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My first several years practicing civil litigation were indelibly stressful. Civil actions can have astounding sums of money at stake and the outcomes may have enormous personal and professional consequence for those involved. I certainly hope my cases have kept my clients up at night with anxiety because they certainly had that effect on me. But while a healthy amount of anxiety ensures that attorneys are well-prepared for upcoming hearings, depositions and trials, too much can lead to detrimental, and even debilitating, stress that erodes both career and family. Eventually, I learned to manage this sort of stress by keeping my work in perspective. For example, I have in the past been outraged at the injustices I perceived in adverse judicial rulings (particularly during discovery) that I felt were made without due consideration for the circumstances of the case and the impact on the litigants. But the consequences of those rulings pale in comparison to the effects on individuals, families, and society each time a sentence is imposed under the Federal Sentencing Guidelines. Prior to the Supreme Court’s decision in United States v. Booker, the federal sentencing guidelines were considered mandatory and judges could downwardly depart from the minimum sentence provided under the guidelines in only rare circumstances. In one pre- Bookersentencing decision, a hearing was held to consider the prison term for a convicted crack dealer, whom we shall call “Alan.” Alan’s IQ was a single point above mental retardation, he had a chronically ill wife who required constant and expensive medical care, and together they had several young children for whom Alan was the sole provider. Alan had several relatively minor, non-drug convictions in his past, but he had been outside the legal system for several years and was holding down a steady, albeit minimum wage, job. Given Alan’s family situation, money was tight and times were overwhelmingly desperate. Alan eventually succumbed to the continuous pressure from acquaintances in his neighborhood and agreed to serve as a middleman in a drug deal. He was arrested when police discovered him loitering in a parking lot, with drugs in a paper sack, waiting for the planned buyer to arrive. Given the weight of crack involved and his prior convictions, Alan was sentenced to 60 months imprisonment, the minimum period under the guidelines. This sentence guaranteed his children a one-way ticket to foster care and, given the state of the public healthcare system, doomed his wife to death by slow torture. Despite all of this, under the precedent in his judicial district, Alan didn’t meet any recognized criteria for a downward departure from his sentence. The most disturbing part of his hearing, a memory that stalks the conscience of most involved without repent, is the way Alan sat with an obliviously bright smile throughout, even as the sentence was imposed. The very next week, the same judicial district sentenced a middle class twenty-something, whom we shall call “Barry.” Like Alan, Barry also had an ill wife and a young child, but Barry had a college degree and held a promising career at a pharmaceutical company where his annual salary was just under $50,000. A by-product of processing one of the prescription drugs manufactured at Barry’s company was a dust with methamphetamine qualities. Barry soon realized that he could essentially sweep large quantities of this dust from the floor and sell it to drug dealers who would in turn peddle it on the street. Barry successfully engaged in this drug trade for years, unloading untold hundreds of kilograms of illegal drugs and coming to know numerous “big time” drug lords in the process. Eventually Barry was caught, but due to his extensive and longstanding involvement in the drug trade he was able to provide the government with “substantial assistance.” As a result, the U.S. attorney showed up at the sentencing hearing with a plea deal, a request for downward departure, and an impassioned speech about Barry’s essentially good nature and wholesome background that was undone by an unfortunate bow to temptation. Barry received a 20-month sentence under the guidelines. If only Alan had been involved in the drug trade much longer and had sold drugs in higher volumes, like Barry, he might have developed some “big time” contacts as well that he could later sell out to the government in exchange for a lighter sentence. Alternatively, Alan should have picked a drug that sold more in the suburbs and hence carried a lighter sentenced based on weight so that he could have sold a larger quantity and yet received less jail time. In essence, we learn from the Federal Guidelines as applied to Alan and Barry that involvement in the drug trade is bad at any level, but since increased involvement provides avenues to a lighter punishment, it makes sense to commit the more severe crime, and hope you get away with it (you may as well be flogged for stealing a sheep as hanged for stealing a lamb). Certainly this is not the “justice” our criminal system envisions. I’ve never received an unjustified ruling that didn’t pale in comparison to the sentence Alan and his family received. Never in my career has anyone’s life or liberty been at issue. Remembering Alan always reduces my indignation over discovery rulings to a low simmer. I also previously found the prospect of standing in court, alone at the podium, immensely arduous. I recently learned to put such travails in perspective when I was asked to deliver the eulogy for my father-in-law, a man that I greatly admired, loved and respected. As I stood at the podium during his funeral service and my eyes blurred with tears, the page of notes I had prepared merged into incomprehensible inkblots, and my throat filled with choked sobs in lieu of impassioned declamations for the faithful departed. Meanwhile, friends and family waited in desperate agony for whatever comfort I could provide through words that would forever serve as the final comments on my father-in-law’s life. I would have traded every success in my professional career, past and future, for the five minutes of eloquence that his memory deserved. At the end of the day, although civil litigation can involve weighty issues, when justice is not done we can take comfort in having put on our best case and knowing that everyone involved will live another day, and every day of living is a good day indeed. Ellisen Turner is an associate at the Los Angeles office of Irell & Manella LLP where his practice includes intellectual property litigation and patent prosecution. You may reach him at [email protected].

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