Drug of Choice

If you were handed a hundred cases that are all serious felony trial cases, some of which need extensive motions or briefs, most of which need legal research and investigation, and they're all on for trial in two weeks, and you were supposed to be on vacation next week, I think there are a two approaches to choose from.

First, is what I think of as the "xanax approach."  Take a deep breath, fight the anxiety, tell yourself, "I'll do what I can do, but I can't do any more than that."  Chill.  Use your favorite stoner as a role model. It's just a job. No matter what happens, you won't be the one to go to prison.  And, perhaps, keeping a cool head will allow you to approach will help you pull through it with a cool head. 

Second is what I think of as the "speed approach."  Use your anxiety as a tool to work without food or sleep.  Get to the office earlier and stay later.  Rethink that vacation.  Hey, going into the office when you're supposed to be on vacation isn't so bad, is it?  It's kind of fun when you go to the office for a few hours on a Saturday, think of it that way.  Even better, you can work at the beach, or wherever you were planning to go on vacation, it sure beats working in the office, doesn't it?  Forget your family or friends you were planning to spend time with. If you are cranky or rude to your family or friends, that's ok, it only goes to prove that you take your job seriously and you care about your clients. 

So, which are you? 

I'll admit, my approach is generally the "speed approach" but I strive to find the "xanax approach," or at least a little bit of the xanax approach.  Aside from an actual prescription for xanax, I don't know how to find that zen mindset.  I guess you try to take it day by day, remind yourself to calm down and take a deep breath.  If someone has more tips for finding that balance of productive tranquility, I'd love to hear it.

To be fair, there may be a third approach that I have seen.  That involves just whining and complaining about how unfair it is, and how must work they have to do. I suppose that maybe that's part of the speed approach, but I think their time spent whining may be better spent getting the work done. Or, you know, blogging about it.

Flirting Longer and Harder

I first met my client a few days ago.  He is kind of homeless-looking and had a long rap sheet full of long prison bids.  He had just been arrested and he was very angry.  He didn't want to talk, he wanted to shout at me.  Among the things he shouted at me was, "I DON'T TRUST COPS, I DON'T TRUST JUDGES, AND I DON'T TRUST LAWYERS!"  It seemed we had a lot in common, if only he'd stop shouting.  He banged on the walls, he banged on the desk, and I waited patiently through quite a bit of shouting when finally he cut the interview short, walking out of the booth and insisting the guards come and take him out.  That was ok with me, I needed to meet with other clients and this meeting was not productive.  I figured I'd see him in a few days (there was no chance of him getting out) and maybe at that time he'd be a little calmer and able to communicate.
 
I saw my client again today.  The first thing he said to me, to his credit, was "Were you the same lawyer I met a few days ago?  I really owe you an apology.  I was so angry, I just really needed to calm down.  I'm really sorry I was so disrespectful.  Can you accept my apology?"  I told him I accepted his apology,  and I was happy to start off with a clean slate and talk about his case.  As I was talking about his case, though, he had other things on his mind.  "You've got a nice smile.  I can't believe I yelled at a nice lady with a beautiful smile like that.  Are you married?  I could take you to dinner sometime.  When I get out."  I was able to redirect him and we talked a little about his case and the plea offer the prosecutor was extending.

"I'll take that plea," he told me, "but see if you can get it down a little lower.  A little lower would be better."  I told him that I'd talk to the prosecutor and see if we could get the offer a little lower.  Satisfied, my client went back to asking me if he could take me to dinner.  

After a few minutes, I told the client that I would step out to talk to the prosecutor to try to get the sentence he was looking for, and I'd come back to let him know how it went.  

The prosecutor was willing to go along with our counteroffer, after just a little persuasion.  I went back into the jail pens to give my client the good news.  He was happy, and even more eager to take me to dinner.

"Listen," he said, "I was serious about taking you to dinner when I get out.  I really am.  I know that will be a long time from now, but you never know where life will lead you. You know, we don't always find love where we're looking for it.  Sometimes it's right in front of our eyes and we don't even see it."  

I tried again to redirect his attention to the case, "Alright, we're going to go see the judge soon, and you can take the deal today if you want to get this over with. Or we can get an adjournment, if you want more time to think about it." 

"No, no, I want to get this finished today."  Then, finally, my client made his last ditch attempt.  "I didn't get a chance to tell you what I do for a living.  I know, it's my fault, because I was yelling at you.  But I want to tell you.  I make pornos.  That's what I was actually doing in the city when I got arrested.  I make pornos.  I was here to make pornos.  You might not recognize me, but some people recognize me.  Can I take you out to dinner when I get out?" 

Oh, well now that you put it that way... why didn't you mention that sooner?

Assisting by Being "Ineffective"

This week, the blawg world was abuzz about incompetent and ineffective criminal defense attorneys.

I'm not excusing the practices of attorneys [accused of being ineffective], but all of this talk of ineffective assistance of counsel has me wondering - Is it always a bad thing to be called "ineffective," if it potentially helps your client?  Or, to put it another way, is it ever a good thing to be ineffective, or at least called "ineffective," for your client's sake?

For example, not that long ago, the appellate court overturned a case that an an acquaintance of mine had tried.  I think my acquaintance is a good lawyer, and the decision didn't specifically name him or call him out.  However, the court overturned the conviction, finding the attorney ineffective for failure to investigate the defendant's alibi.  In fact, the decision was kind of confusing, I think that even if this defendant's "alibi" had been proven, it would not have been impossible for the defendant to commit this crime, just less likely (if you believe that you're less likely to commit a crime when you're coming from somewhere legitimate, like work).  I may not have investigated that alibi - it doesn't prove the defendant didn't commit the crime, so I'm not sure that it would have been helpful.

Should the trial lawyer have been embarrassed that his case was overturned?  After all, the defendant will get a new trial, and there's always a chance that if witnesses or evidence have disappeared, he may get a better plea offer or his case may not be retried at all.  If it helps your client, and doesn't provide much more than embarrassment to you (my acquaintance won't lose his job, so the only other consequences I can imagine are bad publicity and maybe an increase in malpractice rates), is that worth it?

Moreover, what if my acquaintance did, in fact, investigate the alibi?  What if the attorney did speak to one witness who said "We can't be sure that your client was at work that day - he missed a lot of days, and we don't keep those kind of records."  How would the appeal lawyer know that?  And, hence, how would the appellate court know?

I know that sometimes trial attorneys are called by appellate attorneys and are asked if they made certain decisions strategically or if they advised their client of certain things.  But if you don't know, you don't remember, or you didn't make any note of it, and it can help your client, is that a bad thing?

If I was called now about a case I handled a few years ago (pre-Padilla), and asked "Did you advise this client of the immigration consequences of this plea?" I would probably go through the file to refresh my recollection.  There are some cases where I would have to answer in the affirmative, if I had made specific notes to my file.  But there would be some, or many, files that would be silent as to the issue.  If I honestly don't remember, and it could save my client from deportation, is it a bad thing if the appellate court calls me ineffective for not advising my client or not making adequate notes?

I also don't know (and maybe a lawyer who handles appeals can tell me) whether raising this kind of issue on appeal invalidates the attorney-client privilege.  I believe that if a client sues you, you have the right to violate privilege to tell the court exactly what you and the client did or did not discuss with the client.  I haven't had either of these situations (knock on wood) so I haven't reviewed the ethical rules for these circumstances since law school.  So, what if the reason why you didn't investigate the client's alibi is because the client told you "Don't bother digging up that video, it will only show me committing the crime and I wouldn't want the prosecutor to find out about it."  Then, years later, he says on appeal, "If only my trial lawyer had gotten that video, that has now been destroyed, it would have shown that I didn't do it."  What is your role as the trial attorney?  Do you expose your conversation with the client, showing him to be a liar?  Or do you let your client get a new trial even if you'll take a beating from the appellate court, and possibly in the press and the blogosphere?

Don't Call Me Sugar

A few weeks ago, I got really overwhelmed.  I have this case in which my client is facing a lot of prison time, a case that will probably go to trial.  The first plea offer I got in the case is about four times more than I've ever had a client get.  Unless you count when I've worked with a more senior lawyer on a murder trial or something.  But, as far as my very own clients, this is my first client who is facing decades.

That particular night, I didn't sleep well at all.  I just kept thinking about this case, about the family that calls me begging me to get their son out of this, and, like I said, I was just really overwhelmed.  And sleep deprived.

The next morning, walking to the train, I just cried.  I just stopped walking and started crying.  I really thought, "I just need to go in and resign, because I can't do this."

The whole day I thought about it.  Am I in over my head?  Can I really handle this?  Am I doing my client a disservice by not somehow stepping down and letting him have a real lawyer?  Am I perpetrating some kind of fraud?

At some point, I thought about that baseball movie Sugar.  Did you see it?  Spoiler alert.  Here the short version:
Kid comes up through the rookie leagues in the Dominican Republic. His whole life is baseball.  He lives at the training camp during the week, he practices all day and studies baseball related English vocabulary at night.  He finally makes it to AAA ball in the U.S. and basically realizes he can't hack it.  He's in a foreign country, he doesn't speak the language, he gets in fights without really knowing what's going on, and most importantly, the batters can hit his pitches.  He goes AWOL from his team, goes to New York City, and gets a job as a dish washer in a diner.  He never gets his big break.  When I watched the movie, I can't say that he did the wrong thing.  He wasn't going to make it, if he stuck around he would've been shipped home, so he decided to take his chances as an undocumented worker in N.Y.C.  Most kids don't make it. Statistically at least, he probably made the right decision.

But I realized that, like Sugar, everyone reaches some kind of testing point, where either you put on your big girl panties and say, "ok, I'm going to give this the best I've got," or you cry and resign.  For every Sugar that quits and doesn't make it, there's got to be a Hall of Famer who sticks with it through his jitters, right?  No matter the player, they had a day when they faced someone better than them.  They had their first day in the majors and thought "Am I going to be able to handle this?" and decided that they had to.  Every lawyer who has ever tried a murder case must have had their first murder case where maybe they had some doubt as to their own ability. 

Or maybe they never did.  But then that's just cockiness. It's not like anyone can know whether they can hack it until they really try.

So, I decided: I'm here, this is what I came to do, and even if it's difficult, I'm going to do it.  When I committed to the path of a public defender career a decade ago in law school, it wasn't because I wanted to handle misdemeanor drug possession cases for the rest of my life.  I wanted to do to the juicy stuff.  So, now the time has come.  It's time to put up or shut up, fish or cut bait, shit or get off the pot.  Try the case or wash dishes.

Am I the smartest or the best?  I guess I'll just never be the arrogant kind of person to say that I am.  But I'm pretty good. And I'm a hard worker and a fast learner. So, if I can't do it, who can? 

And that is how I've reached this turning point in my career.  I've decided to be a little less intimidated, a little more ready to take on challenges.

Don't get me wrong, when a client is facing a number in the double digits, maybe a number almost as long as the life I've already lived, it still bothers me, it doesn't sit well with me, maybe it never will.  But I have stopped looking around for the more experienced lawyer who can rescue me, and instead realized that I am becoming that more experienced lawyer.

Lunch Lady

I usually eat lunch at my desk, but yesterday I grabbed lunch at a place near the courthouse.  While I ate, two men sat down at the table next to me.  I wasn't trying to listen to their conversation, but, well, our tables were really close together.  I quickly figured out that they were finance-types, and then tried to block out their finance-related conversation (because I wouldn't understand it anyway).  But then I just happened to hear one of the men drop the words "public defender" at the end of his sentence.  I tuned back into the conversation to hear the other man reply:
I knew two lawyers who were public defenders.  They were really great lawyers.  Really smart and really hard-working.  You know, they just have to keep fighting for justice.  It's like, they're always the underdogs, and they just always have to keep fighting.  They really have to be persistent.  I would say public defenders are the best lawyers. They have to be.
I'll tell you, that may have been one of the best lunches I've had in a long time.  It may have been more expensive than bringing a sandwich to gulp down at my desk, but, as they say, it was priceless. I hope to be back to that place.