Category Archives: Defendants

Parting Words

Skelly writes about a funny parting talk between lawyer and client that never happened.  As soon as I read it, I knew I wanted to write about it too, only to find that Bennett, the Texas Night Owl, has already done so.  But then I thought, so what?

When, after saving your client many months of freedom, your client’s parent tells you, “I don’t think you did a very good job representing my son,” you do not get to reply, “I don’t think you did a very good job raising him.”

Very funny retort, but the humor masks a truth.  Two truths, in fact.  First, the expectations of a criminal defense lawyer.  Second, the denial of personal responsibility for what happened. 

People don’t retain criminal defense lawyers because life is going swell.  They come to us after the shit has hit the fan, and they need the services we provide.  Despite my skill at stating the obvious, clients often don’t see it this way.  Almost immediately, they demand that we explain and justify the system that brought them to us, as if we were personally responsible for their current problem.

Some lawyers try to soothe the client at this moment, speaking kind words in soft tones.  It’s a way to calm their frayed nerves while deflecting their misdirected anger away from the lawyer.  Others will sit them down and have a frank discussion of how they came to find themselves in a lawyer’s office.  They will detail what they did wrong and how it was their conduct, not the lawyer’s, that brought them to this point. 

This talk isn’t what the clients want to hear.  Some already know it, but would rather deny it.  Others have spent their entire lives in denial, seeing consequences as a product of bad luck or external failures.  Most fall into the latter category. 

The exception, of course, is the professional criminal.  He is a businessperson, whose business happens to be against the law.  He knows it and understands that there are risks involved.  He sees the law and the lawyer as a cost of doing business, and has made a conscious decision that the benefits outweigh the risks.  He has no immature vision of what the system offers him or what a lawyer can do for him.  He wants the best result he can get, but realizes that there are no guarantees of outcome. 

Getting back to Skelly, who deals in the painful underbelly of criminal law, the juvenile “justice” system, his “thoughtful” response to the parent’s unappreciative comment was left unsaid.  In the comments to his post, Skelly explains further that his right to speak stopped “just before my client’s dad’s fist comes flying toward my nose.”  That’s a pretty clear image, and certainly changes the calculus.  No, a little dose of truth isn’t worth a good punch in the nose.

While I don’t specialize in juvenile delinquency, I’ve done my share of representing kids, some of whom were well down the road to a life of crime and misery.   As anyone who reads this blawg regularly knows, I have a serious soft spot when it comes to children.  I do not accept the “kids are just small, evil adults” theory.  As a person, and as a society, we cannot give up on children that easily.

Many years ago, I had a mother and son come into my office.  The kid was breaking into cars to see that he could steal.  The mother, kind and distraught, worked to survive as a single parent, and lost control of her son to the streets.  She knew it, but didn’t know what to do about it.  When the mother looked at me, it was not just about helping her son out of his current mess, but about helping her son to survive.  She knew that he needed someone to teach him how to fish.

I sat the kid down and started to tell him that he was a lousy thief.  He just wasn’t good enough.  He was a failure as a thief, as a criminal, and he would never amount to a big man on the street.  I was gaining momentum, my voice getting louder.  I reamed him good.  He became a model client, though it by no means meant that I got through to him.  They tend to listen for a while, then lapse back into their world once I become a distant memory, if they think of me at all. Later, I beat his case.  Mom was very appreciative, but that was only a small battle in a bigger war.  She sent me a thank you note, but I never heard from her again after that.

Cut to a few years ago.  I step into the elevator in my building and a young black man gets in with me.  The guy is staring at me.  Intensely.  He asks, “Are you Greenfield?”  “Uh oh,” I think to myself.  Here I am alone in an elevator with this guy, and I have no idea who he is or how he knows me.  Every client isn’t satisfied, and some witnesses for the prosecution really, really hate me.  “Yes, I’m Greenfield,” I respond.  So much for glib replies.

He was the kid.  The little kid who was a lousy thief.  He told me that my “lecture” made him realize that he couldn’t go on being a thief and had to become something.  He finished school and had gotten himself a job.  Not a great job, but an honest job. He didn’t have a gold and diamond necklace or drive a BMW like the drug dealers, but he was happy and proud of himself.  He never got into trouble again.  He put out his hand in that elevator, and thanked me.

I guess the whole story could have ended with a punch in the nose as easily as a handshake.  But it was not only one of those moments that make you feel that you haven’t wasted your life, but one that made you feel that it was worth the risk of a punch in the nose.

Beating the Lawyer, Part 2


Last week, following Mark Bennett’s lead, I wrote about the emergency phone calls from potential clients, who then go off to the low-rent lawyers after having survived their emergency on the cuff. That’s how some folks try to beat the lawyer on the front end.  Today, we talk about the back end efforts.

To preface this post, this is not about Gideon (the case, not the guy from A Public Defender), or pro or low bono, which is a function of attorney choice, not the unilateral fiat of the client.   The private criminal defense bar is comprised of lawyers who earn a living by representing people accused of crimes.  We don’t get a paycheck from the state or federal government.  We work for a living.

The nature of what we do presents some challenges to the typical lawyer business plan.  Criminal defense lawyers tend to set a substantial retainer up front.  If we’re not paid up front, we end up not being paid.  Clients love to ask, “don’t you trust me?”  Well, no.  It’s not a matter of trust, it’s a matter of business.  While there may be clients for whom we have worked so many times that fees are no longer an issue, experience is overwhelmingly clear that absent the initial retainer, getting paid is a problem.  Clients may deliberately chose not to pay, but more often they make overly optimistic promises that they simply can’t fulfill. 

Things happen.  The money gets spent, or seized, or simply disappears.  They come into the office, with their heads hung low, sheepishly explaining how they just don’t have the money to pay and asking for more time or greater indulgence.  When pushed, they lapse into the “you only care about money” speech, as if they sell heroin to children because they’re great humanitarians.

But the real problems happens later.  Most legitimate lawyers try to charge only for the services they believe to be necessary, and cut the client a break as to unforeseen problems or subsequent proceedings.  Most significant is the trial fee.  Since most cases do not go to trial, and trial is a very involved and time-consuming proposition, we do not include trial in the initial calculus.  We will explain up front what the trial will cost, or how the fee is set, but we don’t demand or expect payment for trial at the start of a case.  There’s the rub.

When it becomes clear that a case is going to be tried, then the trial fee kicks in.  That’s when the client and lawyer can run into a serious rift in the relationship.  The client has already paid a significant amount of money, and wants a return on his investment in you.  At the same time, the lawyer has made a commitment to the client and the court to see the case through to its conclusion.  But the lawyer’s fee remains outstanding, and as noted above, we work for a living.

As we prepare for trial, this is the time when the relationship between lawyer and client needs to be at its strongest.  But when there is a fee unpaid, and a client who doesn’t want to hear from the lawyer because he or she knows that there’s money due and he either can’t or won’t pay it, the lawyer cannot do his job properly.  We need cooperation to prepare properly. 

On the flip side, lawyers are disinclined to put in the time on behalf of a client who is in the process of beating them out of their fee.  Once again, it’s not that the lawyer doesn’t want to win.  It’s that the lawyer works for a living.  Where would you spend you time?  With the guy who’s paying you or the guy who’s not? 

In the old days, when the client refused to pay the trial fee, we used to tell the judge that we weren’t ready for trial because we were waiting to hear from our witness, “Mr. Green.”  Almost every case had a witness named “Mr. Green”  back then.  Not anymore.  Courts have standards and practices these days, and they aren’t about to adjourn cases for the benefit of defense lawyers, only to have the administrative judge chew them out.  Nor do they care whether we get paid.  Of course, that’s coming back to haunt the judges in New York, as they stump for support for a pay raise of their own. 

So on the back end, the trial fee becomes a serious problem for everyone involved.  The lawyer is put in the position of working for free, and for a client for whom he has developed a certain degree of antipathy.  The client hides from his creditor, the lawyer, thus making the preparation that is going to get him the best chance for a “W” impossible.  It’s a lose-lose situation.  And it happens regularly. 

Beating the Lawyer, Part 1

Mark Bennett invites comment at Defending People on the ways in which potential clients seek to take advantage of a lawyer in their moment of need, only to try to beat them out of a fee after the adrenalin rush is gone.  So, here’s a story of mine.

A client of mine called to tell me the police were at his partner’s door (6:30 am, naturally) for the take down.  The partner was holed up with his family.  What to do?  Other than the routine (say nothing, tell ’em you want to speak with your lawyer), I was conflicted.  Foolishly, the cops had no warrant and the partner was smart enough not to open the door.


The fellow lived mere blocks away from a very fine lawyer friend of mine, who would get out of bed for me and jump right in.  After confirming that he would be paid by the partner, I called my buddy and he defused the situation, precluded questioning and went on to represent the partner at arraignment later that day.  At arraignment, he was able to have the case dismissed for insufficiency of the accusatory instrument. 

My lawyer buddy was handed a check by the wife at arraignment, which bounced high and hard.  He asked his client why, and the fellow responded that he didn’t do anything.

I spoke with my client about how I brought my lawyer buddy into this mess in the wee hours of the morning based upon his assurance that he would be paid.  After the usual hemming and hawing, the bottom line was that my client refused to take responsibility for his partner, who my client now referred to as a low-life skel.

I ended up eating a good portion of my buddy’s fee, since he acted at my request.  Regardless of how big a jerk my client and his partner turned out to be, someone had to be responsible and that turned out to be me.


But there is a moral to this story.  My client was later re-arrested in another case (actually a series of cases), and sought my representation.  I told him that before I would consider taking his case, we had some old business to clear up.  And so we did.  Then he had to take care of the new case. And so he did. 


And then there was suddenly yet another new case, this time involving both my client and his partner, both of whom needed separate representation.  I love repeat business.  Not only were past indignities addressed, but my lawyer buddy was shown an act of contrition by the partner, who miraculously realized that the game he had played by beating a lawyer out of a fee was about to be a very expensive game indeed. 


And what of me?  Well, my lawyer buddy was so appreciative of the fact that I stood behind him that he referred a very significant case to me that resulted in about a year’s worth of revenues. 


I believe in karma.  And I believe in doing the right thing, even if you think you can do the wrong thing and get away with it.  The favor bank doesn’t always work as well as it’s supposed to, but I wouldn’t do it any other way.

Fight or Flight?

Many defendants assume that they can’t win anymore, or that the stakes are too high to take the chance.  So, they turn to what they believe to be the easy option:  cooperation.  The assumption is that cooperation is a “get out of jail free” card.  This may be one of the worst assumptions that a defendant can make, and he or she may be haunted by this choice for many, many years.

Aside from the obvious issues surrounding cooperation, such as becoming a “rat” against one’s friends and family, risking one’s life and impairing what little integrity you may have, there is a very pragmatic problem.  Cooperation is not a free ride.  The chance that you will be released to wander the streets as a happy, carefree person is slim to none.  That’s just not the outcome.  While you may be given a substantial concession in time, it does not mean that you will have worked off any punishment whatsoever.

Oddly, one aspect of cooperation that doesn’t dawn on many people until after it’s too late is that the first thing asked of you is to be debriefed about your own prior criminal conduct.  What this means is that you are required to disclose everything you’ve ever done wrong that the government doesn’t know about yet, or can’t prove.  But now, with your admission, they DO know about it and they CAN prove it.  Very often, the deal with the government will include that you be charged with these additional offenses as well as the offense for which you were arrested.  The impact is that while you were facing a charge for one crime initially, you are now facing charges for 10 crimes, with a commensurately greater penalty.  So, even with a substantial concession resulting from the cooperation, you end up with as much, if not more, time in prison than you would have had in the first place.

Another ploy is that many defendants think that they can control the government when giving cooperation.  They can limit what they say to avoid implicating their friends or avoid admitting to prior criminal conduct.  This is one of the most dangerous things that can happen.  While there are ocassionally defendants who pull this off, most of the time the government has far more information about the defendant than he realizes, but will hold this information close to the vest.  Why?  Because the first thing you are told is that you must tell the truth or your cooperation, even though given, will not result in any benefit.  By keeping the additional information to themselves, the government tests defendants for truthfulness.  After they have sucked whatever they can from the defendant who is trying to play with them, the government will spring this information on the defendant and use their lack of candor to either get whatever they are holding back or deny them the benefit they thought they would receive.

Is this dishonest?  To a degree, yes. But it also serves the legitimate purpose of the government being in the position of using a defendant at trial where the defendant’s testimony is protected from impeachment by his dishonesty with the government or failure to be candid.  There’s nothing worse for the government than putting a witness on the stand who is subsequently impeached by a good defense lawyer for his failure to disclose prior criminal conduct.  It shows the witness is a liar and makes the government look foolish.  The government does not like to look foolish, and will take it out on their deceitful cooperator.

Does this mean that cooperation is an inherently bad choice for all defendants.  No.  But any defendant who is considering cooperation should know the pitfalls as well as the benefits.  Just as a defendant should not go to trial without knowing the positives and negatives of the choice, they should not jump blindly into cooperation with realizing that it is not a “get out of jail free” card.