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The Spirit of Surrender

by Charles Carreon
July 31, 2013

Mark, an insurance defense lawyer in Medford, Oregon, twitted me once with this line — “I tell people – Charles Carreon is the best thing that ever happened to the defense community in Southern Oregon.”  By this he meant that since my arrival in Jackson County I had filed a number of cases that other lawyers in Southern Oregon would not touch, providing the “defense community” with work that had previously been lacking. I guess it was nice of me to believe in the value of injury and civil rights cases that all the local lawyers knew weren’t worth the effort to try in front of the notoriously cheap Southern Oregon juries. I did get the occasional settlement out of Mark, and he eventually kicked my ass in the trial of a medical malpractice case.  It was a bad hip-replacement case in Southern Oregon that I tried before Judge Ray White – a fair and affable jurist – out of sheer tenacity.  My expert was terrible – he was from California and hadn’t done a whole lot of testifying, although he had done some hip replacements.  Testifying against a local Oregon sawbones, and a much better expert, he was not carrying the day, and about halfway through the third day of trial, Mark was incredulous.  He couldn’t believe I hadn’t thrown in the towel.  But I couldn’t see why I should.  I would only lose faster that way.  My client would think he’d been given away, and I’d lose his respect into the bargain.  So I insisted on hearing the final aria of the corpulent soprano!

Surrender fans will tell you that if you know you’re going to lose, you shouldn’t waste the jury’s time.  Heck with that!  They’re doing more real brainwork than they’ve done in years.  They want to deliver a verdict.  Although you can settle a case during trial, if there’s isn’t a good deal on the table, why deprive the jury of the pleasure?  Besides which, how do you know you’re going to lose?  You don’t know anything for sure – juries surprise all the time.

Let’s see, any more reasons to surrender?  The judge will think you’re reasonable.  That cuts no ice.  Judge White already knew who I was – I’d tried at least a half-dozen jury trials and scores of bench trials and hearings before him, so there was nothing about me for him to learn.  I was the prosecutor who at first went over the heads of the juries, but learned to try a case.  Pretty well, actually.  Once, after Phil Arnold and I tried an indecent exposure case where I was representing the People and Phil was representing the defendant, Judge White said to the jury, before sending them to deliberate, something to the effect of, “I don’t often say this, but you’ve just seen a couple of really good lawyers at work.  This case was extremely well-presented.”  Man, that felt great, and I got the conviction.

Years later, Phil became a judge, and I tried a non-jury case for the plaintiff in front of him.  My client was the very beautiful acupuncturist Jennifer Fletcher, a regular Ashland thief of hearts who was enmeshed in a real estate deal that had turned out rotten.  Literally, like her house was rotten – you could punch through the walls with your fist, or kick a hole in it, and inside the walls was like old newspapers and crap. It was the worst “Oregon construction” you have ever imagined.  But the case turned on documents, and in particular, a statement of Jennifer’s that we couldn’t weasel out of, and Phil ruled for the real estate agent.  Now, I didn’t agree with the ruling.  But I will tell you with one hundred percent certainty that I never thought “This is payback for kickin’ his ass in that indecent exposure case.”  Nor did I think I might have an edge because I had contributed to Phil’s campaign and hosted a memorable event (he will smile if he reads this) at my office to support his candidacy.  Because I knew Phil’s lawyerly character, and he knew mine.  What Phil knew about me as an advocate, a judge, and a friend was that I had the type of character that allows a man to present a case to a jury, and receive the judgment.  If you try cases repeatedly, you will develop a trial lawyer’s character, which means you will learn to do everything you can and then let go so the jury can finish the job.  Because only they can give your client the verdict.

The time when the matter is in the jury’s hands is a time of almost unbelievable tension.  This is the fruit of not having surrendered – massive uncertainty.  I have, on one occasion, known with unshakeable certainty that I was going to win a case.  On every other occasion, I had to wait to hear the verdict.  And that wait is like no other.  Talk about “out of your hands.”  It’s so bad, that I made it a practice to bring a basketball and shoot hoops with my client and co-counsel if I was lucky enough to have one.

I remember once, Peter Carini and I shot hoops with the client in a drug case where our client could have been nailed on three deliveries and one possession.  Nacho, the client, had an innocent dupe defense, and played it with mastery, being as he was a handsome Tae Kwon Do black-belt family man.  The trial had gone well, with some humiliating reversals for the prosecution, but when you’re facing four felonies, there’s testimony from informants, and video of the client at the scene of the third delivery, how you gonna beat all that?  So shooting hoops will keep you from going insane between the time when you say “the defense rests,” and the judge says, “I have received the verdict from the bailiff, and it reads ….”  We spent several hours playing “h-o-r-s-e” before my cellphone rang, and we walked back to the courthouse. 

We knew the jury had something good for us, because they had the windows open upstairs in the jury room and they were leaning out the window smokin’ and laughin’ and you know you don’t feel that way when you’re convicting the hell out of somebody.  We walked in and the jury looked well satisfied to find him not guilty on all deliveries, and guilty of possessing the ounce in the freezer.  A few years later we would shake that charge on appeal.  Mighty fine result you couldn’t have got from a surrender, which was all you could have gotten from most lawyers.  Because, they’ll say, “You’re guilty!  How you gonna beat four charges?  THIS IS A GREAT DEAL!”

The average public defender consumes and serves his clients a daily diet of surrender.  The guys in jail in Southern Oregon called their appointed lawyers “dumptrucks.”  They just deliver their clients to the dump, like garbage.  They can always tell their clients why they will lose if they go to trial.  They doubt whatever their clients tell them; they fail to interview witnesses; they accept the spin the prosecutor puts on the facts.  They do their job as it’s explained to them, and get their client to plead guilty to something that will take the case off the docket.  They advocate surrender.

The spirits of lawyers who advocate for surrender become shrunken and unimpressive.  They are filled with cautions and limitations.  I find such people without charm or appeal.  I know from the firsthand testimony of their clients that their clients do not like them, and hold them in contempt.  Having witnessed that contempt, I would never want to be the subject of it.  And having felt the gratitude of clients who felt well-represented even though their trial ended in an adverse result, I have come to appreciate that sense of reward for a contest well-fought, separate and apart from the nominal outcome.

What do the advocates of surrender use to sell their product?  Fear.  Just fear.  A lawyer learns how to sense and play upon individual fears.  Since every person is a bundle of fears, you can play them all together to create a real sonata of anxiety, and drive people right into the chosen course of action.  Some people have big fears about family, others about money, others about self-image and honor.  You name it, their fears are evident, especially when you can tell them, “Everything is confidential, and I must know the truth.”  When they lie, it tells you more about their fears than when they tell the truth.  And of course, everyone fears most what they most adamantly claim they do not fear at all.  That’s why so many people claim they don’t fear death.

Manipulating people with fear is pretty low, though.  I don’t like to do it unless they are so lacking in wit that I cannot get the job done with reason and teamwork.  I like to make my client a partner in the process of solving their problem.  Two heads are better than one, and we each supply different parts of the equation.  Together, we try and reach the solution that they want.  If that’s impossible, I try and help them figure out how close we can get.  Then we put the plan into action, and try and secure the best result.  It’s actually pretty fun work, helping people get what they want, instead of scaring them into accepting what they don’t want.

In order to increase the amount of fear people feel, those who would manipulate them will always overstate the benefits of surrender.  They will make it seem like something good will happen if you surrender.  But when you look at the histories of those who have surrendered to the Rapeutationists, who have kissed the hem of Popehat’s shit-stained robe, you see that they gained only further derision and enhanced abuse for their pains.

So when I scan the comments of those who marveled at my tenacity, and hooted in my direction as I “doubled, tripled, and quadrupled down,” calling me a fool for not surrendering, I enjoy the pride of having frustrated their expectations, and the satisfaction of knowing that, by their own admission, they would never have the guts to be me.  Their advice is the advice that cowards and tyrants give, but I saw the Wizard of Oz, and I know what happens to the witch who screams “Surrender!”