Of Nuclear Bombs and Fallout (or Crap is King)

Yesterday was all Rakofsky, all day. Between writing briefs, calling clients, and prepping for some upcoming law stuff, I participated in the online flogging of Joseph Rakofsky.

Did I like doing it? Absolutely not. I suspect Jeff Gamso, Scott Greenfield, Brian Tannebaum, Mark Bennett, Jameson Koehler, Antonin Pribetic, and Carolyn Elefant didn’t either. Was it a fantastic teaching point? Absolutely. Was it pleasant? No way.

We all want our profession to work well, represent clients ably, and shepherd laws. Most of us want to do this in quiet existence, supporting our peers and working hard (yet interesting) matters for solid, appreciative clients. Unfortunately, in a large and diverse population, that can never happen. As a result, we police our own and call bullshit while it still lays steaming on the ground. Then, in the aftermath, we want to make sense of it all and gain something of benefit from within the stink.

This post is intended for two purposes. First, it follows-up yesterday’s vomit. Second, it is written to the two (that I know of) law students who regularly read this blog. Both are bright, insightful people who, I’m sure, want to do this lawyer stuff for the right reasons. Neither is a traditional student. One is in Arizona, and the other is in Florida.

On Forgiveness

I always want to find ways to forgive and overcome. I’ve made it well known that I don’t like the death penalty. This is based on a lot of factors, but one is the impossibility of overcoming, learning from mistakes, analyzing causal links, and using all of those to earn a second chance (key word being EARN). For the same reason, I also have problems with life w/o parole. I often focus on the “why” of misconduct. If we can just deal with the “why,” then most of the problem is often solved.

I planned to write today about what Rakofsky can do to learn from this, take his lumps, and move forward as a stronger, better advocate. From what I’ve seen, the potential is there, and I’ll go so far as to make a very provocative comment:

If he chooses the right path, he could be a better advocate than most of us.

Those who learn through personal trauma and turmoil always have thicker callouses and stronger muscles. That’s why we are always so impressed with people who overcome adversity and bad choices. The chance is here for Rakofsky. The question is, will he take it? Or, will he use it as an opportunity to be a continued and serial purveyor of bullshit.

I said before that I planned to write today in a very kind and hopeful way about him. A few things yesterday made me shift a bit. I wanted to write about a kid facing adversity who now needs to be picked up, get a proper mentor, and move through thorny difficulties to the right path. Then, I saw this article, via Antonin Pribetic. The author interviewed Rakofsky about the fallout. It made me wince.

On the phone later, Rakofsky is a little less upbeat, saying a Washington Post article about the mistrial “humiliated” him. “People put lies on the record and people are reading about these lies,” he says. The mistrial means Deaner will need both a new trial and a new lawyer.

It continues by having him explain some of his website credentials,

Rakofsky says both are true. Deaner is the first client he’s ever gone to trial for, but he’s got plenty of experience. “When I say I’ve worked on those cases, that doesn’t mean I’ve worked on those cases on my own,” he says. “I was working with other lawyers, interning and stuff.” The Post points out that though the website says the cases were filed in New York, Rakofsky isn’t licensed there.

Then, he responds to the allegation of attempting to coerce a government witness and his overall tactics:

“It hurts my client and it embarrasses the hell out of me,” Rakofsky says of the controversy. “All I tried to do was help my client, and I made a lot of sacrifices.” But Rakofsky also says he doesn’t “care that much what the people of Washington, D.C. think of me.” Rakofsky, who has a D.C. number and website attached to his firm, even though he’s not based here, was retained by Deaner’s family.

Rakofsky hinted that a mistrial was good for his client. Purposefully tanking a case can lead to legal consequences, though, like obstruction of justice charges.

Then, there was this comment left at the Washington Post in response to the article that exposed Rakofsky (I learned about the comment at ATL, so buyer beware). It is under the name TrialLawyerUSA (which, coincidentally is the email name used by Rakofsky on his official website). So, based on that and the tone similar to the previous article, it is possible (even likely) to attribute it to him.

I wonder if this is a case of a clever lawyer learning about the Government’s case in a district where he has no reason to practice and then figuring out a way to achieve a Mistrial. If so, the lawyer accomplished a major victory for his client, in which case, the Government must feel duped. He may have saved his client’s life. I’m not aware of any law that forbids a lawyer from trying a murder case, even if it’s his first case (especially when that lawyer retained experienced local counsel, which is what he was supposed to do). The article states that the lawyer refused to comment; for this reason, I find it very difficult to believe most of what is written, given that it is so poorly written. I would like to see this alleged “email” to the investigator, but that will likely never happen. It states he was admitted to practice (Pro Hac Vice). It was the Judge’s failure for failing to inquire about his experience; the lawyer told the jury the truth: it was his first trial.

The problem here is all of the blame shifting, judge-blaming, and belief that a mistrial saved a client’s life. For any of us who have been in more than 2 trials, how does a mistrial ever save someone’s life. It is a nuclear option used to try and extract the client from a patently unfair situation. It is not a defense tactic. Prosecutor lies, fabricates evidence, and prejudices a jury—-mistrial. A defense attorney fucks stuff up intentionally in order to obtain a mistrial—–incompetence and ethical excrement. I could continue to pick this one apart, but it speaks for itself.

The path is out there. He just has to be willing to find it. First, he must acknowledge what has happened and face the reasons why.

Us CDLs are a forgiving crew. Really. We spend much of our time trying to convince others to be likewise. But, we need to know that a person is willing to man-up to the things they did wrong, or subpar. Please, if you screw up (and you will, often), be willing to say “I screwed up. Now, what can I do to get past it and become better.” I did this recently (yesterday, in fact). It’s never what you want to say, and it’s rarely pleasant. Yet, it is necessary, and right.

Lessons Learned

Law students reading this are going to embark on your practices (fine ones, I hope). Plan for it. You’re planning to take the bar exam. You planned your entry into law school. I’m sure you’ve planned many other things. Now, plan your entry into practice.

Study people who have successful practices. Don’t study someone simply because they promote their practice well. Study someone who actually has a successful practice. Some manage balancing a successful practice with teaching others to practice. Carolyn Elefant is one of these. Chuck Newton is one, too. Most, however, focus on their practice, clients, and the things that really matter in our profession. Many are the ones who vehemently defend the profession. If you look, you’ll find them, but you’ll need to cut through a lot of bullshit, and that takes time. Easily, it could take you a month.

I don’t know who advised Rakofsky on his entry into private practice, if anyone. It certainly appears that he listened to the wrong advice (Mark Bennett analyzed this in great depth).

Think, for yourself, why he failed. Read the various causes found by Bennett. See what Carolyn Elefant says at MyShingle. It’s all correct (or, at least in the ballpark), and you need to take notice.

Marketers want your money. They don’t give a damn about your good name. Plan for the long term, and don’t let short-term results cloud your judgment. If you are ethical, work hard, and give a damn, you’ll do fine. All it takes is time, focus, and guts.

Crap is King

Yesterday was one helluva eye opener for me. I’ve tinkered with this blawg since August. Generally, I get about 30 page views a day. A page view is when someone accesses my homepage, clicks on a post, or a combination of that. So, if you view my homepage and click on two posts, I’ll have 3 page views. In all, I’ve historically had about 10 people viewing 3 different pages on a daily basis.

At this point, my regulars are fairly well known to me (through comments and/or emails). Scott, Scott, Dan, Shay, JMo, Ruth, Lisa, Dave, and a couple of others. Having them around is rewarding for me.

I’ve posted on a variety of things. Some done in about 5 minutes. Others, more thoughtful, in about 15 minutes. Some gain a bit of attention and folks visit temporarily to see the freak show. This happened a few weeks ago when I made a couple of flowcharts. A flurry of activity might occur for a couple of days, but then things get back to normal. I’m fine with it. I have fun. I like to write, and I (generally) get good, critical feedback on my writing and ideas. Great.

Then, yesterday, all hell broke loose. Don’t believe me? See for yourself.

Am I proud of it? Frankly, I think pride derived from blog page hits, facebook friends, and twitter followers is silly.

In this case, I find the spike to be troubling. “Crap is King,” or so said Don Henley. I believe him. I’ve written posts about managing collateral consequences to service members, freethinking, maverick judges, and coming to terms with human fallacies. Yet, the post that gets an amazing amount of attention is one that focuses on the suffering of two human beings. One is Rakofsky’s client, who still has no light at the end of his tunnel. The other is Rakofsky, a 33-year-old less-than-1-year-lawyer who is getting publicly flogged for his misdeeds. Sure, it is deserved, and the teaching points are absolutely priceless. Yet, his misstep certainly drew a lot of rubberneckers.

With so many enriching ideas and information available to us, it’s a shame that our nature points us toward the mindless freakshows (as opposed to the intellectual freakshows). Don’t be offended. I’m talking about myself, too.

“We love dirty laundry.”


10 thoughts on “Of Nuclear Bombs and Fallout (or Crap is King)

  1. I’m going to have to take issue with you on one point. Rakofsky’s “mistake” isn’t merely a matter of skill, but a matter of integrity. The former can be learned. The latter is a character trait. He may be able to gain the skills he now lacks, but he will never have the character to be trusted as a lawyer.

    This isn’t to say he should be imprisoned for his mistakes, but it’s an honor and privilege to be worthy of the trust of another human being’s life. Having proven his unworthiness, he has no claim to the privilege of that trust again. Be careful about letting your criminal defense lawyer spidey-sense-of-forgiveness cloud the different between suffering punishment and enjoying privilege.

  2. I’ve been away for about a week and had several of your postings to catch up on. Hopefully my wanton clicking didn’t spike your page views too much.

  3. Advice much appreciated.

    I have to be honest: I do not understand the online marketing practices of many criminal defense attorneys. I’ve browsed many local/regional CDLs’ websites and nine times out of ten, found them 1) utterly tacky, 2) transparent in their predatory efforts to appeal to the lowest common denominator, 3) similar in strategy to that of an infomercial, and 4) insulting to the integrity and professionalism (both generically and my yet-uneducated sense of lawyerly ethics).

    I can hardly consider myself unique as a soon-to-be lawyer when it comes to my ability to persuade others. I have a few years’ experience as a persuasive writer, but I’d think it takes that skill to get into law school in the first place. As a result, the overwhelming number of transparent attempts at bottom feeding appalled me. How did it come to this? I’ve seen it on the websites of former prosecutors-turned CDLs with degrees from respectable first- and second-tier schools as often as I’ve seen it on those who possess degrees not worth the paper they’re printed on.

    I don’t purport to know anything about private practice, but it seems to me evidence of a larger problem than the struggle of tough financial times. It seems to me the character and fitness process probably keeps more good people from getting into the profession than it keeps bad guys out. Regardless of the merits of that possibility, a substantial number of CDLs (at least those who hit the top on google) have serious integrity problems. These problems are not created by bargain marketing schemes. I can’t accept that we have lawyers who buy into them are duped into it. No, I think it takes a crystal clear, serious error in judgment.

    For what it’s worth, I have far too much integrity to market myself as something I’m not. I also couldn’t see myself signing up for “marketing” services through a web form that accepts paypal. I may be naive, but it’s my impression that a good lawyer doesn’t want or need “marketing.” A website with a phone number, areas of practice, relevant expertise, and a bio. Even go a little crazy by including a portrait with that bio. To me, that’s marketing (please tell me if I’m wrong).

    I realize this post touches on far more issues than Rakofsky’s marketing practices. At any rate, I agree wholeheartedly: everyone needs a good mentor, and it’s absolutely irresponsible to ask others to place their lives in your unexperienced hands without one.

    • Desperation and fear drive many to do crazy things.

      Marketing really depends on what you plan to do with your license. Somehow, folks need to find you. For me, my website (not my blog, my blog is purely for fun) is all I have. Mine is literally a worldwide practice, and I get calls from the Continental US, Hawaii, Alaska, Korea, Marshall Islands, Japan, Germany, Korea, Italy, Turkey……well, you get the point. Putting my name in the yellow pages does absolutely no good.

      If you plan to practice in a community for the long term, then you may only need a storefront. There is also a difference for CDLs. For CDLs, you are constantly looking for new clients. For other types of practice, you may have lifelong clients. The answer to all of this is a clear–it depends.

      Most importantly, do the following:
      1. Live within your means.
      2. Be patient.
      3. Work hard.
      4. Put clients first.
      5. Think through every aspect of your practice.

      • Your website was exactly what I was referring to as a model for what is acceptable marketing. It’s respectable and it doesn’t commit any of the four offenses I laid out.

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