12 January 2009

The Young Criminal Lawyer: What Path to Take?

Edintally, one of the more interesting recent commenters, dropped me a couple emails asking as to my status (prosecutor or defense attorney?). When I clarified that I'd been a defense attorney and moved over to prosecutor he allowed as how he had never heard of someone doing that before.

And that's a shame. Not his fault, but I think it's symptomatic of a failing we have in our system. For some reason, we seem to think people should choose a side and stay there. That's just wrong. Long term practice on one side only tends to lead to the kind of bunker mentality we see all too often wherein both sides dig in, see everything the other side does as motivated by pure evil, and lob invectives (or worse, dirty tricks) at each other.

So, here's my suggestion to those of you interested in starting a career in criminal law. I know that no one will listen to me, but I think the world would be a better place if they did. Whichever side you feel are "the good guys", start on the other. Practice there not for 6 months - or even 2 years; practice there for at least five years - enough time that it becomes second nature. Then flip sides. Stay there for at least 3 years. Then put some serious thought into where you want to put your efforts.

As you might guess, this somewhat mirrors my journey, except for the fact that not having planned on becoming a criminal lawyer I didn't have strong feelings as to which side I'd start on. I applied for jobs both at Commonwealth Attorney offices and Public Defenders. Then I started my own practice doing court appointed work, built it up and eventually folded it (out of business reasons and wanting to move closer to where I grew up) and joined a prosecutor's office on the far end of the State. I consider my path something of a happy accident. However, that's not why I commend it to you.

Part of what makes anyone a good attorney is understanding the problems, motivations, and mindset of the attorney on the other side. No matter how smart you are, you cannot do this without walking that mile in the other guy's moccasins. I'm sure you think you can. In fact, I'm fairly certain that I'll get comments from people telling me they've observed the other side for years and they don't need to live it to understand it. They're wrong. There will always be issues you'll never know, priorities which you'll never suss out, and problems you'll never even have heard about if you haven't been there yourself.

Personally, my hope is that working both sides will lead a person to have more loyalty to the system than a side. That's not to say I don't expect people to play their part in the system to the fullest extent of their ability. The system doesn't work if they don't. Still, all this silliness about being at "war" with the other side tends to come from "True Believers" and True Believers tend to come from people who have never seen and don't understand the other side. It's not a war, it's a test. Those who have worked on both sides usually understand this and the prejudices, priorities, and anxieties of the other side. I'd go so far as to say, if you couldn't do either job in a manner meant to lead to justice you should seriously consider doing neither.


Joel Rosenberg said...

Interesting notion, but I know a (if not the) defense attorney's answer, which would go something like, a defense attorney's allegiance is not to the system, but to the client.

Since I'm not an attorney, I do get to give the potential defendant's (aren't we all?) answer: if I'm charged with a crime, I want a lawyer, I want somebody whose focus is in getting the best result for me (ideally: me walking away, free and clear, with my accusers lamenting their mothers' poor contraceptive choices), not on the health of the whole system.

YMMV, of course. But it probably wouldn't.

Ken Lammers said...

Actually, the defense attorney has dual allegiances to the system and the client and, short of fraud on the court, the allegiance to the client is part of the system. I've no issue with that. In fact, its people having an issue with that which I think this would mitigate (as well as issues of the same sort in the opposite direction).

Bob Brandon said...

I've worked as the writing clerk for a circuit judge (and former prosecutor) in the criminal division (with the mandate to write appeal-proof orders), to being a public defender for many years. There may come a time in the medium-term future when I will be a prosecutor. Becoming a prosecutor would be an appropriate professional development in my particular legal field. I know many former public defenders who have done precisely that.

I've found that defense work is stressful enough to make it worse by ascribing every simplistic evil imaginable to opposing counsel. They have families, kids, outside lives (such as they are) as I do; they've got a job to do - just like I do - that I further appreciate as an ordinary fellow citizen when I'm away from my own job. Life is just too short to ascribe such black-and-white "evility" to my fellow attorneys across the table.

Anonymous said...

As a currently employed PD, as much as I appreciate what you are saying with walking a mile in the otherside's shoes. I just can't put people in jail. People do need to go. I just can't be the one that puts them there. So I think I am okay with just staying on the side that I am on.

Anonymous said...

In 8 years, when I can retire, much as the big bucks of private defense work beckons, I think I'm chucking law, which has gotten to be such a game in the worst sense of the word, and go drive a train... or teach at my kid's High School... or some other productive venture.

Sometimes I just get plain sick of the mastubatory self-adulation of the legal "profession," you know, how we "change the world" and "defend the consitution" and such rubbish... as if non-lawyer citizens couldn't possibly figure out how to rule themselves without lawyers.

Just venting, that's all...

1111 said...

My response was too long for a comment and gave me a reason to resurrect my own blog. Still a noob at this stuff so not sure how to do that link thing.


Ken Lammers said...

Let me try to give ya'll a direct link to Edintally's blog.

John Kindley said...

I couldn't be a prosecutor because some "laws" are patently unjust. Putting people in jail for possessing marijuana or playing poker is itself an immoral and criminal act. The fact that a legislature says otherwise doesn't change what is right and what is wrong. A judge or a prosecutor or a police office cannot evade responsibility for the wrong that they do by saying they are "just doing their jobs." The Nazis at the Nuremberg Trials said the same thing.

Anonymous said...

Great post! I started out as a Prosecutor (and was for over four years) and have been on the defense side for 3 years. I love the defense side of things. Seeing both sides of the law - is extremely helpful and makes me a better lawyer.
I totally agree that you should try out both sides before settling on one, it gives you perspective on the system, and on what the 'other side' is thinking.