Miles's blog

I was communicating with a friend of mine who asked me whether selling shoes was a legitimate career choice after a tough day in the courtroom.  Apparently, things had not gone well, and my friend believed personal incompetence was the reason.  I was reassuring, knowing that my friend’s legal skills were perfectly sufficient tools for an effective prosecutor.

I have been in that same place.  At times in the courtroom I was convinced that those chimps scientists had taught to talk could have been a more effective advocate than I.  In my last jury trial in 2008, I spent 40 minutes trying to introduce some piece of evidence that the judge would not let in.  She was trying to tell me exactly what foundation I needed, but it was one of those situations where I understood all the words, but the sentences didn’t make any sense.  I finally gave up and figured we could get by without whatever evidence that was.  And a couple of months before I left the office this year I was helping poor Katie Kurtz with a 35 (c) hearing that I am sure was punishment for some horrible misfeasance on my part, when my own incompetence hit me in the gut with the strength of a George Foreman uppercut.  

The defense had called attorney Patrick Mulligan as their expert on why prior defense counsel had been ineffective in the defendant’s trial for sexually assaulting his daughter.  Katie carried the bulk of the case, and my limited role was to handle the attorney witnesses.  I always prided myself on my ability to conduct cross-examination.  I actually developed some conceit about this skill, which I had performed successfully a year or so before in another postconviction motion hearing.  I swaggered up to the lecturn, casually glanced at my notes and proceeded to flop worse than the t.v. show “Lone Star” (cancelled after two episodes). 

I was not only incapable of getting Mulligan to concede anything I needed him to concede, I could not control him to save my life.  This was worse than those dreams you know where you go to court naked.  As a 30-year lawyer I was supposed to have well-honed trial skills.  Nope.  I fenced with Mulligan ineffectively until I finally gave up, frustrated and dejected.  Had I not already decided to tender my resignation I would have quit because of my own incompetence.  I was so bad, I begged Katie to handle my other witness, which she agreed to do, I am sure to avoid another courtroom fiasco and to protect our ability to prevail.  Katie did a far better job than I would have, and we did manage to defeat the motion.

So I know the feeling of wondering if law is the right career choice.  Most of us have bad days, but a bad day in court weighs upon your ego.  First of all, it is so public.  Everyone knows when you are flailing around and getting nowhere.  Primary among observers is the judge, who, no matter what you think of him or her, or how much or how little respect one has for the person, is someone you want to respect you.  A bad performance, I feared, would tell upon the judge’s evaluation of me, and I don’t think it takes too many bad days before a judge will lose confidence in a lawyer, undermining your ability to argue effectively in front of that judge.

Many other people are also in the courtroom.  Defense counsel, for example.  While I didn’t really care what those people thought of me, I realized that should the word get around that Miles Madorin was an idiot who could be whipped up on, my ability to prosecute would be severely impacted.  And other DA’s.  Yeah, we talk about each other.  Like in any office, we evaluate our co-workers, and trial lawyers primarily evaluate each other on trial skills.  Then there are cops; victim/witness specialists; victims; court reporters, etc.  Screw up a case and lots of people will know.  

Even if nobody else found out, I knew.  When I was a young prosecutor in Aurora Municipal Court I thought I was pretty good.  Trial lawyers, like athletes, need to develop self-confidence and I had passed that and gone straight to cocky.  Then I lost a jury trial.  Then another.  And another.  Then a radar speeding case to a little old lady representing herself who claimed “my car won’t go that fast.”  When the streak reached six in a row (remember we did these a lot so it only took a little over a month to lose six in a row) I was about to chuck the whole legal career and go back to journalism.  But I did not want to be beaten into submission.  When I leave a job I want it to be because I choose to quit, not because I am forced out.  (Which explains why I have quit so much before getting fired.)  I managed to turn the streak around, and ultimately regained my confidence.  

That does not mean days of incompetence were gone.  All too often I would find myself in court, getting nowhere with a witness, or failing to convince a judge to follow the law.  I had a vehicular homicide case where the defendant drove his employer’s Porsche 911 drunk, rolled it, and killed his passenger.  Noted attorney Scott Robinson kicked me around the courtroom for an afternoon arguing that the police agency’s release of the car to the insurance company prejudiced his client so severely that the case needed to be dismissed.  That was not the law, but I was unable to convince Judge Nieto, who ruled against me.  The subsequent phone call to the victim’s family was one of the most uncomfortable of my career.  I was so mad at myself for blowing that one, I convinced Donna Reed to let me write the appeal brief, which she did.  That was my first appellate case (except one appeal from municipal court to district court when I was in Aurora).  Before the oral argument, however, I had quit the office, for reasons unrelated to the loss.  Donna handled the argument.  The Court of Appeals reversed Nieto, but none of that should have been necessary had I done my job correctly in the first place.

I understand the feeling of inadequacy following a bad day in court.  I think perhaps only the greatest lawyers (and probably the more oblivious ones) never question their ability to handle the job.  For the rest of us, the work is hard, the scrutiny is intense, and the commitment to excellence on behalf of justice is draining.  Fear of failure is what drives you.  Keeps you researching one more case, reviewing every piece of evidence, or writing one more draft.  I have no doubt my friend will do all those things, and continue to provide excellent representation to the People.  And probably keep questioning whether selling shoes is the more preferable career.