We often struggle to make a point which could be made simply, but for the fact that it would offend the very people you seek to persuade in the process. So it is with my views on new lawyers going solo. Whether phrased as “straight out of law school” or, more benignly, before they have the experience to adequately represent human beings, it’s a slap in the face to those who have done so, whether by choice or necessity.
It’s not meant as a slight, but you know how those pugnacious Slackoisie hard-working young lawyers can be. A very sensitive lot, they are.
After my post on the inevitable, succinctly noting my reluctant acceptance of the fact that newbie lawyers without any hope of employment will open up shop despite my sage advice to the contrary, Matt Little of the Chandler Littles posted that I was wrong. His proof? He went solo right out of law school. Oy.
What I want to get across is that going straight into solo practice can provide as much training and supervision as a more traditional career path. The drawbacks Adrian and I encountered, like more liability, more expenses, more risk, longer hours, and less-than-steady pay at the outset, were things that affected us personally. They weren’t to the detriment of our clients.
In fairness to Matt, he took his own licking in certain ways, but still misses the primary directive. But how can I explain this without offending, and I certainly don’t want to do that. Matt may very well be the exception who proves the rule, the newbie lawyer with such raw talent and insight that he serves his clients with extraordinary skill. Having never been to Chandler, I couldn’t say, and wouldn’t suggest otherwise.
But then South Carolina criminal defense lawyer Bobby Fredericks added his two cents into the mix, by noting that he agrees and disagrees with everybody on the subject. After noting Brian Tannebaum’s castigation of the new lawyer who sees a solo criminal defense practice as an “easy mark,” the “plead-em-and-weep” crowd, Bobby concludes:
My opinion is that if you are considering starting a solo criminal defense practice out of necessity, whether straight out of law school or not, because you can’t find a job doing something else – please don’t. When you accept a criminal defense case you are holding a person’s life in your hands, sometimes literally, and it is not something that anyone should be doing just to pay the bills or because there is no other job available at the moment. If you are considering starting a solo criminal defense practice because that is what you know you want to do, then go for it.
Thus, it’s a matter of “will” rather than “way”. That the lawyer who truly wants to do criminal defense will come to his work with a zeal that can’t be matched by the lawyer who chooses criminal defense because he can’t get a real job is obvious. But is it enough? Are good intentions a substitute for strong skills and experience?
Of course, experience is also a tricky commodity. As Jim Keech pointed out, there’s a big difference between 20 years experience and one year’s experience repeated twenty times. It’s not the simple fact of time elapsing, but the breadth of understanding gained from experience, failures as well as successes, and the jurisprudential knowledge that comes with it. Lawyers who want to be criminal defense lawyers, who desire to be great at what they do, will gain from experience. Lawyers in it for the buck may not.
After much thought, I’ve arrived at way of expressing the problem in a fashion that will better make my point without offending those youngsters who have taken the plunge.
Consider: Will you be a better, more effective criminal defense lawyer five years from now? Ten years? I have no doubt you will be, and I would bet the farm that you expect to be better then too. You will bring the desire you have today, couple it with the experience you gain tomorrow and the next day, add to it the maturity that life thrusts upon you, and be a far better lawyer than you are now.
No one is calling you a bad lawyer now, or suggesting that you are a menace to society per se. But if you reverse the paradigm, you can see that what you will offer a client once you’ve gotten that experience under your belt is what you are not giving your client yet. If you will better in five years, you are five years less than better today. What exactly that means to the client is hard to say, though I suspect when you look back, if you look back, you will see opportunity that slipped under your radar, or choices that would have been made differently had you known then what you know now. We all do, and we continue to do that as we continue to gain valuable experience.
Positive messages are taken far better than negative, but we’re trying to be adults here and sometimes the news isn’t always rosy. Just as that first “guilty” verdict is a sucker punch to the gut, this is a profession of harsh realities. We don’t get to pick our cases like civil lawyers do, cherry-picking the easy ones and letting the difficult ones walk. We take our defendants as they come, and they always come with problems or they wouldn’t come at all. Dealing with negatives is our way of life, and if you aren’t tough enough to accept that, criminal defense isn’t the right place for you. Every good criminal defense lawyer has to be able to take a punch.
Like Bobby, I don’t question your good intentions or your desire to do everything in your power for your client, provided that your entrance into the glorious world of solo criminal defense practice is for the right reasons. But I cannot discount the fact that there is more to holding people’s lives in your hand than good intentions. Neither can you.
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This post “speaks to my condition,” as the Quakers say, having just lost a heartbreaking verdict in a case that could have been won. A lot of things could have gone differently in the case, a lot of people could have made better and more ethical decisions, including the prosecutors, the judge, the jury, and co-counsel, but first and foremost I have to point the finger at myself and my mistakes. I didn’t know what I didn’t know, and I wish I had.
I then have to ask myself whether I should have taken this case in the first place. I was always upfront with the client about my level of experience. Perhaps we both had a false sense of confidence from the fact that I visited him in jail every other week, and I put a lot of time into the case. I also made a motion to dismiss by reason of collateral estoppel that his previous attorney hadn’t thought of, and I have very good reasons for thinking it will prevail on appeal. Experienced co-counsel was retained, but we were not coordinated at trial as we should have been. I knew the facts, while he knew the proper techniques to examine and cross-examine at trial and to counter frivolous and non-frivolous objections.
Co-counsel delivered a hell of a closing argument, and I really thought for a minute it was going to be enough to save the day, but it wasn’t.
I sincerely believe that I will be far better prepared in the ways I need to be prepared the next time around, and in any event I will strenuously avoid putting myself and future client in the position we were put in. But what wrenches my gut is that the client should not have paid the price for my education. I know all too well that good intentions are not enough, although I certainly had those good intentions. I continue to visit the client, and neither he nor his family harbor any hard feelings towards me, although I have owned up to all of them my mistakes. Over time, we’ve become friends.
Fortunately, the situation is salvageable. In our state the entire sentence the defendant was convicted of is suspendible. The judge somehow knows that the client previously turned down an offer from the prosecution of time-served, and our hope is that he will take this into account at sentencing. Co-counsel will handle sentencing. In any event, the client has strong grounds for appeal.
John,
I don’t know how much comfort this will bring, but you need to know that losing a trial never gets easier and never feels better. I don’t care how long the lawyer’s been practicing, we all search ourselves after a defeat, blame ourselves, question ourselves and challenge ourselves. Whether it’s your first trial or your 100th, it doesn’t change. Every loss is a killer, and every good lawyer believes that he could have won if only he had done better because we have to believe in ourselves to do this job.
I guess I ended up making a point I tried to avoid (it’s okay to do it because I did it) instead of the point I hoped to make (it’s as okay as any other route for a new lawyer to take because there are ways to do it that aren’t very different from traditional career paths). It seems to me that most of your arguments are just as applicable to all new criminal defense lawyers, whether sole practitioners, part of a firm, or public defenders. I have no doubt I’ll be a better lawyer in five years (I think every lawyer should feel that way), but that doesn’t mean I shouldn’t represent clients until then. Any career path that makes someone a good lawyer is going to involve lawyering. I felt like you didn’t have the same concerns about newbie public defenders or associates in established firms, though in many cases, there isn’t any difference between them and new solos. That’s the main point I wanted to get across.
And what does a new PD or associate have that a solo (or duet, as in your case) not have?
That goes appeals too, the pathology of the legal profession.
A W-2? Honestly, I’m not sure. They’ll have a supervisor, but in a lot of jurisdictions around here, that doesn’t mean much if anything in the way of hands-on help. Someone else to pay to defend the bar complaint or malpractice case?
I think the main difference is that they have less of a conflict between seeing a client as an opportunity to make money and/or learn and leveling with the client regarding your ability to handle his case.
They have someone who is directly responsible for their representation. While you may be right that it doesn’t mean much around there, though I suspect that it might mean more than you know, the fact that someone fails to adequately supervise doesn’t change the overall circumstances. Plus, of course, this advice isn’t limited to your town or county, nor can we devise a rule for every individual’s personal set of circumstances, whether real or perceived. Still, the fact is that there is someone who is there for them at all times.
So do as I am doing. I have taken on a newbie, and I am training him. I get paid nothing for the time he takes from me, and he gets nothing for the time he contributes – except experience.
[Ed. Note: Balance of rant deleted for the sake of brevity and focus.]
While I appreciate your somewhat tangential rant, this really isn’t the place for it. Please try to stick to the specifics of the post. If you feel the need to go further, that’s what your own blog would be for.
I read Matt’s post on what he did to prepare for starting his firm out of school. He went to PD trainings, spoke with criminal defense lawyers and judges, sat in court observing, spent time with an experienced attorney getting feedback on his cases and worked as a law clerk for a criminal law practitioner. With that type of preparation, he doesn’t seem like the type of lawyer who would just plead out a client or not seek out help if he were in over his head.
I can’t speak to criminal practice because, with the exception of my 40 or so court appointed cases (over a 3 year period, with most serious being a gun or drug possession), I don’t have any. (I will say that the PD training, court watching and seeking help of experienced lawyers made me feel prepared and enabled me to get good results). But with the economy as it is, getting a job at a DA or PD office may not be feasible – and there’ll still be demand for private lawyers to handle smaller, run of the mill cases. I’d rather seen them handled by a seemingly dedicated newbie who prepared as Brown did than by a jaded lawyer for whom those cases are a big snooze.
I agree that Matt’s efforts to prepare himself to represent individuals is highly commendable, but that isn’t the question. Nor, to my mind, is the point whether a new solo is better than the worst the profession has to offer (a position Bennett has taken as well). I suppose that it’s a positive to have eager but inexperienced lawyers available in place of experienced dead wood, but I similarly believe it matters where they fall along the competency spectrum.
Notwithstanding the good intentions and commendable efforts for the new lawyer to do his best, even the representation of individuals charged with lower level crimes deserve an effective representation. Their charges may not seem like the biggest deal in the world to us lawyers, but you can bet that they matter a great deal to the defendants and their families.
I’m quite certain that a lawyer like Matt would never knowingly do less than his best, but criminal defense isn’t like a real estate closing. When the action happens, it’s fast and furious, and the lawyer either knows how to deal with it or the client suffers. It’s the nature of the practice. No matter how hard you press your nose to the grindstone, there comes a moment of truth when you’ve either got the ability and experience to do the best for the client or you don’t. That moment may not come in every case, or every day, but when it does, the lawyer better be ready for it.