An email came across my desk from a lawyer I don’t know saying that he scored a big case and, after requesting discovery, received a truckload of wiretap applications, extensions and returns. He asked if anybody could give him a primer in wiretap motions. He knew when he took the case that there were wires involved, but hadn’t given it any thought until they landed on his desk. What should he do now, since he’s never had a wire case before.
Oh my God. Welcome to amateur hour at the Courthouse.
This is a recurring theme in criminal defense. Less experienced lawyers need to learn sometime about the more complex areas of criminal law, such as wiretaps, but not this way. The email told me a few things about this fellow. First, he lacked an experienced mentor to help him navigate through new areas and issues. Whether this was because of physical isolation or unlikability, I don’t know, but he had no one to turn to for help. Second, he didn’t hesitate to undertake a responsibility to zealously defend a client in a case that he was not yet capable of handling.
A distant third point is that he probably took a fee for the case that was a tenth of what it would have been for a lawyer experienced in lengthy wire cases, since he lacked any clue about what was involved and the excruciating amount of detail work involved in years worth of wires, applications, etc. The impact of this is seen a little down the road, when the inexperienced lawyer is not only unable to deal with the case in hand, but feels that unhappiness that comes with the epiphany that he is looking at a ton of work and has been grossly underpaid (in his mind). Of course, if he had understood the nature of the work involved, he would have charged significantly more but still wouldn’t be competent to do the work.
Every time this situation arises, I shake my head. It’s not the client’s fault for picking the wrong lawyer, though I suspect that some will disagree with my view. Clients seldom have a way to distinguish legal skill levels, and select a lawyer on either price or likability, but not competency. The fault lies on the other side of the equation, the lawyer. She knows what she knows, and what she doesn’t know. She has the ability to tell the client that a particular case is outside her scope of knowledge and experience. She can tell the client that she may not be the right lawyer for the case, or at the least that she’s never done a particular type of case before and she’ll be going to school on this one.
More experienced lawyers tend to demonstrate a greater willingness to let a case go if it’s not right for them. This is likely because of two things, their experience in taking on cases that, for whatever reason, don’t blend well with their practice and end up being unpleasant, unsuccessful or unproductive cases. If the experienced lawyer doesn’t like doing mountains of paperwork, they will pass on an appeal or a wire case, for example.
The experienced lawyer also has a greater selection of cases to chose from, so that he doesn’t need to take on every case that comes through his door. While the volume and quality of work today isn’t what it used to be for private lawyers, they still have enough to do to turn away cases that aren’t right. I see less experienced lawyers (and high volume lawyers) take every case, and I mean EVERY case, that comes in, regardless of anything. These are the ones who won’t let a client with a grand in his pocket walk out the door in a murder case. This is a train wreck waiting to happen.
And so, the email goes out asking for help. While some experienced lawyers will try to offer advice in the belief that by doing so they are helping a defendant who would otherwise crash and burn with this inexperienced lawyer, it doesn’t help. A lawyer can’t gain sufficient expertise by a 5 sentence email to render effective assistance of counsel. They are doing no one a favor, but facilitating incompetence. There is only one good answer to an email like this: Give your client his money back and send him to a lawyer capable of handling his case. Of course, that email would do no good either, because it’s just not going to happen.
So here comes the admonition. If you’re not yet ready for prime time, and you have no experienced lawyer ready, willing and able to partner up with you to guide you through the rocky shoals, then you can’t take the case. Don’t let your reach exceed your grasp.
Oh my God. Welcome to amateur hour at the Courthouse.
This is a recurring theme in criminal defense. Less experienced lawyers need to learn sometime about the more complex areas of criminal law, such as wiretaps, but not this way. The email told me a few things about this fellow. First, he lacked an experienced mentor to help him navigate through new areas and issues. Whether this was because of physical isolation or unlikability, I don’t know, but he had no one to turn to for help. Second, he didn’t hesitate to undertake a responsibility to zealously defend a client in a case that he was not yet capable of handling.
A distant third point is that he probably took a fee for the case that was a tenth of what it would have been for a lawyer experienced in lengthy wire cases, since he lacked any clue about what was involved and the excruciating amount of detail work involved in years worth of wires, applications, etc. The impact of this is seen a little down the road, when the inexperienced lawyer is not only unable to deal with the case in hand, but feels that unhappiness that comes with the epiphany that he is looking at a ton of work and has been grossly underpaid (in his mind). Of course, if he had understood the nature of the work involved, he would have charged significantly more but still wouldn’t be competent to do the work.
Every time this situation arises, I shake my head. It’s not the client’s fault for picking the wrong lawyer, though I suspect that some will disagree with my view. Clients seldom have a way to distinguish legal skill levels, and select a lawyer on either price or likability, but not competency. The fault lies on the other side of the equation, the lawyer. She knows what she knows, and what she doesn’t know. She has the ability to tell the client that a particular case is outside her scope of knowledge and experience. She can tell the client that she may not be the right lawyer for the case, or at the least that she’s never done a particular type of case before and she’ll be going to school on this one.
More experienced lawyers tend to demonstrate a greater willingness to let a case go if it’s not right for them. This is likely because of two things, their experience in taking on cases that, for whatever reason, don’t blend well with their practice and end up being unpleasant, unsuccessful or unproductive cases. If the experienced lawyer doesn’t like doing mountains of paperwork, they will pass on an appeal or a wire case, for example.
The experienced lawyer also has a greater selection of cases to chose from, so that he doesn’t need to take on every case that comes through his door. While the volume and quality of work today isn’t what it used to be for private lawyers, they still have enough to do to turn away cases that aren’t right. I see less experienced lawyers (and high volume lawyers) take every case, and I mean EVERY case, that comes in, regardless of anything. These are the ones who won’t let a client with a grand in his pocket walk out the door in a murder case. This is a train wreck waiting to happen.
And so, the email goes out asking for help. While some experienced lawyers will try to offer advice in the belief that by doing so they are helping a defendant who would otherwise crash and burn with this inexperienced lawyer, it doesn’t help. A lawyer can’t gain sufficient expertise by a 5 sentence email to render effective assistance of counsel. They are doing no one a favor, but facilitating incompetence. There is only one good answer to an email like this: Give your client his money back and send him to a lawyer capable of handling his case. Of course, that email would do no good either, because it’s just not going to happen.
So here comes the admonition. If you’re not yet ready for prime time, and you have no experienced lawyer ready, willing and able to partner up with you to guide you through the rocky shoals, then you can’t take the case. Don’t let your reach exceed your grasp.
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Hmm. This sounds like it could be one of those “unknown unknowns” problems.
Every case likely has some wrinkle you’ve never seen before. How do you know which of those wrinkles are actually giant mountains to be climbed? How would a lawyer who’s never done a wiretap case know that they’re a really big deal?
Tough job you’ve got.
That’s a good question, but not too difficult to answer. To non-lawyers, it all seems either too difficult or too easy to distinguish the hard and the easy. But lawyers, even the inexperienced, have some basic knowledge that allows them to distinguish one from the other. There are always new twists in a case if we’re doing our job right, but we can and do accomodate them in the ordinary course of our work and, through research, thought and experience, wind our way through the maze of novel issues.
But there are also large areas that are well known to exist, and are well known to require a certain level of experience and expertise. There are also more mundane areas where, the first time out of the box, a lawyer should be cautious about going it alone. This is one of the reasons why so many criminal defense lawyers gain an “expertise” in plea bargaining rather than trial lawyering.
If you were a surgical resident, would you undertake a solo brain surgery when the only thing you’ve ever done before was a hernia? Knowing your limits is part of what we expect from professionals. We can’t just give them a free pass under the “unknown unknowns” Rumsfeld theory. Defendants deserve better than that.
In fact, I think you have an ethical obligation to seek assistance from someone more experienced or refer your client to another attorney.