John P. Kudel
As many of you know by now, I am big on civility.
I made civility and professionalism the hallmarks of my year as MSBA President. I believe there is so much to be gained by the promotion of civility, professionalism, courtesy, and respect in our profession. And though I am not a big fan of telling war stories about the practice of law, occasionally the story may be justified as long as the story can convey a message that is not just about winning or losing or how one lawyer outsmarted another.
With that in mind, and in the interest of promoting civility, I’d like to share the following story.
I was retained to represent a client in a white-collar crime case in Montgomery County. My client was charged with three theft related crimes. He professed his innocence, and when I reviewed the discovery provided by the state, his explanation seemed plausible. I contacted the Assistant State’s Attorney handling the case and implored her over the next several months to either nol pros or stet the case.
Each time, she gave me thoughtful and well-reasoned explanations as to why the charges could not be dismissed. Ultimately, it became apparent to both of us that this was a case that had to be tried.
A very wise, retired trial and Court of Appeals judge once told me that, 90 percent of the time, the practice of criminal defense is preparing your client for sentencing. This case represented to me that “one out of ten” client who might actually be innocent.
I worried about the possibility of having a jury convict a client that I felt could be innocent, and I became angry that I was unable to persuade the prosecutor to dismiss the case. However, each time I spoke to the prosecutor in the final days leading up to the trial, I came to realize that she believed in her case as much as I believed in mine. We saw the same set of facts differently, but we maintained a mutual respect for each other.
The trial consumed three days. The witnesses on both sides – including my client – were accorded the maximum in respect and in professionalism.
After the jury retired to deliberate, the prosecutor and I congratulated each other on what we both truly believed was a good trial. The jury returned not-guilty verdicts on all counts the following morning. My client became extremely emotional during the reading of the verdicts, and when I turned to look at the prosecutor, I saw that she had already left the courtroom.
When I returned to my office, our receptionist informed me that the prosecutor had called and asked to leave a voicemail. In that message, the prosecutor congratulated me on winning the trial and said that when my client had broken down during the verdict, she felt it was best to leave and avoid going down the elevator together.
There were no sour grapes or post-trial recapitulation; only her gratitude and appreciation for what she felt was a fair and hard fought trial.
I called her back and tried to express my appreciation for the professional and civil way she tried her case and particularly for the manner in which she conducted the cross examination of my client. After the phone call, I was able to feel joy and relief for my client, but I was even more grateful for the experience.
It reminded me that although the process that we participate in is often referred to as adversarial, it does not mean that the person seated at the next table is your adversary. That person, more often than not, is simply opposing counsel with an opposing view that they sincerely believe in.
On behalf of the Board of Governors, the Officers, the Executive Committee, and the staff of the MSBA, I want to wish everyone a healthy and happy holiday season!