By Sarah Myers
All attorneys are avatars for their clients. We represent our clients and their problems, fighting for their best interest and navigating the gauntlet of the legal system for them. In criminal law, public defenders serve as avatars for the defendant and the rights afforded in the Constitution while district attorneys are avatars for victims of crime and protection of the public. PDs and DAs often find themselves in highly antagonistic roles even though, as attorneys, they have more in common than who and what they represent, and despite the fact that their roles are equally vital to our legal system. Even though PDs and DAs are essentially representing two sides of the same coin (ie. justice), their interactions with each other can become unnecessarily contentious, polarized and stressful when they identify so personally with their “avatar role” that they lose understanding, compassion and the “bigger picture” of what the other is trying to accomplish.
It would serve our criminal justice system if the avatars could put down their personal egos and misdirected self-righteousness when working with each other. In an era where the judicial branch of government and its avatars are being called upon to represent the rule of law with heightened maturity and professionalism, we must all contribute to improving the efficacy of the legal system, one that can and should garnish more trust and respect from the public. If PDs and DAs could work in a less toxic environment, the reduction in stress would allow them to make better decisions and improve their cognitive, physical and emotional health. How can we accomplish this when, often, members of each group sees the other as the “enemy” rather than a colleague? Below are perspectives of a public defender and a senior deputy district attorney. They were asked to detail their experiences in their avatar roles and how they have developed a clearer sense of professionalism and wellbeing when working under demanding and contentious conditions.
A Public Defender’s Perspective.
As a Public Defender assigned to a specific jurisdiction, you get to know the DA’s and judges pretty well. You know what a particular DA is likely going to offer and how a particular judge is going to sentence, etc.
I have found if you deal with a specific person, and not deal with the DA’s office as a whole, you are likely to be more successful. Let’s face it: there are good and bad judges, good and bad DAs, and good and bad criminal defense attorneys. Some District Attorneys are looking for personal mitigation and others look specifically at the charged conduct and criminal history. Oftentimes, with this information, you can negotiate from a position of knowledge and understanding by presenting your side of the case that is specifically catered to the DA prosecuting the case. Certainly, I speak to DAs whom I have known for some time quite differently than I do with a DA that I don’t know. However, in both circumstances being totally honest with everything that you tell them is the best practice.
Some DA’s are difficult to deal with because of their personality, or the facts and circumstances of the case are such that any resolution short of trial is unlikely. Understanding this dynamic from the onset is important because it can save you the energy of trying to negotiate extensively with the DA, thus allowing you to channel that energy to other aspects of the case, like preparing for trial. Understanding the perspective of the DA in regard to a certain case can allow you to better prepare a defense and reduce your own stress by determining how best to spend your energy and resources.
Criminal cases are highly emotional and require a deft touch when dealing with the judge, your client, the DA and others. In my mind, being passionate and compassionate are prerequisites to being a criminal defense attorney. However, when you allow your own emotions to influence and dictate how you represent your client, you become a less effective advocate. Knowing the different players that you are going to have to deal with, and where they are coming from, will allow you to craft an effective, persuasive argument that will in turn reduce your stress, improve your emotional health and allow you to represent your client competently.
While criminal defense attorneys have a tendency to focus on their cases and nothing else, it is important to give yourself a mental health break. It is hard for me to say go to the gym every day because I don’t. What I suggest is to regularly ear-mark time where you get to do the things you enjoy without your work being in the back of your mind. Taking this time will allow you to recharge your batteries, even if for a moment, and ensure that you don’t get burned out in the long run.
A Senior Deputy DA’s Perspective.
Working for the government is a heavy responsibility. At times, the burden may feel overwhelming. Pressure to win every case is justified by the belief you are keeping the community safe in doing so. However, we must balance this stress with not losing sight of what is important: we are all in this together.
Too often colleagues are wrapped up in this competitive environment. Some offices may actually encourage it. Perhaps it is the “type A” personality that lawyers tend to have. For some, they feel their position is more than a job. They believe that the other side takes drastic measures to hide the truth or thwart justice. To be fair, there are prosecutors and public defenders who have a “win at all costs” mentality. It is those people that “adversaries” have the most trouble working with. This is why I believe it is important to take a step away from wanting to win and remember that what you are doing is a job.
As a prosecutor, I have struggled with wanting to win at all costs (human nature) and I have struggled with defense attorneys who I believe have drifted outside ethical bounds. Ultimately, I cannot change their behavior or attitude, but I can focus on my own. For me, I have found one of the easiest and most effective means of maintaining a courteous demeanor is taking care of myself and remembering the Golden Rule.
Find a physical outlet.
I regularly work out and meditate. Taking care of our physical and mental selves is so important with the tough work we do. We suffer trauma every day because of the horrible things people do to other people. Running, lifting weights, doing yoga or participating in sports all help us disconnect from these horrors and recharge us for the next day.
Take time off.
We work long hours with few true days off. Even on weekends, we think about our cases. With remote access to work email, we never truly disconnect. In order to be our best selves, we must turn it off, at least occasionally. Balance is critical. If you are not connecting with your loved ones, you will be more irritable, less friendly and keener to believing every argument is a personal attack.
Do not take it personally.
We are all doing important work. Go into each case with each opposing attorney believing that they are just trying to do the best they can. Sometimes you get burned and learn, but never take it personally.
Prosecutors and public defenders do not need to be best friends, but we also should not be enemies. Be conscious of how you communicate with opposing counsel. You can still be true to yourself and your beliefs without disparaging opposing counsel. If you do not think email will adequately convey your thoughts, pick up the phone and call. When you communicate, lose the personal attacks, they get you nowhere. Stick to the facts and the law. Wins and losses may be important to you, but at the end of the day, all that is left is your reputation. Will it be one of unreasonableness and contention or one of doing your best to do the right thing?
While this article focuses on DAs and PDs, the adversarial nature of the practice of law exposes most of us to similar circumstances and conflicts. It’s not just DAs and PDs who are needed in the movement to change our legal culture; it’s a quest in which all “legal avatars” must play a role. Our profession can be a stressful one, but we don’t have to take our frustrations out on each other, or treat opposing counsel as if they are personally responsible for the situations in which our clients find themselves. We might be avatars for our clients, but we shouldn’t be behaving as if we are our clients. Instead, we should work together (since we are the people who truly understand just how stressful the practice of law can be) in ways that are more supportive. We can, at the very least, be professional and civil towards each other. There are enough examples in our world of adults behaving like children right now, bullying each other and posturing as if they were in the sandbox at school. Surely the legal community can stand apart as role models instead of joining in that sandbox.
Sarah Myers, JD, LMFT, LAC, is the clinical director for the Colorado Lawyer Assistance Program (COLAP) — firstname.lastname@example.org. COLAP provides free and confidential services for judges, lawyers and law students. If you need resources for any issue that is compromising your ability to be a productive member of the legal community (including your well-being), or if there is someone you are concerned about, contact COLAP at (303) 986-3345. For more information about COLAP, visit www.coloradolap.org.
Barbara Ezyk, executive director of the Colorado Lawyer Assistance Program, is the coordinating editor of this series of Wellness articles. Readers are encouraged to send authors and Ezyk their feedback to the articles. If you would like to suggest a topic or contribute a wellness article, contact Ezyk at email@example.com.