Feb. 10, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Fault Lines contributor and criminal defense lawyer, Josh Kendrick, of Kendrick & Leonard, in Columbia, South Carolina.
Q. In some of the earlier Crosses, a theme of lawyers who studied hard science, particularly physics, began to develop. But you studied marketing at Clemson. Did that have anything to do with your deciding to become a lawyer? Did marketing have an impact on your ability to study law? Do you find it makes you a more persuasive lawyer? Does your marketing background help you to “sell” your legal services at a time when so many other young lawyers are struggling to survive? And given that you have the marketing background, what about all the “marketing” advice being given to lawyers. Good or bad? Helpful or harmful?
A. Studying marketing didn’t help me study law. It might have gotten rid of some pressure, because I could have gotten a real job if I flunked out of law school.
The only real advantage it gives me in practice is from all of the business classes I took. I understand enough of the basic business concepts that I can figure out how to run our firm like a real business, which is something a lot of lawyers neglect. Avoiding being broke is a big part of small firm practice.
I am not anti-marketing, but the marketing of a law firm is very different than any other business. The advice being given to lawyers on marketing is bad and it’s harmful. That’s because it misses a fundamental part of marketing. Marketing involves selling a product to a customer.
That’s a simple concept with Coca-Cola or Nike shoes. Most consumer products don’t change. They aren’t all that necessary to your life. And at the end of the day, the difference between brands really doesn’t matter much.
Lawyering is nothing like that. Every situation is different. Each case, even if it looks identical, will have differences that affect the way it needs to be handled. The way a case is handled is the product being sold by a lawyer. And it is constantly changing. It has to change. There is no formula to representing real people with real problems. A good lawyer has to be able to adapt legal representation to each unique client and their unique problems.
Marketers miss that completely. They think lead generators or expensive websites are going to rocket a lawyer from the bottom to the top. And lawyers seem to fall for it repeatedly. They put no thought into the product or the customer. They assume it’s all the same and can be sold the way new cars are sold.
Real marketing involves getting the right product to a customer in a way that benefits both parties. People think marketing is getting your name to the most people and having the widest exposure. That’s only half of it. If the product sucks, the marketing is a waste.
Q. Your first job out of University of South Carolina was as an associate to Debra Chapman in Columbia, South Carolina. Why not prosecution or indigent defense, as for so many other lawyers interested in practicing criminal law? Was it your plan to do criminal law? Were you dedicated to being a defense lawyer, or did you just fall into it?
A. During my first year of law school, I realized I hated it. I wanted to drop out. Apparently, they don’t give you refunds based on “this sucks,” so I stuck it out. I started working for a guardian program, going to court with abused children and speaking on their behalf. That sent me to the courthouse.
I immediately knew court was where I wanted to be. It was interesting. It involved people. Unlike law school, the law wasn’t some abstract theory at the courthouse. It was a real thing with real effects on people in trouble. The whole idea of practicing law made sense in the courthouse.
I got a job for the summer after my first year of law school as a law clerk with the solicitor, which is what we call state prosecutors in South Carolina. I liked it, but I am too anti-authority to be a prosecutor.
Debbie Chapman offered me a job at the end of the summer as a law clerk at her defense firm. I loved it. Criminal defense was dirty and exciting and frustrating, but it involved real people with real problems. Watching how those problems got solved hooked me. I knew that was the only thing I wanted to do.
I might be richer if I had picked a different area of law. But my happy hour stories are always better.
Q. Chapman’s practice sounds like it’s pretty high volume, which means that your time was spent running around to cover cases rather than being able to give any particular case a great deal of focus. What did you take away from that experience? Did you have the time you needed or did you find yourself stretched too thin? Did you get to try cases? Were you mentored through your early years or thrown into the deep end and told to swim? Looking back now, with your decade of experience since your first job, do you see things you would have done differently, better?
A. Covering a bunch of cases and focusing on one case aren’t mutually exclusive. It just takes a lot of work. Criminal defense lawyers don’t clock out at 5. I worked late and long hours. I was never stretched too thin, I just worked more. That was the most valuable lesson I took away from that job; you are limited by how hard you are willing to work. Our firm doesn’t have a lot of limits. We have fewer cases now, but there are still times we work early in the morning, late at night, and every hour in between.
I tried a bunch of cases. At the time, I thought I had been thrown into the deep end, but I now realize I was being mentored. Debbie let me do a lot of things on my own, but looking back, she was always keeping a closer eye on me than I thought. I received a first-rate education from her on dealing with everything from clients to judges.
Debbie mentored me by recognizing what I could do on my own without letting me screw up anybody’s life.
But two years out of law school, standing in front of the Fourth Circuit Court of Appeals for oral argument in a search and seizure case, it definitely felt like the deep end. I wouldn’t change a second of it, though.
Q. After three years, you went solo. Why? Was it your choice to go solo, or was it something that happened to you? How did clients find you? What did you do to survive at first, to establish your practice? What kind of cases came to you, and how did you keep clients coming back? Much is made about the things a new solo practitioner “has to do” if he’s to survive. What did you have to do?
I think Debbie and I just decided it was time for me to strike out on my own. She didn’t want a partner and I was ready to be more than an associate. But it was friendly, because she referred me my very first case.
I had handled a lot of cases for Debbie and a lot of people knew me. They referred me cases when I went out on my own. I took a lot of court-appointed cases and those clients ended up referring me more business.
The most important thing I did was find office space with older lawyers that knew what they were doing. Theresa Johns, a solo practitioner in town, rented me an office. So I was on my own, but she had years of experience and was always willing to share with me. She gave me cases, helped me figure out what to do on my cases, and continued mentoring me. Theresa helped me with everything from understanding how to try a murder case to understanding how to budget my office expenses.
There is no secret to surviving. You have to work very hard. I took cases for very little money. I swallowed my pride. Most importantly, I learned from lawyers who knew what they were doing. You have to find mentors. That’s the key to survival. It’s too dangerous to figure out the practice of law on your own.
Q. One of the best, and worst, experiences in a criminal defense lawyer’s career is his first jury trial. What was yours? Was it the usual experience of fear and trepidation? What went through your head as you stood up for jury selection, for your opening, for your first cross-examination? Going in, did you think you were ready? Were you? When you look back now, what would you have done differently?
A. The first time I tried a major case, I sat at the defense table and prayed the judge’s clerk would come out and tell us the judge was sick and trial wasn’t starting. I was as nervous as I have ever been. I get the same feeling before every trial, and I have done countless trials. But when that feeling goes away, I think it will be time to stop trying cases.
My first trial was a nightmare. The guy was accused of repeatedly raping his little daughter. He confessed to it and still insisted on a trial. One of the most experienced prosecutors in the state was on the other side. Debbie gave me first chair and told me to figure out a defense.
As soon as I stood up to give the opening argument, I lost the fear. I loved talking to the jury. By the time I was cross-examining witnesses, I wasn’t scared anymore. I loved every second of being in a trial. No happy ending for the client, though. We got our asses kicked all over the courtroom. He got a lot of jail time.
I don’t remember if I thought I was ready going in or not. But I know I wasn’t. That is the most valuable lesson I learned. No matter how much you prepare or how hard you work, things will happen in a trial you can’t predict. Being able to deal with those surprises is what makes a good trial lawyer.
Q. Three years ago, you went from solo to a two-person firm, with your partner, Christopher Leonard. Partnerships are like marriages, minus some of the benefits. What made you decide to partner up? How is it working for you? Much as partnerships offer synergies, someone to help out when you’re busy on trial and somebody to talk to, there are also times when conflicts arise. Were there any downsides to going from solo to partner? Have there been any days when you think to yourself, life was easier when it was just you running the show? Or has it been better to know that there is someone there for you?
A. Chris was my law clerk for a few years when he was a law student before he came to work with me as a lawyer. We have a very, very different partnership than most lawyers. In the years we have worked together, we have never spoken a cross word to each other and haven’t had any conflicts. That sounds hard to believe, but we just don’t disagree on much. And when we do, it’s never an argument.
There aren’t any downsides to our partnership or any days I wish I was on my own. That is a product of the thought we put into the partnership. A lot of partnerships between lawyers fail for a variety of reasons, but all of those reasons stem from failing to think about what you are doing. You have to find someone you can work with through stunning defeats and famous victories, as well as everything in between.
Chris and I have been dead broke, lost big cases, gotten sued, and gotten bar complaints. But we have also won acquittals, settled big cases, and had a blast practicing law. We love our law practice and all the highs and lows that come with it.
I get along with Chris. People underestimate that. If you are going to spend your whole working life with someone, you should probably like them. We have similar work ethics and similar views on the practice of law. I am a better lawyer because of the partnership and I assume Chris is too. At the end of the day, that is best for the clients, because nearly every case gets looked at by both of us at some point.
Q. You haven’t strayed very far from your South Carolina roots, and from what we hear up north, it’s a pretty tough place to do criminal defense. Have you found that to be the case? Are the cops tougher, less “benevolent” toward criminal defendants, than elsewhere? What about the local judges, particularly the non-lawyer judges?
A. I guess I don’t really know, since I have never practiced anywhere else. But it sure seems like this place is tougher than most. It’s not the cops, though. It’s the jurors. They are the ones that are tougher on criminal defendants. I don’t ever feel like “beyond a reasonable doubt” is getting through to jurors.
Non-lawyer judges are interesting. They can be very tough on criminal defendants. One time I had one deny my request for a jury trial. I faxed him a copy of the constitution and he made me come down to the middle of nowhere the night before Thanksgiving. I don’t think the meeting went the way he expected. I got my jury trial. And later worked out the case, because I think he figured I was too much trouble to mess with.
A lot of them are fine. They learn the law and try very hard to be fair. But you can find yourself in a lot of awkward positions. Nobody wants to fight the judge, but you can’t let clients get screwed because you want life to be easy.
It’s probably harder to practice law here, especially compared to big cities. But this is where I live, so I don’t whine about it too much. I would love to try cases in other places eventually.
Q. Unlike most criminal defense lawyers, you’ve made the transition from a local criminal defense practice to a federal practice as well. As you no doubt know, they are very different animals, from the language of the courtroom to the clean marble floors. How did that happen? Did you have any help making the transition, or were you on your own? If state practice is hard, federal practice can be overwhelming, given that the feds typically bring cases with overwhelming evidence and inordinately favorable law. Did you find it difficult, frustrating to fight the feds? Are you happy to get a federal case, or does it fill you with dread to know what you’re facing?
A. I love federal court. I am thrilled to get a new federal case, whether it’s a CJA appointment or I get retained. But yes, it can be frustrating to fight the feds. A lawyer I was trying a federal case with once described it like playing baseball, except you don’t get a bat.
When I started working with Debbie, she had a big federal practice. I was always involved in federal cases. I was doing federal appeals right out of law school. I knew the guidelines and understood the law early on. I saw how hard it was but I love a challenge.
Federal cases are a challenge. The stakes are high and usually the prosecutors and judges are very smart. The statutes and case law are complicated. Jurors get wowed by all those marble floors. The agents spend years amassing a crushing amount of evidence against clients. Everything is stacked against you. It’s high-level law. But that’s why I love it. If you aren’t trying to practice at the highest level, I don’t know what gets you out of bed in the morning.
Q. You also do some work outside of criminal defense, as do many solo and small firm lawyers. What’s your preference? Do you enjoy doing, say, a personal injury case or is it just business? Some criminal defense lawyers consider non-criminal matters “easy,” because they’re up against lawyers without nearly the trial experience they have, and the outcomes don’t involve anyone spending the rest of their lives in prison. And some find it’s a good break from the life-or-death nature of criminal work. What’s your sense of doing civil litigation? What about the paperwork, which is usually far more extensive than in criminal defense? Is there a difference in the kind of lawyer who does civil work as opposed to criminal? Which do you prefer?
A. Criminal defense is my favorite, but I love a good personal injury case. I started out doing civil cases thinking it was not as stressful as criminal work because no one was going to jail. But that thought was quickly discarded. Civil clients can have their entire life ruined by medical bills, loss of jobs, and permanent injuries. The stakes are different, but often just as life-changing for a client.
The paperwork sucks. And there aren’t a lot of surprises. By the time you get to the end of a civil case, you have deposed everybody and papered each other to death. Trials aren’t all that exciting, because everybody usually knows what everybody else is going to say.
There are plenty of nice civil lawyers that are easy to work with. But there are a lot more jackasses than there are in criminal practice. I don’t know why. It’s completely counterproductive to go out of your way to be a jerk. It also makes you look like a fool.
Lawyering has to be one of the only jobs where we reward a person for being a bully. But I will always look down on some asshole who can’t act like a human being. Being primarily a criminal defense lawyer helps, though. It’s hard to intimidate a lawyer who has gone against prosecutors that could eat most civil lawyers for lunch.
But there is no doubt I run into the rudest, most obnoxious lawyers in civil practice. I think criminal lawyers tend to be more confident in their abilities, which makes us more comfortable in our skin. People who scream and yell and won’t be civil know that at any minute they could get exposed as a phony.
Q. You decided to take your life in your hands by writing for Fault Lines. Why? Were you always a writer hidden in a lawyer’s body? Did there come a time when your experience in the trenches compelled you to need to get out and call bullshit at what you were seeing around you? What made you decide to take the chance and put your thoughts out there? How has it worked out for you? Are you finding that you can make a difference? How have your fellow lawyers, judges, clients viewed your writing? It’s a lot of work. Is it worth it to Josh Kendrick?
A. Two reasons, one selfless and one selfish.
A civil lawyer once told me I must really enjoy doing criminal trials, because the system is so slanted in favor of defendants. From the second a cop looks at a guy suspiciously all the way up to the United States Supreme Court, there is not a single bit of the criminal justice system “slanted in favor of the defendant.” What a profound misunderstanding of criminal law. There is nothing more unfairly balanced than the might of the government aligned against the common man.
Fault Lines is getting out the message that our criminal justice system is not fair. Police, prosecutors, crappy defense lawyers, judges who don’t care. It’s all there. It’s an important message. People need to understand how important the criminal justice system is. They need to understand the danger of never questioning the government.
On a more selfish note, I think I am a good writer. But I don’t know. You don’t pull punches, so this is a great way to figure it out. When you tell me something sucks, I don’t get my feelings hurt, I get to work. Over the last few months, I can see my writing getting better and my communication getting clearer. That’s how I make a living, so this is a good thing.
It’s been well worth it. I pay more attention to the news. I pay more attention to what is going on with legal issues. I think more deeply about what I see. I feel like I am using my brain more and that’s always a good thing.
People tell me they like the writing. It makes people think and that’s the goal. The Fault Lines stories relate to regular people, and that’s the trick. At the end of the day, people have to realize the criminal justice system is much closer to their lives then they realize.
