In our local Knoxville Bar Association publication, DICTA, (October 2017) a highly regarded local criminal defense attorney, Ann Short, wrote an article on cussing, revealing that she was a prolific “cusser.” She admitted that cussing came naturally to her. Ann wrote, "I am mostly a situational offender. Spill coffee on my freshly dry-cleaned skirt. Forget to set my alarm clock. Lose my cell phone. Arrive home without buying the most critical item on my shopping list: toilet paper. Read a particularly stupid or out-of-touch Supreme Court decision. The profanity flies. Read a particularly stupid, racist, pompous, sexist, etc., Twitter remark and the profanity can soar for minutes."
I've always liked Ann Short. And I found myself liking her even more since I learned about her “potty-mouth.” Cussing comes naturally to me too. I blame it on my upbringing. Born and raised in a blue collar Catholic family (and community), I grew up with profanity as a regular part of our vocabulary. And that was from my grade school peers. Of course, all the parents cussed. I'm pretty sure cussing is an essential part of Catholicism. The vernacular of rogues is part of every card game, sporting event, prize fight, and golf game that makes up the whole K of C calendar of events. Cussing is to beer drinking and smoking cigars, what peanut butter is to jelly. I was raised on cussing.
So, you can imagine how happy I was to learn from Ms. Ann's article (true or not) that cussing helps one cope with stress; raises pain tolerance; and increases strength and stamina. Because I cuss, I'm told I 'must' be more intelligent … and honest! I'll be damned.
And I think those things must be true. Exhibit A: my wife – the daughter of a Church of God minister – is the toughest, strongest, most intelligent, and honest person I know, and you should hear her mouth …. OMFG!
Recently, I experienced a bit of an epiphany while meeting with a client in jail who I had been representing for nearly two years. Trial was fast approaching. There were a couple of different defense strategies we could have employed. We had long ago settled on one and had been preparing for months … no actually, years. As usual, the closer we got to trial, the more the client's (and my) anxiety increased. And in these last few weeks before trial the tension and stress between lawyer and client was ever-present – just barely below the surface.
Just a few weeks from trial, my client thought it might be a good idea for us to change our strategy.
"Are you f|STAR|cking kidding me?!" I asked. "What in the &|PERCENT|#!|PLUS||STAR|^ are you #&^|PERCENT| thinking?" I politely inquired. My client looked at me, aghast. I'm still not sure I fully understand all that he was conveying with that look. But I'm pretty sure I saw disappointment, lost confidence, maybe disgust. And then he said something that stuck with me. "Why are you talking like that? That's beneath a man of your stature."
No one has ever accused me of being "a man of stature." Though I know I have no prominence or import, to that client, I did. He had come to believe that he had a lawyer representing him. A professional. A man of prominence. What he had seen in that moment was that he'd in fact been appointed a "public pretender." I had exposed my inadequacies. And what I had revealed in those few minutes was suddenly more important than anything I had done or said in the previous two years. I had affirmed what every defendant who must rely on court-appointed counsel fears: that public defenders aren't “real” lawyers. Not and talk like that they aren't. And I had, in a way, betrayed what every committed public defender fights tirelessly to dispel, this notion that we are second class lawyers. That we are “only” public defenders because we can't make it as a real lawyer. That we should even stand down in the presence of “real lawyers.” In that moment, I had revealed to my client that his public defender had no clothes. And I was ashamed of myself.
I've been a lawyer for 37 years … a public defender for 27. Like too many young public defenders, I learned how to interact with my clients – how to establish that ever important attorney/client relationship – by trial and error. There was never another lawyer present to help me through that process. So, I found my voice – literally and metaphorically – by being me, warts and all. You'd seldom found me in a three-piece suit. I preferred jeans. I couldn't afford French-cuffed shirts and I sure as hell didn't own any cuff links. And yes, cussing was a part of my client-vocabulary. I presented as the irrepressible outlaw, and my clients identified … of course they did.
But my recent client experience has brought home the need for introspection on my professional evolution. Time and experience dictate how our clients view and interact with us. And while it's important that we stay true to who we are (keeping it 100), what my client wanted … needed … was to be represented by a respected member of the Bar. And accurate or not, that's what my client saw in me. But since I don't see myself that way, and because I disrespect clients; stereotyping them like the criminal justice system does, I acted instead like that irrepressible outlaw of my youth, F|STAR|ckin' a I did.
I'm not suggesting that we can or should be all things to all clients. We can't. And even if we tried, it wouldn't work. But what I know is that my clients are always disappointed when I show up at that first meeting … goddammit they got a public defender! "Why won't my family hire me a real lawyer?" they ask … sometimes even to me. I understand that reaction isn't directed at me. My client wants what we all would want in that situation; a talented, professional, zealous, respected (even irrepressible) member of the Bar. In the vernacular, they want a real goddamn lawyer. And maybe it's not too late for me to start acting like one.
Mark Stephens is District Defender for the Knox County Public Defenders Community Law Office in Knowxville, TN, Chair of the NAPD Steering Committee, and Co-Chair of the NAPD Workloads Committee.