A Conversation with James Lobsenz, Part III: The Awkwardness of Appeal

Our article on James Lobsenz, entitled "James Lobsenz Rewrites the Rules," about the criminal defense and appellate lawyer with Seattle's Carney Badley Spellman who was the ACLU's cooperating attorney in the Witt v. Department of the Air Force case, is now available online and in magazine form.

But we had such an interesting conversation with Mr. Lobsenz we couldn't include it all in the story. Here's some of what was left out. In part one, Lobsenz wondered what juries were thinking. In part two, he debated when to appeal. Below, he talks about the awkwardness, if any, of appealing another lawyer's case.

When you take on an appeal, is it difficult to contact another attorney and say, "I think you screwed up?"

Jim_Lobsenz2.jpgThe level of difficulty or awkwardness depends upon how graceful the other attorney might be. Sometimes you call up and start talking with them, and they might be... open to it? Open in the sense of "Look, Jim, if you think I made a mistake you go right ahead and raise my mistake, I understand, that's your job." Sometimes they might say, " Yeah, I've been thinking about that and I think I maybe did make a mistake." Sometimes they may be horribly offended that you're calling and "How dare you suggest I made a mistake." It's all over the map.

I like to think that over the last 20 years, the culture, in a way, among criminal defense attorneys, has changed a little bit, so that people understand ... Somebody once said to me: "If you're going to do this kind of work"--trial court, criminal defense work--"then eventually somebody is going to call you up and say, 'I think you made a mistake and rendered ineffective assistance.' So to get all high-and-mighty offended by it is silly. It's going to happen sooner or later.

I mean: Is anybody perfect? If somebody said to you, "In the last 25 years, do you think you made any traffic infractions?" None of us are perfect. I'm sure you rolled through some stop signs. Or worse. But you didn't kill anybody. You were lucky. [But] when you're lawyering like this, it's hard to put your finger on, "Well, when you rolled past that stop sign in court, by not objecting to that evidence that you should've objected to, is that the key thing that led to the case going one away instead of the other way?" It's hard to tell. It's not like there was a giant collision between two cars.

But if you're honest with yourself as a criminal defense attorney you acknowledge, "Sure, I make some mistakes. Probably a couple a month. Just hopefully they're not too big and not too prejudicial to the client." And if the case should come along where I did make a mistake and it was prejudicial, the forthright thing to do is say, "That was probably a big mistake, and maybe my client should get a new trial because of it."

Has that happened to you? Where someone came to you and said...?

I can think of one case where somebody came to me and said I made a mistake. I didn't agree. But I said, "Go ahead and raise it. If you think that's a mistake, go ahead." But the court didn't agree.