Hiyo Silver and the AUSA

So I was roaming through the wedding notices in the Style section of the Sunday New York Times last week, when who should I see getting married but Justice Silver’s son.  Congratulations!  The blurb said that he is an Assistant U.S. Attorney in the Eastern District of New York.  This leads me to muse upon my experience interning at the U.S. Attorney’s Office in Chicago during my third year of law school.   

I had spent my first two years at Northwestern working for a criminal defense attorney, who did mostly federal cases (which was great, great fun, but that’s for other postings).  It was illuminating and very useful, as a threshold matter, to work on the other side.  (The next year, I clerked, so I got to see the whole loop – prosecution, defense and judging).  At the time, the U.S. Attorney was Dan Webb, and one of the AUSAs was Scott Turow.  (Does it make you feel better to know that he’s really short?)

They were all great people and I learned a ton.  I try to keep in my head two related points I learned from that experience, because I think they are some of the most important lessons for this profession:  #1:  Have fun.  #2:  Don’t be afraid of losing.

Everyone there was an AUSA because they wanted to be.  They could’ve made a lot more money in private practice, but they just loved the job.  This made it a great place.  All the AUSAs in the criminal division worked like maniacs, because that’s what they wanted to spend their time doing.  We hear all this flack about how unhappy lawyers are.  Well, if you don’t like what you are doing, then stop.  Life is too short.  None of these people were driving BMWs — but they were very happy.  It’s like those Mastercard commercials about having prices put on everything, but some things are priceless.  We know very well from our practices what dollar sign is put on our price per hour in terms of what we charge; that calculation doesn’t work as well the other way.

Moving on to profound philosophical point #2.  Everyone was very good there, but it didn’t take long for me to learn that the best AUSA was named David Stetler.  (Through the wonders of the internet, I notice that he’s still practicing — see www.stetlerandduffy.com.  This gives me comfort for several reasons, including the fact that he drank about 16 cans of diet soda a day, so I’m thinking I’m safe with one or two.)

Most AUSAs have very high conviction rates.  When they have wiretaps, their percentages rise above 90%.  Dave had one of the lower rates of anyone in the office (it was still very high).  This is because he took on the hard cases.  Some AUSAs just didn’t want to go to the mat if they thought there was even a tiny risk of losing.  Dave didn’t care.  Everyone in the office knew it, and he was the go-to guy.

To translate this lesson into private practice, obviously you aren’t reckless with your clients’ interests.  But worrying about your winning percentage not only does them no favors, but it can lead to situations where the other side in a settlement discussion knows that you never go to trial, because you never take any risks at all.  Given the rarity of any trials these days, adding this kind of hesitation doesn’t help.  Conversely, if the other side knows that you like trials, and you aren’t afraid to go to the mat, this not only helps the client, but keeps you focused:  if you like what you are doing, then you are actually going to do it, which makes you better at doing it, and so on.  You become a better tennis player by playing with people better than you are and losing.  The same principle follows in most things.

Which is, of course, one of the reasons why I focus on appeals, not trials.  I had a great time working on trials with the AUSAs when I was interning, and knowing how trials work certainly helps in appellate work.  But in the end, you need to do what you like.  The Chicago office had all AUSAs spend their first year working on appeals, so they would learn all the rules and not goof up when they were promoted to doing trials, which is what they all really wanted to do.  I guess I just work in reverse.

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