Lawyers and politicians aren't always popular figures, but sometimes things work out fairly, without wrangling and rancor. Here are three recent examples.
Twice recently I've represented plaintiffs in potential First Amendment litigation.
First, two students who peacefully criticized the National Security Agency at an NMSU job fair were arrested and charged with crimes – unconstitutionally, we thought.
We made NMSU aware of the problem. NMSU did not admit we had a valid claim; but both sides agreed to solve the problem without a trial. NMSU President Garry Carruthers announced the creation of a task force, with members appointed by both sides, to review and amend NMSU's freedom of expression policy and procedures, subject to review by NMSU's Faculty Senate and Administrative Council and, ultimately, Board of Regents approval.
NMSU didn't get its back up or feel compelled to show its power. Our clients wanted right done, and weren't trying to profit from an NMSU employee's mistake. No legal fees or rancor.
The task force has been far more collegial and non-partisan than one might have imagined. You would have a hard time guessing who'd been appointed by which side.
A favorite moment was watching Police Chief Stephen Lopez showing our student-client, Alan Dicker, a huge military-style vehicle outfitted mostly to help the injured in a riot. Alan was taking pictures for a Ground Up story. I recalled campus in the '60's – when such pleasant cooperation would have been unlikely.
The task force has met many times, and our draft revised policy is being reviewed by faculty and administrators.
The second example involved Hidalgo County and the Hidalgo County Farmers' Market. The Market agreed the Southwest Environmental Center could have a booth there on a certain Saturday. But when the SWEC representative appeared, a Hidalgo County Commissioner ordered her to leave. (No talking about wolves in Hidalgo County.)
That seemed an obvious free-speech violation. We brought it to the attention of the County and others involved. The County said that legally it didn't control the Market.
Again, with no admission by either side of anything, we reached a fair settlement. Hidalgo County has stated that grey wolves are an issue wroth discussion. At the County Commission meeting on April 8, SWEC and its opponents will present their views. The Commission may not agree with SWEC, but it'll provide SWEC (and its critics and supporters) a forum.
The County didn't waste public monies making us prove our case at trial. Rather, potential adversaries turned lemons into lemonade.
I've fought extended legal battles, with no quarter asked or given; but there's a special pleasure in seeing folks cooperate to do the right thing. For everyone.
A third neat moment arose in an adoption case.
Two very nice men, long a couple, had adopted a Guatemalan boy decades ago. That boy's a man now. A few years ago, his sister died, leaving a young son. She had asked her bother to bring the child back to Cruces, and the child's father (back in Guatemala) agreed.
The young man and his two fathers tried to start a legal adoption process, and called me after running into problems with another lawyer.
Eventually Judge Fernando Macias heard testimony and approved the adoption. It turned out that his Honor's practice after successful adoption hearings is to let pictures be taken, including shots of the adopted child up on the bench banging the gavel and calling “Order in the Court!” It's a very thoughtful practice. The photos will be meaningful to the families for years, maybe generations. (The Judge has a set of photos on one wall in his office.)
Sometimes people do the right thing.
[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 15 February.]
[I'd add one thought here: that although people blame lawyers for litigation -- and there certainly are lawyers and law firms that are litigation mills, bringing often meaningless lawsuits purely for the fees, or defending often frivolous legal positions purely for the fees -- in my experience it's more often the client, or both clients, demanding a trial when the lawyers on both sides are pointing out that settlement is likely the better business decision.
Two underrated lawyering skills are the ability to recognize the true value of a lawsuit and the ability to educate both your own client and your opposing counsel on the subject. Two lawyers on opposite sides should be able, without giving away their hole cards or projecting weakness, to share material that helps moderate the other side's highest hopes -- and mute the personal outrage of one client or both that often precludes settlement.
Trials are fun. Arduous, like a marathon, but mentally invigorating, like some sort of 7-dimensional chess-game. Intense. But a very high percentage of the time, the clients' best interest is a reasonable settlement, if only because legal fees can threaten to match the amount in dispute.
So kudos to the people and institutions mentioned in the column for avoiding litigation.]