Litigating Against the Government

Vol. 4, No. 11

Stephen A. Saltzburg has taught at the George Washington University Law School since 1990.  In January 2004, he was named the Wallace and Beverley Woodbury University Professor. Professor Saltzburg is the author of numerous books and articles on evidence, procedure, and litigation. He is a member of the ABA House of Delegates from the Criminal Justice Section (for which he served as Chair), the ABA Task Force on Gatekeeper Regulation and the Profession, and the ABA Task Force on Cyber Security.

 

It is dangerous to offer too much advice about litigating against “the government” because there are a variety of government agencies that might oppose you in litigation, there are substantial differences between civil and criminal cases, and government lawyers vary as much in their styles and skills as nongovernmental lawyers. This said, there are two principles that can be keys to success when litigating against the government. They are: (1) your credibility and integrity always matter (and sometimes so does your client’s); and (2) the advocate who is well regarded often makes arguments that appear more persuasive than identical arguments made by lawyers held in less regard.

 

Credibility and Integrity Matter

It is true in all litigation and especially true when litigating against the government that your credibility and integrity matter. Government lawyers represent a very special client, the people whom they serve—i.e., Americans, New Yorkers, Philadelphians. Your client often is one of those people who is litigating against the rest. That explains the notion that the government never loses when justice is done.

We know that 90–95 percent or more of criminal cases that end in a conviction are the product of guilty pleas, which themselves are usually the product of plea bargaining. We also know that more than 90 percent of civil cases will also settle. In most cases, there is a range of outcomes that opposing sides recognize as reasonable. So the question is how to you maximize for your client the likelihood that he or she will achieve within that range a more-favorable rather than a less-favorable outcome.

One key is whether the lawyer representing the government believes that you and your client are proceeding in good faith to fairly conduct discovery, avoid unnecessary squabbles that require judicial resolution, and demonstrate civility and respect both for the government’s position in the matter and for the attorney(s) representing the government. It might seem inconsistent with the concept of equal justice under law to say that the more the government lawyer respects you and your client the better the outcome is likely to be for your client. But in many instances it is the truth.

Why? There are several answers, and they may differ depending on who the government lawyer is and what agency or office is represented. Two answers have particular explanatory power in many situations. First, almost everyone, including almost all lawyers, wants to feel that they are respected and treated as equals by adversaries. When a lawyer and client send the message to a government lawyer that they respect the institutional interests the government lawyer represents, and they consider the government lawyer to be a worthy adversary, the government lawyer feels respected and often responds by being respectful of the opposition. It never hurts to have an adversary think well of you. The adversary who thinks well of you may be inclined to believe that you and your client deserve more from the governmental client than a lawyer and client whom the government lawyer does not like or does not respect.

Second, the arguments made by a respected adversary may appear stronger than similar or identical arguments made by an adversary who is disliked or distrusted. The power of an argument depends on both the message and the messenger. Often it is difficult to separate the two. The stronger your argument appears to a government attorney (or to any adversary really), the greater the likelihood that your argument will result in your attaining the high end of a bargaining range.

Two examples may illustrate the point. You are representing a plaintiff who has filed a hostile work environment gender discrimination complaint against a government agency. The agency vigorously denies that there was discrimination and asserts that any hostility in the workplace was fairly attributable to the plaintiff’s difficulty in reaching agreement with fellow workers. Early in the litigation, you indicate to the government lawyer that you and your client genuinely believe that she was the victim of sexual harassment from two high-ranking officials, but the goal of the litigation is not to require the government to pay a huge sum of money. You suggest that you and your client would be interested in finding a way to resolve the litigation without expensive discovery and a public airing of the details of the allegations that you purposely did not elaborate on in the complaint. Assume the government lawyer believes that you did, in fact, decide not to unload all the facts in your possession in the complaint and believes that (a) although there was sexual banter it did not amount to a hostile work environment, and (b) the sexual banter did result in a workplace in which the plaintiff was uncomfortable. You and the government lawyer might agree to mediate the dispute and in the mediation find a solution that results in the plaintiff moving from her current job to one that is equally attractive, and that the government will pay reasonable attorneys’ fees to resolve the dispute.

Suppose, however, that you filed a hostile complaint filled with every detail of the alleged sexual harassment and were interviewed talking about the horrible government agency that was responsible. The government lawyer concludes that you are a publicity hound with no regard for the individuals you have named in the complaint. When you and the government lawyer meet, you demand a huge sum of money and threaten that if your client doesn’t get it, you will be sure to make the case as much a media event as possible. Even if the government lawyers believes both (a) and (b) in the previous paragraph, he or she is unlikely to be kindly disposed toward you and your client. Given that you have tried your best at legal extortion, the government lawyer may be inclined to use superior resources and defend the case to the limit.

The same sort of differential results can occur in the course of plea bargaining. Suppose you represent a client with no previous criminal record caught distributing a relatively small quantity of drugs. In your negotiations with the prosecutor, you make clear that your client will take responsibility for his actions and cooperate, and you ask the prosecutor to reduce the case to a misdemeanor or to permit your client to take advantage of a diversion program. Your client may avoid a felony conviction if the prosecutor appreciates your candor and your client’s truthfulness and acceptance of responsibility.

Another way of representing the same client is to meet with the prosecutor and assert that the arresting officer lacked probable cause and is known to be a liar. You threaten to file a motion to suppress evidence and to demand discovery of the officer’s testimony in previous cases. Then you ask for a break for your young client. What are the odds you’ll get it? Zero, or close to zero, of course. And why, given the fact that your client is the same in both examples? The answer is clear. No one, including government lawyers, likes to be bullied, and prosecutors feel obliged to protect officers whose work is necessary to make criminal cases and resent defense lawyers who are too quick to accuse police of misconduct.

This is not to say that a prosecutor will always react negatively to a defense lawyer who claims that police crossed a line and violated a suspect’s rights. It is to say that the credibility of the defense lawyer and the manner in which a charge is made can make a big difference. A defense lawyer who says to the prosecutor, “We all make mistakes, I think the officer made one here, and I have no desire to hurt the officer’s career” is more likely to create an atmosphere in which the prosecutor may agree that the officer erred and that the case should not proceed.

 

Insults and Attacks Often Produce a Hostile Response

In short, it is a mistake for lawyers to believe in litigating against the government that the way to achieve maximum success is to attack government lawyers or the individuals who work with them. Consider, for example, a criminal trial in which a prosecutor asks a series of leading questions during the direct examination of an important witness. Instead of simply objecting or asking the judge not to permit leading questions on important matters, a defense lawyer can and sometimes will jump up and in a loud voice allege “prosecutorial misconduct.” The term is thrown around by many to cover anything that a prosecutor does that is objectionable despite the fact that a similar mistake by a defense lawyer is almost never described as “misconduct.”

Does anyone think that accusing a prosecutor of misconduct when the prosecutor may have crossed a line that is often vague and transgressed as much by defense lawyers as prosecutors is likely to produce a friendly prosecutor at sentencing if there is a conviction? Of course not. No one likes to be accused of misconduct, and lawyers who are too quick to make such accusations are not doing their clients favors in many instances.

Government lawyers care, as well they should, not only about their own reputations but also about the reputations of people with whom they work and upon whom they depend. The plea bargaining exchange considered above is an example. Similar issues can arise at trials. Consider, for example, police officers who are key government witnesses in a criminal case or who are named as defendants in civil cases. Some lawyers give the impression that they believe themselves entitled to treat officers as though they are second-class citizens, routine perjurers, or punching bags on the witness stand. Government lawyers fully understand that officers make mistakes, just as lawyers do, and government lawyers expect that their adversaries will fairly focus on these mistakes and the impact they might have on the case before a court. But when a lawyer treats an officer at a trial or a deposition in a way that the lawyer would never permit his or her client to be treated, the government lawyer will do what is necessary and permissible to protect the officer from unwarranted harassment and in many instances will develop antipathy toward an adversary. Antipathy on the part of the government lawyer is unlikely to work to the benefit of the lawyer and the client opposing the government.

 

Recognize the Limits of the Government Lawyer’s Authority

It is not unusual for a government lawyer to have to seek approval from supervisors to compromise cases in ways that are not routine. Inexperienced lawyers are sometimes too quick to assume that when a government lawyer says that any agreement will require approval of higher-ups, the lawyer is merely pretending not to have settlement authority. The reality is that in both civil and criminal cases, nonroutine matters may require the blessing of a supervisor or even the head of an office or agency.

The key question for opposing counsel to ask a government lawyer is “Will you support the disposition that we have discussed?” If the answer is “yes,” opposing counsel should ask “Is there anything that I can do to assist you in making a persuasive case to your superiors?” If the answer to that question is “yes,” generally opposing counsel should follow the guidance of the government lawyer who often knows how to package proposals to maximize the chances of supervisory approval.

What if the government lawyer indicates intent not to support a proposal? This is delicate because opposing counsel knows from what government counsel has said that the final decision will not be made by the government lawyer. It is important for opposing counsel to let the government lawyer know whether opposing counsel desires to make a case directly to the government lawyer’s superior. Government lawyers understand full well why adversaries may want the chance to make a case to a superior that they could not sell to a line attorney, but government lawyers sometimes resent adversaries who go behind their backs to contact superiors. Almost any responsible supervisor is going to want to hear from the attorney who rejected a proposal, so there is nothing gained by hiding from the line attorney the intent to “appeal” a rejection.

Moreover, the supervisor also may respond better to the lawyer who is upfront about wanting to make a case to someone who may have more experience than a line attorney and who may be less afraid than a line attorney to depart from the usual handling of a case. When a lawyer says to a line attorney who has resisted a disposition “Do you have a problem if I go to the supervisor who would have to approve the disposition in any event?, the line attorney, to the surprise of many, usually responds that with something like “If my supervisor is willing to sit down with you, have at it.”

 

The Public Interest Is a Powerful Motivator

The nongovernmental lawyer has a client to represent and is duty bound to do as well for that client as possible. What is in the client’s interest is not always in the public interest. But when the disposition of a matter serves the client while appearing to advance the public interest, the lawyer seeking to persuade the government to accept the disposition has the best possible chance.

When I was in the Department of Justice, the advice I got was to assume that whatever decision you made might appear on the front page of The Washington Post or on the evening news. That was sound advice. It suggests that lawyers who package their arguments to government lawyers in terms of why a particular result is in the public interest as well as in the interest of a private client are making arguments that are most likely to be appealing—provided that the lawyer has actually identified a public interest and has not simply assumed that whatever the private client wants is always in the public interest.

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