Monday, Sept. 22, 2008 | On a bright morning last week, City Attorney Mike Aguirre bounced up and down in the courtroom of Superior Court Judge Michael Anello, crying “objection” so often that the judge eventually chided him, assuring the city attorney that he had his courtroom under control.
Many of Aguirre’s dozens of objections were nonetheless sustained by Anello, and the city attorney largely succeeded in his attempts to hobble the otherwise smooth progression of his opponent’s opening moves in the high-profile lawsuit.
The incumbent has a lot riding on the outcome of the trial, which concerns a claim of sexual harassment brought against the city by four firefighters who were ordered to take part in last summer’s gay pride parade.
At the end of each day in court, Aguirre emerges into a fierce battle for his political future. A big win for him would help boost his image at a time when his political opponent, Superior Court Judge Jan Goldsmith, has been fighting tooth and nail to sully it. A win in the courtroom would also dovetail nicely with one of Aguirre’s key criticisms of his opponent: That Goldsmith can’t remember the last time he tried a case in court, and that the judge hasn’t practiced law as an attorney in almost two decades.
But the decision to personally try the lawsuit also opens Aguirre up to continued criticism from Goldsmith, who has consistently accused the incumbent of using his office for political gain. And, while prowess as a trial lawyer may impress some voters, one expert in municipal law said being a skilled advocate is by no means a prerequisite to being a skilled city attorney.
Goldsmith said he wouldn’t comment specifically on the firefighter case because he didn’t want to prejudice the trial. But the judge has, for months, poured scorn on Aguirre for what he calls political grandstanding, saying the incumbent fancies himself as San Diego’s second mayor, rather than a sober dispenser of legal advice.
And Goldsmith questioned whether appearances in the courtroom will actually help Aguirre’s reputation, even if the city wins the case.
“I’m not sure he’s all that skilled,” Goldsmith said. “I’ve heard that he has a tendency to object to every question, for example. That’s a sign of an inexperienced trial lawyer.”
Last week, Aguirre, who has won several huge jury trials in his more than three decades as a lawyer, appeared occasionally agitated, but largely seemed to have control over both his questioning and his overall legal argument. Indeed, Aguirre’s smooth, even-tempered cross examination more than once had witnesses stammering and looking awkward, and the city attorney’s occasional puns drew grins and some laughter from the jury.
Aguirre claims that his experience as a trial lawyer is one of the keystones of his success as a city attorney. He said the city doesn’t go to trial until he has personally grilled the team of lawyers who is working on the case. And, he said, his hands-on, paternal guidance to young lawyers is a crucial skill he has brought to the City Attorney’s Office.
“When you have someone who’s standing shoulder-to-shoulder with the other men and women in the office, working with them on cases, that has a tremendous positive impact on the esprit de corps of the office,” Aguirre said.
But John Witt, who served as San Diego’s city attorney for 27 years, said whether he wins or loses the case, Aguirre should be focusing his attention on properly managing his office, not posturing in the courtroom or in front of television cameras.
“This is just a showpiece,” Witt said of the trial.
Aguirre has consistently tried to paint Goldsmith as an inexperienced and unskilled trial attorney who couldn’t represent the city in court even if he wanted to. Goldsmith has been a judge since 1998 and before that spent a decade in local and state politics.
Goldsmith said he has put in his time as a trial lawyer. Prior to his election as a Poway city councilman in 1988, he worked on some high-profile fraud lawsuits — including the litigation that erupted from the collapse of the financial empire of C. Arnholt Smith, once one of California’s most wealthy men, who was found guilty of embezzlement in the late 1970s.
While he may not have tried a case for a while, Goldsmith said, he’s presided over thousands of trials as a judge, experience he said is just as valuable as Aguirre’s time as a trial attorney.
“I haven’t tried a case in over 15 years, that’s true,” Goldsmith said. “But he hasn’t presided at a trial ever.”
Aguirre had an answer to that.
“Thinking that sitting as a judge is going to teach you how to be a trial lawyer is like sitting as a judge at a tennis match and arguing that’s going to teach you how to be a tennis player,” he said.
Richard Briffault, a professor of law at Columbia Law School in New York and an expert in municipal law, said a familiarity with bringing cases to trial is a useful, but not crucial, skill for a city attorney to have.
Having experience as a trial lawyer helps a city attorney effectively steward his staff through their own trials and gives a city attorney good perspective when it comes to deciding which lawsuits against the city should be settled and which should be brought to trial, Briffault said.
“It helps the general to have, at one time, been a soldier,” Briffault said.
But Briffault said it’s the experience of bringing cases to trial that is most important, not necessarily the individual attorney’s skill as an advocate or success in the courtroom. And he agreed with Goldsmith that time spent on the bench is just as useful to a city attorney as experience bringing cases to trial.
In the firefighter case, most San Diego voters won’t see the attorney who objects again and again to questioning from his opposing lawyer, or the city attorney who spars with the judge. Similarly, most voters won’t see Aguirre’s deft questioning and erudite cross-examinations or witness his considerable skills as an orator.
But if Aguirre succeeds in the contentious and inherently politicized trial, he is sure to win as much time on local television and radio newscasts and as much newspaper ink as he can handle at a crucial stage of his reelection campaign.
A positive result for the city in the firefighter lawsuit could serve to cement Aguirre’s talents in the minds of his supporters, while also eclipsing whatever negative publicity Goldsmith can throw his way.
Losing the case, on the other hand, will only add fuel to his detractors’ fire.