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

Try Every Case

Every group of young lawyers has discussed the same topic at one point in their “Hey guys, let’s go to lunch” careers. What if we refused to bargain cases and force them all to trial?

Oh, it sounds amazing to those young, bright-eyed lawyers. We could turn the justice system and prosecutors on their ears. Wouldn’t that be great to “crash the system?” Ultimately, though, we returned to work and a more experienced lawyer bludgeoned us with the time-honored concept of “If you ever confuse your interests with those of your client(s), I’ll smack the shit out of you.”

Then, we go back to work, realizing that we were silly and immature. Now, the NY Times enters the lunchtime conversation with an article by Michelle Alexander (never a criminal-defense lawyer, as far as I know).

Several bloggers already weighed-in, and I’ll let their statements address this concept fully.

First, Brian Tannebaum with a fairly simple directive:

And so now the New York Times has an article about the notion discussed by every PD and private criminal defense lawyer at every bar since the beginning of plea bargaining, of trying every criminal case in order to collapse the system.

Here’s my response:

Shut the f*ck up.

Then, Norm Pattis is a bit more instructive in his assessment:

Only fools, the naive and bad propagandists look for “justice” in the criminal courts. Clarence Darrow nailed it a century ago: “There is no justice in or out of court.” All that exists are interests. A criminal defense lawyer who puts his sense of justice ahead of his client’s interest has no business appearing in court. None.

Then, Gideon, a public defender in Connecticut, thumps Ms. Alexander squarely between the eyes:

Only someone who hasn’t had to repeatedly stand by clients as they are led away to serve weeks, months and years would offer up those same clients as lambs to the slaughter. Only someone who purports to be a civil rights lawyer but uses the phrase “court-appointed lawyer” when “lawyer” would suffice would propose an idea to destabilize the system at the expense of real, living, breathing people without acknowledging the disastrous consequences.

Yep, got it.

It’s a Solo Thing

Jordan Rushie wrote a fantastic anecdote on the Philly Law Blog about the life of a small firm criminal-defense lawyer. It’s a wonderful read. Please check it out, and don’t invoke the principle of TL;DR. Trust me.

On the strength of that post alone, he may get a seat in the White Cadillac, but not yet. There’s a bit of a line ahead of him.

Now, if he’d like to strengthen his resume’, the timely purchase of a Philly Cheesesteak for a Kansas lawyer could prove persuasive when I’m in his neck-of-the-woods in December.

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

Memo to Civics Teachers: You’ve All Earned F’s

The longer one is a Criminal Defense Lawyer, the more one notices the failings of High School Civics/Government teachers. Nowhere is this more prevalent than in Wisconsin where Wisconsin high school graduates (now members of the legislature) took a swipe at the rights of citizens to unionize. Don’t blame them, blame the folks who molded their perspective on government and individual/group rights.

But, I’m not here to talk about Wisconsin. That topic is now officially worn-out. I’m here to talk about two gripes I have with civics teachers in secondary education. I’ll assign grades.

4th and 5th Amendments (F). I trust that the Bill of Rights is posted in every American Government classroom, but I suspect it is written in cyrillic. That’s fine and good for the kids in Brighton Beach, but it’s not of much use to the other 99.9% of the population. How do we know? We see the results. Despite the admonition, “You have the right to remain silent…,” folks feel the need to talk and talk and talk and talk. Afterward, when reminded of the simplicity of the phrase, they look up with both bewilderment and shame. If only they truly understood…

The Role of Congressmen and Senators (F—). I get a lot of calls from former servicemembers who have something in their records that is bad/wrong. Often, they are veterans who received a discharge that is characterized as something less than Honorable. They all want their situations fixed or upgraded. Most want the change to occur for free. To accomplish this, they call their Congressman or Senator. The aide at the office tells them that the elected official is deeply concerned for their fellow citizen (they are always “deeply concerned”), and they agree to “do what they can.” What they do, often, is submit some matters to the Department of Defense that result in absolutely no relief whatsoever. In doing so, they fail the client by wasting an appeal opportunity (they are very limited) with a half-assed letter. Then, I get a call, and my arsenal of possible weapons in the case has been fleeced because some aide to Senator X decided to pull an appeal out of their ass in about an hour (when a merely acceptable one takes more than 10).

The problem here is that they believe that a call to an aide at the legislator’s office will solve their problems, for free. Where do they get this? How do droves of high school graduates move into the world thinking that government officials are there to generously dispense success, wealth, and vindication? They believe that their Senator will interrupt a 3-martini lunch in order to throw-open the doors of the Pentagon and gain justice. In truth, the matter is left to a clerk who writes a mealy-mouthed appeal and prints it on high-class vellum. It’s all a bunch of lip service for no other purpose than to spread goodwill and demonstrate a commitment to fighting for the rights of citizens.

Those who believe the government will be there to help them in an hour of need are destined for disappointment. Thousands of citizens in need constitute a significant populace. One citizen in need is statistically insignificant–even when you add family and friends. Just ask any economist.

When the appeal fails, and they always do, I get a call. Sometimes it’s folks who say “You told me this wouldn’t work, but…” Some are still amazed that the Department of Defense failed to kowtow to an elected official from outside the Executive Branch. When questioned about the documents included in the appeal, they are always wanting, and now the client is left with one less appeal and a lot less leverage.

That’s OK, though. It was free.

I don’t totally blame the kid on the phone, though. The blame is equally shared with the jerk who, upon receiving tenure at East Pigcrap High School, stopped giving a damn.

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.