Attorney-Client Relationship

Ineffective counsel claims are probably the least fun part of the job at the state level in Georgia. Unlike the Federal system, where an evidentiary hearing on an IAC claim is often left for habeas proceedings, Georgia IAC must be raised at the first available opportunity, or it is deemed to be waived. This system has its benefits, but it also creates pressure on the appellate attorney to raise ineffective assistance of counsel, regardless of the issue’s viability. Having done many IAC interviews over the years, I have some basic things that I have learned to do in my approach.

  • Recognize that this interview is part of the job. Awkwardness can feel like an inevitable part of this process. But it does not have to be horrible. There are some things that I always acknowledge up front. What I am doing here is part of the process. And the lawyer you are about to interview had a difficult job to do. Criminal defense can feel like a thankless task. And if the trial attorney is a public defender or was appointed to the case, it probably feels even more thankless. I always like to start the interview by expressing gratitude to the trial lawyer for doing this job and for all that he did to try to protect the client’s right to a fair and meaningful trial. No trials are perfect. And just as the lawyer did his job to protect the client, you are there to do the same.
  • Listen. Lawyers are great at making arguments and asking questions. We sometimes are not the best listeners. Just as you have worked hard to prepare for the interview, you should work hard to listen to what the lawyer tells you in the interview. And it can be good to demonstrate how well you are listening. If the lawyer gives you a lengthy answer, stop at points along the way to say, “okay, let me see if I understand what you are saying.” Then give the fairest possible short summary of what the lawyer just said that you can possible do.
  • You Are Not There to Argue. Part of listening is to encourage the lawyer to talk to you. So, if you think that the lawyer is mistaken about his understanding of the law or memory of the facts, you should not argue. The law is what it is, and the facts are what they are. And you will have the opportunity to argue all of this to the Court at some point in the future. If the lawyer is mistaken about what happened or doesn’t remember, it can be okay to show him the transcript. But do so with an aim of being helpful, not to argue.
  • If You’ve Been in the Lawyer’s Shoes, Don’t Forget That Experience. There is nothing fun about this part of the appellate process. It’s not fun to be interviewed toward IAC, and it’s not fun to do the interview. It is important to think about what it’s like to be answering the questions and not to get caught up on what it is like to be asking them .
  • Take a Witness With You. It is a maximum in the law that no interview with a witness should be without a witness to the interview. You don’t want to be the sole impeaching witness if the lawyer later changes an answer
  • Elicit the Lawyer’s Persective on the Other Issues. Reading the trial transcript is a poor substitute for living through the trial. The lawyer lived through it. Don’t lose the opportunity to ask the lawyer for her perspective on the trial. What did she think was unfair about the trial? What does she think the appellate issues are? Another good question is, “Mr. Lawyer, if you were in my shoes doing this appeal, what would you do?” Often this question is met with a blank stare. But occasionally you will hear something that you hadn’t thought of before that point
  • Be Grateful for the Interview. No matter how you think it went, be sure that think the lawyer for his time. The lawyer did not have to sit for an interview. So, make sure that you thank the lawyer for letting you interview him. And, again, think the lawyer for being a criminal defense lawyer. It may be that you are the only person in the case who has ever told him thank you.

When the interview is over, I get my notes together and process them as soon as possible. I also try to follow back up with additional questions as soon as possible after the interview. There is no way to make this process fun. But I find that the steps I have outlined above make it a bit more palatable.

Marcus Aurelius seemed to know the modern lawyer (though he died centuries ago). See if you can identify with the following sentiment:

Say to yourself in the early morning: I shall meet today ungrateful, violent, treacherous, envious, uncharitable men. All of the ignorance of real good and ill… I can neither be harmed by any of them, for no man will involve me in wrong, nor can I be angry with my kinsman or hate him; for we have come into the world to work together…

Marcus would have been an excellent litigator (or at least a healthy one).

Every day this year, I have started the day off with a selection of Ryan Holliday’s The Daily Stoic. If you haven’t considered ancient stoicism, you should check it out. If there is a system of philosophy out there more ready-made for lawyers, I am not sure what it is.

What Stoicism Isn’t

Forget what the dictionary or common usage tells you about stoicism. Stoicism is not a generalized ability to resist pain, and it is certainly not systemized indifference to the world around you. Such is the popularized caricature of stoicism. Stoics are engaged with the world around them in a particular way. Nor is stoicism a singular philosophy. Just as there are sects of Christianity, there are sects of stoicism. But there are some commonalities among the schools of stoicism. And none are like the popularized notion of it.

What Stoicism Is

I will not be able to explain anywhere near fully in a short blog post. I’d refer you elsewhere for more reading. Ryan Holliday’s blog is a good starting point. So are some of the blog posts on the topic by Tim Ferriss. My introduction to stoicism came from a novel that I read by Tom Wolfe titled A Man in Full. I first picked up this book because of its setting in Atlanta. But I read to the end for its introduction to stoicism. And when I finished the novel, I wanted to know more.

So, what is stoicism? As much as I implore my students to stay away from wikipedia in their assignments, the entry on stoicism is a good starting point:

Stoicism is predominately a philosophy of personal ethics which is informed by its system of logic and its views on the natural world. According to its teachings, as social beings, the path to happiness for humans is found in accepting that which we have been given in life, by not allowing ourselves to be controlled by our desire for pleasure or our fear of pain, by using our minds to understand the world around us and to do our part in nature’s plan, and by working together and treating others in a fair and just manner.

Students of Buddhism or devotees to Christianity might see some commonalities here. For Buddhists, suffering comes from uncontrolled desires or the inability to see and accept the reality of change arounds us. From the Judeo-Christian context, sin lies in placing idols before God, which are worshipped as if God. These things ultimately fall short on providing happiness. St. Augustine wrote “our heart is restless until it finds rest in you.”

For stoics, the natural world operates in a logical system. And our minds should work within that plan. However, we can get caught up in our own dramas of desire for pleasure or fear of pain. All of which disturbs our sense of tranquility.

I am aware that I have grossly oversimplified the philosophy and may be committing an error by trying to describe stoicism as a unified philosophy. And perhaps you are thinking, “who cares?” Let me try to bring this to the level of the relevant by describing a few stoic exercises.

Stoicism is infinitely practical. Holliday writes, “stoic writing is much closer Yoga session or a pre-game warm up than to a book of philosophy a university professor might write. It’s preparation for the philosophic life – an action – where the right state of mind is the most critical part.”

Stoic Practices

  • Is This What I So Feared? Seneca advised his students to simulate misfortune or to live out, if only for a brief time, what they fear most. He advised spending a period of time in practiced poverty, wearing course clothes are the sparest of food. He notes that the reaction to practicing poverty or to simulating misfortune is that you will find that it wasn’t the big deal you imagined it to be. In simulating what might happen if you failed at something, which is likely more transitory and more reversible than you might imagine, you free yourself up to act on bigger thoughts with higher risks.
  • Training Perception to Avoid Good or Bad. Again, from Holliday:

There is no good or bad to the practicing Stoic. There is only perception. You control perception. You can choose to extrapolate past your first impression (‘X happened.’ –> ‘X happened and now my life is over.’). If you tie your first response to dispassion, you’ll find that everything is simply an opportunity.

Want to see suffering in action? Open up your Facebook feed and look at the posts you find there — nothing but vitriolic emotional reaction from objective reality, whether it be some interpersonal issue, an event in sports, or an event from the news. You can train yourself to view things as they are then to take the opportunity that the event creates.

Application to Law

The law is richly rewarding to attorneys. However, neither judges, clients, nor opposing counsel hand out lollipops to us on a daily basis. And I commend a study of stoic philosophy to lawyers. Open up the bar journal and look at last month’s list of lawyers who were disciplines. Many of them acted to avoid something that would have been far easier to handle than the consequence of the choice they made. What if they had regularly engaged in the practice of what they feared the most? And the number of lawyers who suffer mental health issues or substance abuse? What if we trained ourselves to look first at objective reality to see what opportunity is presented?

I’ll close by saying that I’m no stoic. But I enjoy reading about stoic teachings. And I have extrapolated from it some practices that are helping me.

finishlineMany of our cases take months or years to take from start to finish. But the way we finish is as important as how we start. I’ve written in a previous blog post that we take on cases with the knowledge that we will often be engaged in the process for quite some time. Direct appeals and habeas corpus can take years as you assemble the file, get the transcripts, coordinate witness schedules for evidentiary motions, and wait for a briefing schedule. And major felony cases at the trial level take some time as we try to negotiate pre-indictment settlements or as we get through lengthy and complex motions. When the case is all over, it is important to be deliberated about how the file is closed and here are some things we do in our office at the end of the case.

  • First, we think about whether the case is actually over. There can often be loose ends that need to be tied. If we were successful in the appeal, for instance, there is a whole process involved in getting the client brought back from the prison system and getting the case transitioned back over to a pre-trial posture. This time can be perfect for working out the case. And decisions need to be made regarding the client’s representation if there will be a second trial. The case is not over until it is closed in the court system or until it is handed off to new counsel. If we have been successful in getting a person off of a registry, it can be important to get all of the necessary paperwork forwarded to the agency that is responsible for maintaining it. There can be more steps than one might imagine in ending a case.
  • We send a letter to the client and the client’s family reinforcing that the case is over, explaining what we did, and inviting questions about the process and the conclusion. It can be important to clarify that the case is at its end in writing. And often this letter can prompt further questions. I always encourage the client to keep in touch as there may be things down the road where I can be of assistance.
  • I send thank you notes. If any person helped in the case, whether that was an expert, an attorney who answered a question, a person at a government agency who helped me with something, or lay witnesses who provided letters, thank you notes are great to let people know how they helped. And expressions of gratitude are good for the person writing the thank you note. I will also send a thank you note to the person who referred the case to me way back at the beginning. When you refer a case, it is nice to hear how things worked out.
  • If there are things that were not scanned, we get them scanned in. Then we make the paper file available for the client to pick up. One day, I hope that storage buildings as repositories of for closed files will be a thing of the past.
  • If any of the motions in our case can serve as a form for future cases, we move a Word version over into our form bank. And if we think that any of the cases we found throughout the course of the case will be helpful for future research, we move those over into our topical research bank.
  • We close the file in Rocketmatter. And we move the file to an external hard drive and off of our active data system.

We are constantly working on our systems in the office. A consistent closing system is instrumental to a practice’s success. And it provides a helpful moment to reflect on all of the people who come together for us to give a case our very best effort. Closing is as important as opening, and we work to close things out in a thoughtful and deliberate way.

I sometimes find myself having the same conversation with different colleagues several days in a row. It may be that my thoughts find their way into the conversation or that there are certain trends. It may be pure coincidence. In the most recent version of the repeating conversation phenomenon, I have heard colleagues complain about the nature of practice. And here is the three-fold refrain.

  • The market is flooded with attorneys where I practice. And I cannot provide the service that I want because I am getting beaten on price by attorneys who will not do the same good job I would do.
  • Every year the legislature/sentencing guidelines/judges/parole board/appellate courts (we could continue to fill in these blanks for a while) makes it harder for me to provide very much to clients.
  • Client are so difficult. They have unrealistic expectations, and they want to micro-manage their case.

I have a couple of thoughts about what I am hearing. And when I approach it this way, I tend to gain a new perspective.

Continue Reading Why Some Law Practices Struggle

IMG_0017Yesterday, I took a drive out to the hinterlands to visit a habeas corpus client. I met up with a law school intern for the visit. During the time we spend together, the client what to know what he could do to assist in his case.

Over the course of my career, my thinking has evolved on the subject of clients and their desire to assist in their case. There’s a meme circulating among colleagues that says “don’t confuse your Google search for my law degree.” 10 years ago, I would have worn the t-shirt.

Then I try to imagine what it would be like to have no control over anything in my life and no freedom. I would want some input in my case. I spoke to a colleague who is an appellate lawyer in an indigent defense agency. She gives the clients a copy of their transcript upon request and encourages input. She has never experienced a downside with the practice. Never. Of course, at the end of the day, the lawyer chooses the issues. And knowing which issues to include is a big part of the art and science of law. But it doesn’t help the relationship to discourage the client from having a voice. I found an excellent law review article on the topic of how to allocate the decision making between the attorney and the client. The article suggests that a collaborative model focused on the client works best. In this model, their lawyer works to inform the client about options and empowers the client’s ability to choose as much as possible, having had the benefit of the lawyer’s experience and wise counsel.

So, here is what I told my client. I said to get in the law library every chance he could find. And I told him that if he finds anything that he thinks might be helpful to write me. He was happy with this advice. I think it made him feel like he had a voice in his fate. And who knows, sometimes clients come up with good ideas if we give them a chance.

We just ended a bad week for experts. I was in Athens, Georgia, Saturday for a football game. Auburn was a 10.5 point favorite to win. It turns out that they did not even score 10 points, losing 13-7. Earlier last week, the presidential candidate whom most experts predicted to have somewhere between a 66% to 75% chance to win the election, lost the election. Experts are having a rough go.

Yet, we lawyers work with experts all of the time. In fact, we are experts. The State calls experts for everything from child interviewing to cause of death. And we call our own experts who testify to different conclusions. Maybe those types of experts are different. After all, while pollsters and oddsmakers claim to be experts on what while happen in the future, the sorts of experts we call a trial tells us their opinion of why or how something happened in the past.

Lawyers, however, are often called upon to do what the pollsters and the bookies do. We are called upon to advise a client about the odds that something will happen in the future based upon a decision. We sit with clients and advise them of the potential outcome of a trial that would take place if they turn down a plea bargain. Or we tell clients that we believe that they should turn down a plea bargain because their chances at trial seem better than the offer that has been extended. We advise on the efficacy of a potential motion versus the problems that might arise by pressing it. We are the sort of expert who predicts the future, interestingly enough, based upon how powerfully we believe we can use our expertise to explained what happened with a set of facts based in the past. That is almost a definition of what plea bargaining is.

Plea bargaining is essentially what criminal defense lawyer do. The United States Supreme Court recognizes it. In Missouri v. Frye, Justice Kennedy, writing for the majority said, “In to-day’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.” And trials are quite rare compared to the total of criminal cases formally accused or indicted.

How, then, do lawyers properly act as experts in this arena? We have to recognize that we are not fortune tellers. But our role is to make sure that we understand the law and facts in each case. We must engage in plea bargaining. And when we sit with a client, we have an obligation to make sure that they have what they need to make an informed decision. And when the client is fully informed, we cannot claim to predict the future. And it is not our job to make the ultimate decision of whether to take a plea or go for trial or whether to testify or not testify. And just as we cannot abdicate our role to work for the best possible offer, to communicate it, and to inform the client’s decision, we should not allow the client to abdicate the choosing to us. This process is not always clean, and the lines often blur.

But this week has taught me, if nothing else, that there is no science to predict the future. No expertise tells us how it will unfold. But the real work is in assessing the reality of the present choice based upon what we think can be proved about past events. We can only research, describe, and be present with clients. The big decisions are theirs.

 

A few days ago, a newly-minted attorney asked me about what it takes to become an appellate attorney. I was initially at a loss for an answer. I never exactly set out to do this for a living. In law school, I was quite sure that I would be a trial lawyer. Only now am I closing out my last trial level cases and moving to being a 100% appellate and post-conviction practice.

How I Ended Up Here

I’m a frustrated novelist, which many lawyers are. And I enjoy the solitude of an office and a closed door. I greatly prefer it to calendar calls and all of the other time-wasting rituals of the criminal trial process. Back in law school, I worked for an attorney who had some appellate cases but did not particularly like them. At the time, he was sending the writing off to a former associate who had moved to the North Georgia mountains. I tried my hand at a couple of appeals. And soon, as a 3L, he was no longer sending those appeals out. I was doing them, and it was my role even as I developed a trial practice in his firm as an attorney. In my first year, I caught an issue on a murder case that led to a reversal of the conviction. I hit a lucky streak and reversed a few more, including an issue I caught in what was otherwise run-of-the-mill DUI trial. A Public Defender’s office started sending me all the appeals I wanted. The pay was low, but I was getting the reps in. There have been many losses, but there have been some astonishing wins. And it’s often fun.

It appears that appellate law is the thing that many lawyers and students want to do. For budding civil appellate lawyers not in a big firm, I can think of no comparable thing to PD office with a steady stream of cases. There are few civil trials these days and all sorts of incentives not to appeal. And if I had intended to build an appellate practice, I don’t know that I would have followed these exact steps.But nearly ever felony trial that ends in a one-word verdict is appealed, and there is not an attorney’s fee downside. Everybody understands why a person with a 3,000 year Georgia-style sentence would like to appeal his conviction.

It’s Not Always Fun

When it comes to retained work, there are all sorts of challenges. The trial lawyer who comes before you often makes a mess of things and leaves errors unchallenged. The client has often exhausted his life’s savings before the appeal starts. And when you get started on the case, the client and family have some serious trust issues with attorneys because the lawyer they chose to do a murder trial was not as good at murder trials as he was at drafting Uncle Jeff’s will. Also, if you are not in the appellate section of a major firm, there may be some limits on the ability to get some of the bigger cases. But those come with time. The client often cannot make the transition to standards and processes of appellate law, with a lingering interest in whether various witnesses were lying and with little interest in the erroneous burden-shifting jury charge that you find so fascinating. Also, in the era of Serial, Making of a Murderer, and other such shows, clients come to you armed with an expectation that you should work for free or nearly free just because must be outraged by their perceived injustice. And the internet has done more for amateur jailhouse lawyering than the jail law library ever did.

With that said, appellate practice feels like “real law” to me. I find that the suppressed writer has a good outlet to work. And this kind of practice lies at the intersection of advocacy and scholarship. Finally, the work can be done from nearly anywhere there is an internet connection. So, it is pretty easy to pick up and hide away from the office.

If I had to advise someone on how to build this practice, I would note that it takes years. And it takes some creative maneuvering to get your reps in — including some pretty low-paying gigs for a while. And there are fewer cases out there than there are DUIs or petty drug offenses. So, the dues are much higher. But I think it is worth it, even if there are days when I wonder why I even went to law school.

On Monday, I stood at the start line of a hot, humid, and crowded 10k. Before then, I had done longer races, including a couple of half marathons and a full about seven months ago. And over the last three months I had been working with a coach to up my game. I had even begun to see improvements in short spurts during speedwork. In weeks leading up to Monday, I had recorded splits a minute and a half to two full minutes faster than my normal pace. And, while the temperature and humidity had been climbing here in Georgia, I had made it a point to get my run completed at the coolest point in the day early in the morning.

So, on the Fourth of July I found myself in a starting wave at around 8:00 in the morning awaiting the signal to go. The start was consistent with the runner I thought I had become. For three full miles, I was running splits comparable to my new faster times. But in the back of my mind, I noticed a crack. I wasn’t feeling quite right, even on the downhills. I pushed through until the first uphill, which I hit at my newfound faster pace. But this uphill did not lead to a downhill. It instead led to a more graduated slope and into another uphill. And by the latter part of mile 4, I was in some trouble. A glance at the thermometer showed me that the temperature was 83, and I looked ahead to the bobbing of heads as thousands approached and made their way up another hill.

Within my brain was a debate centered around a single question: “what the hell do I do?” Stop entirely? Slow down my running? Change to a walk? Or try to gut it out at my goal pace? There was a voice in that internal dialogue that said that I would get off this course and never run again. Meanwhile, I was sweating. And I was getting dizzy. At this point in my running (I’ve been doing it for about a year and half, having come to the sport later in life), I am unclear on where the line is between toughing it out and foolishly putting myself into a medical situation.

I Slowed to a Walk

I salvaged a split at mile 4 that was slower than goal pace but one that would keep my overall goal finish time in reach. But mile 5 ended all hope of my finishing pace. I slowed to a walk, went for water at the next station, poured a cup on my head and drank another. At a few points along the way, I tried to resume a run. But it is hard to move back into a run once I am extremely fatigued and have walked some. At the beginning of mile 6, I started a run. And as mile 6 unfolded (and with the help of a downhill and the sight of imminent finish line), I began to get back to where I normally am when I run. I was even passing people at the end.

I finished in disappointment and with a sense of dread. It was a dread of telling people how I did. And it was a dread of synching my Garmin data from the watch to the app on my phone, at which point this would all be memorialized.

Lessons Learned

I synced my data and texted a screenshot of the run to my coach. And I felt compelled to also share in my commentary that “I know I am much better than this.” Wrong! He texted me back, “actually, what happened here is quite consistent, except for mile 5.” I showered, came home, and began to look at the numbers. It turns out he was quite right. My average minutes per mile in that race, almost to a second, was squarely on point with my average minutes per mile over most runs. The funny thing to consider was mile five, the mile that I walked. But for that mile, I would have finished a pretty significant deviation from my average, albeit still below the goal I had set for myself. The body and mind rather dramatically brought me crashing down to my average of training. Did I give up at mile five? I’m not sure how to answer that question. I did stay on the course. And I did resume a run on the last mile. I did, in fact, reach the finish line. But I spent a mile essentially giving up. So, the answer to the give up question depends upon mood and perspective.

But what did certainly happen is that my racing self ended up in a tie with my training self. And I think that there is a valuable lesson in that. It is very hard to outpace our training and a bit foolish to think that we can rally in a moment to outdo or undo our habits. Our bodies, minds, and spirits will revert to what we are generally like. That is not to say that we cannot change and improve. I thoroughly believe that the dial on my fitness and speed is moving to the right. But it is moving a slower pace than my hubris had led me to believe. When my training pace or habitual pace moves firmly to the right, so will the racing pace. Progress has come and will come over consistent effort, through showing up and giving it full effort on those Monday, Wednesday, Friday, and Saturday mornings. And perhaps to train for a race that, for me would kick off at 8:00 a.m. in high temperature and humidity, it might have been good to train in those conditions. I hadn’t crammed for the exam, exactly. It is just that I had prepared for the wrong one.

There’s a lesson here for the law practice and for clients. Just as a runner’s racing self will struggle to outrun his training self, a lawyer at a hearing, or writing a brief, or engaging in a jury trial will struggle to outperform the lawyer in his study, preparation, and practice for those events. Just as you cannot cram for a marathon, you cannot cram for a critical case moment.

Many of my clients commit crimes of addiction or crimes of impulsivity. And often the preparation for the judge involves a parallel effort to kick an addiction. Or that moment of impulsivity came from a lifetime of bad habits where the client lacked the requisite skills to react to a situation in a better way. But lawyers and their clients can improve. We improve by showing up. We improve by noticing that the needle can move, albeit at a pace that is almost undetectable and often at a pace that is slower than we think it has moved. We are the sum total of our habits and practices rather than the sum total of a small collection of aberrant moments.

And the race doesn’t begin at the start line. It begins months before on some track or on a sidewalk in our neighborhood as we work to improve, not just this one split but the average of all our splits over a longer period of time, maybe even a lifetime.

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Part of the fun of doing appeals and post-conviction work is hearing from colleagues with questions about things that arise in cases. Recently, I spoke with an attorney with an unusual situation. The lawyer was defense counsel on a serious child abuse matter. The prosecutor, when she supplied statutory discovery, told the lawyer that he was not allowed to show the discovery to the client, upon possible risk of prosecution. The prosecutor is obviously wrong, but this was a dangerous situation, at least from my perspective as a risk averse person.

Here’s what made it tricky. At first blush, my thought was to tell the lawyer to tell the prosecutor to go kick sand or simply to ignore the warning. The prosecutor was more wrong than a football bat. But there’s nothing more dangerous in a quasi law enforcement agent (these folks have badges) than a zealous belief combined with an unsound opinion. The prosecutor was either being a bully, actually believed that it is against the law to provide the client with discovery, or both. In either event, this person has the right to take pretty much anything to a grand jury, seek an indictment, and place the colleague’s career and life in jeopardy. The colleague would likely prevail in the end, but the journey would not be a fun one. So, I didn’t advise ignoring the prosecutor or giving the prosecutor a well-deserved middle finger. Here’s what I advised.

  1. Get the prosecutor to commit the threat to writing. I advised that the lawyer send an email to the prosecutor to confirm that the prosecutor actually held that position. Something along the lines of “Dear Eliot Ness. I’m just following up on our conversation about the Smith case. I want to see if it is still your position that you believe I am not allowed to share the discovery with Mr. Smith. Do you still believe that I cannot share it with my client? Do you still believe that I would break the law if I did so? In the event that I shared the discovery with my client, what would the State’s position about what should happen to me? I will assume that if I do not hear from you within 5 days, that you are holding course on what you told me, which is ‘_________.'” With any luck, the prosecutor will change course at this point and say so in writing. However, if the prosecutor maintains the same position, you have a statement in writing, which will be useful in point two.
  2. File a Motion. I advised that the lawyer then take the issue to the judge. The lawyer said what many lawyers say when I suggest filing a motion, which was “there’s a motion for this?” And I said, “yes, you can move for anything. Draft a motion entitled ‘Motion to Allow Defense Counsel to Provide Discovery to His Client.'” I suggested that the motion be constitutionalized, with a particular emphasis on the right to effective assistance of counsel under the Sixth Amendment and due process under the Fifth and Fourteenth Amendment. Remember the email that I advised the lawyer to get from the prosecutor? Attach it as Exhibit A. This email will prevent the DA from coming to court and saying, “I don’t know what Mr. Defense attorney is talking about. I never told him he couldn’t share discovery with his client.” The filing of the motion may force the DA to change course. If not, have a hearing.
  3. The Hearing. Hearings end one of two ways. You win or you lose. I told the lawyer that either is really good for his client. If the lawyer wins, further bullying from this DA might stop. The DA will likely be embarrassed. And the lawyer will come out of the hearing as the one with more credibility than his opposing counsel. If there are further discovery disputes, the defense attorney will likely be presumed right, and the DA will be operating under a cloud.
  4. If the Judge Rules with the DA, Oh What Fun! However, if the lawyer loses, then oh the fun that will be had as things unfold in the case. First, the lawyer will have planted reversible error in the record. Secondly, the lawyer will have a fun little tool to use at various stages as the case progresses. At the calendar call, if there’s some deadline to have decided whether to accept the State’s offer, the lawyer can say something like “Your honor, I understand that today is the deadline. However, I cannot advise my client whether to take the plea. Since he can’t view his discovery, he cannot assess whether this is a good offer or not.” If you get to trial, announce, “Judge, I cannot advise the client whether to testify. He is not allowed to see his discovery, and he cannot exercise this decision.” Even if the client takes a plea, the lawyer can say, “He feels hamstrung, judge. He’s taking this plea because he is afraid of facing a trial where he cannot know what is in his discovery.”
  5. Stop Subsequent Non-Written Communications with this DA. I advised this course for future cases. There are few DAs with whom I do not get along. However, for those, I limit person to person contact and conduct plea negotiations in writing. It actually makes life much more easy. I get what I need for the Court. And anything hinky can just get an exhibit sticker on it one day.
  6. A Kind Voice Turneth Away Wrath. So goes the Proverb. The louder, angrier, and less reasonable the DA is, the softer, happier, and more reasonable shall the defense attorney be. Don’t get in a spat with a DA in court. Efficiently and calmly make your record. Also, if the DA makes you mad, wait at least a day before deciding whether you will respond in kind. As Warren Buffett recently advised a young author, you can always tell them to go to Hell tomorrow. In other words, if you are going to take a harsh track, wait a day to see if you aren’t caught up in the emotion of the moment. You probably are.

2369278479_294af9acda_zHiring a criminal defense attorney, whether at the trial court or appellate level, is a pretty complex thing. No matter how life-altering the case might be, the lawyer decision is huge. For the lawyer, taking on a client, whether at the trial court or appellate level, is a big decision, also. The client literally puts her life in the hands of the attorney. And the attorney makes a decision on taking the client that will have a significant impact on the lawyer’s life over the next few months to years. Not all clients and lawyers are a good fit for one another. I’ve learned that there are no small legal matters.

Any lawyer who has represented a client bound and determined to demonstrate that he was not, in fact, speeding, can attest that misdemeanors often mean as much to the client as the person that they are representing for murder. For both the attorney and the client, the decision to retain and to be retained is a big one. For that reason, I put a great deal of attention into the first client meeting.

  • The first meeting with the client is too important to waste any part of it. When I sit down with a client, I already know the charges or the essential facts about the conviction. I already know the client and family’s contact information. I generally have already obtained many of the important needed additional documents. From the moment that the client is seated in my conference room or office, we start talking about possible legal strategy and the next procedural steps. I do not like to spend the first 15-30 minutes getting background information such as DOB, phone number, and address. Our time is too valuable. And I strive to have a certain sense of mastery over the case before I meet with a client.
  • Our first contact usually involves me giving the client a homework assignment. Usually, I want, in writing, a narrative of the client’s basic bio, including criminal history, educational history, and work history. I want to know basic family information. I want to know how bond was made if it was not made yet. I want to know the identity of lawyers who have worked on the case before me. I want to hear the matter described in the client’s own words. If there’s a conviction, I want to know “what went wrong.” I will sometimes want to gather documents. Before we meet, I will want to know as much as I can about the client and the case. This process also give me an opportunity to see what it will be like to work with the client and for the client to see what it will be like to work with me.
  • Things I generally will not tell you on the phone.
    • What the cost will be.  No lawyer can really know what it will cost to represent you within seconds of talking to you on the phone. Cost is connected to complexity and experience. If a lawyer quickly tells you what something will cost over the telephone, he is either guessing or is trying to get you off the phone.
    • Whether I can “beat this.” First, we will not know the answer to this question until the case is over. And I will not be able to make even a rough assessment until I know something about this case. If a lawyers ever tells you that he “can beat this,” particularly on the first phone call, then run quickly away from this lawyer.
    • Whether I believe a certain set of things to be true. I don’t make guilt/innocence decisions within seconds. I don’t commit to any belief that anything either is or is not true. I commit to keeping an open mind about anything I might here, whether from the client, the person who made the arrest decision, or any witness. But I’m not going to lie to a client or pretend to have committed to any belief in anything within seconds of speaking on the phone. Clients probably do not want a lawyer who is either that gullible or dishonest.
  • By the time we meet, I will have thought about your case. When you hire me, we will have some momentum going. Or, if you don’t hire me, you will walk away with a better understanding of what will come next. I put more into an initial meeting than many lawyers. But I also recognize that my decision to take your case and your decision to retain me is a huge one.

I’m learning to fly. And the process of finding an instructor is about as close as I have come to what it must be like to be looking to hire an attorney. I interviewed four different prospective flight instructors before committing to the one who is putting up with me now as we go up in a plane that is about the size of a Volkswagen. The teacher I chose came to our first meeting prepared. He had a syllabus, and he took the time to explain the process. He then introduced me to another flight instructor because he was concerned with me finding somebody who was the right fit, even if he was not that person. He was the flight instructor version of me as a a lawyer. I also got the very real sense that he was sizing me up as a prospective student.

I am not sure what other lawyers do, but this is my process. I field more calls from prospective clients than clients who hire me. I meet with more clients than clients who hire me. Some clients want to hire a lawyer as fast as possible. Some clients are looking to pay as little as possible. Some clients are not a good fit for me. I also have gotten into the process and learned that the client is not the client for me. But I am deliberate about the process because I know that I’m not the lawyer for every client and not ever client is the right client for me. I also know that it is easier to put some work in to find the right fit than it is to get into an attorney-client relationship where we are not.