This article is adapted from a speech given at the Fifth National Parent Attorney Conference sponsored by the ABA Center on Children and the Law on April 26, 2017.
Thank you to my dear friend, Marty Guggenheim, for thinking of me to be with you today. When I showed up at NYU Law School in 1988, Marty put his trust in me, without any good reason to, and mentored me and grew me professionally in ways I will never be able to repay. How lucky I am.
In chatting with Marty last week about these remarks, he almost scared me off. He casually mentioned that Bryan Stevenson delivered this address [at the First National Parent Attorney Conference] eight years ago. And he shouldn't have told me that. Because that is an impossible act to follow, even eight years later.
I am honored to have the opportunity to address you, a group of lawyers for whom I have so much admiration. I have never practiced child welfare, or represented the client group you represent in the proceedings you represent them in. But I feel like my lawyering work makes me a close cousin. My first job was as a public defender in New York, and I then I spent another 20 years representing people in trial and appellate courts who were accused of doing pretty terrible things. And so I know what it feels like to be on that side of the courtroom. And to explain what you do to nonlawyers. And sometimes even to lawyers, too.
I often say that being a Legal Aid lawyer was the greatest job I've ever had, and that's saying a lot because as you've heard I have been pretty lucky in the job category. Part of why I say that is because while it isn't always easy being on the side of the underdog, I actually got a lot of satisfaction from the challenges and opportunities that role provided me. I liked the upside potential. And every once in a while someone, other than my clients, would express gratitude for what I was doing, too.
This is a fun detour: In maybe my second year of practice, around 1993, I was finishing a trial in a courtroom where, by sheer fortuity, Bill Kunstler was starting one. Bill must have been 72 or 73 then, having practiced for 50 years. And because we were sharing this courtroom and this judge, he watched my summation (he was sent to pick a jury), and I watched his voir dire (my jury was out). Kunstler spent a lot of time talking to the venire of about 100 potential jurors about how difficult it is for a jury to say not guilty. The pitch went like this: the police and prosecutor have gone to all this trouble to charge and prosecute the defendant, and they believe he is guilty. And yet you are going to promise the judge that you will stand up and say not guilty if the prosecutor has not convinced you beyond a reasonable doubt of the defendant's guilt. That's just a hard thing to do. I think if we all do it together right now it might help with that problem, at least a little bit. And then, on the count of three Bill Kunstler and 100 prospective jurors stood up and said "not guilty" in unison. I don't know of any other lawyer who could pull that off. Kunstler and I spent the better part of a day together in that courtroom. When my jury returned, and my work was done, I said goodbye and wished him luck with his. He hugged me, and said, "Thank you for protecting my Constitution." I left with a skip in my step.
That was not an everyday occurrence, of course; I suspect you can relate.
I am honored to be here today to address you exactly because I have so much gratitude for the important work that you do. And I want that to be the thing I say most emphatically today.
Transition to Argument
I have three specific points I want to make that I hope and believe reflect my experience from serving four plus years on the bench of Michigan's highest court, where I see every kind of case, including termination cases. Here is a preview:
1. Just because something has always been done a certain way doesn't make it the best way, or the lawful way, or the constitutional way.
2. I understand that the trial court process is the critical moment for your clients, but I want to encourage you to have the appellate courts in mind as it is happening.
3. Courts are only as good as the lawyers who serve them. I want you to keep pushing judges to do what we are supposed to do. You need to ask us hard questions.
Just Because We Always Do It This Way Doesn't Make It the Right Way
When I was first at the University of Michigan Law School, I was representing a lot of women accused of domestic violence in my clinical practice. As was the case in many jurisdictions, Michigan had a mandatory arrest statute for cases where domestic violence was involved in a 911 call, and Washtenaw County—where Ann Arbor is—had a Department of Justice grant to prosecute domestic violence cases. As a result, there was a substantial domestic violence docket in our local courts and also a surprising number of women charged as defendants on that docket.
My students and I were the go-to lawyers for the local domestic violence shelter when one of its clients was charged. And, as you might imagine, many of the women I represented were not batterers; they were more often victims who fought back. A lot of these cases went to trial.
A regular practice in the trial court was for the prosecutor to play the 911 tape for the jury, especially when the complaining witness was uncooperative. This is how it would go: the prosecutor would authenticate the tape through the 911 operator (when you would not stipulate), play it after overcoming a hearsay problem with the excited utterance exception, and then the jury would hear the complainant say that my client committed the crime with which she was charged.
The local prosecutors were not pleased with a lawyer who insisted on authentication of the tape. And imagine their reaction when my students argued that—authenticated or not and despite the excited utterance exception—the tape was not admissible because admitting it violated their client's Sixth Amendment confrontation right. I don't think they ever won that argument. But they preserved it in every case.
I coauthored a law review article about the issue. Richard D. Friedman & Bridget McCormack, "Dial-In Testimony," 150 U. Pa. L. Rev. 1171 (2002). The U.S. Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004), a couple of years after that, and my students never lost that argument again.
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Your field has so many unique hurdles. Your cases are usually emergencies. Your clients' problems are almost never confined to the court proceeding you represent them in. The courts you practice in are burdened, and you are overworked and underpaid. I suspect that one of the recurring problems you face is inertia or the reality that, when you show up for a hearing, there is a strong push to do things the way they have always been done. It's efficient. And it's been the practice for decades. And challenging it might have negative consequences for you and for your client and maybe for your other clients too.
But just because we have done something one way for decades does not make it the best way to do it, nor does it make it legal, or constitutional.
In Michigan, for many decades the long-standing practice in termination cases was that when the rights of one parent had been terminated, the rights of the other parent could be interfered with by default, without any individual adjudication as to that other parent. The thinking was that once the court had jurisdiction over the child it could impose whatever conditions it wanted on the nonadjudicated parent. This practice was not driven by any statute but rather by court practice. It simply evolved as the way things were always done. And it became baked into the doctrine. It had a name: the one-parent doctrine.
And then, in 2012 Vivek Sankaran began representing Lance Laird, whose children's mother's rights had been terminated. And, therefore, the state imposed a series of conditions including parenting classes and substance abuse and psychological evaluations on Mr. Laird without making any individual allegation that he needed these conditions, but rather by operation of the one-parent doctrine. Laird objected: he argued that the one-parent doctrine violated his constitutional right to parent his children.
Mr. Laird lost in the Court of Appeals and we granted leave. A majority of my court agreed with Mr. Laird; we held the one-parent doctrine unconstitutional. In re Sanders, 852 N.W.2d 524 (Mich. 2014). And that was that. Now no parent in Michigan can have her constitutional right to parent her children interfered with absent due process.
In a way, that seems like it shouldn't have been such a big deal and certainly shouldn't have taken so long. But I suspect that for lawyers appearing as repeat players in the courtrooms where their clients have so much to lose it was probably a very hard argument to make.
Of course, it took a few years for Mr. Laird to get to that answer. And I understand that that kind of time is critical in any parent-child relationship. So I fully appreciate that winning your cases on appeal is definitely not your first choice outcome. And, therefore, managing how you achieve results for your clients in the trial courts must be your focus. Which leads nicely to my next point.
Win Your Client's Case in the Trial Court, but Keep the Appellate Courts in Mind
I recently examined what percentage of termination cases in Michigan are appealed, and what percentage of those are reversed. The numbers surprised even me.
I looked at five years of Michigan caseload data: Michigan trial courts receive around 7,080 new protective proceeding files a year. (About 25 percent are resolved before trial in the parents' favor, 56 percent are disposed of by guilty pleas or admissions, and only a small group—16 percent—go to trial, and the last 3 percent get transferred, perhaps to a tribal court or out of state, etc.) Only about 400 of those 7,080 termination cases—approximately 5 percent (5.649718 percent if you want to get more specific)—are appealed to the Michigan Court of Appeals. And of the 400 that are decided by the Court of Appeals, only about 9 percent—or 36—of those Court of Appeals' decisions are appealed to the Michigan Supreme Court each year.
Over the last five years, the Michigan Supreme Court decided three of those by opinion, and the remaining applications for appeal were handled by orders, either denying the application for leave to appeal because the issues were not jurisprudentially significant or, after reviewing the already developed record, we directed the Court of Appeals or trial court to take some specific action.
And while those numbers surprised me on the one hand, they also make sense given the high stakes involved in getting your cases right as soon as possible. Winning on appeal is better than never winning, but winning on appeal means significantly more time that the family you are working for is unsettled or worse.
And I suspect there is a corresponding sense of the urgency of finality in termination cases in the appellate courts among judges. Appellate judges have a very acute understanding of the disruption that might be caused to families when stability is undermined. The preference for finality is a very, very strong force against appellate intervention. I know you know that, and I know you know that the appellate courts know it. And of course, on top of this urge, add the deferential standards of review and the stinginess of preservation rules. It is uphill to be sure.
But having acknowledged all of that, I would encourage you to have thought through the framework you give to your objections and concerns at the front end, in case the opportunity does arise at the back end for us to address them. This does not have to be the focus of your trial court strategy, and in fact, the kind of framing I am thinking about often can be done before you are in the midst of a trial.
At the Supreme Court level, we are rarely going to step in and right an error that does not have significance beyond the immediate case. This is our charge, of course, but it is a charge that our caseload requires us to be good servants of. (I can't tell you how many times at conference we are talking about a case and I will say, "I think the rule of law should be XXX, and have no idea what that means for who wins.) When we take a case, we take it because something in it has some importance beyond the instant dispute. There is some question that needs our answer to bring clarity or predictability or fair process to an area of the law, not just to an individual litigant.
Your practice is still full of just those questions. There are simply underdeveloped constitutional and other legal theories lurking all over your clients' cases. And all over the statutes and court rules and other norms that govern your clients' litigation. I want to encourage you to always be thinking about those bigger picture questions, even when you are doing the important work of trying to get your client the best result in the trial court. These objections can be made before trial starts, and preferably in writing, and you do not have to even expect to win them. But by making them—by registering a complaint about the way things have always been done—you will give the appellate courts a better chance at taking a close look.
This is another example: the Michigan termination statute probably looks a lot like many other state statutes in its description of the grounds for termination. Except maybe for one part of it: our statute permits the state to terminate parental rights when a parent has had her rights terminated previously as to another child. Or at least it did, until a lawyer complained about it. And once the Michigan Court of Appeals had that question squarely before it, it held that part of the statute unconstitutional. In re Gach, 889 N.W.2d 707 (Mich. Ct. App. 2016).
Sometimes it just takes expressing your objections to a certain practice or procedure in constitutional terms at the front end. You do not have to expect to convince the trial court today, or even maybe the appellate court in this case. But without your small steps at the front end, systemic improvements are not possible. Which brings me to my final point.
Courts Are Only as Good as the Lawyers Who Serve Them
I think this might just be a way of saying both earlier points one more time: Never underestimate the critical role you lawyers play in advancing the rule of law for your clients. It really is all up to you.
You know this: There have been times throughout our country's history when the work of lawyers and courts was instrumental in shaping what we sometimes can take for granted as fundamental to the rule of law—where litigation was instrumental in forging the legal architecture of our democracy. In these instances, litigation proved to be the crucial catalyst to bring about foundational change that we now associate as central to our form of constitutional democracy.
The centrality of procedural due process, for example, so basic to our legal system today, was ushered in through cases like Goldberg v. Kelly, 397 U.S. 254 (1970). As you will recall, in Goldberg the U.S. Supreme Court held that the due process clause requires that before a recipient of government benefits can be deprived of those benefits she is entitled to an evidentiary hearing. And so now due process likewise protects any legal entitlement.
And structural features of our criminal justice system that we consider so basic today were the result of lawyers' work in cases like Gideon v. Wainwright, 372 U.S. 335 (1963). And, of course, the NAACP lawyers whose victory we now know as Brown v. Board of Education, 347 U.S. 483 (1954), where, again, litigation brought by lawyers on behalf of individual clients, though with a larger vision of the social good, brought our legal system and its rule of law closer to the ideals of basic justice.
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Legal progress can take different forms at different times, but lawyers have always played the critical role during different chapters in our history as legal rights are recognized, expanded, and extended. Lawyers like you.
There is a proud and patriotic tradition of this kind of lawyer serving the rule of law. John Adams made his reputation this way when he represented Captain Preston in 1770 for having murdered American citizens in Boston. Adams's view was that the principles of the justice system were worth the personal reputational cost. He later described his representation of Captain Preston as "one of the best pieces of service I ever rendered my country." Diary and Autobiography of John Adams (L.H. Butterfield ed., Belknap Press 1961) (1815). Captain Preston was acquitted.
When you protect and advance your individual clients' rights, you are also serving your community. You are serving our system of justice. You are serving the rule of law itself.
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Every now and again we are reminded why the rule of law is so critical to a constitutional democracy. Procedural due process is a bedrock principle of the American legal system. But it wasn't always, before the lawyers. And equality for all races and religions, too. But it wasn't always, before the lawyers.
The unique and independent role the courts play in our constitutional government, especially when there is instability with respect to the rule of law itself, has proven our Framers' genius.
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But courts are conservative (small c) and don't typically answer questions that have not been asked of them. In other words, the courts are only as good as the lawyers who serve them. So please continue to be Goldberg lawyers. And Gideon lawyers. Ask us hard questions. Make us answer them.
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You all know that there is great satisfaction in lawyering on behalf of clients who otherwise would have no voice in the system that governs the most important relationships in their lives. And there is also great personal satisfaction in working to ensure more and better justice not only for your individual clients but also for the rule of law that will protect future litigants who will stand where your clients stand now.
There are big and small victories yet to be won on behalf of your clients. I am eager to see you win them.
I hope you hear my optimism. There are a lot of dragons left to slay in your field, and I am confident you are perfectly positioned to slay them.
Thank you for the work you are doing and will continue to do as patriotic guardians of your clients' families and of the rule of law. I am so grateful for all of it.