Attorney-Client Relationship

Appellate lawyers are rarely the first lawyer on the case. Sometimes, the trial lawyer stays on for the appeal. And sometimes the appellate lawyer was part of the trial team. But appellate lawyers are very often the lawyer who renders a second opinion. Frequently trial and appellate lawyers are consulted to render a second opinion or as a possible substitute for previous counsel. And I’ve been thinking about how to handle these things lately and wanted to share a few thoughts.

What’s the Ethical Response?

It’s perfectly okay to communicate with a person presently represented by counsel who is seeking to hire a different lawyer or who is seeking a second opinion. Comment 1 to Rule 4.2 of the Georgia Bar Rules provides as much. The rules do not “preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter.”

However, I’ve often been told that the rules of ethics are the bare minimum of what we should do. And some advice is in order about the most professional response where counsel seeks a second opinion.

Not All Clients Fit with All Lawyers

A client has the right to switch lawyers during a case. And a client’s decision to do so does not make previous counsel a bad attorney. Not all clients are for all lawyers. And some “fits” are better than others.

Think About The Big Picture

Clients come and go. But your colleagues are with you for your career. So, there are a few things to avoid. The first essential rule is that, no matter how dissatisfied the client may be with current counsel, do not speak negatively about the attorney. And I will generally require the client to inform current counsel that she intends to consult with me. Also, should I take on the case, I will never become the client’s agent to negotiate for the return of the fee from previous counsel. I tell the client that I will speak solely about the client and the matter at hand. I will refrain as much as possible from discussion about the other lawyer. And if the lawyer is someone I know and respect I make it appoint to speak positively about that lawyer. If there were ever a moment to think of the golden rule, it is where you are being brought in for a second opinion. Finally, if it is at all possible, I will work to become previous counsel’s teammate rather than the replacement. Whether a team situation is appropriate depends upon the lawyer, the client, and the dynamics of that relationship.

A Second Opinion is Not Necessarily a Substitute Opinion

While the law is malleable, I’ve reached a point in my career where I can generally know how things are likely to turn out. And generally a situation is what it is. Sometimes, I’m the fifth lawyer on the case or my opinion is being sought because the client does not like the truth as revealed by previous counsel’s research. It is important to be up front about the fact that the client may spend money on me in addition to what has previously been spent and find himself in the exact same situation. Indeed, a common refrain from clients to their retained lawyer is the following: “I could have had an appointed lawyer and gotten this result.” And the client may not be wrong. The skill, experience, workload, and reputation of the lawyer matter, but no lawyer has the power to alter reality, the laws of physics, or an armed robbery captured on video plus a Mirandized confession.

It is rare moment where the appellate lawyer is the first lawyer on the case. And if you are taking over with a new client and case, then congratulations. However, a big-picture approach will keep you away from difficult clients and help you navigate a second opinion situation with grace and professionalism.

I now have my doubts about The Genius Bar at the Apple Store. On Friday, after court, I stopped by an Apple Store to get some technical help from the folks at The Genius Bar. A few weeks ago, I left a set of airpods in their charger in a pair of pants and ran it all through a wash cycle. I was surprised that the airpods worked great, but the charger did not. So, when the airpods died, there was no charging them.

The Genius Bar was booked up. So, I made an appointment to come back. I received a text to come back in. And all was good.

I’ve always perceived the Apple Store as not aggressive or into high pressure sales. And I’ve always viewed the Genius Bar as sort of walk-in tech support, separate from the sales process altogether. So when I spoke with their representative, I trusted his advice when he said that the airpod would ultimately fail over time due to the water contact (yes, I was honest about the wash cycle thing, which may have made me seem to be an easy mark.). Then there was what came next.

He advised that I buy a replacement charger, and two replacement airpods separately at a price of $69.00 each since water damage is out of warranty. I then asked him, a few seconds later, why I would buy three pieces for more more than I could pay for brand new airpods off the shelf. And he looked like I’d caught him. All of this made me question his original advice regarding replacing the charger versus the entire set. But I ultimately just bought new airpods because I didn’t (1) want to be out the time that it would take to call tech support or return to the Apple Store or (2) pay for a whole new set of airpods plus purchase a new charger now.

Maybe the guy was following a script and didn’t think it through, but I also see the Apple Genius Bar thing no longer as tech support but an extension of Apple sales. And I also wonder if I was “taken” at some level. The genius also asked me some questions about my business to take an opportunity to try to have someone call me later to upsell me a bunch of business products. It was a bad time to discuss long-term sales with me.

I’m wondering how much lawyers do this at the beginning of a new case by filing a bunch of pleadings that don’t advance the client’s cause,

A new episode of the podcast of the Georgia Association of Criminal Defense Lawyers is out. This one features an interview with Atlanta criminal defense attorney Erin Gerstenzang. Erin and I discuss the basics of marketing for lawyers. We discuss her office in a co-working space at Ponce City Market. And my favorite moment was when Erin and I discuss her decision to give her cell phone number out to clients — the number on her website is her cellphone number. It turns out that this is not a modern millennial thing. Rather, it was a lesson she learned from her father who gave out his home number frequently to clients when Erin was growing up. I have been experimenting with giving my cell phone out to a small sample of clients. And I have been surprised at how well it works. I hope you enjoy the podcast.

I recently listened to Sam Harris’s interview with Tom Nichols on Harris’s Waking Up Podcast. Nichols discussed the “Dunning-Kruger Effect.” If there is a zeitgeist for our age, it may well be the Dunning-Kruger Effect.

Before I define the Dunning-Kruger Effect, let me describe the setting where you may have experienced it. Most often you observe it at a family get-together. Likely, your loudest relative on topics in the political arena fancies himself an expert is likely not much of a political scientist. And you also may experience it in client consultations in the form of the relative who comes to the office who took a business law course at one time about a decade ago. This relative arrives at the office with the client and acts as the family spokesperson. Or you may see it in the thick handwritten correspondence from the client who has been spending time in the law library.

The Dunning-Kruger effect is a cognitive bias in which people with very little knowledge about a topic are overconfident about what they actually know. Meanwhile, folks with expertise tend to see the nuance within a topic and limit their commentary to what can be confidently known. Language may be understated and carefully precise. In the political sphere, a sizeable number of voters fall victim to the phenomenon and vote for the most vocal and confident-sounding candidate. Add to that phenomenon a bias or resentment of professionals (egg heads in their ivory tower) and a bias for “just folks” and you have the Dunending-Kruger effect.

If you are in the business of  law, the Dunning Kruger effect can be tricky. We went through a painful process as 1Ls that taught us to “think like a lawyer.” And this thinking process was as important if not more important than the topics we were learning. In many ways, torts was a vehicle that we used to learn a method of thought. And this approach to legal problems was why we spent the tuition dollars.

It is fairly easy for the client in the market for an attorney to go on FindLaw and find cases that appear to be relevant. And the client can go into a prison’s law library or contraband electronic device and have access to the same database of law that you have. But the context of a legal education and years of courtroom experience do not come with the material. And it can be easy to become bogged down or incorrectly directed when you divorce the material from all the of sleepless nights learning how to understand it in context. Add to all of this, a national ethos of distrust of experts, a suspicion of the legal system and its officers, and the Dunning Kruger effect can take hold.

To make matters worse, the law is not a computer into which we feed facts and out comes an answer. Statutes and precedent are malleable. And the client’s fate is often subject to the preferences, biases, and even mood of the trier of fact and interpreter of law — the judge and/or jury. When asked such questions as “how is it looking for me?” “was the officer wrong to do what he did?” Or “when will this be over?” We give an honest answer that speaks to the uncertainty. Ask those questions to 10 honest lawyers, and about 8 of them will answer “well, it depends.” Clients are invariably frustrated by how tentative we are about things and wonder why we aren’t “shooting straight” with them. The irony is that we would not be shooting straight if we answered their questions with the level of certainty that they want. However, the jailhouse lawyer or the “family expert” has arrived at a more definite and most certainly optimistic answer. And they state it more confidently that you will. But the client comes to you looking to hire a lawyer.

Fight too hard against the Dunning-Kruger effect and the client will go elsewhere — to the lawyer who charges a third of what you charge and who is willing to agree with anything that the family’s legal expert says. This lawyer is in the client entertainment business and does not mind that the folks in the courtroom are going to roll their eyes when the lawyer comes in the door. Go along with the “expert” for too long and you will find yourself in front of a judge who will not be amused to hear what you have to say.

There is no clear answer to how to handle the phenomenon in legal practice. It requires active listening and a calm and steady effort to talk the client down from the ledge. Also, to be fair, we must be careful that we are also not falling victim to the Dunning-Kruger effect in being dismissive at competing ideas. The canary in the coal mine for whether you are suffering from the Dunning-Kruger effect is a sense of confidence confidence that you know the outcome. In the long term, I have to believe that authenticity is the best long-term strategy for marketing and reputation. I have to believe this, because an alternative to that view of things is frightenting to imagine.

I heard some great advice a few days ago in an unexpected place — a county jail. I was there for a bond hearing and preliminary hearing. And it was the typical scene. Inmates were everywhere. Law enforcement agents were lining the walls as they awaited their hearing. The DA was there with a huge box of the day’s files. All of this activity was confined to a large stale institutional room inside of the jail.

It was there that I ran into a lawyer I had not seen in a while. The lawyer was one of many that you will encounter in small Georgia towns who practices “door law,” or whatever case comes in the door. On that day, it happened to be a preliminary hearing in a criminal case. We spoke for a few minutes. I observed that he was seated in one of the few chairs available in the room. He told me that he had been there for a while. And then he started telling me a story.

He once had a conversation with another small town lawyer, whom he described as the “elder statesman” of the county. This lawyer was known for arriving, on the day of court, as soon as the door was opened. And he would occupy a familiar spot in the jury box where he would watch all who had business enter the courtroom. The elder statesman had once told my friend, “when people pay you to handle their case for them, they do not need for you to give them one moment of anxiety. When it is time for court, you should always be there before they arrive. That way, they never have to wonder where you are.”

I am seldom late for court. And many criminal court calendars are like the one I just described — such bedlam that the judge would probably not notice your tardiness. With that said,  I often arrive somewhere between ten minutes before a hearing or right on time. And, as I thought back, I recall that there have been times when I’ve gotten seated and received a text from my office with something along the lines of “Did you make contact with the Smith family? They were looking for you.” This text will have been sent about 30 minutes before court. Of course, I wasn’t late, but I arrived later than the client.

I am doing to heed the advice of a “door lawyer” passed down to him by an elder statesman whose name he doesn’t remember and try reaching the courthouse before my client the next time we have court.

Yesterday was Friday afternoon, but I needed to see an inmate to let him know when he would go before a judge on bond. Some work around the office pushed that visit into the afternoon. And when I finally arrived at the jail, the entire facility was on lockdown. Lockdowns are not unusual. And when they happen, visitation suspends. I made a joke about the receptionist “going back there and taking care of business” so I could get my visit done and I left to work on some other things. For an hour or so I worked on some paperwork and set some things in place for next week.

I returned to the jail at around 4:00 p.m. Visitation was re-opened. However, the facility only has one attorney booth. And detectives were using it to interview somebody. And quite a few new inmates were being booked in. So, my client and I had to meet on the benches in the visitation area. About 8 feet away were two inmates sleeping on pallets underneath gray jail-issued blankets. There is a good bit of sleeping in the jail.

When they finally brought my client out, he looked a bit dazed. I told him the good news: we have a hearing set. And I told him the bad news: we will not have it for a couple of weeks, and he will remain where he is at least until then. I reiterated my standard advice to incarcerated clients. (1) Don’t discuss your case with anybody; (2) Don’t learn the details of anybody else’s case; (3) Don’t talk about your case, your lawyer, the State’s lawyer, the detective, the jail staff, or anything criminal justice related on the telephone; and (3) Don’t discuss your case with anybody.

I expected more disappointment at the timeline. But he took it in stride. As I was leaving, he thanked me. “The hardest part of jail is not knowing what is about to happen,” he said. Even bad news is news. And bad news is better than not knowing anything at all.

Let me tell you about my latest obsession: the British legal system. I came upon this topic by accident. Two weeks ago, I had a two-day hearing in Barrow County, Georgia, with some colleagues. For those of you who do not know much about Georgia geography, Winder is not near my office. And to get there from here requires a Hobson’s choice of routes. Either (A) I go through Atlanta traffic on the interstate to work my way there, or (B) I avoid all of that in exchange for a set of two-lane roads where I will inevitably travel behind buses, garbage trucks, or the elderly. A smarter version of me would have stayed in Winder for two nights. But I opted to commute both days. And so I do what I do when I have a bunch of driving, I cash in an audible credit. And when I truly need the stress relief, I seek out a legal thriller. Mind you, I do not really care if the legal thriller I choose is completely mindless. Indeed, I may ever prefer the mindless variety. I also did not research my choice very well. I searched for my book from the driveway before I left. And I have a very short window of time for such things in the driveway before my wife comes out and throws up her hands in disbelief that I am in the driveway with the car running for a long period of time.

And so it was that I bought Nick Stone’s The Verdict. I realized after it was too late that I had downloaded a British legal thriller. But I couldn’t fiddle with the phone too much as I had opted for the two-lane route to Barrow County. And the narrator had a pleasing accent. And all this was fine because I was quickly enthralled in the story. And as much as I was enthralled with the story, I was intrigued by how a client with a criminal matter hires legal representation in England. I just finished up the book this week. And I’ve now watched a documentary on barristers. And I also have a law student this semester who grew up in England who has endured my OCD questions to her about all of this (may God have mercy upon her).

So, I am about to launch into some fairly sweeping opinions with my research on this subject consisting of (1) nearly two decades of experience as an American criminal defense attorney; (2) having listened to a British legal thriller; (3) having read some John Mortimer Rumpole stories a long time ago; (4) having watched a short documentary; and (5) having quizzed a British law student of mine about all of this. Feel free to correct me if you know more than I do on these subjects. I am very aware of the flaws in our system, and I may be blind to the flaws in the alternative.

Flaws in the American System

Here are some of the differences. In America, you get in trouble, and you retain a lawyer. The lawyer is your one stop shop for your representation. You might go to a big firm, but most American criminal defense attorneys are in solo practice or a very small firm (2-3 lawyers tops). If you’re in some deep trouble as a CEO in a large company, you might end up in the white collar division of a large law firm. But generally you are going to hire somebody in a small shop. If you cannot afford a lawyer, you may get a public defender of some sort, either from a government office or by appointment. And if you get your lawyer by appointment, it will be a lawyer who takes appointments and who does some retained work — somebody in a small shop as discussed at the beginning of this paragraph. Your lawyer will not prosecute and defend cases at the same time. He may have been a prosecutor in a past life. Or he may one day close up his shop and be a prosecutor. But we do criminal defense the way we do marriage in America. Just as we have multiple spouses here serially (one at a time), so we can either be wedded to the State or to the defense serially. Your lawyer will not have prosecution and defense clients (there might be some exceptions. But this is the general rule).

You will have found your lawyer any number of ways, ranging from the sensible to the absolute lunatic method. The sensible and more educated client will have sought out a referral from a trusted lawyer, friend, or family member who has some insider knowledge of who the good lawyers are. That is one side of the spectrum. On the other side of the spectrum (may God have mercy on your soul), you will have googled “DUI Hahira Georgia” and have come to find your lawyer that way. In which case, you may have found a great lawyer or you may have found the lawyer who is great at search engine optimization and is not much of a lawyer at all. Or you may hire the guy who wrote Aunt Jeana’s will. Or the lawyer may have found you after purchasing the police blotter from the day you were arrested and directly soliciting you (I cannot invoke God’s blessings if you go with this lawyer, as God has clearly long since abandoned your soul and taken your IQ away). By the way, the appellate clients have been burned and become the savviest shoppers for legal services at this point in the case (if they haven’t become sovereign citizens).

The lawyer you find may be great, or he may show up to your hearing two hours late, wearing a stained shirt and wrinkled suit, with a fresh buzz from the oxycodone he just freebased out in the parking lot. You are sort of playing the lottery. More likely than not, the judge will pretend that your lawyer’s shirt is clean, his suit is pressed, and that he is not falling asleep as he selects the jury who will decide your fate. From the judge’s perspective, it’s hard to move the docket if you remove lawyers or take other remedial action (Every docket has lawyers like this. Seriously, every docket.). And under the Strickland standard, the appellate courts will likely find that buzzed lawyering was “appropriate trial tactics” and that there wasn’t much of a likelihood of a different result with a sober lawyer who smelled good.

The lawyer you hire will do it all. He will run the office, take your fee, investigate your case (perhaps with the assistance of a paid investigator), serve the subpoenas, find experts, take your calls and emails, negotiate a resolution, and represent you in court.

If your lawyer wears a coat and tie when he meets with you, it is as dressed up as he will be. When he is in court, he will be wearing a coat and tie there, too. And in court, you will sit at the table with him during court. As the proceedings unfold, you will pester him mercilessly and break his focus as you lean over to whisper in his ear, “he’s lying” while witnesses testify.

Enter the English System

In England, you hire a solicitor. This solicitor runs an office and acts like something of a coordinator for legal services. The solicitor takes your retainer. She develops a strategy at the 10,000 foot level, including the hiring of an investigator and the selection of expert witnesses. The solicitor then hires the barrister, who will be sort of the professional athlete in the courtroom. The barrister does nothing but court work. If the barrister develops a nasty opioid habit solicitors will stop turning to him. The solicitor does a job. The barrister does a job. And if you are a barrister, you can eventually get a promotion to QC, which is a higher level barrister. Your barrister may be defending you but prosecuting others. There is no prosecutor’s office. The barrister has a mixed workload. When you are in court your barrister will sit in a different place in the courtroom. And your actual barrister will be wearing a robe and (here’s what I love the most) a wig. You will mainly deal with the solicitor, and the solicitor will coordinate with the barrister. So, when you find interesting things 5 times a day on the internet you want to run by your representative — the solicitor screens all of that. The barrister prepares for and executes in the courtroom.

Here is why I think the American legal system needs to embrace the British model:

  1. No “True Believer” Syndrome. I am going to get myself in trouble with many of my colleagues when I say this, but if I could take a 50/50 split in defense cases and prosecution cases, I would absolutely do that. I love trying cases and being a criminal lawyer first and foremost, and it would make absolutely no difference which side of the “v.” I am on. I’m agnostic about it all. I’m a defense attorney because I do not want to work in a government office and I like being selective about what cases I take. I do not prosecute out of any sort of choice. I can’t. In criminal work, I meet my share of “true believers.” They come in two varieties. They are equally terrible and annoying to be around. On the one side are prosecutorial true believers. See, e.g. Nancy Grace. They view all alleged victims as noble and truthful who are to be avenged. They view all police officers as ethical and intelligent. And they seek maximum punishment for all, in spite of whatever mitigating circumstances may exist. On the other side are true believer defense attorneys. They think that all victims are lying, all police officers are corrupt at their core, that the criminal code should be merely aspirational, and that an arrest or conviction for a serious felony is a prerequisite to sainthood. They live to find the beautiful pure heart that is just beneath the surface of the triple axe murderer whom everybody else just misunderstands. They would like to amend the rules of the appellate courts so that they could file their pleadings on tye dyed paper. True believers of both stripes lose perspective and cause much damage. If we had a mixture of prosecution and defense cases, we would probably be better defenders and prosecutors. Barristers have this benefit.
  2. Barristers have a Buffer and a Focus. The barrister is focused on performing in court and doesn’t have an office to run. The barrister isn’t being a salesman to the client (“oh my gosh, that is a fascinating piece you’ve printed off for me from Findlaw. Of course, I’ll talk about this in court,[ because I want you to hire me and keep me on as your lawyer.]”). The barrister is focused on a winning court strategy. The solicitor gets to discuss the fascinating winning legal theory that the client’s brother-in-law, who took a class in college on business litigation once, has developed. The barrister is getting ready for court.
  3. Quality Control. If you are bad at trial law or you are going through some “personal stuff,” the solicitors will likely know. And you won’t be inflicting your mental distress or lack of chops on an unsuspecting clientele. The solicitors, who are in the know, will just go elsewhere. The barrister’s target audience are professionals and not folks who can be easily manipulated. Hence, there will be less incentive to employ slimy internet marketing tactics to get clients directly.

It is entirely possible that I am just an Anglophile. But I don’t think this is the case. My modest proposal is that we, as a legal institution, switch to a British system, at least in the criminal realm. We should do this pretty much right away. I will go wig shopping first thing this morning.

 

We, as a profession, are not doing well. A very large percentage of us are suffering from significant mental health issues. We are one of the top five professions for rates of suicide. And many of us battle significant substance abuse issues. Today, Bob Rubin and I gave one of the most significnt CLE talks I have ever given. And our topic was what lawyers can do to better cope with stress. We were slated to talk about an entirely different talk and made a gametime decision to switch it up. Bob had a Powerpoint from a previous talk on this topic, and I had information because this topic has been of personal interest to me for quite some time. For those who attended today for for everyone else, I want to provide more information and some links.

  • Running. Running has pretty much saved my life. About 3 years ago, I was about as unhealthy has I have ever been. My weight had peaked. My suit buttons had not seen their buttonholes in quite some time. I came home and zoned out. I was irritable and unhappy. On a friend’s recommendation, I downloaded a couch to 5k app for my phone. I did the program. And I ran a 5k. Then I ran another. And I did another. I’ve since run a full marathon and a few half marathons. I am currently getting ready to run another full marathon in Chattanooga in October I owe my health and sanity to running. For me, it has made all the differene.
  • Meditation. Equally important to me has been meditaiton. A year ago, I put the Headspace app on my phone after hearing a TED talk for its creator. This app is absolutely the best. But, in the past few weeks, I’ve noticed a change in my meditation practice. I want more silence and less of a guiding voice. On a friend’s recommenation, I downloaded Enso, a meditation timer. When I spoke with Bob about meditation, he said he considered himself to be an unsuccessful meditator because he can never focuse on the breath and lots of thougths pop up. But I told him what I’ve heard in a few places. If a meditation session produces only a minute of focus, then it was a good session. Noticing all the thoughts is a big part of the value of the exercise. The value in the excercise may be simply noting all the thought in an observational way.
  • Email Practices. I’ve blogged about this topic before. But email will kill you by a thousand cuts if you constantly check it. I don’t. I use two services for email. One is called SaneBox, which clears out a bunch of the clutter before I check it. The other is InBox Pause, which holds email out of my inbox until I schedule it to come in. Right now, email comes in at 4:00 p.m. on Monday through Friday. I process and take my email to zero for about 30 minutes to an hour. After clearing out the email, I return calls. If something important is going on, I will suspend that pratice from time to time (if I’m in a plea negotiation, for instance). This practice is entirely in keeping with a lawyer’s duty to communicate with a client. Our job is to provide the client with the necessary information to make informed decisions, to respond to reasonable requests for information, and to keep the client apprised regarding my strategy on the case. The Bar does not require me to be on 24/7 call, interrupt family time, or to answer messages instantly at all hours. And If I did that, I would not get much case work done. I highly recommend, by the way, Cal Newport’s Deep Work, on this topic.
  • Journaling. This never came up, but I meant to cover it. I spend thirty minutes every day writing whatever comes to mind. Sometimes what I write generates a great idea. But more often than not, the activity clears the cruft out of my mind. The app I use is DayOne. All the posts live in the cloud and sync among my devices. But I’ve also done this activity on a yellow legal pad.

I’ll repeat here what I said today, No client, no judge, opposing counsel, or case is worth my health. And if you make being a great lawyer your second or third priority, you are more to be a great lawyer because you will have the health and heart to reach your professional goals.

Greetings from the Cordele, Georgia, Cracker Barrel. I am out and about and doing some client interviews today. Yesterday, I spoke to a group of law students about criminal defense. As is often the case, I was the only private practitioner on the panel. I am what is known in the biz as a “paid lawyer.” A big part of the talk was the topic of how we came to be in our current job. And that topic boils down to “why do you do what you do?”

The talk took a familiar turn. The best public defenders I know are quite passionate about helping the forgotten and the oppressed. A comment was even made at one point that money should not motivate a person to enter criminal practice. In my many years of speaking on panels, I’ve generally fallen victim to groupthink. And I’ve tried (probably unconvincingly) to say essentially “me, too.”

I am not being critical of the idea of passion for the oppressed as a motive for practicing law. Certainly, I would hope that every public defender feels that call.

But it is not authentic for me to say that such a passion drives me. And I think I’ve come out of some talks feeling slightly “off ” about things either because I said something I didn’t quite feel in my gut or because I felt guilty for not feeling a sense of passion for the poor in my legal practice. Come to think of it, if I felt such a drive, I would betray it every time I collect a fee or refuse to take on a case pro bono.

When it came my turn to speak I was more honest than I had been at a talk like this. I said that I think litigation is incredibly fun and intellectually challenging. I said that I like winning. And I find a sense of joy from dismantling a criminal conviction, working on an important case, and eviscerating a statute on constitutional grounds. What I didn’t say but should have said was that I am, in fact, motivated to do well financially in the practice/business of law.

I have always handled a few court appointed cases a year. But I have always viewed those cases as an opportunity to compete, litigation and try my best to win. I treat those cases just like retained cases. Why do I take them? Often, I do so to gain experience in an area (I’m developing a Federal practice, so I am doing more CJA work presently) to expand the range of cases I take on a retained basis. And sometimes the judge or the public defender entices me with a cool issue or some cool feature in the case. Alas, I have not taken an appointed case because of some social committment to the oppressed. It is great when that happens, but I cannot say that it is central to my thinking.

To take it a step further, I cannot think of motivation to be great at being a criminal defense attorney that is bad as long as it is consisted with the Georgia Rules of Professional Conduct, the Constitution, and the laws of the Federal and Georgia government. But I think our CLE and educational system suggests that one motivation outranks them all or that some are not valid and should induce guilt.

As a result, our schools and CLEs don’t often address topics such as how to set a fee, how to manage a law office, or how to responsibly and professionally market your practice. So, there is a cottage industry of snake oil salesmen out there who are not giving good advice. Meanwhile, at our CLEs we get a steady diet of the one true valid motivation to be great at criminal defense. This motivation is the one that is served.

Even worse, our very best and brightest law students may be deciding to do some other kind of law because they don’t feel that they have a pure motive to do it. I’m going to be up front with my motivations in the future and am going to stop feeling guilty about them.

 

 

There has been much ado about a controversy at Duke Divinity School. I will leave aside, for purposes of this blog the elements of race, gender and politics. Those articles and blog posts are being written. For a few paragraphs here, I want to discuss this controversy as an opportunity for a practice pointer when it comes to sentencing or any other presentation you might wish to bring to a judge that is discretionary in nature.

The controversy, in summary is this. A Duke Divinity School professor received a mass email about a two day racial sensitivity training. From what I can tell, the training was not mandatory. There was a link to click to enroll, and space was limited. The professor replied to the entire faculty that the seminar would be a waste of time to attend. I don’t know any of the actors beyond reading their emails. But it appears that the professor was more of a curmudgeon than a bigot. However, he chose to touch the third rail of campus politics — identity politics. And things quickly spiraled downhill. And he has now resigned. The controversy has occupied much faculty and student attention. along the way. And now the controversy has become fodder for conservative blogs and periodicals.

The professor’s email, the one that began the whole thing, is worth quoting in its entirety:

Dear Faculty Colleagues,

I’m responding to Thea’s exhortation that we should attend the Racial Equity Institute Phase 1 Training scheduled for 4-5 March. In her message she made her ideological commitments clear. I’ll do the same, in the interests of free exchange.

I exhort you not to attend this training. Don’t lay waste your time by doing so. It’ll be, I predict with confidence, intellectually flaccid: there’ll be bromides, clichés, and amen-corner rah-rahs in plenty. When (if) it gets beyond that, its illiberal roots and totalitarian tendencies will show. Events of this sort are definitively anti-intellectual. (Re)trainings of intellectuals by bureaucrats and apparatchiks have a long and ignoble history; I hope you’ll keep that history in mind as you think about this instance.

We here at Duke Divinity have a mission. Such things as this training are at best a distraction from it and at worst inimical to it. Our mission is to thnk, read, write, and teach about the triune Lord of Christian confession. This is a hard thing. Each of us should be tense with the effort of it, thrumming like a tautly triple-woven steel thread with the work of it, consumed by the fire of it, ever eager for more of it. We have neither time nor resources to waste. This training is a waste. Please, ignore it. Keep your eyes on the prize.

He may actually have a point. An argument could be made the he was right. And, giving him the benefit of the doubt, he sought to challenge his colleague to engage in a dialogue about race and gender in a more rigorous way. But surely he knew the temperature in the room. His message, in its particular form, was likely not going to move the ball down the field.

I am reminded of the task of preparing witnesses to testify at a sentencing hearing or at a motion to terminate probation. Or I am reminded of what it is like to collect letters on my client’s behalf for the parole board.

The people who will offer their testimony are deeply suspicious and (very often justifiably) distrustful of the judge, DA, law enforcement, and the judicial system as a whole. And they see their moment on stage as a time to stand up and vent that frustration or speak out about what they perceive to be right. In their mind, it is time to take a noble stand.

And in those instances, I have to remind the witness — “is this a hill that you are prepared to die to defend?” In other words, I may tell the client’s mom or wife, you could use your moments with the judge either to (1) inform him that he is biased in favor of the state and does not know how to run a courtroom fairly; or (2) persuade the judge to let my client out of prison. But the witness cannot do both.

Sometimes it may be better to role your eyes and delete an email instead of using a mass email situation to make a point. It may be better to raise the level of conversation over time than to use the medium of mass email to tell your colleagues that the training is a waste of time. Some hills are worth dying to defend (when you know that you surely will die) and others are not. Of course, if we do not get the result we wanted, the witness is often resentful that we did not take the stand. But, I always think, we chose to defend the right hill even if our efforts in that regard were futile.