The Right Lawyer for the Job

This is a dirty little secret, so don’t tell anybody.  Lawyers are not fungible.  One isn’t the same as another.  No, this isn’t going to be an expose about incompetent or dishonest lawyers.  Rather, I’m talking about good lawyers all.  Just not good at everything.  Even within a discrete practice area like criminal defense.

Lawyers tend to be a little possessive about clients.  We want to keep them close, lest they find another lawyer with a brighter smile.  But the fact is that most lawyers, even great lawyers, are not great at everything.  It’s impossible to be on top of your game in every minute aspect of the law, and have the skillset to handle every facet of representation.  But when is the last time you heard a lawyer say, “Well, it’s not something I do well, so why not have Joe the Lawyer (less wealthy brother of Joe the Plumber) take care of that aspect of the case?”

A while back, I received an email from an upstate lawyer asking me if I wanted to handle a DWI case in New York City.  I said thanks but no thanks.  I haven’t done a DWI case in 20+ years, and consequently don’t stay on top of the law, the technology or the procedure.  I could probably figure it out well enough to provide passable representation, but the truth is that there are other lawyers who would do a far better job than me, and likely at a much lower cost because of their experience.

Even within my niche, there are things that I don’t do well.  I do not, for example, provide anything remotely resembling great representation when it comes to federal cooperation.  I know, there isn’t a whole lot to do when it comes to cooperation, but there’s a bone in my head that makes it exceptionally difficult for me to help the government put other people in prison.  So should a client wish to cooperate, I refer them to another lawyer more appropriate for the job.  It’s just not my thing.

Criminal defense lawyers like to think of themselves as trial lawyers.  Some are; most really aren’t.  Many haven’t tried a case in years.  Some have never tried a case.  And some are extremely proficient at taking a plea.  But they won’t tell you that.

Criminal defense lawyers pride themselves on their work inside the courtroom.  But to do this job properly, there’s a substantial portion of the job that requires research and writing of motions, memoranda and appeals.  The best trial lawyer in the world may not be a very good writer.  The most persuasive lawyer before a jury may not keep up with the law. 

As a delivery system of services to clients, the law has some issues.  It would be best if we could work to our strength rather than hold onto the client at all cost.  Share the client with other lawyers who are better or more experienced at a specific function.  But as law has become a business, and businesses need to generate revenues to survive, handing clients off to other lawyers is fiscal suicide. 

Even if lawyers could put ego aside, trust one another and work together, it would be prohibitively expensive for the client.  It’s like buying a car, one part at a time.  Whatever economies of scale one enjoys by having a single lawyer represent a client start to finish would be lost, and without this continuity, the practice would prove unduly burdensome and undesirable to lawyers who were given only a little piece of a case.  The time, trouble and cost for lawyers to relearn a case, agree on strategy and work in cooperation makes this a pipedream.

Sure, there could be a synergy if groups of lawyers with different strengths put themselves together and offer the best talents of each, but it doesn’t work that way.  First, the varying needs of a case make it impossible to either cover, or equate, the varying skillsets required, meaning that some lawyers would have too much relative work while others played Nintendo all day long.  

There are some criminal defense lawyers who specialize in discrete aspects of the work, such as appellate lawyers or DWI lawyers.  But for the most part, criminal defense lawyers take cases indiscriminately.  There’s nothing funnier than a state practitioner in a federal case, clueless about the significant differences in procedure.  Unless you happen to be the client, in which case it isn’t funny at all. 

Second, rarely do practitioners in criminal defense agree with one another about anything, no less how to approach a defense.  The attempt to divvy up work within a group like this will likely result in open warfare, with lawyer blood spilled across the floor.  Some might not have a problem with this, but it ends up with disjointed strategy, loose ends and conflicting approaches.

And then there’s the client, who doesn’t want anything to do with this.  In criminal defense, the relationship between lawyer and client is one of personal trust.  The client doesn’t want his trusted lawyer to farm out pieces of the case to other, unknown and untrusted, lawyers.  He wants you.  He knows you.  He doesn’t want to hear about anything else. 

Almost everyone remembers the first O.J. trial, with the Dream Team.  Ah, they all want the Dream Team, all the lawyers working together like a clock, with the top skills in their subniche.  Johnny Cochran and Bob Shapiro didn’t stay best friends, and Flea Bailey has seen better days, but O.J. walked.  If you can afford to pay for four lawyers under comparable circumstances, this might work.

But most defendants can’t and don’t.  And most lawyers really don’t want any part of it either.  The critical question is whether the lawyer has sufficient skills to handle the particular representation he’s undertaken, or whether he’s taken on a case that he’s not competent to handle. And the defendant is rarely in a position to know.  Does the criminal defense lawyer have the guts to turn down a case, refer it to a lawyer better suited to handle it, and lose a fee?

And if you think it’s a problem within the criminal defense bar, think about what happens when your friendly, neighborhood real estate lawyer tells you, “Oh sure, I can handle a criminal case.”  Don’t mistake the small town lawyer who is forced to do everything as lacking the ability to try a case.  Some of these small town guys are brilliant trial lawyers, and it’s just a matter of not having a sufficient calling for their skillset to specialize, plus a desire to feed their kids every day.  But that’s a different story.

Now remember, this is just between us, so don’t tell anybody.

7 thoughts on “The Right Lawyer for the Job

  1. Windypundit

    I’ve wondered about that. Doctors, for example, don’t hesitate to refer you to a specialist. Of course, they’re more open to a malpractice suit if they screw up, and more doctors equals more payments.

    Civil trial lawyers also bring in other lawyers all the time—labor law specialists, intellectual property experts, etc. They all get paid by the hour.

    I think I’m detecting a pattern here…

  2. Charles H Green

    I think people, including professionals, vastly underestimate the role of trust in selecting a lawyer (or other professional, for that matter).

    Trust is a complex blend of personal interactions, risk mitigation, and psychology. Jeffrey Gitomer says, “People buy with their hearts, and rationalize it with their brains.”

    Interestingly, the people least likely to believe that clients select lawyers on emotional aspects like trust are–lawyers.

    Thanks for a good post.

  3. Mark Bennett

    “It would be best if we could work to our strength rather than hold onto the client at all cost. Share the client with other lawyers who are better or more experienced at a specific function.”

    A rationale for BigLaw?

  4. SHG

    If it worked that way, it would be. But it doesn’t, despite people having the impression that when they hire Biglaw, they hire a team of attorneys to work together, each contributing his skills to the whole.  Instead, they get a grunt do the work that they thought they retained a lawyer to do.

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