In re Throwing Random Shit Against the Wall as a Legal Defense Strategy

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Trump signed letter of intent for Trump Tower Moscow project despite Giuliani insisting he didn’t

I beg pardon for the vulgarity, but it captures the essence of the matter more crisply than if I had employed a circumlocution.

Now that that is out of the way, I have a handful of substantive observations.

As a defense attorney, sometimes you find yourself defending a case that is so indefensible, on the facts and on the law, that if you are to carry on defending it, pretty much all you can do is throw sand in the judge’s eyes. Or, as my regrettable metaphor puts it, throw random pieces of shit against the wall, to see if something will stick.

When you find yourself in that circumstance, almost invariably your client’s best course of action is to find some way the settle the matter, even on very unfavorable terms.

But perhaps your client thinks he is living in Neverneverland, and can’t grasp the seriousness of his own predicament. Or maybe settlement is not possible for other reasons.

So you start throwing shit against the wall.

Conclusion: the mere fact that an attorney is seen to be throwing random shit against the wall does not, ipso facto, prove that the attorney is unintelligent, or that she is not acting in the best interest of her client.

A Crucial Distinction

But here’s a vital qualification to the above proposition. If you are throwing shit, it is vital that it be done in a clever way.

That means, for example, not claiming a draft letter of intent was never signed when, in fact, it was signed by both parties, and your adversary has the signed copy. See article cited above. That kind of easily disproven factual assertion discredits your client. It discredits you. And it unmasks your strategy.

It deprives you of any capacity to provide effective legal representation.

That is why I have said of Rudy Giuliani, and I now say again, that he is so bad that his client, Donald J. Trump, a person in serious legal jeopardy, is proceeding without the effective assistance of legal counsel.

And, one might add, in respect of General Flynn and yesterday’s disastrous day in court, that the general has a really good malpractice claim against his attorneys.