lawyers as people
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.
Selling yourself by trashing others
Dec 30th
For some, blogs are a business. For some, it’s a way to grow their business. But if you’re selling yourself, remember to put your best foot forward. Take Wallin & Klarich and their AV rating. They seem like a normal criminal defense firm located in southern Cali. In fact, I gotta say, their website is pretty snazzy. They have video clips, login for clients and a blog!
Ah, now that’s what interests me. A blog. So let’s have a look. How is this firm going to set itself apart? How is this firm going to attract clientele?
Then I read the latest post and it hit me. I’ve read this blog before. Same MO in the four posts I’ve read: shit on public defenders.
Here’s the latest:
Many people call our office asking if they can appeal their case. The people who call often tell us that their loved one, who is in jail, did not get proper representation. We are often told that the defendant’s public defender did not provide adequate legal advise or did not do proper investigation. Defendants are often told that it is in their best interest to enter a guilty plea by their public defender. After a guilty plea is entered the person accused wants to “appeal” their conviction.
Oh. Ouch. “Often told”? Here’s an earlier post:
As a former public defender I have seen first hand the benefits and consequences to letting a public defender handle your case. Although the public defenders are highly skilled and experienced attorneys, they are severely overworked. They carry a caseload of up to 20 clients a day! What this means for their clients is that the public defender cannot afford to spend more than a few minutes on the client’s case before moving on to the next case. If your case happens to need more research or a closer look, it is possible that the public defender will simply not have enough time to do the necessary work.
The Public Defender is so overworked that they often times fail to build a meaningful relationship with their clients; they simply do not have the time. This means that they will not have the time to sit down with you and listen to your side of the story. They also will not have the time to answer your phone calls and questions.
Wrong, wrong, wrong and even wronger and still wrongest. I mean, this is just plain nonsense! Playing up the stereotypes of overworked public defenders to sell yourself is just damn low.
The sad part is that the first post that I linked to has an important message: if you plead guilty, you need a certificate of probable cause if you want to appeal. But all I see in there is shitting on fellow members of the bar – in the same field, no less! The point of that post could have been made just as effectively if the first paragraph had been left out.
Now, I know crime is down and business is slow, but c’mon, this is serious bullshit. Selling yourself by trashing a large number of your fellow practitioners is not nice and it’s not smart. I guarantee that some public defenders in your jurisdiction have read your blog.
Law firm marketing gurus, what say you?
Listserves: I don’t know if they’re evil, but they’re damn entertaining
Dec 19th
In light of very recent events on a listserve, this post by Carolyn Elefant at MyShingle is particularly amusing (to me). She writes:
Lombardi argues that trial association listserves must do a better job of monitoring the lists to weed out or discourage “inexperienced lawyers” who “con their way into a case” and use the listserve as a fallback.
I don’t agree with Lombardi. In my view, the availability of a listserve doesn’t give lawyers added incentive to take cases beyond their competency. Even before listserves, lawyers accepted cases beyond their skills for a variety of reasons: sometimes to gain experience, sometimes because of greed and sometimes because they don’t even know that they’re out of their depth. Rather than exacerbate this problems, listserves offer a solution, by serving as a lifeline to lawyers in over their head. Cutting lawyers’ access to listserves will guarantee that they’ll be flying blind in a case, which will harm the client even more.
I don’t participate in listserves, although I am subscribed to a few. For the most part, I find the discussion there instructive. Of course, there are messages posted to the listserve that defy description and leave you either agape or aghast. I do think that Lombardi above has a point – a listserve should be a forum for discussion of ideas, not repeated pleas for help. It should be a place where you can get feedback on ideas that you have for a defense or theory of a case. I’m not sure I’d go as far as Carolyn in saying that they are a lifeline. If you’re relying on a listserve to prop up your representation, then I worry about your client.
Overall, though, the listserves are just another part of my daily reading along with blogs – a way for me to be introduced to things I didn’t know and for an occasional chuckle.
Yikes. I didn’t intend this to be a real post, but there you are. Scott has more.
Civility among the brethren
Sep 27th
There’s been a blogversation that I’ve missed about civility among lawyers. Matlock the Republican complained about the ego-trip of a prosecutor earlier this week and followed it up with the rudeness of a fellow defense attorney. Bennett the Zen Master responded with calmness while Greenfield the Bulldog replied with a middle finger by thumbing his nose.
So which is it? I agree with Scott that if another attorney acts in a way that interferes with my ability to represent my client or does something to harm my client, “it’s on”. But I also agree with Mark (Bennett) that most of the time, you’re just wasting your own time by giving in to the anger and letting yourself get involved.
I’m not here (in the legal arena) to show off my skills or assert my presence. I’m here to represent my client and represent him effectively and zealously. Everything else is a distant last. I will try my best to do that in as civil a manner as possible, because anything else just isn’t worth my time.
I don’t hate you, I just like it when you’re not around
Sep 21st
How essential is it to like your client? Is it important, even a consideration? Is it possible to like your clients? Mark Bennett wrote a few days ago about this topic. He noted the differences between civil practice and criminal practice:
Unlike Dan, most criminal lawyers are a) not representing companies; and b) not forming longterm attorney-client relationships. Our clients are people, and if all goes well they will never be in trouble again.
…
It’s nice to like our clients, but I don’t think it’s crucial. What do you think?
I’d like to point out a further distinction: public defender and private practitioner. The private practitioner can actually choose his clients. He gets to meet with them, listen to their story, decide if he wants to take the case. Involved in that decision is an evaluation of the client’s personality. However minimal the impact a client’s personality has on the decision to represent him, I suspect it plays some role.
We public defenders have no choice. If it’s my arraignment day, you’re my client. I get whatever comes to me in the rotation.
Having said all that, I agree with his conclusion. It would be nice to like the client, but it’s not necessary. Our responsibility is to the client, his liberty and his Constitutional rights. Nowhere does it say that we have to like them. I would be lying, however, if I didn’t say that having a good relationship with a client makes my job easier.
It’s not that I wouldn’t work as hard for a client that yelled at me, called me a “public pretender” or accused me of being in cahoots with the State, it just wouldn’t be as much fun as working with the client that is nice, understanding and appreciative. It is human nature and as much as some don’t want to believe it, we are human too.
When is it time to get out?
Sep 13th
Here’s the story of an Ohio man standing trial for robbery of a church. Apparently, he was unhappy with his lawyer and the judge, at one point telling the judge that since she was Catholic and he was charged with robbing a church, he couldn’t get a fair trial.
The important part (and what leads to this post) is that he repeatedly asked for a new lawyer and was turned down each time. So when he was wheeled in to start jury selection, he kicked his lawyer and had to be subdued. He continued to ask for a new lawyer and was denied again.
Would you say there’s been a breakdown in the attorney-client relationship when the client attacks the attorney? Is that a good enough time for appointment of new counsel? I know we don’t want to condone this behavior and reward it by immediately appointing new counsel – all clients would have to do is get pissy with their lawyer and threaten to attack them to get new representation – but when the threat is translated into action, I’d think it would be appropriate for either the lawyer to withdraw from the case or for the judge to appoint replacement counsel.
What do you think? Would you seek to withdraw your appearance?
Watch the incident caught on tape:
[youtube]http://www.youtube.com/watch?v=iI15nFIVUE0[/youtube]
Are lawyers emotional wrecks?
Jun 27th
Asks this WSJ law blog post.
“Depression, stress, career issues and addictions . . . we understand what it’s like to face personal problems within the profession.” That’s the caption on an advertisement run by a Beantown-based organization called Lawyers Concerned for Lawyers (LCL). LCL was founded nearly 30 years ago mostly as a support group for lawyers with drinking problems. But over the years, as the stress level of practicing law has spiked, lawyers seek its services for different reasons.
Today, attorneys contact LCL mainly for help battling depression. According to the Globe, the shift mirrors reinforces studies showing that lawyers are more depressed than those in any other occupation. Work life, especially at big firms, can be emotionally draining. “Intense deadlines, staggering billable-hour requirements, and grinding hours are routine. Even veteran lawyers often find themselves disillusioned by the increasingly business-like practice of law.”
Other issues reportedly contribute to the practice’s toll. The conflict-driven nature of the profession plays a role. And the personality type frequently drawn to the law — perfectionist, high-achieving — is particularly vulnerable to becoming depressed, the article says.
The post then invites comments and boy, comments there are! We lawyers sure do love to talk. 86 comments as of the time of writing this post. Some of them are extremely entertaining; some sensible. So. Are you an emotional wreck? Are you?
[poll=9]
recent comments