lawyers as people
The ideal ideal
Jul 27th
A few weeks ago, I had something akin to a job interview. There I sat, on one side of a metal table, in my favorite suit. He sat on the other. The questions came fast and furious: “How many cases have you tried?” I wasn’t expecting that, so I took my time. Too late. “How many have you won?”
“Well, what do you mean by won. That can mean many things” I sputtered the old refrain. “No, no,” he shook his head, “how many clients were found not guilty?” I obfuscated, because I don’t play that game and because I knew exactly what was coming next: “Are you sure you want to do this? Are you sure you can handle this? I mean, this is my life on the line here.”
It’s times like these that I think it would be nice to be able to say that I’ve won every single case I’ve tried. To be able to boast of a perfect win-loss record (which, actually, I jokingly did after I won my first trial ever). But there are only three ways that any lawyer practicing criminal law can even hope to achieve that record: 1) by being a prosecutor, 2) by flat out lying about it and 3) by being a defense lawyer who picks his cases very carefully.
But as a wise man once said, criminal defense isn’t about picking winners. Picking winners is an idealistic business strategy, one that established lawyers may attempt as a product of their long standing reputation and the desire to build upon that reputation and create an aura. But, in the end, it is nothing more than an ego-boosting business plan.
Which has nothing to do with the reality of criminal defense. The two are at odds, for one shouldn’t become a criminal defense lawyer for the sake of their reputation or win-loss record or to pad their coffers (though that is a necessary by-product). There are some that argue otherwise:
‘Everyone is entitled to be represented by an attorney’ is the idealistic chant often recited by defense attorneys as justification for representing even the most vicious criminals in our society. The concept is unassailable, but idealism is rarely what motivates lawyers who represent guilty defendants. They take the work because trying cases is their livelihood, and they are ambitious to advance their careers. These motivations, while not improper, are clearly not idealistic.
True idealism would be involved in a hypothetical situation such as the following. Suppose a family is brutally murdered in a small town, and none of the six lawyers in town is willing to represent the suspect because the enraged citizens are all convinced of the suspect’s guilt and no lawyer wants to be ostracized in the community for attempting to get the suspect off. Finally, one attorney steps forward and says, ‘I don’t care what my friends at the Rotary Club and the First Baptist Church say. This is America, and everyone is entitled under the Sixth Amendment to our Constitution to be represented by an attorney.’
This, as Mark has already pointed out, is nothing more than the worship of a false God. An attempt to fit the nobler attempts of others into their own baser paradigms. As a public defender, I do not have the luxury of choosing the clients I represent, yet I do my job with no ambitious desire to “advance my career”. The only ambition I have is to become a better lawyer and represent my clients – especially the guilty ones – more effectively.
I may be in the minority here, but it is my opinion that it is easier to represent the obviously innocent client. It takes a much stronger constitution to represent those whose guilt has been presumed in they eyes of all others. It takes more than paying lip service to the greatest fear: that we defend the guilty as well as the innocent because we cannot fathom the horror of an innocent man going to jail.
Because the injustices of the system manifest themselves in more ways than the mere conviction of a man against whom there is little or no evidence. There are the guilty-of-something-lesser, the guilty-but-for-good-reason, those that are deserving of more than cursory process. The ideal is to stand side by side with a man who may well have committed terrible crimes and to say to him: I do not care whether you are guilty or innocent and I will fight to the last to ensure that society treats you with the process and respect that you, as an individual, deserve. Maybe I’m an odd duck, but I want this job because the territory mainly encompasses those that are guilty. To me, they are not the afterthought or the unpleasant tax of doing business.
Until you can truly believe that the guilt or innocence of a client makes no difference to the quality of representation that you provide, you are not a criminal defense lawyer. You are a businessman.
You’re not a criminal defense lawyer if
Jun 4th
you haven’t fantasized about doing this (for those who don’t want to click on the link just yet: a pd choked a prosecutor as a result of a case-related dispute). I know I have. And, just as in the story, it’s always been motivated by the law, not any personal animus. I find that the desire to choke a prosecutor rises particularly sharply during oral argument.
Being a non-violent person and all, my frustration is expressed solely in this way:
Is Tim Curry going to have to choke a b*tch?
Institutional coddling
Apr 27th
Lawyers are coddled, writes Rick Casey of the Houston Chronicle, because they can’t be sued unless a client’s conviction is overturned. They’re coddled because they’re not monetarily liable for any errors they make that result in a conviction.
Bennett takes a bite at the apple, which in turn causes Greenfield to jump in. Bennett first:
The aim of the legal system—civil and criminal—when someone is sentenced to more time through the fault of his lawyer should be to reduce that person’s sentence, rather than to compensate him for it. Getting lawyers to help fix their own mistakes should take priority over getting them to pay up.
A rule that encourages lawyers who make mistakes that harm their clients to come clean is preferable to one that encourages them to stonewall. Allowing clients to sue lawyers because their sentences are too long encourages lawyers to stonewall. As the law stands, even with no practical sanction, too many criminal defense lawyers treat an ineffective-assistance claim as a personal affront; better lawyers treat it as one last opportunity to help the client get free. Add a financial penalty, though, and it’ll be only the rare (or well-insured) lawyer who tries to help his client get his sentence reduced.
So the rule that a person who hasn’t been acquitted can’t sue his lawyer for negligence, even if that negligence resulted in a lengthier sentence, benefits not only the criminal defense bar but also—and maybe more so—the wrongfully sentenced.
Bennett mentions the problem I have with coddled lawyers, but only in passing. Greenfield places the blame squarely on our shoulders:
The mistake is a problem, but not the most significant problem. The one that undermines our integrity, and gives rise to Rick Casey’s complaint, is our inability to admit our error and correct it. Rather than concede error, lawyers try to bury it. [...]
Rick Casey’s issue is real, and it’s getting worse rather than better. It was a problem before, and is more of a problem today. We are coddled, and we coddle ourselves. No amount of lip service paid to the defendant we failed, who sits in a prison cell while lawyers ingratiate themselves with others to get more twitter love, cares how many followers we have. This mutual admiration society with people we don’t even know is not a substitute for having the guts to own up to mistakes so that human beings don’t spend a second longer suffering for them than they should.
The answer isn’t disclosing whether we possess malpractice insurance. The answer is being a real criminal defense lawyer, warts and all, rather than just pretending to be one for the benefit of being part of the gang. Do the hard work that minimizes the potential for mistakes. But when a screw-up happens, as it invariably will, make it right.
They’re both right. We are coddled. But they don’t focus on the other “third prong”, as it were, of the coddling. It doesn’t just come from the fraternity of lawyers, but from on high. The coddling of lawyers is institutionalized in our jurisprudence. From the collective mistrust and offhand dismissal of allegations of ineffective assistance that pervades the criminal bar to the vast legal opinions that ridicule such claims to the institutional roadblocks to even getting judicial review of the mistakes made by lawyers in their handling of cases.
Ask anyone who’s tried an ineffective assistance of counsel case. The coddling begins at the beginning. First, the community of habeas corpus lawyers are treated as lepers; outsiders on the lunatic fringes of the criminal defense bar. Trial lawyers are dismissive and uncooperative. Clients seeking redress via The Great Writ are viewed as whiners, their lawyers are traitors. Files aren’t turned over, communication is non-existent and the defenses are raised to maximum alert.
Habeas petitioners then have to jump through unmanageable hoops to actually get the merits of their claims heard by courts. Procedural default, deliberate bypass, cause and prejudice are institutional tools designed to protect the “finality” of convictions and to punish the defendant for failing to do that which a lawyer should have done and didn’t: provide effective assistance and own up to mistakes. The jurisprudence places the onus on the pro-se defendant to recognize that a) his lawyer has messed up and b) that he has an avenue for redress.
And if this defendant is somehow able to surmount the gargantuan task of getting a court to consider the merits, he is faced with the three-headed monster: an uncooperative trial lawyer, a skeptical, cynical and weary judge and a veritable landfill of caselaw that is designed to thwart his every effort to ensure that “justice” is done in his case.
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U. S. 107, 133-134 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” See Michel v. Louisiana, supra, at 101. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, 690 The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N. Y. U. L. Rev. 299, 343 (1983).
Strickland v. Washington, 466 U.S. 668 (1984). Courts are even given the power to deny the petitioner relief on either prong of Strickland:
Raising the Bar
Aug 28th
You’ve probably heard by now that Steven Bochco and David Feige‘s Raising the Bar premieres on Monday at 10pm on TNT. It stars Zack Morris as a public defender and Malcolm’s mom as a crazy judge (who, thankfully, doesn’t seem to yell as much in this new role).
I’ll probably tune in, just to see what real world experience brings to a legal show. The reviews have been mixed, but that shouldn’t stop you.
For example, some guy in the Boston Herald writes:
In this universe, justice is dispensed on the basis of personal relationships between the court representatives. The defendants are pawns between rivals, roommates or lovers who look to one-up each other.
Never has the justice system looked so silly.
That’s not silly! I read that and think: “Hey! Maybe this show is true-to-life!” So we’ll see. Will this come close to unseating The Practice as the best legal show of all time? I don’t think anything can, but I’ll be very entertained if it comes remotely close.
If you’ve been living under a rock (or just without TV) and want to get a glimpse of this show, here are some links:
But, if you’re using Firefox, you’ll have to download some stupid Turner plugin. Which, in this day and age, is just annoying. So instead, you’re better off using IE for these links (ugh).
Note to TNT folks: There are, like, 200 video plugins out there that don’t require some software install. Use one of them [or just use Flash!?!]. Don’t make me install some special plugin for your website only and under absolutely zero circumstances should you force me to use IE to look at a website. Because once you do that, I’ll never come back to your site.
Cover
Jul 23rd
A different face
Everyone who practices law will be familiar with the concept of “cover”. No, it is not a legal principle, but means exactly what the verb form suggests: cover your cases.
Lawyers (especially those in private practice) will have multiple cases on for any given day. If you’re in a small-ish state like Connecticut, where you can practice throughout the State, these multiple cases will appear on the dockets of multiple courts. Since you can’t be in two places at once (well, you can, if you’re a particle), you might have to get someone to cover for you in one court or the other.
Until now, “covering” (not to be confused with cowering – which you might have to do depending on the judge you’re in front of) was sought by way of impassioned pleas to fellow defense attorneys via the local listserve – or if you had a partner in your law office, promising them lunch. (This concept would seem to be a subset of the bank that apparently has shut its doors.)
But then it gets tedious. If you have a particularly busy solo practice, people might start getting annoyed if you keeping asking them to cover for you.
Never fear, though. In this age of innovation and niche marketing comes attorney Steve Levy – apparently of Los Angeles, CA. I say apparently because he has launched a service: “Appear Anywhere“, with the tagline “Court Appearance Professionals”. The gist of the service is described thusly:
Your time is valuable. Increase your productivity by sending us the appearances you don’t have time to cover and have confidence knowing that you’ll receive accurate and reliable results on the same day.
Among the various types of appearances this service purports to cover includes trials. Yes, they will cover your trial for you.
The services and about us page do not seem to restrict this geographically, so it would seem that when that trial comes up next week that I really don’t want to go to Court for, I will be calling this company you could get them to try your case for you, even if it is in Maine.
Judges and lawyers both should salivate at this idea. No more worries about problems clients, troublesome clients, difficult clients, annoying clients. Client starts getting uppity, ship him to Appear Anywhere! No more motions to withdraw appearance, no more continuance motions, no more Anders briefs. The system works like a well-oiled machine and everyone is happy (except the client, perhaps, but who cares about them anyway).
It’s like having an associate without having to pay the hefty yearly salary! An ingenious idea, if I ever saw one.
(In all seriousness, the idea isn’t half bad, but only if you restrict its use to mundane appearances where you are only getting a continuance and the client doesn’t need to be present. If you ever have a court date where your client needs to be present, you better get your butt in gear and show up and it would behoove the lawyer to also be personally present at any court appearance where something substantive will be discussed. But this goes without saying, which is why I’m mentioning it as an aside in parenthesis.)
Lex gibberish
Jul 16th
I’ve always been fascinated with legal terms, phrases and concepts. But then again, I’m a geek. Most people that come into contact with the legal system are not (read: defendants and jurors).
So why is everything that we say in a courtroom so confusing…so obstructionist…so difficult to listen to and understand?
Over the last few years, reading transcripts, watching trials, being on trial, talking to clients, I’ve become more and more convinced that most of the things that come out of lawyers’ and judges’ mouths are superfluous.
Jury instructions are long, painful, meandering and – above all – repetitive. Plea canvasses are meaningless. Questions to witnesses are drawn out and even those on direct are often longer than the responses elicited.
Limiting instructions, in my opinion, are the worst offenders. I’ve often seen jurors’ eyes glaze over or turn quizzical when a judge tells them what for absurd limited purpose they can consider the testimony they just heard.
It’s a hard habit to break, though. We learn all of this in law school, from our professors and from reading cases. Both those sources pride themselves in their expert use of “legalese” and, if you went to law school recently enough to remember, law students often pride themselves (in a self-deprecatory fashion) on their mastery of legalese and use of legal-sounding phrases in real life.
I catch myself talking to clients in legalese sometimes – and I know I am doing it when they start robotically nodding their heads, a sure sign they don’t understand a damn thing I’m saying.
Briefs are the same – wherefore; in the instant matter; it is of no moment, heretofore…heretofore?!? WTF is that?
Who the hell speaks like that but lawyers? Who writes like that but lawyers? So why do we keep doing it? Our lives – and our jobs – would be made so much easier if we were to dispense with the legalese and stick to plain English. Write stuff that everyone can understand. Present evidence in ways that the non-lawyer can follow. Ask questions during a canvass that a person actually has to think about and can answer truthfully, rather than respond by rote: Yes. No. Yes. Yes.
Of course, to institute such changes would shake some foundations of the system that haven’t moved in 300 years, but it’s worth a try – for your sanity, and most definitely mine. So will you swear with me, fellow bloggers, to abandon as much legalese as possible?
(That’s not to say that some people haven’t tried. Check out this list compiled by lawprof Eugene Volokh, or this website with a legalese hall of shame, or this 326-word sentence forming an adoption section of the Ohio code. For those completely confused by it all, here’s a glossary.)
What is our job?
Jun 15th
The Windypundit, in an effort to get a fellow Chicago blogger blawging, asks indirectly whether our job is to protect people’s rights or to help criminals “get away with it”:
Most criminal lawyers get asked that last question all the time, so I figured it was an easy one, but Rob took issue with my first question:
I can’t help anyone “get away with murder.” No lawyer can, unless they actually break the law. No, what I do is I defend your rights, and I make sure that the other side doesn’t cheat. That’s not the same as helping you get away with murder.
It is to me, if I’m a murderer.
I don’t think Rob means what he wrote (at least not the way I’m taking it) especially that part about having to break the law to help a client get away with a crime. Or else criminal defense lawyers don’t do what I’ve always thought they do, because I’m pretty sure that if I’m charged with a crime, it’s my lawyer’s job to try to stop the state from convicting me even if I did it.
Pretty much every defense attorney has been asked that question and most of us have fine-tuned our stock responses. They’re variations of the same “I’m defending the Constitution, asshole” meme. But is that what it really is? Losses sting in our business. We see clients sent to jail for decades and we never forget those cases. So wins do mean something. Is “I’m defending the Constitution” merely the sugar-coating on “helping them get away with it”?
On the law
Jun 4th
From Fred Rodell:
The Law is the killy-loo bird of the sciences. The killy-loo, of course, was the bird that insisted on flying backward because it didn’t care where it was going but was mightily interested in where it had been. And certainly The Law, when it moves at all, does so by flapping clumsily and uncertainly along, with its eye unswervingly glued on what lies behind. In medicine, in mathematics, in sociology, in psychology – in every other one of the physical and social sciences – the accepted aim is to look ahead and then move ahead to new truths, new techniques, new usefulness. Only The Law, inexorably devoted to all its most ancient principles and precedents, makes a vice of innovation and a virtue of hoariness. Only The Law resists and resents the notion that it should ever change its antiquated ways to meet the challenge of a changing world.
I is gud riter?
May 10th
Okay, so perhaps not as pronounced as in the title (and certainly not bad spelling), but as this National Law Journal article points out, lawyers are getting worse at legal writing.
Like other writing coaches, Garner sees the influence of technology in attorney writing, and, in many ways, he is not amused.
“They are losing concentration with what they’re writing about,” said Garner, who also is co-author with U.S. Supreme Court Justice Antonin Scalia of Making Your Case: The Art of Persuading Judges, which was released last month.
This piece spends a considerable amount of time explaining how advances in technology serve to interrupt the “flow” of a writer’s thoughts and create distractions. These distractions prevent us from writing in a coherent and simple manner.
“It’s a problem of distraction,” said Jennifer Murphy Romig, a legal writing and research instructor at Emory University School of Law and a writing coach to law firms.
She notes that interference with writing has always been present. A few years ago, it was computer solitaire, she said, and before that it was the old-fashioned crossword puzzle. But she describes today’s distractions — including texting, e-mail on a desktop computer, Blackberry messages and online news alerts — as “more aggressive.”
In addition, most of those distractions involve human communication, which makes them all the more attractive to attend to rather than drafting a brief on, say, jurisdiction.
My problem with writing is slightly different. As my readers (and co-workers) will surely attest, I often don’t know when to stop or how to get where I want to go. I’m not ashamed of it. I’m always learning, trying to get better.
I write (for work) like I think: mostly meandering. It’s not that there isn’t a (to me) logical sequence. There is. I just leave it out and expect the reader to follow. And then there are the times when I’ve had enough. I’ve spent 5 pages setting up the law and the facts and started making the argument and I think to myself: Well, that’s pretty clear. So I move on.
Like this.
Technological innovations also have an up-side, as anyone who has used spell-check will know.
Word processing basics, such as spell-check, passive-voice detection and subject-verb disagreement prompters can make more time for “what’s really hard about writing,” she said.
Advances in legal research also have improved writing, she said. Before online research, Shepardizing a case, for example, required a trip to the library to page through creaky volumes.
But the use of electronic research can create problems, especially for beginners, she said. All cases in electronic form look basically alike, she said.
That last line is a lead-in to a bizarre theory that if you don’t hold the book in your hand, you’re likely to miss that a case is from a non-binding jurisdiction or from the 1920s.
Or it could just be a cover-up for inattentiveness. I’m just saying.
I think these “problems” are not confined to legal writing. The same could be said of trial lawyering, communication, negotiation. We are a constantly distracted society and either you have it in you to focus and push everything else aside, or you don’t. In which case, you better learn how to multi-task well. In the end, all that matters is the client and how effectively you represent him/her.
See? What the heck did that last paragraph have to do with anything? Come join the joyride!
(PS: Obviously, my work is vetted before I turn it in [for the most part], so don’t run around thinking my briefs are awful. They’re not.)
HT: WAC?
Now enjoy the Joyride:
[youtube]http://www.youtube.com/watch?v=UfPoVS5uqYY[/youtube]
The courtroom as assembly line
Mar 28th
The criminal justice system is a heavy volume business. There are hundreds of thousands of individuals being processed through the system on a yearly basis. Hundreds get sentenced on a daily basis, there are even more that have short court-appearances. Add to that pre-trial hearings, trials and other motions and arguments, it is clear that it can get monotonous, repetitive and boring.
Yet to allow it to become so is, in my opinion, doing a disservice to the system and to the individuals caught up in it. Western Justice, a prosecutor authoring a self-titled blog, describes a day in court and how his (or her) mind wanders during routine pleas. His mind wanders in and out of the proceedings, sometimes distracted by the upcoming weekend, sometimes by other cases and at other times by ethanol. He relates that he snaps back to reality just enough to mumble some responses to the court’s questions.
While I can understand how this would happen, I’m just a little disturbed that it does happen. Sure, things get repetitive, but are we really that self-centered that we forget the significance of what is occurring in our presence? There are people charged with crimes who might be deprived of their liberty for a significant period of time, their families, people who have been victimized and traumatized and their families. The criminal justice system is not a joke, people. (Well, I don’t mean that kind of joke.) Even the smallest of infractions have consequences in this day and age and we must take our jobs seriously for others to take the system seriously.
Western Justice provides the following quote:
For you non-criminal lawyers and non-lawyers, you have to understand, there are times in any court proceeding where your attention need not be undivided. These usually come at times like advisements, reading of one’s rights, or the reading of twenty plus jury instructions at a jury trial.
Wrong, wrong and wrong. You best pay attention during a plea canvass and you need to quit your job if you’re not paying attention during jury instructions.
More:
Yadda, yadda, yadda. Although they won’t admit it to your face, most prosecutors AND defense counsel are saying to themselves: “Who cares about the Constitution? I’ve got places to go, things to see, cases to prepare, let’s move it along here!…..”
I sincerely hope that defense counsel are not saying to themselves: “who cares about the Constitution?” If they are, the answer is very simple. The man (or woman) standing next to you, and for his or her sake, you better care too.
The only participant in the system that can justifiably drift off is the defendant. It has been my experience that defendants drift off during pleas and sentencing, not because they are unmindful of the gravity of the situation, but rather because they are all too mindful of the consequences. Some are thinking about their families, some are thinking ahead to life in prison and some are cursing the day the committed the act. That I understand and have no problem with.
But it is incumbent upon us to pay rapt attention to what the court is saying. Whatever the judge says at that time can have significant consequences down the road. Another public defender once told me of a case he had where at the time of sentencing, the judge imposed a period of probation in addition to a jail term. Had he not been paying attention, he may not have remembered that the defendant did not actually plead guilty to a sentence that included a period of probation. The matter was immediately rectified, but it may not have been had he not been attentive.
This is what we are paid to do. We are paid to stand by a citizen accused of a crime. That is a serious job that demands our best. We should give nothing less. That includes paying attention in court.
The real cause of prison overcrowding: public defenders
Mar 12th
Well, they’re at it again. The law firm that can’t seem to sell itself without dumping on public defenders has another post up [Update: I just noticed that their post is actually dated April 10, 2008. Heh]. This post actually makes some valid points and seems more like a blog post than a marketing advert. At least until you get to the middle, that is:
A vast majority of the people that end up in prison are represented by the public defenders offices throughout the state. In many cases, to know fault of their own the public defender cannot provide the level of legal defense that should be received by anyone facing jail time. Thus the jails are full of poor people, mostly minority who could not find the funds to retain private counsel.
There are so many things wrong with that paragraph, least of all the spelling.
The implication here is that if you’re poor, you’ll go to jail. If you’re rich (or have money to hire this particular law firm), you won’t. Doesn’t matter whether the State has a strong case; wave some greenbacks in the prosecutor’s face and he’ll go straight to his knees.
This also seems like false advertising to me. They’re promising things they can’t deliver. Are they really saying that prison overcrowding would not be a problem if everyone was represented by private counsel (or perhaps just their firm)? They seem to be implying that every case is winnable, if you have the money to hire a lawyer.
Does anyone know how good this firm is? Anyone heard of them? Any readers from the West Coast? Why do they keep doing this? Did one of them get fired from the PDs office?
In a similar vein, see recent posts from Norm and Scott.
In other news, public defenders are also the cause of black holes, crop circles and Dick Cheney’s sneery disposition.
One by one they steal my sanity
Feb 29th
No wonder we’re all alcoholics. Researchers in Australia studied 50 criminal lawyers and 50 non-criminal lawyers and found that those engaged in the practice of criminal law are more likely to require therapy and turn to alcoholism. This is because of the nature of our jobs. Those engaged in the practice of criminal law (prosecutors and defenders both) deal with some rather unsavory facets of human nature and the seedy underbelly of society. We see pain, fear, anger, sadness and loss on a daily basis. Yet we have to be above it. We cannot let it affect us or cloud our judgment. We cannot dwell on it, for fear of getting lost in it. So we march on, perhaps repressing these emotions. What level of impact will that have on us?
Another part of the reason for this, the study reasons, is that the profession is such that it attracts a certain type of person – the perfectionist – and there really is no accepted was to discuss these issues with peers. The emotional stress of our jobs is not a frequent topic of conversation in our offices and hallways of courthouses.
“It’s about becoming aware. Everyone is upset by this type of work. It’s a normal response, and if you can talk about it and address it, you won’t develop full-blown vicarious trauma or post-traumatic stress disorder. Once you’re aware, you can start taking more positive steps — maybe playing some sport, or looking at your case load and saying ‘I’ve had five sexual assault cases in a row, maybe I need a break’.”
So how do you unwind after a hard day’s work? What are your distractions? Things that keep you sane. How do you cope with it after 10, 20, 30 years in this field of law?
Me? I’ve got all of you.
HT: CnC
A fallen comrade
Feb 8th
Via Bardd Before the Bar comes the very sad news that one of our own – Gregory H. Clark – was shot and killed outside his home, in what seems to be a “hit”.
Attorney Gregory H. Clark, 61, was killed when he was gunned down while clearing his driveway on the northeast side of town this afternoon.Police said Clark was shot several times in the back after a dark blue van stopped in front of his house near Sentinel Road and Oakforest Drive.The victim’s wife was also at home, but not injured, police said.Clark ran a small firm with offices on the east side.
While the police have not officially named a suspect, the Bardd reports, through gossip, that the main suspect is a former client. Not shocking. A client that Mr. Clark had twice sought to stop representing because of a breakdown in communication.
I didn’t see the trial. But apparently all of the defendant’s motions in limine were granted, and all but one of the state’s denied. There had been pre-trial motions to suppress evidence filed and fully litigated. There did not appear to be anything incompetent or ineffective in Clark’s handling of the case.
But there did appear to be something off. At the hearing on the motion for a new trial, one of the attorneys from our office observed the defendant and Clark engaged in a rather heated argument. During the hearing, the defendant pro-se argued that hw had received ineffective assistance of counsel. And the defendant filed and argued, again pro-se, a motion that purported to be a complaint about prosecutorial misconduct, in the manner in which they had interviewed his witnesses. My guess is that he expected those witnesses to testify in a particular manner, and, after the State had talked to them, and presumably advised them of the penalties for perjury, they had not followed the script. But that is only my conjecture. I don’t know what happened, only that his motion alleged witness tampering on the part of the prosecutors.
Whether this man is indeed the culprit remains to be seen, but this sad event reminds me that while we put on a brave face every day and don’t worry about this sort of thing much, we do spend most of our time brushing up against the seedy underbelly of society. That is a choice we made, yes, but still this rankles. Things like this are rare, yes, but as with all crime, happen all too often.
I don’t think there’s anything anyone can do to avoid this sort of thing. Doesn’t seem like Mr. Clark did anything wrong and yet here we are.
Never enough
Jan 14th
You just can’t please everyone. Especially when everyone you have to please are clients in this profession. Donzell relates:
At Calendar Call, the State offered to dismissed the Aggravated Assault charge, to recommend that my client get ten years on probation with all those special conditions, including intensive probation supervision for six months, and have him treated as a first offender (to keep the felony off his record). I explained the offer to my client and answered his questions. My client took the offer, but now, he is complaining that it is too onerous, I sold him out, and that I did not do anything for him.
Sorry to those true believers out there, but what the fuck? Where does this sorry bastard get off to complain? I saved his sorry ass from prison, and got a majority of what he wanted from the State. I sold him out? I did nothing for him? Yeah, right.
Donzell is right in feeling angry here. But that righteousness comes from having put in his best effort the first time around. There are some clients who will always be greedy, or will never be satisfied with what you’ve done, even if you get them dismissals on all counts. There’s nothing you can do about it, but shrug (and maybe rant on your blog) and move on.
Sometimes, though, the clients are justified in complaining. I also wonder if some of this isn’t due to the reputation of public defenders. You know, the myth about lawyers forcing their clients to plead on the first day or because they can’t afford to pay them for trial, come from somewhere. Just like our clients who say the cops are out to get them. The cops probably aren’t out to get all 100 of you, but maybe one or two of you are targets.
It is really important that the advice you give your client about whether to plead guilty is a result of your best effort. If it isn’t, you can’t complain.
The right to a jury trial: Can you afford it?
Jan 4th
The right to trial by jury is a Constitutionally guaranteed right in this country. Every person accused of a crime should have the option of having his guilt decided by a jury of his peers (whatever that means anymore). It’s a grand concept and one that we must try to uphold with all its good intentions.
But can you afford one? I don’t mean that philosophically or metaphysically. Rather, I’m asking if you have the cash for it. The intersection of the right to a jury trial and the need to earn a living is an interesting one.
Consider this scenario: The attorney can charge a flat fee for pre-trial work and stipulate in the fee agreement that the trial fee will be additional. The client has some idea of what he will end up paying if he decides to go to trial. Assuming that most cases settle prior to trial, he doesn’t worry about it too much, hoping instead for a favorable resolution pre-trial. That resolution never happens. It is now the eve of trial. The client is faced with a hefty $3000 a day fee for a trial that may last one or two weeks. That could be up to $30,000.
That stiff plea offer looks more palatable now. Some, if not most, buckle and take the plea, simply because they cannot afford to go to trial. Is this an acceptable part of the criminal justice system? Is this something we shrug off and call the cost of doing business.
Whose decision is it here? Whose responsibility is this? Who can do something to avoid this? Should clients always assume they will go to trial and hire only attorneys they can afford? Should attorneys not charge a subsequent trial fee, but merely a one-time flat fee? Should lawyers charge hourly rates instead?
Clients must make the decision of whether to plead or go to trial independent of whether they can afford the attorney who represents them. How do we ensure that is so?
Thank God I’m a public defender.
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