Note From Elie: The Worst Lawyering I've Ever Seen - (Elie Hong)

[Nevilledog]

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Elie Honig
@eliehonig
This isn't good lawyering, or average lawyering, or bad lawyering. This is something else entirely; open defiance of facts, law, logic and norms has become the very point of it all.

My latest for @PreetBharara @cafedotcom:

Note From Elie: The Worst Lawyering I've Ever Seen - CAFE
Note From Elie is part of the free weekly CAFE Brief newsletter. Audio recordings of Elie’s Note are part of the CAFE Insider subscription. Sign up free to receive the CAFE Brief in your inbox every...
cafe.com
8:11 AM · Dec 11, 2020

https://cafe.com/elies-note/note-from-elie-the-worst-lawyering-ive-ever-seen/

By Elie Honig

Dear Reader,

Over my fourteen-plus years as a federal and state prosecutor, I handled cases against hundreds of defense lawyers, maybe more than a thousand. Among that group, I encountered what I once thought to be the entire spectrum of legal capability.

I faced off against defense lawyers so good, so precise and focused and persuasive that they were able to win acquittals in the face of powerful evidence, or to obtain sentences well below what I would have imagined possible. Those elite defense attorneys forced me to raise my own game; you tend to sharpen up if you know your adversary will capitalize on any errors. (I feel compelled to say that many of these top-shelf defense lawyers were public defenders, contrary to the silly stereotype of the frazzled, ineffectual public servant.)

I also did cases against plenty of unspectacular but rock-solid defense lawyers, those cagey veterans who knew and could execute all the basics — maybe without much flair but competently, reliably, and effectively.

And, at times, I saw opposing counsel who were just plain bad. During one appellate argument, a defense lawyer wasted three of his allotted seven minutes setting up a laborious joke — it had to do with Sarah Palin and her famous quip about putting lipstick on a pig, if you remember that — prompting a normally staid appellate judge to deadpan, “Counsel, please do not waste our time, and your own, with lame jokes.” I’ve seen lawyers make arguments so bad that you can see jurors furrowing their brows and recoiling in their chairs. I’ve seen lawyers make tactical mistakes, inexplicable strategic blunders, and outright errors of law and fact. (For the record: prosecutors are immune to none of this.)

So yeah, I’ve seen some ugly, cringeworthy, just plain bad lawyering. But the quality of advocacy we’ve seen recently from those lawyers representing the Trump campaign in its effort to challenge the results of the 2020 election is something different altogether. It’s not merely poor or substandard lawyering. It’s off the charts and almost aggressively terrible, far beyond anything else I’ve seen in my career. Worse, this performative, substance-free, conspiracy theory-slinging lawyering by Team Trump is happening in the bright public glare, dragging down the entire profession.

Let’s run through some lowlights.

*snip*

[Arne]

1. But the tire tracks

proved my cousin Vinny held up Four fingers.

[SWBTATTReg]

2. More than likely, no lawyer worth their salt would take cases from trump...his payment record is

appalling, his lawsuits are without merit, thus he is left w/ the worst of the worse, being that he's too cheap and stingy, and wants to cling onto his money for as long as possible, w/o paying anybody a dime.