18 March 2010

Who are these Crummy Defense Attorneys?

A big topic around the criminal defense blawgs recently was how defendants will hire incompetent attorneys and just be tickled pink as that attorney walks them right off the plank and into the ocean. via Divorce Discourse, My Law License, Simple Justice, & Crime and Federalism.

We've all seen these guys and rather than rehash why defendants are drawn to them, I thought I'd try to break down who they are.

Sturm und Drang: This guy has figured out that the best strategy for attracting clients is to be LOUD AND CONFRONTATIONAL. There is no give in this guy. Everything has got to be a trial and he will holler and fuss and object and object and object and object and his client will be convicted of driving without a license anyway. Then, the thoroughly peeved prosecutor will ask the thoroughly peeved judge to throw the book at his client. Defendant could have gotten a weekend in jail if the attorney had just had a short, civilized discussion with the prosecutor before they went before they went to the bench - now he's getting a month. This guy doesn't care. He knows that 50% of the people in the gallery were wowed by him fighting tooth and nail for his client and that they don't understand how it hurt the client. He knows this will bring business and big fees.

I Believe: A True Believer, especially a young True Believer, is dangerous for her clients. She's got a Cause. It can be to stop the oppression of the downtrodden. It can be to force the rule of law to be followed in Pitcairn County. It can be to prove to the world that Judge Smith isn't competent to be a judge. She's got long term goals and she's fired up about them. The problem is that she takes her clients with her on her quest to cure the world's ills (or at least those of the judicial system). Defendants usually have fairly short term problems and she isn't doing one of them a whole lot of good when she uses him as her gateway to make a novel argument that the larceny statute is an unconstitutional violation of the 13th Amendment. The defendants see her fighting tooth and nail and hear all these wonderful arguments - just like Law & Order - and think they're getting the best representation in the world.

Used to Be: This guy had an amazing string of victories once upon a time. He built a well deserved reputation as one of the best. The problem is that that was 20-30 years ago. Nowadays, he doesn't understand electronic research, he doesn't keep up with new cases, and the prosecutors aren't all that worried about him anymore. Still, he's been the high priced, high rep lawyer for so long that people keep going in and handing him tons of money.

The Only: This guy is one of the only two lawyers who have done criminal law in Pitcairn county for the last 20 years. He's represented entire clans - grandfather, fathers, sons, grandsons & granddaughters - as each generation makes it's way into court and on to jail. Every once in a while he's looked at the books and made some arguments, but usually he's just there to ease his clients comfortably through the system. And they go to him without even thinking about it. He's one of them - as opposed to those city lawyers who come out here and get in shouting matches with Judge Smith - and he's the guy they've been seeing in the courthouse every time they go there for the last 20 years. He must know what he's doing.

Miss Empathy: She makes illogical arguments in court, makes ridiculous objections, and does long meaningless cross examinations. Worse, she can't negotiate with the prosecutor and officers worth a darn. Her client "didn't really mean to do it" and was "led astray by her friends" and is a nice boy who comes from a good God-fearing family." She believes this and is emotionally invested in her client. The problem is, she believed it for the last 300 clients just as strongly and nobody trusts her judgement. Because she tends to harass prosecutors and officers they try to avoid her if at all possible. At the end of the trial she's out in the hall talking to Mom about her son's jail sentence and she's visibly more upset about it than Mom is; in fact, you'll sometimes see family members trying to comfort and talk her down. Defendants, and their families, love her because she obviously cares so much.

In the Glow: This guy is the partner, associate, or office sharer of a prominent lawyer. As such, he benefits from the Big Guy's reputation. When people can't afford Big Guy's fee or need someone NOW and Big Guy isn't available, they end up with this guy. After all, he's connected to Big Guy and therefore the defendant's going to get Big Guy's experience at this lawyer's rates (because this guy is going to talk to Big Guy and follow his advice). The they get to court and this guy is a civil attorney who dabbles in criminal law or a kid six months post Bar passage or they guy Big Guy keeps around out of loyalty because he gave Big Guy office space 20 years ago. Still, the defendant's happy because he's represented by someone out of Big Guy Law Offices (even if it's not Mr. Big himself).

MegaFirm International: The son of the COO of IBM gets a shoplifting charge. He turns to the only lawyers he knows, those of MegaFirm International, Inc., PSC, LLP - the ones who charge his corporation $750 an hour to write contracts. The next month a partner shows up in court with a hair styling alone which cost more than the combined value of the suits of all the trial lawyers in the room. He's had associates research all the shoplifting laws in the entire US for the last 20 years (at a bargain basement price of merely $250 per hour). They've briefed him and he has come to court with that one perfect case out of Wyoming. He doesn't know that if he just walked over to the prosecutor and asked the first time shoplifting would be taken under advisement for six months and dismissed after shoplifting classes and 50 hours community service. And he seems a little befuddled when Judge Smith just won't give any credit to that case out Cheyenne's District Court. Still, the COO is impressed and knows that his son has the only real lawyer in the courtroom.

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Of course, these are not mutually exclusive categories. Most of these attorneys range across a number of them. While these are surely not all, they are all the categories I can think of this morning. And, none of these are based upon people I practice with now. I can, but won't, point to people in places I used to practice as models for every category above.

5 comments:

Brian Tannebaum said...

Ken, I don't know if you ran out of space, or time, but you clearly left off "What's the Plea Offer?" I trust you can fill in the rest under that title

Ken Lammers said...

Sure there are bad Plea Offer attorneys, but I'm not sure they are well thought of by their clients and this post is about incompetent lawyers whose clients think they are great.

Ken said...

I'd add:

THE OUT-OF-TOWNER

The Out-Of-Towner is quite competent at defending people in his chosen venue -- state court, federal court, the courts of a particular county, etc, whichever. However, the Out-Of-Towner is under the impression that all courts should work exactly like the courts in his home turf. The Out-Of-Towner likes going to other courts; the pay's good. But the Out-Of-Towner becomes agitated and dismayed when clerks, judges, and prosecutors do not do things exactly the way he is used to his home court. The Out-Of-Towner refuses to learn the federal sentencing guidelines before visiting federal court, where he will walk in the well, talk from a seated position, and address the court as "judge." Or the Out-Of-Towner will visit state court and demand multi-page written plea agreements and scrupulous adherence to noticed motion schedules.

Anonymous said...

This shows the ignorance of most defendants. Then there is the hot shot with a mega law firm who, as you described, leaves everything to the lower echelons and on the day of trial is ill-prepared. When he loses royally, he excuses himself with the comment to anyone who talks to him that his client was guilty.

Even when the client really was not guilty.

That is what happened to the defendants in the Kelco trial in federal court in Kentucky. They were prosecuted for violating a law that did not exist but their counsel never raised this issue.

Bill Poser said...

How about "The Relative", the cousin or family friend who makes a nice income doing conveyances or wills and therefore must be a good lawyer. Of course, he's never been in criminal court.