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In this episode of "The Trial Lawyer's Handbook" podcast, litigation attorney Dan Small discusses the value of observing and learning from experienced colleagues, both professionally and socially. He reflects on one of his first significant cases as a federal prosecutor, when the U.S. Department of Justice (DOJ) secured a grand jury indictment in Atlanta against Bert Lance, the former director of the Office of Management and Budget, and three associates on charges that they conspired to violate U.S. banking laws to obtain millions of dollars in loans. Mr. Small joined the DOJ team led by Ed Tomko and Marvin Loewy and learned from watching them and the opposing counsel in action.
Listen to more episodes of The Trial Lawyer's Handbook here.
Mr. Small is also the author of the American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers.
Transcript
Dan Small: Bert Lance was a man of many facets. He was a Georgia banker — a "country banker," he called himself — who became embroiled with the scandal-plagued Pakistani bank of Credit and Commerce International. He was jovial, clever and credited with popularizing the phrase, "If it ain't broke, don't fix it." He was a politician who became a close friend and advisor to Jimmy Carter.
When Carter was elected president, with Lance's help, Carter rewarded him by appointing him as the powerful director of the Office of Management and Budget, or OMB. Lance's appointment to OMB was not without controversy. Fellow Democrat Senator William Proxmire said, "He has none: zero, zip, zilch, not one year, not one week, not one day of the proper experience in managing something of the magnitude of the federal budget." But with the new incoming president, the nomination sailed through. Lance became one of the most powerful members of the so-called "Georgia mafia," close associates that came in with President Carter based on both their personal and professional relationships. He was dubbed the "assistant president" by Forbes magazine and supposedly prayed together with the president every morning. But Lance was touched by scandal before, during and after his time in Washington. According to the Washington Post, Lance was investigated by no fewer than eight different federal agencies, but he was never convicted of a crime and never went to jail. However, some of the scandals got close enough that Lance resigned from OMB under pressure in 1977, less than nine months after assuming office.
In May 1979, the U.S. Department of Justice obtained a grand jury indictment in Atlanta against Lance and three associates, charging them with violating U.S. banking laws in a conspiracy to illegally obtain millions of dollars in loans. As a brand-new lawyer, literally just weeks into my job at the Department of Justice, I wangled an assignment as the low man on the totem pole of the trial team. My initial role was just to do research and writing on our pre-trial and trial motions and other pleadings. Nothing major, but just being on the team was thrilling. Part of the excitement was learning from great lawyers on both sides.
The DOJ team was led by Ed Tomko and Marvin Loewy. Eddie was with the DOJ's fraud section and was a funny, irreverent and very talented trial lawyer. He loved trials and the process of putting a case together, and I learned a lot about the substance and joy of trial work. Marvin was on loan from his position as deputy chief of DOJ's Organized Crime and Racketeering Strike Force. Also a talented trial lawyer, he was a great tactician, and I learned a lot from him about trial strategy. He also had a great sense of humor and an inscrutable poker face.
One fun example: Several of us were going out to a restaurant for dinner one night. As we approached the hostess station, Marvin made his way up to the front of the group, looked the hostesses straight in the eyes and said, "Bond, James Bond, party of six." The hostess was frozen in place. What to do? After a long pause, she pulled herself together and bravely said, "Yes, Mr. Bond, right this way." The rest of us barely kept it together until we were alone at the table and then had a good laugh over our special agent friend.
Lance's lead defense lawyer was a distinguished Southern gentleman and highly regarded Atlanta trial attorney. He was organized and smooth in his arguments to the court, and I learned a lot watching him. As the case progressed, I was allowed to argue some of the motions, a great opportunity just months out of law school. One of the things that impressed me in the motion hearings was how easily the lead defense counsel bonded with the magistrate or judge. How could I do that? In one of the hearings, I learned that bond was a result of a mix of ingredients: skill and experience, yes, but also a large dollop of home cooking. We'd been arguing motions to the magistrate, acting as a dignified counsel for our respective parties, when the magistrates ordered a brief break, at which point defense counsel sauntered up to the bench, and within my hearing said, "So, Paul (or whatever the magistrate's name was) you coming duck hunting with us again this weekend?" There was some further laughing exchange I couldn't hear. Then counsel sauntered back to the table. On his way past my table, he winked at me. "Take that, junior."
"With us?" "Again?" "This weekend?" Months out of law school, I was still imbued with the rules against ex parte contact between litigants and the judge. What was going on here? Home cooking. The easy bond that counsel had with the judges came from years of local efforts, in court and out of court, professional and social. I suppose I could have objected to duck hunting, but would that have improved my client's chances in court? Probably not. Better to learn from the masters, as we all should, that developing and monitoring your relationships and your reputation can be almost as important as developing and maintaining your legal skills.
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