Tuesday, April 12, 2011


As the baseball season is getting underway, I'm remembering the days when starting pitchers were actually expected to finish games, there was no such thing as a "closer," and nobody was groomed to be a relief pitcher.  In those days (and it's a long time time ago), being a reliever was, plain and simple, a demotion.  It's what you ended up doing because you failed as a starter.
When I was in graduate school in English, which is more decades ago than I care to mention, it was generally understood that anybody could teach freshman composition.  No training necessary.  Grad students could do it because they could, in general, write grammatically and spell close to correctly and those were the only necessary qualifications.  (Yes, I know grad students, where they're around, still teach the bulk of freshman comp; now though, at least in theory, they're supervised and get some actual guidance, things that my grad school was pioneering.)
When I was in law school, the regular faculty mostly didn't teach the required legal writing course because, again, it was assumed that anyone with a law degree could do that so there was no reason to pay full salaries and tenure people.  Actually, I think that one's still mostly true.
Baseball's changed, and while pitchers with some stuff who can't make it as starters are still moved to the bullpen, they're also trained and groomed for the job of relief pitcher.  The game has changed, but there's also a recognition that being a reliever is not worse than being a starter, it's different.  And while grad students still teach freshman comp, they're now mostly supervised and getting some actual guidance and even training - things, I should add, that my grad program was pioneering lo those many decades ago.  As for legal writing, well, some things don't change.
Earlier today, on a strange legal listserv, I've been looking at for a few months, a new lawyer (or fairly new or something, it was less than clear) wrote this.
I am on the precipice of hanging out a shingle. I'm wondering two things:
(1) What is the minimum I should get done before I start. I.e. does it matter if I have no marketing up via websites or even business cards? What is absolutely necessary before you start other than office space and malpractice insurance. 
(2) My background is in civil law. However, even after three years, I don't feel as though I am really equipped to do that over many other areas of law and I've been thinking about opening as a criminal practice but open to civil litigation. Is this too broad? Do I need to focus on one area? I have no background in criminal law, but my deepest desire is to get trial work and I feel that is the area of law best suited for the experience. 
These aren't (at least not yet) the words of a Joseph Rakofsky. Despite his concern about marketing, the guy's not talking about doing false advertising or even puffing.  He concedes (at least on the listserv) that he has no background whatsoever in the field he's thinking about entering.  He just doesn't think it's a problem.  After all, criminal law isn't like civil.
After three years in civil law, he's not "really equipped" to do that work by himself.  But criminal? even with "no background"? The only issue is whether to limit himself to death penalty work or represent whatever sort of bad guy walks in the door.  Oh, and whether he needs a website and business cards before he starts.
Because, you know, criminal's easy.  The client's are all guilty, so who cares what happens to them.  And besides, it's not like you have to deal with the Rules of Civil Procedure (gasp) or even learn where the law library is.  (I notice he didn't wonder about where he'd do legal research.)  There won't be any of those motions for summary judgment.  Just the trials he's eager to start doing.  Risk free.  (Though he'll have malpractice insurance.)
I remember the retired, grumpy, institutional-type wills and trusts lawyer (he wrote them, didn't litigate them) who thought he might do a death-penalty case if he could find a client he knew was innocent.
I mean, how hard can it be?  Look at how little most of the folks in the trenches are making.  Court appointments at $40 and hour, with caps of $500 or $750 or maybe $1,000 for a murder.  How good can those lawyers be?  Or public defenders?  Give me a break.  This is easy.
And what's the big deal?
When I started practicing law (and again we're going back decades) a pretty good criminal defense lawyer used to tell new criminal defense lawyers that if they wanted trial experience, the thing to do was to defend DUIs.  He explained.
If you lose, the consequences for your client aren't too bad.  And once you get the Mothers Against Drunk Driving off the jury, you can win - even if only on the "There but for the grace of God go I" defense.
He had a point.  In those days, and in Texas, the consequences of a DUI conviction weren't particularly onerous.  And if you could stay away from breathalyzer cases, you really could argue to the jury that the client wasn't really all that drunk and know that at least some of the jurors had probably been behind the wheel a whole lot drunker.
But he was wrong, too.  Because he was saying that it was OK to fuck the client if it would only hurt a little.  
And there's rule, the first rule for criminal defense lawyers as it is for doctors.;
First do no harm.
And the second rule.
It's about the client, not about us.
I don't want to say that the lawyer who doesn't feel equipped, even after three years doing it, to go do civil work should start.  People lose their homes when the bank forecloses.  They get denied jobs because of the color of their skin (yes, even today).  They break arms and legs because some store owner was too lazy to clean up the spill or even put out a warning sign.  They're victimized by insurance companies and by BP's oil spill.  They get ripped off by their stock broker and buy a car that can't go 100 miles without stalling in the middle of the expressway.  Doctors still cut off the wrong leg.  Spouses cheat on each other and fight ruthlessly over the kids.  The school board is expelling your kid for bad jokes on facebook and some other kid got strip searched because the principle imagined she might have had some ibuprofen in her panties.  The estate is frittered away while the relatives squabble about how to divide it.
And lawyers commit malpractice.
Civil law, that is, carries its own burdens.  It affects real people, their livelihoods, their homes, their families, their lives.  It's not a game.
But at the end of the day, everyone goes home (assuming they still have homes at the end of the day).
Criminal law is different.  Money matters, but we're dealing with what, frankly, matters more.  Liberty in absolute terms.  (Money, too, actually.)  Our clients face jail and prison and even death.  And the law (in theory, but it's a theory we hold dear) insists that our clients are innocent unless the state can manage to prove otherwise.  
It is we who stand there, beside them.
And this kid thinks he can do criminal law with no background whatever when he can't do civil after three years because . . . hey, how big a deal can criminal defense be?  And besides, he wants to try cases.  Any thought about wanting to do this work?  Wanting to stand up for the little guy?  Wanting to stand against the state? Wanting to defend the damned?
Joseph Rakofsky was a liar and a self-promoter and an unethical sleazebag incompetent.
This kid? So far, all he's proved is that he's ignorant and foolish.  Oh, and dangerous as hell.
The sad thing is that there are too many like him. 


  1. There was some discussion in the blogosphere a while back about listservs, with some people saying that listservs are completely useless and others claiming some benefits to participation. While the focus of that discussion was on what we get out of participation, this post brings to mind another benefit: putting people on notice – for the reasons you describe here -- that you can’t/shouldn’t be taking up criminal defense as a simple pathway to larger things. The stakes are just too damn high.

    There are a number of us on that listserv who seem to take turns making this point but no one does it any more effectively than you. It’s not that the specific person you address will really hear you. Most people, when challenged on this, act surprised and a little bit offended. But there are a lot of other lawyers on the listserv you refer to (over 4,000 members as I understand it) who are also reading what you write. The message will get out, slowly but surely.

  2. Amen brother. I was a prosecutor for 4 years and change doing cases that ran the gamut from small misdemeanors to capital felonies. I went out on my own 6 months ago with a very experienced mentor and sometimes partner on individual cases. Everyday I learn something new. Everyday I know that one of the biggest decisions I make in any case is the decision to take the case (or not) given my experience.

    The guy in question should apprentice or just stop right now.

  3. Thank you for this post, these folks make me crazy. I'm a newer PD and it makes me crazy that some of my classmates who are having a hard time finding work are "just picking up a few criminal cases," as if it is no big deal. They are going into these cases completely unprepared and the client is the one who suffers. It takes a long time to learn how to do criminal defense well and the arrogance of these civil guys who think that just because they sued an insurance company they can defend a felony is infuriating.

  4. I'm sure the kid meant taking DUIs, misdemeanors and little felonies. I don't think he intended to wet his feet with capital murders.

    "Civil" is a meaninless term. It could mean anything from trivial small claims and collections to federal intellectual property or antitrust litigation.

    I do both criminal and civil but personally stay away from big criminal cases and small civil cases. $100k for a murder sounds great until you realize how much work it is. It is equivalent to a midsized PI case ($300k) where you'll only have to take a few depositions and then settle. I don't bother with small (less than $30k) civil. You have all the same formalities and deadlines as a serious federal case. If you blow one on a trivial case that you're not getting paid enough to care about, you're on the hook. So why bother?

  5. There is no such thing as a "trivial case" to the parties. And if you determine how much to care about a case by how much you get paid, you're absolutely in the wrong business.

  6. I care about a case based on how much it is actually objectively worth. A $10 million dollar case is objectively worth more than a $10 thousand dollar case.

    I think the advice to start with DUIs and small claims is good advice. What would you have the kid do; never practice law?

  7. I'd have him not do criminal work if he doesn't care about criminal work. And I'd have him treat every case as if it was a matter of life or death - or worth $10 million dollars if that moves you more.