Scene 1: A Lawyer Turns Reflective

  Reading Assignment: Seymour Wishman, Confessions of a Criminal Lawyer 3-18 (New York: Times Books, 1981)

(1) What "reasons" does Seymour Wishman offer to explain his humiliation of Ms. Lewis during his cross-examination of her while representing the man accused of raping her? Are the "reasons" persuasive, that is, do they provide moral justification for the humiliation of Mrs. Lewis?

Examine the reasons carefully. What do you learn about yourself, about the practice of law, as you explore these reasons?

(2) What significance do you see in Wishman's calling the book a "confession"? Does the "confession" alter the way we are supposed to read Wishman's account of his encounter with Ms. Lewis? (One might argue a confession is by nature so personal that it cannot be a public prescription for action.) What kind of demand does Wishman's confession make on you as a reader?

(3) The course is called practical moral philosophy. Is that what Wishman is doing?

Wishman tries to understand his encounter with Mrs. Lewis and her anger by defending himself much the way a good lawyer would. He doesn't tell us, at least directly, that his treatment of Ms. Lewis was wrong but he is clearly disturbed by the encounter and the possibility that he has become a person insensitive to the kind of harm he has caused to Mrs. Lewis. We see Wishman engaged in something like an internal dialogue, that is, a conversation with himself, a conversation he now shares with the reader. How does Wishman's conversation with himself shape the conversation we, in turn, have about Wishman?

If Wishman is thinking, reflecting and engaging in a dialogue (with himself and the reader) on a serious moral matter, isn't he doing something we might want to call philosophy?

(4) Do the legal profession's ethical rules provide assistance in determine whether Wishman's actions were justified? [Applicable Model Rules of Professional Conduct] [Model Rules of Professional Conduct] Since the Professional Responsibility/Legal Ethics course is so often devoted to the study of the profession's ethical rules, one wonders how the traditional legal ethics course might deal with the moral concerns about a humiliating cross-examination of a witness you have good reason to believe is telling the truth.

(5) Wishman notes that the encounter with Mrs. Lewis resulted in a "chilling glimpse" of himself. (16). He describes his reaction to the encounter as being "shaken" (18) and "frightened." (5, 18). "I was frightened by the person she saw . . . frightened that I could be seen that way . . . frightened that I might be that person." (18).

Have you had such an occasion in your own life? Tell the story (if you are willing) of that experience and what it means to you now. If you have not had such an experience, are you curious as to how you have avoided it?

(6) Wishman may have simply reached the point described by another lawyer, Charles Reich, as a "need for truth."

There comes a time when the need for truth is so great, when lies and distortions have made ourselves, and the selves of those we love, and the things we believe in, so unrecognizable, that at any cost we must go in search of the truth, no matter how long and hard and lonely the road. There comes a time when we realize we are like people who continue to live together but have long since lost the ability to look at each other. There comes a time when our need to regain the power to love is so great that at any risk and any price we must regain that power. [Charles Reich, The Sorcerer of Bolinas Reef, unnumbered page, epigram to chapter one (New York: Bantam, 1977)]

(7) Wishman says that the encounter with Mrs. Lewis came at a time when he "had accumulated, without realizing it, a number of reservations about my work." (17). Should we all, have "reservations" about our work? Explore the arguments for and against such "reservations."

| A Criminal Lawyer's Inner Damage |

1. Wishman's Confessions of a Criminal Lawyer is now available from Palisades Press, 153 Waverly Place, New York, New York 10014. Telephone 212-243-0600. The first chapter of Wishman's Confessions, long used in Practical Moral Philosophy for Lawyers, is reprinted in Seymour Wishman, Confessions of a Criminal Lawyer, 21 Legal Studies Forum 139-149 (1997). For an extended discussion of the use of Seymour Wishman's story about the humiliation of Mrs. Lewis in teaching lawyer ethics, see Symposium: Teaching a Lawyer's Confessions, 21 Legal Studies Forum 139-300 (1997).

2. Further Reading on the Ethics of Cross-examination: Philip H. Corboy, Cross-examination: Walking the Line Between Proper Prejudice and Unethical Conduct, 10 Amer. J. Trial Advocacy 1 (1986); Paul G. Haskell, Why Lawyers Behave as They Do 2-3 (Boulder, Colorado: Westview Press, 1998); Monroe H. Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 Mich. L. Rev. 1470 (1966); Saul M. Kassin, Lorri N. Williams, and Courtney L. Saunders, Dirty Tricks of Cross-Examination: The Influence of Conjectural Evidence on the Jury, 14 Law & Hum. Beh. 373 (1990); David L. Lewis, Cross-Examination, 42 Mercer L. Rev. 627 (1991); Vance Barrow, A Probing View of Cross-Examination, 16(1) Litigation 41 (Fall, 1989).

Philip Corbory, a well-known Chicago litigator, divides cross-examination into two categories: "(1) that intended to impeach the witness or to expose some fallacy within his or her testimony; and (2) that which has no purpose other than degradation and humiliation of the witness." (Philip H. Corboy, Cross-examination: Walking the Line Between Proper Prejudice and Unethical Conduct, 10 Amer. J. Trial Advoc. 1, 2 (1986)). Corboy argues that lawyers "must draw a line between legitimate impeachment and frank humiliation. Sometimes impeachment must encompass witness humiliation, but the initial decision to embark upon a degrading cross-examination requires careful scrutiny of the target." [Id.] On the "classic question" on the "propriety of discrediting the adverse witness [in a rape trial] counsel knows is telling the truth," Corboy admits it's not an easy question and indeed the "result"--casting doubt on truthful testimony--seems "harsh." [Id. at 11]. Corboy does not, however, follow through in his analysis by use the two categories of cross-examination that frame his inquiry. He simply concludes that "it is undesirable that defense counsel should sit silently whenever he believes a searching cross-examination may be harmful to a prosecution witness." [Id. at 12.]

On Zealous Advocacy, generally, see: James R. Elkins, The Moral Labyrinth of Zealous Advocacy, 21 Cap. Univ. L. Rev. 735 (1992); Murray Schwartz, The Zeal of the Civil Advocate, 1983 Am. B. Found. Res. J. 543, 550-554.

3. In talking about Seymour Wishman's humiliation of Mrs. Lewis with students of law, we find that some students crave the opportunity to badger, humiliate, and "destroy" witnesses on cross-examination. Others are repulsed at the thought of doing what Wishman has done. Wishman elicits, from students, both admiration and condemnation. Admiration for Wishman for some of us turns on his searching moral inquiry, for others the fact that he knows how to play "hardball."

4. We explore the moral dimensions of Wishman's cross-examination again when we read Harper Lee's To Kill a Mockingbird, a novel in which Atticus Finch and Mr. Gilmer, the prosecutor, are shown cross-examining adverse witnesses. [To Kill a Mockingbird at 177-181, 183-191, 198-201]

Scout, Atticus's daughter, recounting the events of the Tom Robinson's trial, and Atticus's cross-examination of Mayella Ewell who lied in her accusations against Tom Robinson, says of the cross-examination: "Somehow, Atticus had hit her hard in a way that was not clear to me, but it gave him no pleasure. He sat with his head down. . . . " [Id. at 191]. Even Mr. Gilmer, the prosecutor, who takes full advantage of Maycomb's racism, "seemed to be prosecuting almost reluctantly," a reluctance that does not diminish the brutality of his cross-examination of Tom Robinson. [Id]. Whatever one's assessment of Wishman's tactics, there is a clear difference between the ethics of a man like Atticus Finch and the racist innuendo used by Mr. Gilmer in his cross-examination of Tom Robinson.

5. On Criminal Lawyers and Their Efforts Hide from the Truth: David Luban, Contrived Ignorance, 87 Georgetown L. J. 957 (1999)

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