’t by design. That isn’t something they prepared me for in law school. It is simply a reality I came to understand a short time after hanging my own shingle.
I don’t work for the government. I don’t work for a corporation. I work for the people—one individual at a time. And, unlike governments and corporations, most people aren’t rich; particularly those who are apt to be accused of committing crime. So, planting my flag and refusing to abandon its borders is a luxury I simply cannot afford.
I think that is a condition that describes a great many defense lawyers. Because of that, it makes us, too often, seem like strangers in strange lands.
It makes logical sense that the prosecutors who toil in the same courtrooms and counties every day would find themselves counted as part of the team. As a defense lawyer, I don’t take issue with the friendships and relationships that develop under such circumstances. I’ve made plenty such friendships with court staff of my own. But, I do think the observation merits an occasional reminder of why the system was designed the way it was. Fairness.
It isn’t enough that the system be fair. It has to also appear fair. The adversarial requirements that define our separate roles aren’t there to create enmity between the professionals that allow the system to work. They’re there to ensure that citizens accused, and those who honor their duty to judge them, see a justice system that favors only the rule of law.
As a collective, we are the connective tissue that allows society to persist. After all, society is little more than a group of disparate people who have organized themselves together for a greater common purpose. What keeps that loose coalition paddling in the same direction is faith that transgressions from societal norms will be adjudged in the same manner.
We all have our roles to play. But, in my opinion, we have to fight to ensure we don’t form teams.
ABOUT THE AUTHOR
Rick Oliver is a criminal trial and appellate lawyer. In 2016, he was certified by the Texas Board of Legal Specialization in Criminal Law. He applied for board certification less than seven years after being licensed and having never worked under another attorney, or as an assistant district attorney, and without relying on a single court appointment to meet the application requirements. He is a 2007 graduate of South Texas College of Law and has been a solo practitioner since 2008. In 2000 he received a Bachelor of Science in business administration from Trinity University in San Antonio, Texas. He completed his graduate-level coursework the following year and received a Master of Science degree in accounting. His articles have been published in the Voice and The Defender. He is a member of TCDLA, HCCLA, MCCDLA, NACDL, NCDD, and DUIDLA.