Expecting the Unexpected

Q: What brought you to Duluth?

A: I grew up in the Twin Cities area, and I went to William Mitchell College. A lot of the folks that I went to law school with at that time [were] second-career type folks. So I got a chance to bounce off a lot of people who had a lot more life experience, and that opened my eyes up to different areas of law.

One of the people that I met there was originally from Duluth, and my younger brother had a lot of contacts in Duluth and I always liked the place geographically, its physical beauty. So I started just thinking about starting my career in the Duluth area. I got a break in what was called the Indian Legal Assistance Program, which did low income service for the Native American community and I caught on there, and that’s where I started my practice in Duluth back in 1978.

I met a guy there named John Durfee who was the 6th District public defender who, along with Bill Falvey from Ramsey County and Bill Kennedy from Hennepin County, were some of the earliest guys who established the public defender system in Minnesota. So I got in not at necessarily the ground level, but a pretty basic level and got to know some of the guys that had started the programs.

Q: What did you learn from them?

A: You want to be as truthful and open and honest with the court and the prosecutors and anybody else you deal with within your ability to do that [and] within the parameters of the privilege.

Q: As a young attorney, is that a challenging balance to strike?

A: It can continue to be an interesting balance as a young lawyer and as an old-timer, like I’ve turned out to be. You’re met with different fact patterns and different people and different personalities and different legal situations and legal arguments as you develop as a lawyer and as the law in that area develops, so it can still be a challenging match in some situations, but especially as a young lawyer with very, very little practical experience.

Q: So it’s something you have to learn on the job.

A: You have to learn it as you go. We didn’t even use the word “mentor” much back then, but that’s why it was so critical to have older practitioners, men and women who’d had experience in these areas and who were willing to take the time to teach you.

Q: When did you decide to go into private practice? Had you always had that goal?

A: I had never had that goal. As a matter of fact, even as I made my way through law school, I wasn’t necessarily interested in making money. I wasn’t necessarily interested in having a career.

The Indian Legal Assistance Program is one of the public defender corporations that has been funded in the state of Minnesota for many years. It just so happened that the felony defender job, as we called it back then, was a part-time job. There were full-time hours, but it was technically a part-time job. We had to then provide our own overhead. In my later years with the public defender’s office, we earned some overhead payments to cover telephone, secretarial, utilities, rent and all that. But earlier on we didn’t have that, so in order to try to make sure we covered the overhead, we were allowed to be in private practice. So that’s one of the reasons I went into private practice.

Q: What does it take to be successful as a defense attorney?

A: You have to be willing to work hard and put the time in. That’s what’s going to get you started. For me, a lot of it has just been flat-out luck. Also, the relationships that you develop over the years, and that doesn’t have to be with just the bench or the prosecution or other criminal practitioners. And some goals [such as] doing justice or getting a fair result or getting a result that’s consistent with the law and the rules. Those are goals that you have in every case, but just generally speaking in terms of developing a successful practice, it’s solid, solid work.

Q: Of all the cases that you’ve worked on, does one stand out as being the most memorable?

A: I think the set of cases that stands out are the cases that criminal defense lawyers wrestle with, and that is criminal sexual conduct cases—especially either involving minors or involving familial relationships. We see a lot of those types of cases, and those are the types of cases that very often end up going to trial because there are false accusations. Everybody acknowledges there are false accusations that arise. And even in cases where there are not false accusations, if an individual is charged with an offense like that, [it’s] very, very difficult to come to grips with the fact themselves that they did it, let alone to go into an open courtroom and to acknowledge that type of behavior.

Q: What is your answer for people who ask you how can you represent such-and-such a client?

A: You ask them what do you mean by that type of person? You mean a person who did something like that, or a person who is accused of something like that? It’s a big difference. That question oftentimes makes them stop and start to think. There’s a big difference between a person who’s done something and a person who’s accused of having done something.

[Once people understand that a large] percentage of the cases are resolved by some sort of negotiated settlement rather than trial, people realize all of a sudden that what you’re trying to do is find the right sentence, the right disposition or right accommodation for the system.

Q: Do you have a particular courtroom style?

A: I learned a long time ago that the best thing you can do, whether you’re talking to a judge or a jury or a juror or a person on the street, is just be yourself. I think if you know what your goals are, know what the issue or issues in the case are, then you be yourself in trying to resolve those issues or get to those issues. That’s how you develop a style, if you ever do.

Q: Authenticity is the word that comes to mind.

A: Yes, but of course trying to force authenticity is kind of difficult. You see it all the time, and I’ve learned a lot more over the years by watching cases than by being told, and I’ve learned more by trying cases than by watching them.

As much as you can, you’ve got to be quick on your feet and be ready for the unexpected. That’s one thing I’ve learned, sometimes the hard way, sometimes by talking with experienced practitioners. You do your best—the best you can do is to be fully prepared, put the time in, know your case, be prepared with your case, know your issues and then expect something that you’re never going to expect to have happen, because it will.

Q: Any examples of when you’ve been completely surprised?

A: All kinds of things. I’ve had witnesses pass out. I’ve had clients get up and start yelling at the jury. I had a client one time while the jury was coming back with the verdict tell me he was going to get up and tell them that he did it. I managed to have him avoid telling them that at that point, thank goodness. We’d been through a three-day trial, opening statements, closing arguments, jury instructions, the whole works. The jury goes out to deliberate, they come back with the question, and the guy sitting next to me whispers to me, “Dave, now I remember I did it, and I’m going to tell them.”

Q: That’s what you don’t want to hear from your client at that moment.

A: Well, I would like to have heard it before we tried the case if he was going to make that type of an admission.

Q: You have the distinction of representing the man who was accused of DWI while on his homemade motorized recliner.

A: It was a very, very interesting case because there were very technical legal issues involved in that case in terms of what is or is not a motor vehicle. Even since that case, I think Minnesota courts have ruled in a couple different occasions regarding what is or is not a motor vehicle.

But I’ve tried rape, robbery, first-degree murder, you name it, cases that got some publicity, some cases that got a lot of publicity. But that particular case, I got calls from all over the world.

Q: It must have been intense having to deal with the media.

A: It was. I was smart enough to refer most of the questions over to the prosecuting attorney, who’s actually a very nice guy and a good friend of mine. As we speak, I have a signed picture of that chair operator right in front of me. I have it as a keepsake on my desk.

You’ve got to love it. This business is not factory work, I’ll tell you that. It’s something different every day. You deal with the vagaries of the human character. Some days you get the best laughs out of this job, and some days you just wonder how human beings can do things like this to other human beings. It makes you wonder.

Q: What advice would you give young lawyers?

A: Keep your mind open to learn as much as you can from as many people as you can in as many different places, because you never know where your next lesson is coming from. I have learned probably more from experienced prosecutors and judges than I learned from most anybody.