The Life of Johnston

Tag: lawyers

Polishing My Dick

8 July 2015

Dear Max,

I’m wanting to throw a scold into myself for acting like such a prissy perfectionist. I keep re-writing the beginning of my fish book—eight times the charm! And I can tell you it’s ended up pretty charmless. I’ve polished the life right out of it. And in the meantime, what is this story about? (And by the way, it’s not very polished either. It has mistakes, things that don’t make sense.)

I need to remind myself that lawyers and journalists often end up as writers because, for better or worse, we’re professionals. We write for work, and we complete things. So—get on with the story and stop fussing. But I resist the idea of being a professional. It sounds so uninspired. And I know inspiration doesn’t have such a great reputation—at least I’ve never respected it—but I’ll take all the inspiration I can get.

And so I’ve fallen–fuck!–between two stools: too artistic to get any work done; too professional to do anything really surprising. I can’t seem to find the life of the thing, and I’m pissed. Maybe I should take some of this anger and use it to put some life into the book. Anger is a force. It’s energy. It moves. Who cares if it’s destructive? I could use a little destruction right now.

13 July 2015

Dear Max,

I’d have a crisis if I knew how.

I took an Oprah Magazine quiz on Joy and totally flunked it. It seems I can’t tell the difference between Joy and Satisfaction.

Then I took the quiz on Worry and scored in the Chronic Wallowing range. The quiz was full of trick questions, or just things I didn’t understand: “I don’t believe my thoughts.” Strongly agree? Strongly disagree? On a scale of 1 to 5. Does this mean, “I’m aghast at my thoughts—I can’t fucking believe the shit passes through my mind”? (Strongly agree!) or “I think my thoughts are total lies”? (But how would I know that?) But the stumper was, what are my thoughts? I couldn’t remember any. Next question: “I believe life is full of danger.” I’m sure the correct answer was: 5, strongly disagree, which just seems delusional. I gave myself a 3. I know life is full of danger, but I’m distracted enough not to feel scared most of the time.

Steady Backward Progress

28 April 2015

Dear Max,

I wrote a new Chapter One for my fish mystery, probably to avoid figuring out what happens after Chapter Four.

Chapter One: Conspiracy

“Crime’s up,” said Jill, without looking up from the Bee.


We were sitting at the little table in the kitchen at the office. It was a perfect spring day, and all the windows were open, allergies be damned. I was doing some billing on my laptop. Jill read for a few more minutes and then said, “Oh. White collar’s up. Violent crime is still down.”

“What about petty crime? That’s the only kind I seem to get.”

“The article didn’t say.”

“I think I’ve been blacklisted. The panel hasn’t given me a single murder since Merrick. And that one didn’t even start out as a murder.” The panel was the Sacramento County Indigent Defense Panel, which doled out criminal cases to private attorneys when the public defender couldn’t take them. It paid–poorly and eventually–but it was better than not getting paid at all. And of course getting paid poorly by lawyer standards is making total bank by human standards. “Look at all these tiny cases I’m billing. One court appearance, and they settle. And they all have good defenses, but no one wants to sit in jail and wait for trial if the DA’s offer gets them out today.”

“Can you blame them? Besides, maybe they know they’re guilty.”

“That’s not the point.”

Jill was still half-reading the Bee, and now she was on the obits, which meant she was almost done. She scanned them quickly and then set the paper aside. “I’m just saying, they might know that after I investigate, they’re not going to look so innocent.”

“I didn’t say they looked innocent. I said they had a good defense.”

“Okay, they might not have such a good defense after all the facts come out.”

“So we bury your investigation and take the offer.”

“Which might be off the table. While you’re preparing for trial and I’m investigating, the cops usually are too.”

“Not on these cases. They’re too tiny.”

“So what are these great defenses?” Before Jill became an investigator she’d been a lawyer, which made her an annoyingly effective devil’s advocate.

I looked down at my billing spreadsheet, “Okay, homeless guy with a meth pipe, settled for drug diversion. But the cops had no business going through his shopping cart. We should at least have run the search motion.”

“How’d it go down?”

It felt strange that Jill didn’t know all my cases by heart, even the tiny ones. But ever since she’d become a foster parent, she didn’t live and breath work anymore, and she only knew the cases she’d actually worked on.

“The bike cops gave him a ticket for jay-walking—”

“Okay, legit stop, if somewhat chickenshit. Then what?”

“He had all this recycling, and the cops thought he was stealing cans and bottles from people’s trash—“

“—reasonable, under the circumstances—”

“Yeah. So anyway, they start to search his cart for more cans and bottles and find the pipe.”

“It’s a loser. The cans and bottles were in plain view.”

“But the pipe wasn’t.”

Jill shook her head: “Once the cops had a reasonable suspicion that the cans and bottles were stolen, they could search his cart for more cans and bottles. That’s what they did, and they found the pipe.”

“That’s only if you think of his shopping cart as a vehicle. But that was his home. He was carrying everything he owned with him. They needed a warrant.”

“Well, it would be fun to run the motion,” said Jill, “But in the meantime he has to sit in jail. It was a diversion offer.”

“And everyone fails drug diversion. Especially homeless people.”

“So, what else do you have?”

I looked at my spreadsheet, “Okay, schizophrenic woman stealing lip gloss at Rite Aid, and the DA dumped it.”

“Good. A win.”

“Yeah, but kind of unlucrative.”

“Do you need money?”

“Um, I don’t think so.”

“Well don’t worry about the rent.”

“Oh my God, I totally forgot.”

“Seriously. Let’s just wait till business picks up.” Jill owned the building, a small high-water Victorian with a great location: we could see the DA’s office from the back porch, and most evenings we sat out there and drank wine and occasionally shouted across the DA parking lot at the lit-up windows, “Go home! Stop working so hard!” Because however hard the DA works, you have to work harder. But that was before Jill got Josh. Now she went home early, and I drank wine by myself and read and sometimes worked on cases. I never yelled at the DA’s office when I was alone. It seemed too crazy.

“So, what else?”

I clicked to the next bill. “Okay, this guy lost his IT tech job, and he started printing twenty dollar bills—but he only printed one side! That’s not counterfeiting, that’s fantasizing about counterfeiting.”

“So what’d he plead to?”

“Sixty days on the work project. And I couldn’t even get it down to an attempt. And now I’ll never get to make the world’s shortest closing argument.”

“Which was?” I could tell she was humoring me, but it felt good to be humored. I held up my index finger and said nothing. I looked at my finger, then back at Jill. She looked puzzled and then, “Oh! I get it. One!”

“Exactly! Even monopoly money is printed on both sides. I told him to go to trial, and he looked all scared and goes, ‘But what do I say?’!”

“Dear God,” said Jill, “Do they teach them nothing in high school?”

“I know. I told him all he has to do is sit down, shut up and look innocent—it’s in the Constitution. And he just looked so doubtful.”

“Poor thing.”

I thought back to my one conversation with the guy—a twenty-year-old boy, smart enough in his own techy way but walking proof that the male brain matures in its mid-twenties. It was downstairs in the jail tanks, and I was trying to persuade him to reject the offer and stay in jail and fight it: he had no job, no kids—what difference did it make? He just hung his head and said he wanted it to be over. And I knew from recent experience that being in jail is a lot harder than it looks, especially when you’re not used to it.

“I shouldn’t have pled him. I should have stopped it.”

“How? It’s his decision.” Jill was trying to comfort me, but I knew that if it had been her, she would have found some way to delay. She would have been called away on some emergency, insisted on a psych eval, or practically gone down on her knees to get him OR’d to his parents’ custody, even though he wasn’t a minor, at least chronologically.

“Now he’ll have a felony record that’ll ruin the rest of his life.”

“Maybe he can get it expunged. And that money stuff can always go Federal. Kind of puts the pressure on.”

“Would the Feds seriously touch this? It was plain white paper, not to mention—” and I held up my finger again.

“Probably not,” said Jill, smiling, “But anyway, I thought you got assigned to a new case.”

“Yeah, I’m going to pick up the file when I drop off these bills.”

“What is it?”

“Fish & Game, that’s all I know.”


“I know. We’re not even in the Penal Code anymore. Talk about Siberia.”


I came back with a fatter file than I’d expected. The copier that we’d leased on spectacularly unfavorable terms was next to the little kitchen, and I made three copies while Jill sat at the table working on some inscrutable knitting project. She held it up, looked puzzled for a moment then did some unraveling.

“What’s that?” I hadn’t seen her doing any knitting or quilting since she got Josh. I knew she missed it, and I missed her doing it.

“I think it’s supposed to be a horse. Or maybe a goat.” Which meant it was Josh’s homework. He went to a public Waldorf school where they taught knitting. It had something to do with fine motor skills and grit: the character-building benefits of having to unravel days’ worth of work and then keep going.

“I thought knitting was supposed to be about powering through the hard parts,” I said.

“He’s powered through enough hard parts, okay? I just want to fix one thing.” I handed her a stack of paper, warm from the copier. “Hang on one second.” She knitted for a few minutes while I gathered the tools of our trade: legal pads, Post-Its, highlighters. I also printed up a blank investigation request for Jill to fill out. As the attorney, I was supposed to write this request, saying what I needed an investigator to do so that the county would pay Jill to do it, but usually Jill wrote the request herself. I just billed for writing it.

Jill stuck her needles through the horse or pig, “There. He won’t even know I fixed it.” She set it aside and started right in reading. Her white hair was pulled back in a rough ponytail, and she was wearing a sweatshirt, jeans and running shoes. Before she got Josh, I’d always thought that her version of biker chic elegance was natural, effortless—the privilege of the thin. Now the elegance was getting pretty rough around the edges. She was incapable of looking dowdy, but she did look a bit scruffy—like a mom, a very very old mom.

Already, her concentration was complete: reading, planning, taking notes, marking a page with a Post-it—that marvelous, intimidating competence. It was partly her long, varied life as a lawyer, which still came in handy now that she’d retired and become an investigator. But mostly, she was just a natural. She had the kind of quick, skeptical mind that could seize a mass of material and shake the problems out. And she’d somehow stayed curious about people.

“I thought this was supposed to be a misdemeanor,” said Jill, without looking up. She was reading the Complaint, which went on for a long time.

“It’s a felony?” I said, brightening.

“For Oblonskaya it is. She’s ours, right?


“Looks like she’s the heavy.”

“It’s Fish & Game, how heavy can she be?” Jill just shrugged and made a quick note. I glanced at the caption to see who the players were. The first five defendants were Thao, Vang, Lor, another Thao, and Cheng. The last was Oblonskaya. A six Co-D case probably wouldn’t settle right away. The DA’s offer was usually a package: everyone takes the deal or no one can, and usually not everyone wanted the deal, at least not right away. I thought of the long billable hours in court waiting for all the lawyers to show up, and my heart warmed to the case.

“Conspiracy?” said Jill, still reading, “Oh, please.”

“Conspiracy?” It sounded almost like a real crime. I opened a new bill on my laptop, glanced at the clock, and started reading.

If anyone wants to compare and contrast, here’s the old Chapter One, though I can’t imagine why anyone would want to go through this with me:

Book Report

3 July 2014

Dear Max,

My favorite thing about my book is: 228 double-spaced 8.5 by 11 inch pages of 12-point Garamond type. I think I’m about two thirds of the way done. And then I’ll write it over again. And wouldn’t it be wonderful if I really could get it done in a year? I started in January.

I resist writing fiction. I have to make the whole world? Come on. But once it’s there, I can re-write with all my heart. A nice illegible first draft is just the thing. I can remember the good parts. And after a few typed drafts, I start to believe in it. I feel the same resistance when I read fiction, at least at first. It’s like: You’re totally making shit up! Liar liar pants of fire! And then, if I’m lucky, I enter into the book’s world, and it’s wonderful. I surrender.

Suspense bores me—to read or write. It’s taking everything I have not to write: “We didn’t know it at the time, but Michael really was innocent, as he kept insisting, to my complete annoyance.” I think I will write that. Why not? I’m pretty sure I’m not going to be able to pass this book off as a true mystery/courtroom drama. If only I knew who did do the crime, I’d say that too.

And I resist plot. Life doesn’t have one. Trials do. They’re the plot you can’t stop, the inexorable, the place where bad things keep happening, which is good for fiction, bad for life.

In my story, the plot for the lawyers is all about plea-bargaining. The case is over-charged, and the offer is ridiculous, so the purpose of the trial is to get the jury to hang on the counts that carry a life sentence. They’ll have to convict on the little stuff in the process, but the maximum sentence will be a lot less than life. It’s all about beating the offer and making the DA pay for being greedy. Declare moral victory and go home. (Shades of Chaffanbrass!)

For the client, the trial is about his innocence. Poor lamb, he can’t get it out of his head. He doesn’t understand that that’s not what trials are for. Even an across-the-board acquittal doesn’t mean you’re innocent. To a lawyer, the most delicious victory is when the jury says afterward, in the hallway: he probably did it, but we just couldn’t convict. Because that means the law is working. For a lawyer it’s all tied up with the government’s burden to prove the charges beyond a reasonable doubt, which is all tied up with the most basic kind of liberty. But to someone who really is innocent, it’s probably pretty painful. (Shades of Phineas Finn!)

The next one I write, I’m going to make the client guilty. It’s so much more realistic.

In the book, I’m reading Phineas Redux, and it’s great. Also Orley Farm. (I told you I couldn’t pass it off as a normal book.)

Just to give you an idea, here are the two passages, far apart from each other. This is from when I first meet the client in jail:

“But I’m innocent.”

“Yeah, you mentioned that.”

“And you said you don’t care. You get paid either way, right?”

“I care about the evidence.”

“Well, I want you to care that I’m innocent.”

“How about if I work on that while we read these reports?” I started reading aloud, thinking, this is going to take forever, and mentally kissing Sandra Dee’s goodbye for that night. But before I finished the first page, Michael was racing ahead, eyes moving feverishly, adjusting his glasses, centering them exactly on his nose, turning pages. “Um, would it make more sense for you to read this yourself?”

“Definitely. Much faster. Of course that will cut down your billable hours. Bill-bill-billable!”

“That’s all right,” I said. I was already gathering up my stuff.



“Do you mind staying? I don’t want to go back to my cell.”

“All right.” I still needed to go over the charges with him, and the potential prison time, and I might as well do it tonight. I sat back down on the metal stool, pulled out my Kindle and tapped on Orley Farm. Lady Mason had just confessed to Sir Peregrine Orme that she forged the will, not for herself but for her piece-of-shit son. Why couldn’t my clients be like that? Beautiful, classy and guilty. Not that Merrick wasn’t guilty. But why did he have to say anything about it either way? His stupid claim of innocence just distracted me from the evidence.

“Our tax dollars at work,” said Michael. “How much are you getting paid to sit there and read?”

“You’re the one who asked me to stay.”

“So. How much?”

“When you get out of jail, you can look it up.”

“What are you reading?”

“Trollope.” He gave me a long look, eyebrow raised. “Anthony Trollope.” You perv.

This next bit is a few hundred pages in, after pre-trial motions, before picking a jury:

It was Friday morning. No court, and a thick tulle fog outside. I lay in bed thinking about coffee and how to pick a jury (no clue) and the Pillsbury Bake-Off, specifically the Jiff Peanut Butter Award, about which I actually had some useful ideas, such as, would a peanut butter apple pie be an abomination or strange genius? As for the jury, I had a pretty good idea of what kind of juror would be good for us, but how to identify the white male conspiracy theorists with a gullible streak without also tipping off the DA, who would kick them off immediately? Jill would know, or at least she’d sympathize. I wanted to text her, but it was too early, and we were still in a fight. That low-grade misery was running through everything, sucking all the color out of the world.

My phone rang. It was the jail, the familiar recording asking me if I wanted to accept a collect call from a Sacramento County inmate. Um, not really. I pressed 1 to accept and said, “Don’t say anything except your name. They record all these calls. I’ll come see you. Just say your name.”

“This is Michael.”

“Good. I’ll come see you.”



“This morning.”

“All right. Now get off the phone.” We both did. So much for my pie experiment. I made coffee, enough for Jill and me, as I always did. On a normal Friday, she’d usually come to the attic first, have coffee, get a little work done—billing, typing up witness statements—then maybe go to the office or do some light fieldwork. Fridays were good days. Usually.

I took my coffee back to bed with Phineas Redux. Phineas was on trial for murder, standing in the dock, proud and simple, with the metal collar around his neck. He was innocent of course, but he wasn’t allowed to testify. Those were the days. My clients almost always insisted on testifying, usually disastrously. Almost everyone finds a way to feel innocent, or at least misunderstood, and the urge to set the record straight is a powerful one: I’m not guilty that way, I’m guilty this way. Michael’s testimony during motions had been a huge relief. It could have been so much worse. And what if he was innocent? It was a terrifying thought. Then I remembered the sweatpants and his refusal to do the DNA test. Bad facts do have their consolations.

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