BREAKING NEWS: I’m not his lawyer anymore. (UPDATED)

We criminal-defense lawyers often do unpopular things. Occasionally, we make a few people happy, but we always piss someone off in the process. It goes with the territory. We are vilified in our efforts to protect our clients’ rights and zealously defend them. If a criminal-defense attorney can’t handle this, they should quit. The job is simultaneously lonely, frightening, frustrating, and rewarding. Not everyone is cut out to do this type of work.

Here are a few rules that help to frame this reasoning:

1. Criminal-defense lawyers are unpopular to most. We must accept this.

2. Some cases are high-profile immediately as they become cases. Some fester into high-profileness. Usually, this enhances our unpopularity, and that is nothing short of uncomfortable. We must deal with this and focus on doing what we need to do to zealously represent our clients. It may happen to us. It may never happen to us. Whether it happens is largely a crapshoot.

3. In every representation, someone will hate us and wish unmentionable things upon us and our families. Again, we must deal with it.

4. If we must withdraw from a case for any reason, we should remain publicly silent about the nature of representation. Forever. Why? Because we still owe a duty of loyalty and confidentiality based on prior representation. It doesn’t matter whether our experiences are good or bad. We shut up. Violating this constitutes Attorney Dipshittery in the First Degree. Aggravating factor: disparaging (even in a veiled manner) the now-former client on Facebook and/or Twitter. A press release to clarify your newfound non-representation and veiled condemnation is particularly egregious and constitutes Capital Dipshittery.

5. Most of the time, the evidence is overwhelmingly not in our favor. We just have to deal with it and try the best possible case.

If you can’t handle those 5 things, you should never become a criminal-defense attorney. Never. Ever.

Why am I writing this? Because of the “Best Law Firm in Charleston.”

UPDATE, 2:45PM: Rule #4 is amended to include giving an interview to the Daily Beast as an aggravating condition necessitating elevation to Interstellar Capital Dipshittery. Of course, all of this is just my opinion, as I’ve already received feedback from others who seem to believe that this lawyer’s conduct since dumping his client is perfectly hunky-dory.

Screenshot 2015-04-08 11.04.12

Screencap for archive and instructional purposes only.

Screencap for archive and instructional purposes only.

Screencap for archive and instructional purposes only.

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If Your Criminal Practice Doesn’t Make You Happy, Try Inedible Animal Byproduct Law

The military criminal defense community is an extremely fractured and decentralized one. This explains why I’ve never heard of the “well-known” attorney featured in this article at the Army Times. Of course, I qualify as a “lesser-known” or “least-known” military lawyer, so I must bow to his earning of the title. My last court-martial was a year ago this week, and, while the result was overall favorable to our side, I haven’t had a trial since. Competition for the few-available clients who are capable of adding civilian counsel to their defense team is fierce and typically goes to the well-known folks (or those who are adept at search engine optimization).

Essentially, this well-known practitioner made a name for himself as a military criminal defense lawyer, representing several high-profile defendants for the better part of the last 20 years.

Now, he is out, frustrated. Left for the land of greener pastures as in-house counsel for a corporation specializing in the disposing and/or recycling of inedible animal byproducts for the food industry. It really doesn’t matter what the corporation does. He is now in the safe, secure, and allegedly happy environment of in-house counsel. According to a couple of articles I’ve read, these lawyers enjoy a high quality of life, whatever the hell that is. I have yet to see an in-house job that pays less than my average yearly take.

As his reason for leaving the military CDL community, he cites frustration with the rules and procedures of military justice–particularly recent changes in the field of Sexual Assault. He commends those who continue in the military criminal defense community, even calling them “heroes” for doing the “Lord’s work.”

I don’t buy this. My opinion, as worthless as it is, is that he found a comfortable, relatively BS-free job and jumped on it. Free from soliciting clients. Free from continuously earning business. Free from dealing with the frequent calls from individuals who have “just a few questions” or “just need a little direction” or “need a consultation.” He is now rid of bargaining cases with 26-year-old prosecutors who lack perspective. Someone else issues his W-2, and he doesn’t have to groan at every expense deduction. If it is a busy month, he gets paid. If it is a quiet month, he gets paid the same.

Many of us criminal defense practitioners complain when laws tighten the screws on our current and future clients. Some of the laws are just. Others are reactionary BS. Many fall somewhere in-between.

We thrive in an environment where we take rules, bend them to our favor, run around them, or work within them in a manner that benefits our charge. Sometimes, we succeed. Many times, we fail. While the goal is always to achieve success, sometimes we must settle for the door prize of failing brilliantly. When we can, we change rules. When we can’t, we do everything possible to get a good result.

It is frustrating and heartbreaking while also being rewarding and heartwarming.

We love every moment.

I’m sorry that he stopped loving the moments, but I can’t blame him for wanting something that causes fewer gray hairs. Just don’t blow smoke about it.

H/T to Army Scott

A Message for the Wuss Lawyer

Dear Wuss, Esq.:

I know, I know. You resent me calling you a wuss, but man’s gotta call a spade a spade. Or, in this case, a wuss a wuss. You know who and what you are.

You’re the guy who goes into court with a couple of decent motions. You file them knowing that you have a great chance of succeeding because, hey, the law appears to be on your side. From your perspective. You expect to win.

Gaucho knife fighting of the Esgrima de Criolla

In a knife fight, expect to get cut. Image via Wikipedia

Then, you don’t. It might be that you read the law wrong. Perhaps the opposing counsel is sleeping with the judge. Maybe the judge just plain got it wrong. All those things happen. Our system is one that relies upon human judgment. We should never expect perfection from human judgment. Mostly, though, we should never expect the judgment of others to conform to ours.

However, you don’t see it that way. You fall on the ground and cry. Cry, cry, cry. Life is so unfair. You had it right. You scream. You wail. You grasp your side as the pain of a stitch appears from your gnashing and whining. How could they do this to you. You!

And your client. Oh, the poor client. He suffers-all because of them. Them! They want to hurt him. They’ve planned this all along. They’re conspiring to get him. Sure, he was a nobody before entering the courtroom, and he’s still, relatively, a nobody now. It doesn’t matter. They’re out to get him.

You may not go that far, but you still cry. Cry and whine. Cry and whine.

Then, as you lay on the ground, exhausted from your crying. You reach for your keyboard. You write. No, not a motion or legal brief. You write on Facebook, or a message board, or a twit. You write about the unfairness. You kick the process, the “system,” the rules, and the deck so deftly stacked against your client. Unfairness reins supreme.

Tears pour from your words.

And not a damn bit of it helps your client.

They stand there looking at you all lumped on the floor. Some have the wherewithal to say “Dude, what the fuck?” Most, though, just look at you and continue to assume that you know what you’re doing. They think it’s all part of the big strategy. They wait for you to pull-out something magical.

You have no magic to pull. You explain to them that the judge got it wrong, opposing counsel is evil, and that your unfortunate charge will suffer as a result. It’s your disclaimer. And what a disclaimer it is! You did great, but that big evil system seems determined to make you the next martyr. You leave. Your client is left bewildered.

You wash your hands, go home, and whimper yourself to sleep.

The client deserves better.

In court, you’ll get knocked on your ass. Sometimes, the judge does it. Others, it is opposing counsel. Occasionally, it might even be a jury. It happens. It’s trial, after all.

So, you’re knocked down. When you’re down there. Find something–a pen, pencil, keyboard–and come up swinging. You keep fighting. Sure, there’s a system. Sure, it might make things difficult for your client, but you owe them to try and bend it, maybe even break it. Occasionally, you might even manipulate it to succumb to your own will. That’s why you’re a lawyer. You’re supposed to test things, push a little, navigate systems, and guide your clients to the safest possible waters. It’s ugly. It’s bloody. It’s like a knife fight.

Rule #1 in a knife fight: You will get cut. Expect it. Fight through it.

Rule #2 in a knife fight: You must keep swinging, and stabbing, and trying. If you don’t, the other guy will win, and you will die.

Rule #3 in a knife fight: Somebody will lose. Do whatever you can to not be this person.

Lawyers who bemoan the legal process amuse and disgust me simultaneously. They want change, yet they lack the foresight to see where the change may lead. For criminal defense attorneys, the process never changes in our favor. Change in favor of fairness to alleged criminals doesn’t win votes. Ever. We should aspire for old, musty systems. They are familiar, and the longer something exists, the easier it is to find ways to bend it in our favor and show how their absurdities should not be held against our client.

So stand up. Fight back. Move to the next objective. Plan for contingencies. Get dirty. Get bloody. Learn to love it. Your clients deserve that. Stay and fight. Charge back in to the fray again and again. Client after client.

As an added benefit, I’ll stop calling you a wuss, and that’s not a bad thing, either. But, don’t do it for me. Do it for your client.

Thanks for your attention.

Your buddy,

Eric

Have You Had That Phonecall?

This morning, while consuming copious amounts of caffeine, I remembered an incident explained to me by one of my junior defense counsel. He had a client who was having a lot of problems overall in her life. The disposition of her criminal proceedings was relatively low (but stressful), and he secured a decent result. A couple of weeks after her case was adjudicated, he received a phonecall. Afterward, he rushed to my office to recount what happened and ask for advice. He explained the conversation line-by-line.

Defense Counsel: Hello.

Client: Yes, Captain ____, this is ______. I need your help.

DC: Sure, what’s up.

C: (voice becoming panicked) I’m in my car, and the police just stopped me, and I don’t know what to do.

DC: OK, well, just stay calm and listen to what they say and…

Background Voice: Ma’am, you need to put down the phone and step out of the car.

C: I have my lawyer on the phone! You can wait! Captain ____, I there are more police cars, and there are like 8 cops around my car…

BV: Ma’am, put down the phone and step out of the car, or else I’ll have to…

C: (Yelling) You can’t tell me to…..I have rights……I have my lawyer right…….

DC: (Trying to calm her) Look, just calm down, nothing is going to…

C: GET YOUR FUCKING HANDS OFF ME!

Now Multiple Background Voices: (Yelling) Ma’am, you need to put the phone down. Get out! Get the fuck out!

C: I’VE GOT MY LAWYER RIGHT……..(Click)

There wasn’t much we could do. We didn’t even know if she was apprehended in a jurisdiction where we could practice. Heck, we didn’t even know what jurisdiction, period. We were in Missouri, and she was stationed near Pensacola, Florida. He tried to call her phone for a few weeks. It always went to voicemail.

We never heard back from her. It makes you wonder…

When Do I Get To Tell You My Life Story?

Criminal defense attorney Earl Rogers (1870-1922)

I wonder if Earl Rogers gave free consultations. Image via Wikipedia

I’ve talked about payment for legal services before (citing Scott Greenfield and Brian Tannebaum), and Rick Horowitz wrote a post over a year ago about clients calling to second-guess their attorney. I thought I’d shift just a bit from these and talk about everyone’s favorite topic, the free consultation.

When I was still the Senior Defense Counsel at Fort Leonard Wood, I assigned a lower-level matter to one of my Defense Counsel. She reviewed the case and presented the client with her plan. He stated that he wanted to get a second opinion from a civilian lawyer (as is his right). No problem. It’s his future, and you can’t blame him for being careful. After all, the average uniformed Defense Counsel has less than 2 years of experience in criminal litigation, and seeking the advice of more experienced counsel is a wise move.

Two days later, he returned to her office with a notepad. On the notepad were detailed notes from his hour-long conversation with Mr. X, a reputable, experienced attorney in the local area. Mr. X offered to handle the matter for $2500, a very reasonable fee for this particular case.

The client looked at his assigned (and free) government attorney and said “this is what he told me he’d do, and I want you to do it” (or words to that effect). You see, Mr. X never stood a chance. This kid never intended to pay a dime for representation. He just wanted to get his free consultation.

What the hell is a free consultation?

Here, this very experienced attorney allowed the kid to sit in his office for an hour, pepper him with questions, and outline the entire process from start to finish. All the while, copious notes were taken. For his time, Mr. X received $0.00. His idea of a free consultation must be taking the time to gingerly guide the client through the process, explaining every nuance of how fees would be earned, and demonstrating how a favorable outcome is made more probable through select strategic movements. Unfortunately, assuming he qualifies his time at $250/hr, he just lost $250 and an hour of his life.

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I’ve never lost. Ever.

If another person asks me if I’ve ever lost a case, I’ll vomit. For extra effect, I’ll eat a chicken pot pie beforehand.

My response to this question is the same every time. “What do you mean by ‘lost’?”

For that matter, what do you mean when you say “win?”

News flash, folks. There is no such thing as a win or loss at a criminal trial. There are better results than others, depending on your perspective, but there is no such thing as a win or a loss.

Every now and then, someone will ask me “Have you ever heard of <attorney>? He never lost a case!” (Usually, he also has a book for sale on Amazon.) It makes me cringe. What does that mean? Who was keeping stats? Where is the list of cases and results? Did he also find ancient gold plates buried near Palmyra, NY? Is the Guinness Book involved?

Perhaps I’m bitter. After all, I’ve gotten my ass kicked in the courtroom. Maybe I’m just one of those brats who is bitter and envious of the gifted kids in the classroom. You know, the ones already reading Harry Potter while I’m still stuck on The Adventures of Tip and Zip. However, I think it actually stems from my holistic view of criminal procedure.

Pretend that you are a prosecutor, and assume you secure a conviction along with a life sentence. Is that a win? No. There is still a victim (or victims) whose lives have been changed irrevocably, not to mention the money spent by the state for prosecution, the time and opportunity cost for the oodles of people supporting and displaced by the entire affair, and the discomfort shared by all. You didn’t win. You merely mitigated the overall suffering of everyone involved, all in order to get a label for the person convicted and possibly eliminate them from the free human inventory for a period of time. Suffering still abounds. You merely mitigated it, a bit.  How is that a win? It’s not. It’s merely a more desirable result.

Now pretend that you are a defense attorney, and your client is found not guilty. Is that a win? Still, no. Your client just got shoved through the proverbial meatgrinder. For the last few months (or years), they laid awake at night wondering if they would lose their freedom and good name. They spent money, lived with the stigma of being the guy/gal being prosecuted for X, wondered how to ease the effects on their children, debated how to make ends meet after possible conviction, and suffered unbelievable stress. Their lives will never be the same, and they can only hope to regain their prior “normal life.” You merely got them the best possible result. When you aggregate the suffering and discomfort, it’s impossible to find the word “win.”

Looking at my career in an honest and realistic way, I can say two things:

  1. Have I obtained some good results for clients? Sure.
  2. Have I had my ass handed to me on a silver platter? You bet. (Oh no, I just ruined my online brand. Please mourn my loss. Social media gurus everywhere are cringing.)

But, when I use the fuzzy math applied by some, I suppose I’ve never lost, too. Go me.

Even with the strange calculus, one other thing rings true: I’ve also never won.

Alas, some folks are desperate to be winners. After all, they’ve never been losers. When they played sports, everyone got a trophy and pizza party. Regardless of the physical outcome of the race, everyone did wonderfully and gets a ribbon. Nobody kept score. At worst, everything ends in a tie. Our schools provide for “no child left behind” which also necessitates that no child will be allowed significantly ahead. It’s not until they are adults that they are told of their shortcomings. For many, the fall after being knocked from the Winner Pedestal is too much to bear. They look to shift blame. Life is unfair. They can’t do that to me. They are prejudiced against me. This isn’t possible, I’ve never lost!

Check out what one of my heroes, George Carlin, had to say about our dedication to winning. As always, he says it best.

So, for those of my peers who insist upon touting their win/loss record, I’ve been appointed by the rest of the group to tell you something.

Shut the hell up and get back to work.

Pay Now

Unconventional warfare (United States Departme...

Pay me everything upfront. Or else. Image via Wikipedia

A few blog posts today centered around upfront payment for Criminal Defense Lawyers. In particular, both Brian Tannebaum and Scott Greenfield riffed on the subject.

Their posts focused on the willingness of some lawyers to take payments over time during the course of representation (i.e. $1000 upfront and $500 per month for the next 6 months, or something like that). In most civilian courts, this is dangerous because your representation generally gets locked-in by the judge the moment you enter an appearance on behalf of a client. In other words, if you don’t get the money upfront, you likely won’t get it at all, and you’ll be stuck representing a non-paying client.

Military courts allow for more flexibility, as representation is generally not locked until the beginning of trial. After all, the client may rely upon the appointed Trial Defense Counsel in the absence of civilian counsel. So, it is not unusual to make an agreement for $X prior to the Article 32 Hearing, then $Y at least 3 weeks prior to the trial (or something similar). The consequence of not making payments is that representation will be withdrawn. Period. This is explained, usually in writing, before representation begins.

At the same time, for those of us who want the privilege of representing someone in trial, it is still preferable to dispose of money conversations prior to representation. I hate talking about money issues when I really want to focus on the merits of a case. I do what is necessary to balance all interests, but I take steps to separate fee collection from representation. Upfront payment eliminates any ongoing or periodic awkwardness.

Finally, never forget to listen closely to those who earned their LLB through an apprenticeship with Clarence Darrow. Their stories speak volumes. Check out this anecdote from Scott Greenfield:

I remember a client appearing at the start of jury selection, the trial fee unpaid.  He wore a brand new orange pimp suit, a la Suger Bear in Starsky & Hutch, complete with matching hat.  I asked him where he got the suit, and he informed me that when I told him to wear what he might wear to church, he decided to one-up me and look his “best”.  I asked him where he got the money to buy the suit, and he told me that “you know, I had a few dollars saved,” and decided that it was put to better use buying some fine looking threads than paying his lawyer.

He then asked me if he could ask me a question.  I told him questions were for paying clients. Ask his suit.  He offered me the suit after the trial was done.  I declined. He was acquitted. I never heard from him again.  I assume he still has the suit.

For what it’s worth, that story is worth more than the price of representation to us relative youngsters. Then again, most mentorship is.

Azimuth Check, November 8, 2010

Billboard for handsfree mobile phone equipment...

Well, Motorola isn't doing us CDLs any favors. Image via Wikipedia

Yet again, a smattering of different ideas forced into this blog by the voices inside my head.

Yep, these are not our clients.

We criminal defense lawyers live a unique existence. Most of our days are fairly lonely, and our usual human interaction comes with individuals from whom we maintain a fair amount of distance personally and emotionally. Occasionally, however, we gather in small groups or call each other on the phone and share a moment. We utilize a flavor of humor that is unique to us. I suppose it strengthens our solidarity.

Many of our anecdotes revolve around the potential client. These are individuals with whom we have not formed a relationship. After all, most of us avoid talking specifically about actual clients. The potential clients call on the phone, and most want to pump us for information, free advice, and/or baseless guarantees. They range from the innocently curious to serial deadbeating. While providing us with a certain level of frustration, they can also be amusing.

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Criminal Defense: The Lonely Profession?

Criminal defense attorney Earl Rogers (1870-1922)

Look at this poor, lonely defense attorney (Earl Rogers). He's not as lonely as you may think. Image via Wikipedia

A lot of folks say that being a Criminal Defense Lawyer (CDL) is a lonely profession. Until now, I read such articles/posts and moved forward without questioning them.

Today, I read a blog post by Mirriam Seddiq (a CDL from the Washington, DC area), and it caused me to reflect on the plight of the lone defense attorney. She cites the need for mentorship in order to fully develop as a CDL and the loneliness that often accompanies our chosen profession, and she talks about several recent events in her own practice:

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Justice is in the Eye of the Beholder

Used as a gunnery target at Cannon Range near ...

This is how my clients feel when subjected to "justice." Image via Wikipedia

Several months ago, while still the Senior Defense Counsel at Fort Leonard  Wood, Missouri, I learned a valuable lesson about justice and its definition.

As those who read this blog know, I have no use for justice in my work as a Criminal Defense Lawyer (CDL). My goals do not involve it unless “justice” benefits my client. At the same time, I am mindful of the opinions and views of others involved in the process. After all, determining what the prosecutors might/will do is part of my job.

As a prosecutor, I talked a lot about “justice.” As with many in the business of representing the government, I used the word like a professional nervous tick. I used it to make others feel good about taking away a human’s freedom. I used it to sleep at night.

At the same time, I tried to be fair. Balancing the needs of the government/military command/public with the life of a fellow human being was a necessary part of my job. I used prior cases throughout the military, current judicial trends, the facts of the case, the history of the soldier, and the sentencing history of the particular military judge to determine a fair deal for each of my cases. This is what I was taught, and it seemed a decent way to do business.

My assumption was that all (or at least the vast majority), saw things similarly. Even if you have one bad apple, the presence of several layers of oversight would dampen their perspective.

I was wrong.

One particular situation came to mind today.

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The Core Of A Criminal Defense Lawyer

Brian Tannebaum

As most of you know from reading my past posts, I have a soft spot for what it truly means to be a criminal defense lawyer. Others share my passion.

Brian Tannebaum is one. Check out his latest blog post here. It encapsulates a lot of what we think. Brian is also the current president of the Florida Association of Criminal Defense Lawyers.

You Get What You Pay For: The Military Perspective

In the criminal justice system of Gotham City....

I don't care if they have Batman on their team, I'll never be part of this workgroup. Image by David Jackmanson via Flickr

In the last couple of days, criminal defense blogs have been en fuego because of the recent article by Hartley, R.D., et. al., Do you get what you pay for? Type of counsel and its effect on criminal court outcomesJournal of Criminal Justice (2010) highlighted by the American Bar Association.  The basic conclusion of Hartley is that public defenders have just as much success in representing their clients as private practice defenders.

Naturally, both private practitioners and public defenders have their own takes on this issue. Two great analyses of this article are from Scott Greenfield and Mark Bennett, and I encourage you to read their opinions (please note that Mr. Bennett’s analysis is contained in 6 separate entries, starting with this one and ending with this exclamation). The most notable gripe from those in private practice is that Hartley heaps praise upon the closeness of public defenders with their prosecutorial counterparts as well as the judiciary. His definition of good defense work causes the most consternation, and this definition defies what most members of the defense bar believe to be zealous advocacy. Hartley lauds the existence of a courthouse “workgroup” that facilitates smooth case processing and administration of justice.

Workgroup? Justice? Where do I begin?

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Choice of Prosecution: Military or Civilian

I’ve often been asked these two questions:

Why did _____ County take this case and not the military? Or,

Why did the military take this case and not ________ County?

The same also applies when you regard military vs. federal district courts.

The answer to these questions is usually one of the following: a. workload, b. law/sentencing guidelines, or c. ego.

Too often, the answer is C. Ego.

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Have you been a Criminal Defense Lawyer?

Have you found beauty in those labeled ugly?
Have you found worth in the discarded?
Have you given hope to the condemned?
Have you found an abused child within a monster?
Have you seen generosity in the heart of a thief?
Have you found life in those who murder?
Have you touched humanity when all others recoil?
Have you given sweat to a losing cause?
Have you borne a burden no one else would bear?
Have you given love to those who have none?

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Riding on the Back of an Addict

Pre-war Bayer heroin bottle, originally contai...

Image via Wikipedia

Recently we had local primary elections in my neck of the woods. One of the more heated contests involved the election for the Republican candidate for County Attorney. In my opinion, one of the candidates was supremely more qualified for the job, and I leaned-toward voting for him, but I also decided that I should fairly consider the other two candidates, their records, and their positions.

I began by reading the various local headlines concerning the election and eventually moved to the individual websites and web presences for the candidates. One made me sick.

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Criminal Representation – The Way to Not Advocate

The more I observe the actions of others, the more I realize we can learn a lot from the Underpants Gnomes. For those of you who are not South Park savvy, these were small gnomes in one episode who adopted a very curious business model.

It goes like this:

Phase 1: Collect Underpants

Phase 2: ?

Phase 3: Profit

Here is a short excerpt of the gnomes briefing their plan to the South Park gang:

I’ve seen this model at work in legal representation.

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