In the most recent Blawgreview #109, Enrico Shaefer makes it painfully clear that hourly billing is fraught with problems, primarily stemming from the sytemic “padding” of bills by lawyers.  I always thought that was the case, but I really can’t personally say.  I don’t do it.

Of course, in criminal defense law, the issue is a little different.  For one thing, we evaluate a case up front and require a substantial retainer.  Why?  Well, how can I explain this nicely.  First, sometimes our clients are criminals, and hence a tad short of trustworthy.  Second, our clients can be mercurial, and their desire to pay fluctuates with their impression of how the case is going.  Third, “stuff” happens, so even the best intended clients may find themselves about to go on trial and suddenly lacking in the wherewithal to carry the load.  For obvious reasons, this creates a rift between lawyer and client that cannot exist if the lawyer is to maximize the potential of winning.  The lawyer must focus on one goal, and one goal only.  If his focus is split between the client and his fee, there will be problems.

As for me, I have a somewhat different reason that pushes me far, far away from hourly billing.  I do not want someone who has no idea how much time and effort I put into a defense to start questioning why I spent 7 hours “thinking”.  That’s right.  I spend time thinking.  It is, without a doubt, the most important time I spend on a case.  It’s how I develop a fully conceived strategy.  It’s how I consider, and accept or reject, the plethora of options available to me and my client under the unique circumstances of the case. 

And I truly view every case as unique.  Some lawyers, perhaps even most, see cases as garden variety animals, to be disposed of in the usual fashion.  Call them yeomen, routine, whatever.  They are not necessarily wrong, because many cases share significant commonality.  But it’s not just the case (or even just the client) who matters.  If there’s nothing strikingly unusual about the big picture, then turn to the details.  No two cases are ever exactly alike.  You just need to figure out what makes them unique.  By the way, I’m not giving away any secrets here.  I’ve taught this in CLEs for years.  And yet lawyers still can’t be bothered to think outside the box.

And so my issue with hourly billing is just the opposite of Enrico’s.  I find myself putting in far more time than I charge for.  And I want to have the freedom to put in as much time as I need without anyone asking me whether I can devise a winning strategy in 2 hours instead of 5.  Can’t you research faster?  Can’t you do without revisions of the brief?  Sure, I could.  But I won’t.  It’s my reputation on the line in court, right next to your life.  I don’t plan to stand there and watch either one go down the drain because you want to cut back my hours. 

Ironically, the best lawyers are often a bargain because of this.  First, we are capable of doing our work faster and better in many instances, as our experience enables us to accomplish tasks without reinventing the wheel.  Second, our skills enable us to find answers to difficult questions faster and better than those whose simply don’t have the skill level necessary to ever find the right answer.  

Of course, providing the best possible chance of a positive outcome is itself worthwhile.  Consider, would you rather pay half the price for a lawyer who will give you little chance of prevailing, or twice the price for a lawyer who will give you the maximum chance of prevailing.  The former is flushing money down the toilet.  While the latter provides no guarantee, at least you’re paying for something of value.

This is a distinguishing aspect of the work performed by all good criminal defense lawyers.  No, we don’t charge hourly.  But we never shortchange the hours put into a case.  This is not because we love our clients so much (which no doubt will cause some clients enormous angst since they so desperately want to be loved), but because our internal motivation to do nothing short of the best possible work drives us to do whatever we must.  I wonder how many hourly billers can say that?

Probably not as much as your kids.  Check this out.  Harsh truth time…children today (and our jurors of tomorrow) will accept DNA as the solution to all problems.  What does this mean for lawyers?  That we need to pay closer attention to our children.

Yet again, Nicole Black at Sui Generis has unearthed a Court of Appeals decision of enormous consequence for the trial lawyer and appellate lawyer alike.  In People v. Person   (no jokes about the caption, this is serious stuff), the defense attorney sought to impeach the defendant’s accomplices by means of videotape interviews. 

After using transcripts of the interviews to show prior inconsistent statements, counsel sought to show the video to the jury.  The trial judge refused on the basis that the accomplices admitted on the stand that their statements were inconsistent.  Defendant convicted and appeals.

The Court of Appeals, in a curious decision that lacks any case citations whatsoever (thus raising the question of whether they just make this stuff up as they go along)*, held that the issue was unpreserved.

Before our Court, defendant asserts that preclusion of the videotaped statements was erroneous as a matter of law because Supreme Court failed to recognize that the jury could not reliably gage the credibility of the witnesses without viewing their demeanor and hearing their voices during the police interviews. At trial, however, the crux of defendant’s argument was that he should be able to use the videotapes, rather than the transcripts, to prove the content of the prior inconsistent statements. Defendant at that time failed to explain how the videotapes would have conveyed information beyond that provided by the verbatim transcripts of the statements.

A bit of a nuanced distinction?  Perhaps, but there is a far more sinister aspect to this decision then readily appears on the surface.  The practical implications of this decision for real trial lawyers is devastating.

As every trial lawyer knows, we are lucky to get out a sentence or two of our argument before being interrupted by the court or prosecutor,  and are then thrust into response mode as we are called frivolous and our point demeaned as meritless.  Rarely, if ever, will a trial judge give us the latitude to express a full argument, and indeed we are often not permitted to argue at all.

Bear in mind that when trying a case, we try it to win.  We don’t try it to appeal.  We know this.  So do appellate judges.  There is a tipping point where one can annoy the judge only so far before she is ready to rip out your throat and embarrass you before the jury.  And going into legal arguments while the jury is in the box always annoys the judge. 

Further, judges really hate when lawyers start putting arguments on the record that any half senscient judge already knows.  Judges find it insulting (and it is), and most assuredly don’t want to hear it and waste yet more time that could be better spent convicting defendants.   Does the Court of Appeals have so little respect for trial judges that it will hereinafter assume that an argument that would be obvious to a first year law student is not preserved at trial if left unspoken to the trial judge? 

Doubtful.  It’s far more likely that the Court of Appeals has come to recognize and appreciate the utility of preservation as means of disposing of unpleasant issues and hard cases.  Of course, in doing so, they elevate the desire to give trial judges the opportunity to rule in the first instance over the interest of due process and convicting the innocent.  This has been happening for a long time now (remember federal habeas timeliness?), and is a reflection of society’s frustration with perceived “technicalities” that let criminals off the hook.  Technicalities like the Constitution.  Hey, if it hasn’t helped stop the war on terrorism, why should it be any better in the war on crime?

So what is the trial lawyer to do?  The answer seems painfully apparent.  And I use the word “painful” intentionally.  Rather than attempt to blend the legal arguments and objections into the fabric of a trial, to avoid annoying the judge and jury with the delays that accompany lawyers doing their jobs, we will be constrained to argue every minute detail of our positions, including those nuances that are contrary to existing law but may potentially change over the course of the few years following an inchoate conviction.  And when our trial judge, who has been kind and considerate to us thus far during trial begins to show signs that her head is about to spin in a circle and explode, we explain:  We do not do this because we choose to make your life miserable.  We do this because the Court of Appeals demands it of us. 

* As noted by Eric Turkewitz in his comment to Nicole’s piece.

At Inside Opinions, the question is posed why small firms and solos are willing to join pre-paid legal services, which requires lawyers to take work at significantly reduced rates.  The comment to this post hits the nail on the head: Small Law has excess capacity.  They don’t have enough clients to fill the available hours and are happy to fill that open time with work.  Some money is better than no money, right?

The nature of work at small and solo firms is very different than BigLaw.  Even if the firms are specialized (boutiques), there is no guarantee that every day a new client is going to walk in the door.  But when they do, the firm has to be ready and capable of providing the best possible service. 

As my experience has spanned the small firm to solo experience, I can attest to the boom and bust cycle.  I have never sought a volume practice, and rejected the opportunity to take every case that walks in the door.  Many lawyers do.  In criminal defense, there are a bunch of firms that will never let a client walk away if they have money in their pocket.  Since my view of criminal defense requires that significant work be performed on every case, and I never enter a case with the assumption that it’s a quick plea and I’m out of there, I limit my representation to clients who seek to mount a real defense and want an attorney capable of doing so. 

But these types of clients don’t always know that the good lawyers exist.  They frequently have no clue where to turn when they need a criminal defense lawyer, and even more often have no idea how to determine whether the lawyer sitting in front of them, telling them “don’t worry, I’m gonna take care of it,” is competent or totally full of crap.  How could they know?  Good lawyers don’t like to puff themselves.  It’s demeaning.  And good lawyers don’t whore around to spread their name.  It’s demeaning.  So what’s a good lawyer to do?

There aren’t that many Martha Stewart cases out there to begin with, and when they happen, there is often a tendency to go for the most expensive (most obvious to the uninitiated) lawyers. Morvillo Abramowitz is the criminal defense firm that most white shoe law firms immediately think of when a client is in trouble.  This is the clean firm, made up of former assistant United States attorney and a smattering of assistant district attorneys.  This is the type of defense lawyer that a White and Case partner could love.  Not one of those yucky defense lawyers who represent real criminals.  Of course, those yucky defense lawyers try a lot of cases and know how to win, but that’s a post for some other day.  I don’t mean to disparage Morvillo Abramowitz at all; I do mean to suggest that the universe of potential defense lawyers in these cases tends to exclude many who are often far better choices for a successful defense.  And so some excellent lawyers have some extra time on their hands when Martha doesn’t call.

It’s a tough market out there for good lawyers.  With a limited number of good clients with good cases, and plenty of competition for the work, it’s impossible to buck the boom and bust cycle.  When it’s busy, it can be very, very busy.  But there is always going to be downtime.   It’s unavoidable.  So for many, the opportunity to fill that time with side work, whether it be assigned counsel (18b or CJA) or pre-paid legal services, helps to pay the rent and, more importantly, keeps you busy.  Idle hands, you know.  Not only is there nothing wrong with that, but it serves the public interest as well.  There’s nothing wrong with helping those in need who are unable to pay the full fare. 

A defendant was asked if he wanted a bench trial or a jury trial.

“Jury trial,” the defendant replied.

“Do you understand the difference?” asked the judge.

“Sure,” replied the defendant, “That’s where twelve ignorant people decide my fate instead of one.”

(Courtesy of Nicole Black, from her new blawg, Legal Antics)

Judicial Reports has embarked on a study of how many felony cases are tried by a judge rather than a jury.  With data obtained from the Office of Court Administration (a dubious source?), they were only able to obtain stats for 2005, as follows:

                             All Felony Verdicts      By Judge
Queens                  247                              17%
Bronx                     242                              14%
Manhattan             480                                9%
Brooklyn                322                                 8%
Staten Island           19                                5%

Total                     1310                              11%

So what’s the point of this data?  To a lawyer, it’s fascination is that there were only 1,310 felony cases tried to verdict in the 5 boroughs of New York City in a year.  Given how many lawyers tell me that they’re on trial at any given moment, this number is shockingly low.  But enough about lawyers and their trial proficiency claims.  Let’s return to the point.

The choice of  trial by judge or jury is not a numbers game, and so a compilation of data provides no clue as to why choices are made or what it means for the future of jury trials.  There are two primary reasons why defendants waive juries:  The trial judge has given the defense lawyer the wink.  The case is ugly, but the defense is highly technical.  There is an additional reason: A lawyer has oversold his trial skills or experience, and when the case didn’t plea as expected and the lawyer was caught in his deception, he chickened out and went judge trial.  Since this last reason reflects incompetence and deception, there’s really not much more to say about it.

So what are we talking about with the Judge giving the wink?  Is this some sort of corrupt practice?  Not at all.  This is the judicial equivalent of jury nullification, a time honored tradition.  This is where a judge can’t legally toss a case that he believes to be total garbage, or where the prosecutor won’t offer a plea that the judge believes is appropriate to the offense, and so he uses his lawful authority to do justice.  Not only is this not improper, but it is possibly the highest calling for a judge.

And why does the judge give lawyers the wink?  Because defense lawyers would otherwise need only 1 of 12 people to be convinced, rather than 1 of 1 judge.  The odds are simply better, which is why we have a jury system to begin with.  Mind you, the odds aren’t good, just better.

So if we look behind the numbers, the percentage of judge-tried felony verdicts seems quite appropriate.  There aren’t supposed to be that many cases that get the wink.  There aren’t that many really ugly cases with technical defenses.  And hopefully, there aren’t that many lawyers who mislead their clients as to their ability to try a case and end up getting caught.  As to the last rationale, these are the cases where the lawyer, full of bravado at the outset, desperately convinces his client to take a plea on the eve of trial despite his innocence or a good defense.  And that may be one of the reasons there are so few trials to begin with.

Anne Reed at Deliberations, busts another of our dearly held sacred cows, in her piece, The Overrated Prior Inconsistent Statement.   I love this part:

First you tie down the in-court statement until it looks like Gulliver tethered by Lilliputian ropes, with no chance of escape.  (“You’re sure?  You’re really sure?  No chance of mistake?”)  Then you spend some time on the gravity and certainty of the deposition.  (“You were under oath?  Just like today?  You had a chance to correct your answers?  And you didn’t?”)  Then you slap out the inconsistency and try to keep yourself from bellowing out something like “WERE YOU LYING THEN OR ARE YOU LYING NOW?”

See!  You aren’t the only one who has these fantasies.  But of course, then comes the objections and the judge sticking her nose in and all the fun is gone.  But Anne’s point is, does it really matter to the jury?  After all, lawyers may love these, and may want to believe that nailing a witness with a prior inconsistent statement is like bombs going off in the well.  You want to turn to the jury, smirk and say, “See, I told you they were a bunch of lying skels.” 

So you’ve managed to convince yourself that you’re brilliant.  (Don’t worry, your spouse will bring you back to earth when you get home from court.)  Read Anne’s piece and find out what the jury thinks of your coup. 

At New York Legal Update, there’s a discussion of Rivera v City of New York, where the Appellate Division, First Department tossed the malicious prosecution case that resulted first in a verdict of $81 Million, reduced by the trial judge to $635,000.  Now it’s gone.

So far, that’s life.  But the decision contains a curiosity:

Any rational person, objectively looking at the video and reviewing the other evidence, would find the police more than justified in their concern that this episode might escalate into violence.

So let’s play that out.  One jury and a judge found that the plaintiff’s should win, though they differed on the numbers.  Now the Appellate Division says any rational person would think otherwise.  So if no rational person could disagree with the conclusion of the appeals panel, what does that say about the good folks on the jury and the trial judge? 

The answer isn’t to send over the wagons from Bellevue.  The answer is another bout of hyperbole by the appellate court, overstating their position to make it more forceful and clear.  Unfortunately, it also makes it lacking in intellectual integrity by its failure to state its position in language that honestly reflects this de novo review of the facts. 

This trend of appellate courts writing in language that reinvents the facts in a way that suggests that everyone who would think otherwise is a blithering idiot or insane really doesn’t help to clarify much of anything or lend credence to the Court’s decisions.  It is, on the other hand, demeaning to a whole bunch of people who didn’t ask to be there and to one person who actually had to sit through the evidence. 

Due to the efforts of Barry Scheck’s Innocence Project, Byron Halsey walked out of jail yesterday on $55,000 bail after spending 22 years for the rape and murder of a 7 year old girl and the brutal killing of her 8 year old brother.  The details are set out in the Newsday story.  The crime was horrible.  The man imprisoned for it was innocent.  The murderer walked free. 

So DNA is the hero again.  Hooray.  While it is better that Halsey is out than in, what do we do about the 22 years?  Let me tell you, 22 years as a child rapist and murderer in prison has its own special style.  It could not possibly have been harder on Halsey.  So what do we do about it? 

Some will question whether society owes Halsey anything.  The system’s not perfect, they will say.  You can bet that they would think otherwise if it was one of theirs in prison, but that’s true about most things.  What about money?  How much money is worth to lose 22 years of your life?  Will money ease the loss?  Probably better to have it than not, but again that’s true of most things.

To add a remarkable note to this unfortunately unremarkable tale, the prosecutor sought the death penalty of Halsey.  Perhaps the 22 years in jail is beginning to sound a little better.  Or perhaps society dodged another bullet by not putting another innocent man to death.  Considering what an awful crime it was, keeping Halsey from the hangman must have been some feat.  Thankfully, a criminal defense lawyer did his job.  And thankfully, Barry Scheck, criminal defense lawyer and law school professor, continues to do his.   It’s a shame for all of us that either one had to save an innocent man.

A Sony Vaio notebook computer is a very cool looking piece of hardware.  It is also a very expensive paperweight.  Before you buy, consider the following.

My Vaio is about a month old, when suddenly it refused to recognize my wireless network.  I ran the diagnostics and it told me that my wireless device switch was turned off.  No biggie.  So I turned it on.  Zero.  Now’s the time to contact my dear friends at Sony.  They ought to love me.  I certainly paid them enough.

So I look for the support telephone number.  It’s nowhere to be found, because its only available online.  Well, what if the problem is that you can’t get online?  Oops, nobody at Sony thought of that.  Or perhaps they did?

I get the number off another computer (a Dell, I note) and call.  Twenty minutes plus on hold, then life interfered.  Try again, and a half hour on hold.  Finally, a very nice woman tried to help and we spend an hour and a half before she told me that she couldn’t fix the problem and I would have to go to the next level of support.  It’s now well past my bedtime, but I am nothing if not tenacious.  Too bad, she tells me.  They next level support has gone home for the day.  She gives me a direct telephone number to call the next morning.  “Sorry for the inconvenience, she tells me.”  And she really was.  Though I told her it wasn’t a matter of inconvenience. 

Next day, I call at the annointed hour.  Busy.  Again I call. Busy.  For the next half hour, busy.  Finally, I call back the regular number and get some kid who wants to read through the notes for 15 minutes before he finally agrees to put me through to second level support.  It rings…

A guy answers who sounds like he’s just finished injecting a day’s worth of heroin.  He reads through the notes slowly, making such astute comments as “so you’re computer doesn’t connect to the internet, right?”  Yeah. Right.

After asking the computer 101 questions, he tells me that they will send me a box and I should send in the notebook computer for repair.  Whoa.  How long will that take?  Just a few days to send a box, and a week to ten days to repair, and a few days to ship it back.  So I ask, didja think I spent all that money to buy a Vaio computer so I could be without it?  He suddenly perks up.  “There is nothing else we can do.”  Is there anything else I can help you with?”

Welcome to Sony.  And you even get to pay extra for the pleasure.  I’m sure there are others who have Sony Vaios without problems.  But if you do have a problem, consider my experience.

A call came in yesterday from an old client, referring me to the husband of her cousin’s best friend.  I’m told that he had been held for 5 months since arrest, “where they found nothing on him.” What was he charged with?  She dunno.  Did he have a lawyer?  “Yeah, one of those guys with a storefront next to the courthouse.”  So why is she calling me now?  She didn’t think it was serious, but now does.

Seriously, this was what I was told.  Five months in remand status and she suddenly decided it might be serious.  Five months after the arrest, and she has no clue what the charges are.  Obviously, a very close couple.

As it happens, New York provides some decent access to pending criminal cases in downstate counties, so I can look up this fellows charges.  Surprise, a 28 count indictment with a top count of criminal sale of a controlled substance in the first degree.  Not too shabby.  A businessman.  He’s in on $500,000 bail.  Ouch.

As for the appearance information, no motions and no decisions.  The lawyer had been paid what would be appropriate for a serious speeding ticket.  It occurred to me that the family had gotten what they paid for.  So, I was asked, would I take the case and what would I charge.  This is where the issue gets tough.

Of course I would take the case.  That’s what I do.  Even though I knew I would be walking into a fiasco, it wasn’t to be any better for the defendant if I refused to take the case.  Anyone can do the easy cases.  It’s the impossible ones that separate the men from the boys (forgive the sexist cliche).

But there was a problem.  My first order of business would be to undo the past five months.  Every step, from arraignment to trial, offers opportunity for the defense.  Our most potent weapons are discovery and motions, if done right and pursued properly.  These are the bullets in the defense lawyers’ gun, and in this case they were nothing more than blanks.  Would it be possible to reload and start out again with a fully loaded weapon?  That was yet to be seen.  But it would require my persuading a judge to allow me to go back to the beginning and do what should have been done in the first place.

I explained that it was crucial to the defense that the case be handled properly from start to finish.  There was simply no way I could jump in at the last minute, after opportunities had been squandered, and pull off some miracle.  Clients sometimes think that this is all some form of voodoo, or perhaps some secret handshake we give the judge that causes her to cut the defendant loose.  Never having experienced the nature of work done by a good lawyer, they truly have no clue that we actually work on our cases.  Even when you explain it to them, they give you a blank stare.  It’s frustrating.

It is remarkably common these days for defendants to take a “wait and see” attitude toward their defense.  They want to know if its “serious” before committing to a real defense (and the associated cost).  Maybe it will all go away.  Maybe they will be offered a plea to community service for their murder charge.  There are a lot of “maybes” involved, but the bottom line is that they want to exhaust all possibilities before they are willing to go for a serious defense.  This is, almost always, the kiss of death.

So now you’re probably saying, “Well, they made their bed and now they have to lay in it.”  While true, it’s a facile response.  People should not go to jail for many, many years because they are foolish or stupid.  If stupidity in the first degree was a crime, there would be no room left in our prisons.  Defendants like this have certainly been a source of their own misery, but that does not mean the consequence should be conviction.  Conviction is the consequence of a guilty verdict, not poor legal decisions.  At least that’s the way it’s supposed to be.

And so I offer an admonition:  Get it right the first time.  You may not get another chance.