Undoing Damage, Not So Funny
A new animated video has appeared at the hand of D.A. Confidential, who I'm informed is a Travis County, Texas prosecutor. The Travis County thing is apparently of some local significance, as in they dress funny in Travis County. The video shows a criminal defense lawyer attempting to negotiate with a prosecutor, and getting nailed with his own lies at every turn. Both oblivious and shameless at every turn, it's pretty funny, far more so than the "want to go to law school" video that made the rounds lately.
Mark Bennett, who has an obvious affection for animation, posted the D.A. Confidential video with this introduction:
Why does it cost more to hire me as the second lawyer on your case? Because the first lawyer was probably this guy:
I laughed. The video was funny. The irony was funny. The situation was true. But it's really not funny at all, because this video, though obviously exaggerated for comedic effect, is indeed what we walk into when we substitute on a case. Our first job is janitor, cleaning up the mess the first lawyer left behind.
The assumption on the part of many defendants is that lawyers are fungible. We all went to law school. We all passed the bar exam. We all go to court and do our court voodoo. We must all basically be the same, with the variations being highly nuanced at best. Or maybe it has to do with trials, and any lawyer can plead out a case as well as any other lawyer. After all, doesn't every defendant end up in the same place anyway, regardless of who defends him?
No. Sadly, no, for no defendant should end up copping out to a term of imprisonment that's longer than it should be for lack of caring or competent representation. The touchstone for many lawyers is whether the defendant is satisfied with the plea. If the defendant will take it, the job is done, the fee is earned. Everybody goes home happy.
It wasn't until I was on the NYSACDL listserv that I gained a fuller appreciation of what was happening with others. There were the lawyers with whom I worked as co-counsel in multi-defendant cases, but even there it was obscured by the fact that someone invariably took the lead and others often rode their coattails, never actually doing much of anything to show their chops.
On the listserv, lawyers who were generally well regarded would ask questions, offer advice, crow about their successes or bemoan their failures. It was a revelation. Some revealed their cluelessness about the law. Some showed that they were pathetically lazy. Some were clueless, and often went on for a thousand words to prove it. And some were incisive, knowledgeable and prepared to do anything it took to make sure their clients were well served.
In my pond, there are a lot of lawyers. There's no way to have a case with every one of them, and get to know them as lawyers in the trenches. Many were friendly and funny hanging around the hallways or sitting in the front row waiting for the judge to take the bench. They seemed like good people. They seemed like good lawyers. Who knew?
Trying to explain the problem to potential clients who seek representation after their first shot didn't pan out as well as they hoped, I often use the analogy of the lawyer as gunslinger, a Paladin, who brandishes a six-shooter. I explain that their choice of going cheap cost me a few of my bullets, and they are leaving me with only a few chances to do my work. It's an imperfect analogy in many ways, but it usually gets the point across.
Once defense counsel goes off half-cocked to the prosecutor, the die is cast. Indeed, to the extent there was any doubt of the defendant's guilt before, the prosecutor is now certain that he's got the right person because the defense lawyer's act of desperation confirmed it. But you're not guilty? Try undoing that certainty in the prosecutor's head.
It can be done, sometimes. The rush of the cheap lawyer to cobble together a quick plea is how he makes his living. Do you wonder why the fee is so low? It's actually quite expensive, when you factor in that he only plans to make three appearances and a phone call before wishing you good luck. It takes a lot more time and effort to do it right, and even more when you add into the mix that your first job is to clean up the mess your cheap lawyer left behind.
It's exasperating for all of us, and no, the fact that you wasted your money on the first lawyer doesn't mean that you get a discount for the additional work. You chose poorly. It's not funny when you look back at it.