I'm Glad I Don't Work For Doug Gansler
Doug Gansler is the Maryland Attorney General. Basically, the state government’s top lawyer. One of the many things the Office of the Attorney General does is represent the state in criminal appeals. Criminal prosecutions at the trial level are handled by the various local state’s attorney’s offices. Once those cases turn into appeals, they are handled by lawyers from the appellate division of the Office of The Attorney General.
There is an article in today’s Daily Record describing Mr. Gansler’s preparation for an upcoming argument in the United States Supreme Court. The case is called Maryland v. Shatzer, and has something to do with the scope of a criminal defendant’s invocation of the right to counsel. I am not here to write about the substantive legal issues- I only handle personal injury cases, which is the only kind of work we do here at Miller & Zois.
The article is about the extent of the preparation Mr. Gansler is doing to be sure that he is ready for oral argument in our nation’s highest court. One particular thing caught my eye. Gansler offered thanks for the assistance of a lawyer in his office named Brian S. Kleinbord, who is the chief of the attorney general’s criminal appeals division. It turns out that Kleinbord, not Gansler, is actually listed as attorney of record for the Supreme Court case. The petition for certiorari and the briefs in the Supreme Court list Mr. Kleinbord and two other lawyers as counsel, along with Gansler. The Daily Record quotes Gansler as saying “Kleinbord assisted in writing the brief and preparing for the high court argument, but the attorney general chose the case to be his first argument in the Supreme Court.”
You know what that means? It means that Kleinbord and the other lawyers wrote the briefs and did all the work. Now that it is time for argument, the guy at the top of the letterhead is swooping in to take advantage of all of the attention, and the glory if he wins. Gansler says he decided to do this because of his broad experience as a prosecutor. Hmmm. Who is best suited to do the argument? The guy who did the research, wrote the brief, and probably argued the case in the lower courts? Or a prosecutor turned politician, who rarely, if ever, sets foot in a courtroom anymore?
I get that there are perks to being the boss, and that this case gives Mr. Gansler the opportunity to show the citizens of Maryland (most importantly, the ones who vote) that he is out in front protecting our state from sex offenders. I know Mr. Gansler spent many years as a trial level prosecutor, and that he has argued these issues before in other cases. I am not trying to say he will do a bad job. In fact, I am sure the opposite is true.
But I feel for the other lawyers who put the real work into the state’s case, who are relegated to sitting second chair at oral argument or just having their name listed on the brief. I do a fair amount of appellate work, probably more than most personal injury lawyers. Right now I have two cases pending in the Court of Appeals of Maryland, and two in the Court of Special Appeals. The two in the Court of Appeals address a fairly significant legal issue involving discovery of the financial bias of opposing expert witnesses. These cases may have lasting implications for Maryland personal injury lawyers.
I wrote and argued the motions in the trial court. I wrote the briefs for the intermediate appellate court, and I am currently writing the briefs to the Court of Appeals. I couldn’t help but wonder how I would feel if Ron Miller told me that he was going to handle the ultimate appellate argument in my cases. That is unlikely to happen, because Miller & Zois is not that sort of place, and because I am best positioned to handle the appeals because I know the most about the legal and factual issues.
I wonder how Mr. Gansler told the other lawyers that he was handling the argument himself? I doubt I would have taken that well. I just can’t help but think that the attorneys who argue criminal appeals for a living could probably do the best job arguing this case for the state.
