The Lawyer Lottery

There are better criminal defense lawyers and worse criminal defense lawyers. There are lawyers who care and lawyers who don’t. There are lawyers who have the time and lawyers who are too busy to be able to do what needs to be done. There are incompetent lawyers. Most don’t know, or won’t admit, they suck at law. Many will fight to their last breath to argue they don’t. If only they would put that level of energy into fighting for their clients.

You can’t discuss this problem without inviting outrage from whatever interest group gets poked. And to be fair, there are incompetent lawyers across the board, from retained counsel to indigent defense to public defenders. Sometimes it’s due to circumstances, lack of time or money, carrying too high a caseload or getting too little compensation to pay for the time and resources needed.

Other times, the lawyer just isn’t good enough at the job, whether because they don’t have the skills, the smarts, the focus on the client rather than their own feelings, problems, issues or needs or confusion as to their responsibility. They believe passionately in a cause and forget that the job is to defend the person standing next to them, not whatever god they pray to.

This isn’t a new problem. Indeed, there have always been better and worse lawyers. And there have been good lawyers who failed to do the job well enough, and bad lawyers who managed to pull it off. Sometimes, lawyers make up stories of how they win to sell their laundry detergent when they don’t win. A lot of lawyers pretend they’re the next coming of Clarence Darrow. They’re not.

Christina Swarns, the executive director of the Innocence Project, writes about the cost of losing the lawyer lottery and how the Antiterrorism and Effective Death Penalty Act of 1996, the AEDPA. can be used to foreclose review of ineffective assistance of counsel.

On Dec. 8, the Supreme Court will consider arguments from two men sentenced to death in Arizona. They argue that they should be allowed to present evidence in federal court that their trial lawyers badly mishandled their cases, landing them on death row.

It is undisputed that the two men may raise claims of ineffective counsel in federal court. A 2012 Supreme Court case, Martinez v. Ryan, established just that. But Arizona now argues that a federal law, the Antiterrorism and Effective Death Penalty Act of 1996, bars federal courts from considering evidence supporting those claims unless it was first presented in state court. How the justices rule — how they reconcile the A.E.D.P.A. and Martinez — will have important consequences for how far federal courts can go in remedying inadequate lawyering at the state level.

This is a big issue, and the AEDPA is one of the worst laws ever conceived and enacted to preclude review of wrongful convictions. Its purpose was to bring finality to criminal convictions. Its result was to make it impossible for the innocent, or at least defendants whose guilt was never sufficiently proven, to seek redress. But capital cases are, themselves, outliers. So too are state court cases that eventually find their way into federal court.

The Innocence Project does yeoman’s work trying to exonerate the innocent who are lucky enough to have an objective evidentiary argument that sufficiently favors their claim to catch its interest. It can’t take on every case, and most cases stand no chance of success. But the fact that some do, and by doing so, demonstrates that our legal system sometimes fails, and fails horribly, to get the right result.

Since 1989, almost 3,000 people have been wrongfully convicted of crimes in the United States. And since 1973, 186 people condemned to death have been exonerated. Bad lawyering — including poor preparation, inadequate investigation and intrinsic bias — was a leading cause. This sobering number, surely an undercount, should compel careful and thorough judicial scrutiny of the cases in which a lawyer clearly failed to properly represent a client, especially where there is substantial evidence of innocence.

Calling “bad lawyering” a leading cause isn’t wrong, but isn’t quite right either. The more direct causes, junk forensic science, false or perjured testimony, false or coerced confessions, mistaken identifications, concealment of Brady material, provide the hooks upon which wrongful convictions are hung. “Bad lawyering” is a problem that pervades all of these other problems and more. To be clear, even the best lawyering doesn’t mean you’ll win, but bad lawyering goes a long way to assuring a defendant goes down.

As Swarns argues, nobody should be put to death because they lost the lawyer lottery. I would take this farther. Nobody should be imprisoned for losing the lawyer lottery either. In fact, nobody should be convicted, even if they don’t end up incarcerated or worse, just for losing the lawyer lottery.

At this point in the post, most lawyers will agree. What comes next will bring the backlash of outrage and hurt feelings. Toughen up or get out.* There is a very serious concern among some more experienced lawyers that the next generation of criminal defense lawyers won’t be up to the task of providing their clients with a zealous defense.

They have myriad rationalizations about their empathy and concern, the depth of their passionate feelings, their suffering from anxiety and depression, that make them unable to fight when the going gets tough. They cry in the bathroom after the judge “abuses” them by wrongly denying their motion. They are “traumatized” by the state of the nation and the law. They can’t get over their loss yesterday to show up for the fight tomorrow. They may utter the right words about the defendant, but their focus is about themselves.

No matter how bad you feel, the defendant feels a lot worse. No matter how hard you have it, it’s nothing compared to how the defendant has it. If your feelings impair your ability to put the defendant first, to suffer the harsh reality of life in the trenches, then you have no business standing next to another human being whose life is your responsibility. It doesn’t make you a bad person, but it does make you the wrong person to be a criminal defense lawyer. Not everyone is cut out for this job.

And if this isn’t you, and you are bold, brave and brilliant, tough enough to do whatever it takes while sensitive enough to care passionately and feel your own pain, great for you. Then you’re not the person described here and have no reason to be defensive about it. But then, are you sure or are you lying to yourself?

*There was a time when this would have been entirely uncontroversial. Today, this is a declaration of war against the unduly passionate. But if you want to talk in terms of empathy, who cares more about the defendant, someone who obsesses about their own  needs and feelings or someone who recognizes that their foremost duty is to defend their client, even when you don’t feel like it?

28 thoughts on “The Lawyer Lottery

  1. JMK

    This is tangential to your story, but apparently Jussie Smollett’s attorney, after losing an exchange with the judge, left the courtroom in tears… with her mother.

    The next Clarence Darrow, indeed.

      1. B. McLeod

        Smollett really doesn’t stand in much peril of getting any time. If you were going to hire a complete, driveling idiot for the defense, this would be the case for it.

  2. AnonPD

    You’ve constructed a false dichotomy between skills and passion. This is why you can’t be taken seriously and come off as an angry old man.

    1. SHG Post author

      Is it a false dichotomy or is that what you want to believe so you don’t have to face that fact that you’re conflicted between your feelings and the client’s need for your full attention, your morality and the client’s need for you to do anything within the bounds of the law to win, your fragility and the client’s need for you take a punch and still keep fighting for him?

      Am I an angry old man or is that the characterization that allows you to dismiss my unpleasant advice?

    2. L. Phillips

      `It would really help the acceptance of short and nonsensical comments in this hotel if you hit the tip jar on the way in. Guaranteed. I promise.

  3. Kathryn M. Kase

    I know lawyers who are greatly offended when accused of IAC. Which loses sight of the fact that any lawyer can commit an error that greatly prejudices the client. And that’s why IAC exists as a legal vehicle.

    A capital defense lawyer in Oklahoma once told me that when we trial lawyers lose a death penalty case, post-conviction counsel comes after us with a pen, but the government comes after our client with a needle. On balance, we lawyers have nothing to complain about when other lawyers ask the courts to grade our papers.

    1. SHG Post author

      IAC is one problem, but basic incompetence is a very different problem. There will be no reversal on Strickland, but the needle will still do its damage.

  4. B. McLeod

    Forever and ever, there have been lawyers who suck. The problem begins with the schools that confer degrees on people who will never be capable. Once out of school, those who suck the worst are likely to have to hang their own shingles, having no further road to professional growth than CLE sessions (or lessons learned malpracticing clients). After the bar, there is only the disciplinary system (or starvation) to screen them out, and it normally takes decades of incompetence to draw the attention of disciplinary authorities. Add now the political angle where the “passionate” get a pass on competence, because reasons.

    Yes, the passionate newbies are going to suffer the indignity of becoming a mass cause of the injustices they decry. In many cases, over-extended executive clemency systems will be the only venues in which competent lawyers can even try to bat cleanup. It’s going to be ugly. But at least they can still get shit-faced at ABA meetings and belch platitudes about “equity” and “access to justice.”

    1. David

      Is it really law schools that should decide who’s capable of practice? Capable of learning and understanding, yes, but an academic appreciation of law =/= ability to practice effectively and I’m not sure I want academics deciding who should and shouldn’t practice law anymore than I want them adjudicating sexual assault allegations…

      1. SHG Post author

        Law school is the foundation upon which practice is built. If you can’t manage the foundation, you’re not going to develop into a competent practitioner.

        1. David

          Being able to lay a foundation doesn’t mean you know anything about building the rest of a house. Managing the foundational law school is necessary not sufficient – there are many capable of law school or any other academic pursuit not suited to become litigators generally (let alone defence lawyers specifically).

  5. PK

    The Clarence Darrow line hurt. So* what if I have dreams and aspirations that are just fantasies because they are beyond my reach? Then again, I try very hard not to pretend to be something I’m not, so maybe the message wasn’t for me just this once. My delusions of grandeur are total.

    Flipping the script, imposter syndrome is real and not enjoyable. That little voice that says I’m not good enough to even sit at a table to defend a deposition let alone defend someone accused of felonies in court won’t go away. When the doubt becomes obsession, nothing good comes of it.

    Maybe I internalized all the bullying by my parents, my siblings, and all the other kids I grew up with enough to accept being self-critical as a way of life, or maybe I am just pathetic, or maybe I’ve flipped the script again and turned it into a focus on relative growth instead of anything absolute. To do that, I’ve had to respect my elders better and try to learn from them as opposed to teasing them about their dentures and geritol and backwards seeming ways. It sucks sometimes.

    Please excuse me making this “personal” even if only in character, or not in character as the case may be. I didn’t know how much of a baby lawyer I was and am until I practiced a bit more. Starting out as a lawyer is tough and I sympathize with the new kids on the block. I know we need tough love sometimes, but we’re a sensitive bunch too. Please understand.

    I think I’m PK now therefore I am. This is very important.

    1. SHG Post author

      It takes an abundance of confidence to stand up before a jury and own a courtroom. It’s not for everyone, and that’s okay as long as lawyers for whom this isn’t right realize it. We all have our doubts, fears and pain, but once we stand up in front of that jury, they disappear and we do our job.

  6. B. McLeod

    Not just noob defenders it seems. I just saw the video of the prosecutor going on about how “angry” she is “as a mother” in her press piece about charging the parents of a kid who shot up his school and killed some classmates. Maybe someone will send her a Viking shield to chew on, to make sure she can remain suitably angry throughout the case.

  7. Robert

    In front of the jury…is not for everyone. But, when one has to do it do it damn well or quit! No shame in that. I will no longer stand in front of a jury because I know I can’t do what I used to do and can no longer lose so many nights and early mornings preparing, preparing, preparing. Doesn’t matter if you are a public defender, private counsel well paid, private counsel underpaid. You gotta do it or quit!

    1. SHG Post author

      It hurts when you hit the wall that says you’re not up to it anymore, but it’s always, and only, about the client.

  8. Robert Wunder

    Strangely, hitting the wall isn’t bad. Nothing like I thought. Would I never have imagined it. You will get there eventually.
    Very Truly Yours,

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