At My Shingle, Carolyn Elefant raises the bane of every solo practitioner’s existence.
Criminal defense lawyers, with certain exceptions, do not bill by the hour. We suffer the waste of our time sitting in local courtrooms for hours on end, awaiting our 60 second in front of the judge. Unlike civil matters, our cases are adjourned from one date to another, with defendants required to appear, whether there is something to do on that date or not. It’s a matter of control, keeping cases and clients before the court on a routine basis to make sure that we’re all still around. This means that the lawyers return to court, along with the other 30 to 70 of our brethren on the calendar that date, to await our turn to smile and get a new date to return to court. Until the defendant’s name is called, we sit.
Over time, I’ve been able to significantly reduce the time lost to waiting by handling a substantially lower volume of cases. Other lawyers, particularly younger lawyers, don’t have that option. They are compelled to take on as many cases as possible to make ends meet. That means that they spend an enormous percentage of their day waiting in one courtroom after another for their cases to be called, time that could be spent working on their cases, investigating, writing, meeting, researching. Gone. Time lost can never be recaptured. It’s just gone.
Most judges never experienced this loss of time. Most criminal judges come from the ranks of prosecutors, who have a calendar assistant whose job it is to stay in one courtroom all day long and read from notes sent in by the assigned prosecutor. The assigned prosecutor gets to sit in his office, or do a hearing or trial, or hang out at Forlinis, but isn’t required to sit in courtroom after courtroom. Solo practitioners don’t have calendar assistants to cover their lost time. Former prosecutors who become judges lack any understanding or empathy for this situation.
But even former criminal defense lawyers, the few who assume the bench, forget what the loss of time meant to them. Rather, they just take the waste as a cost of doing business. They went through it when they worked for a living, and now they are happy to be able to impose it on others, in a “right of passage” sort of way. Former criminal defense lawyers who assume the bench are often meaner toward their own than former prosecutors, as they ought to know better.
If there is one attribute that a criminal defense lawyer must possess to survive the job, it’s the ability to sit and wait. It’s what we do most. If you can’t do it, then you can’t be a criminal defense lawyer. And it’s a terrible waste.
Before you say it, obviously Lincoln didn’t “observe” that a lawyer’s time and advice are his stock in trade two centuries ago. He was born in February, 1809, and I am confident these were not his very first utterances. Welcome to the detailed exactitude of the New York State Bar Association, a club where the discalcic flourish.The Report opens with a reminder that 55 percent of New York State Bar Association 74,000 members are solos and that their needs must be comprehensively addressed. And one of the major problems faced by solos is decidedly unglamorous: the time waste associated with waiting in court. From the report:It is Abraham Lincoln who is credited with having observed, two centuries ago, that a lawyer’s time and advice are his stock in trade. The message still resounds. The loss of significant periods of time spent waiting in courthouses is costly—for attorneys if they do not bill their clients out of sheer good conscience, or for their clients when their attorneys bill for those non-productive hours. Throughout the state, this waste is widely reported to be enormous—perhaps hundreds or thousands of hours daily adding up to thousands or perhaps tens of thousands of dollars or more. For attorneys, their clients and others, it is an imposition and a burden on their time and resources.
Criminal defense lawyers, with certain exceptions, do not bill by the hour. We suffer the waste of our time sitting in local courtrooms for hours on end, awaiting our 60 second in front of the judge. Unlike civil matters, our cases are adjourned from one date to another, with defendants required to appear, whether there is something to do on that date or not. It’s a matter of control, keeping cases and clients before the court on a routine basis to make sure that we’re all still around. This means that the lawyers return to court, along with the other 30 to 70 of our brethren on the calendar that date, to await our turn to smile and get a new date to return to court. Until the defendant’s name is called, we sit.
Over time, I’ve been able to significantly reduce the time lost to waiting by handling a substantially lower volume of cases. Other lawyers, particularly younger lawyers, don’t have that option. They are compelled to take on as many cases as possible to make ends meet. That means that they spend an enormous percentage of their day waiting in one courtroom after another for their cases to be called, time that could be spent working on their cases, investigating, writing, meeting, researching. Gone. Time lost can never be recaptured. It’s just gone.
Most judges never experienced this loss of time. Most criminal judges come from the ranks of prosecutors, who have a calendar assistant whose job it is to stay in one courtroom all day long and read from notes sent in by the assigned prosecutor. The assigned prosecutor gets to sit in his office, or do a hearing or trial, or hang out at Forlinis, but isn’t required to sit in courtroom after courtroom. Solo practitioners don’t have calendar assistants to cover their lost time. Former prosecutors who become judges lack any understanding or empathy for this situation.
But even former criminal defense lawyers, the few who assume the bench, forget what the loss of time meant to them. Rather, they just take the waste as a cost of doing business. They went through it when they worked for a living, and now they are happy to be able to impose it on others, in a “right of passage” sort of way. Former criminal defense lawyers who assume the bench are often meaner toward their own than former prosecutors, as they ought to know better.
If there is one attribute that a criminal defense lawyer must possess to survive the job, it’s the ability to sit and wait. It’s what we do most. If you can’t do it, then you can’t be a criminal defense lawyer. And it’s a terrible waste.
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Speak the good word, brother.
I typically bill on a contingent fee. I take no retainer.
Thus, I don’t even see a dime for my time wasted until months or (more likely) years later. Throw in the “time value of money” and you can see that “lodestar” rates for plaintiff’s attorneys at $1,000 and above are actually quite low.
In my first few years of practice, it drove me absolutely nuts to just sit in a courtroom waiting, waiting, waiting. When the judge would require the ADA to show up to explain his failure to do something like file a response to motions, and put the case over for a second call in the afternoon, meaning that I would then have to either sit there for the rest of the day or come back in the afternoon, all because the other side wasn’t there when required and had failed to do what the court required of him, it made me go ballistic. How could I lose an entire day because my adversary was irresponsible. He was wrong and I paid the price.
As I got older, I became more philosophical about it, using my down time to plan the demise of the prosecution’s case. And after I was done, I became very adept at finding new ways to count to 21.
Despite the NYSBA’s lackings, I find it amazing that someone would document this very real issue. During the short period when I did CJA work, I never minded waiting in court because it gave me a chance to watch the other lawyers. But it made my clients insane – and after showing up on time to wait 2 hours for the judge to take the bench, you can be sure that they never showed up on time again.
Are you kidding? Federal court is sweet compared to state court where everybody shows for the cattle call at the same time.
This is an issue across the country. I found out very quickly that I needed to always have other work to do while I waited. You will always wait. The advent of the laptop (you will now realize I am very old) made life simpler. I can now be a little more productive while waiting. If laptops are not allowed, and in some places they are not, I bring an ebook reader and when approached by the bailiff who informs me that one cannot read in the courtroom I show him it is case law or a word document that I am editing and they apologize and go away.
I always advise the client to appear on time as I do. One can never depend on the understanding of a Judge who thinks it is ok for them to keep others waiting but finds it absolutely infuriating when they have to wait.
Like Ms. Lakatos, I always take my laptop with me when waiting in court. So far I haven’t run into a bailiff or judge having a problem with it (knock on wood).
The other way I keep busy, since I’m a young lawyer and have the typical Gen Y attention span, is to watch trials or hearings going on, and seeing what other attorneys are doing. I also like to bounce ideas for my cases off of more experienced attorneys and see what they think. So far they’re not sick of my questions.
Has anyone had any luck playing their Nintendo DS or a PSP? With the sound turned off, of course. I think I could probably convince a bailiff that it’s a new model of Blackberry.
Now if you can just convince judges and courtrooms to allow the use of technology such as Skype or Gotomeeting. You could appear quickly when called for routine items and in person when needed.
Technology has advanced nearly every industry but our courtrooms appears to be stuck in the past.
I am not an attorney but feel greatly for anyone who spends a great part of their life unproductive.
I would say that patients in a doctors office experience the same issues and frustrations.
Good luck in improving the system.
There are other problems with technology, such as Skype and Gotomeeting, which impede their implementation. Simple scheduling would go a long way to improving the situation, but courts/judges generally can’t even manage to do that.