A blog by Miami Criminal Defense Lawyer Brian Tannebaum. Commenting on criminal law issues of local and national interest.

Saturday, April 23, 2011

A Young Lawyer's Concern Over Indigent Defense. Your Help Is Needed

When the story of the inexperienced Joseph Rakofsky and his representation in a murder case hit the internet, the divide between real lawyer and today's internet-created lawyer came to light. The real lawyers, i.e., those who created practices through the old fashion way of word of mouth, referrals, and competence gained through mentors and hard work representing clients, met the internet-created liar - the new style lawyer whose reputation was created through typing words and phrases on a keyboard - claiming to be "aggressive" and having "expertise," that in the real world, was a complete farce.

I previously wrote about how real lawyers responded in shock. "How could this happen," they asked?

More importantly, one real lawyer said: We need to do something. I tell my clerks and interns this is not law school. "We deal with real people whose lives and freedom are on the line by what we do or don't do. If you cannot commit to the level of effort required, then go do something else.

Well here's the chance to do something, to offer some thoughts, assistance, or tips to this young lawyer, admitted to practice in November of 2009, showing honorable concern for the state of indigent defense in his home state, and seeking advice on the American Bar Association's "Solosez" listserv:

On Apr 22, 2011, at 9:41 PM, John Wait wrote:

Quite possibly by July next year, North Carolina will have public defender offices in every county. What the hell am I supposed to do? How am I supposed to get courtroom experience and earn bread and butter pay while I am trying to build a reputation as a civil litigator? Law schools are churning out more and more lawyers, and the opportunities to get hands on experience get smaller and smaller. I need business plan ideas, immediately, from those of you who work in states where there is already a public defender in every county. Here are my ideas:

1. Bite the bullet and pay for traffic ticket lists. Do mailings.

2. Pay for SEO to increase my website's search engine effectiveness.

3. Continue networking as much as possible.

John Wait

Comments are open. Please help this young lawyer with his dilemma. We owe it to the profession.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter


  1. Anonymous10:48 PM

    Thanks for posting this Brian. I'm in the same boat in a state where the public defenders have a hiring freeze and the job market is abysmal. I'm ready to start e-mailing lawyers begging for a chance to work for free for experience and for the resume.

  2. I think I said enough on that thread. I see everything getting a whole lot worse before it gets any better (not looking forward to it).

  3. Anonymous10:54 PM

    Why not just jump on the thread in Solosez? Are you just looking for content for your blog?

  4. Anonymous at 10:54,

    Mr. Wait was looking for advice, I thought I'd give him more of an audience. And yes, I'm always looking for content for my blog. That's what bloggers do, look for things of interest. What do you post on your blog?

  5. I gave advice on Solosez. I told him to consider a niche practice relating to school athletics (not just high profile stuff which obviously might be a stretch, but suspensions at high school level for drug possession, illegal steroid use - maybe even bullying or other disciplinary matters) because he is a former athlete and it is a natural affinity. Or perhaps to create another niche related to camps (either defense against complaints or civil plaintiffs work because that is his interest). Generally, I like Solosez; think it is a very helpful community but unfortunately, many people on the list spent far more time taking this lawyer to task for seeking advice than actually trying to help him out.

  6. Carolyn,

    I think that any lawyer that didn't sharply and publicly reject this lawyer's tactic of gaining experience on the backs of criminal defendants for the sole purpose of building a civil practice, should be disbarred.

    Cheerleading is fine, when there's a game going on.

    I was convinced today that solosez is nothing more than a marketing chorus, with little concern for the quality of lawyering that exists in America.

  7. I think I helped him by taking him to task. If you have no desire to be a CDL, stay out of the criminal court room. The lack of desire to be a criminal defense attorney is going to show: to other CDLs, to prosecutors, to judges, and to jurors.

    Criminal defense attorneys are probably one of the least competitive "groups" of attorneys. We all want each other to succeed and take great offense to anyone who wants to just use the accused as stepping stones.

    No one is going to hire you on a civil case because you are a great criminal defense attorney anyway.

    I stand by everything I said.

  8. To me, this guy's message seemed more like he was panicked about not having any work - but I certainly understand how his message could be viewed as using criminal defendants as guinea pigs. And as you point out, he was soundly criticized for that. However, criticism only goes so far - and if doing criminal work is not a good idea, it would have been nice for people to provide other suggestions.
    I also think that you have (or had) the wrong impression of solosez. There is actually really very little on the list that deals with marketing (in fact, there was a group that broke off into solo-marketing listserve because of the lack of marketing focus). People frequently raise ethics questions and they are usually treated with much deliberation. A decade ago when I joined the list, I posted about a case that I wanted to take that would have eventually given rise to a huge conflict of interest - and I was looking for advice on how to get around the rules. One attorney on the list emailed me several times both on and off-list to persuade me not to take the case and fortunately I listened because it would have given rise to some serious problems for me. The list is certainly not perfect but it tilts much more towards traditional lawyering than what is prevalent in the blogosphere.

  9. Craig McLaughlin11:42 PM

    Mr. Tannebaum,

    Your conclusion that Solosez, a listserv of more than 4,000 lawyers worldwide, is nothing more than a marketing chorus is baseless. You simply must not have been a participating member for very long or you are sorely misguided. Lawyers assemble and analyze facts before drawing conclusions. I suggest that you start doing so.

  10. Craig,

    Thanks. I was waiting for the solosez apologists to arrive.

  11. As I was reading this, I came to "civil litigator" and was stopped dead in my tracks. I thought I misunderstood something and had to go back and read it again. His post blows my mind.

    And then...those were really his ideas? Not one thing in there mentioned anything about the client.

    I live in a state where every county has some kind of public defender program, either an office, or some kind of contract set-up (those are the worst counties to be stuck in if you are accused of a crime).

    First suggestion: If you want to be a criminal defense lawyer, do criminal defense; if you want to do civil law, do civil law.

    And I suspect the answer to how you're supposed to get cases is the same in both: do a damn good job with each case you get. After four years on my own, I'm still struggling, but I am finally getting clients who come in saying "so-and-so said you were the guy to see" or "so-and-so said you were a good lawyer." It feels really good to know that lately (in fact, this just happened again on Friday) some of the "so-and-so" people are criminal defense attorneys.

    I don't know how I feel regarding advertising, but I can tell you that I've learned it's usually money down the drain. My brain still fights with me: I still advertise in certain specific venues. I don't spend money on it like I used to, though.

    Brian, Scott, Mark and others whose opinion I've valued are right: it's word of mouth (and repeat clients) that bring me the most paying clients. My blog appears to help, too, but not like referrals.

    I suspect, though, Brian, that you didn't really put this guy's story here to get him advice. I say that partly because he too perfectly fits the mold you, Scott and others constantly deride.

    But I also say it partly because I think someone who posts something like that isn't going to listen to real advice anyway.

  12. Carolyn,

    I'm not at all concerned that he's panicked about not having any work. If his goal is to do criminal work to pay his rent while building his reputation as a civil lawyer, he should resign from the Bar and find another way to make money.

    Sometimes the best advice for a young lawyer is "are you a moron?" Sadly, we live in the "happysphere" where hand holding is the only acceptable way to mentor those younger than us.

  13. As with Solosez, I find the responses here interesting. I have a few comments.

    First, I am an excellent attorney both for my civil clients and my criminal-appointed clients. I do not think my court-appointed clients are guinea pigs sent for my personal benefit. Second, I like criminal law, and the thought that somehow civil and criminal practices are mutually exclusive is patently absurd. The judges (at least here) are on both benches, and my presence in front of them is invaluable exposure to both the bar and the community. My frustration is that as a new private practice attorney, this exposure will now be lessened significantly. Moreover, my ability to analyze all cases with a more well-rounded view of criminal law will now be inhibited. Third, I do not have a lot of start-up capital and my savings is running low; if you were able to start a civil practice without having to take court-appointed work at the beginning, good for you. The same cannot necessarily be done in every community, though I will try my best to make it happen.

    As for the recommendation of disbarment, I guess if I should be disbarred, then so should thousands of other civil attorneys before me. Getting work as a new private practice attorney is really an old problem so far as I am aware -- regardless of the economic climate. I really don't believe I am a moron for asking for advice, but some of the responses both here and on Solosez apparently disagree. I am confused as to why I have to defend my reputation as an attorney simply for seeking advice in the face of adverse circumstances with respect to my former business plan.

    I do not seek "handholding" nor do I ignore good advice, in whatever form it may be delivered. My hope of getting good experience and exposure in court through the court-appointed list is going to go away. My response, actually, is boo-freaking-hoo. The issue is what I am going to do about it, which is why I posted on Solosez to get ideas from others who do not have the ability to get court-appointed work as I do now.

    As a blog post, Brian, I find your tone and approach rather sophomoric. But, I hope it does bring you some business. We all need to eat.

    John Wait

  14. I didn't respond on solosez because I'm trying to limit my hostility quotient there to maybe one person a week who thinks that measure of how good a lawyer you are is how much time and effort you devote to selling yourself. And I'd already carried on once this week.

    Just once I'd like to see one of these folks say that he's struggling to find ways to provide better representation so that he can do a better job for the client. Alas, I haven't seen that.

    I've been on Solosez for a couple of months, ignoring much, crabbing some. My guess is that I've got no more than another few weeks before I quit in fury.

  15. John,

    Thanks for responding in the manner in which I expected.

    I'm happy to see that after a year and a half as a lawyer, you believe you are "an excellent attorney." I've been practicing 16 years, have attained a certain level of success, and would not call myself "excellent." That's for others to determine. But I understand in the new age of your lawyer marketing, because you have no reputation to speak of, you have to self-evaluate.

    Your court-appointed clients are guinea pigs sent for my personal benefit. Your whiny "what about me" email made that clear. You disgrace the criminal justice system by taking criminal cases to pay your bills while trying to make a name for yourself in civil law.

    You say that the thought that "civil and criminal practices are mutually exclusive is patently absurd," which shows your level of stupidity is clearly higher than anyone thought.

    You say your "presence in front of them (judges) is invaluable exposure to both the bar and the community? Who are you kidding? No credible lawyer would ever say anything like that, unless they were trying to sell themselves.

    I was not "able to start a civil practice without having to take court-appointed work at the beginning," because I'm not a civil lawyer. I didn't do "door law," i.e., whatever comes in the door, as your website shows you do.

    I'm a criminal lawyer who also represents lawyers before the Bar. I decided the type of lawyer I wanted to be at the ourset. You again make it clear that the only reason you are doing criminal work is for the money and experience, and that is why your clients are guinea pigs. They are there for you to build your career. Do you tell them that?

    You're confused as to "why I have to defend my reputation as an attorney simply for seeking advice in the face of adverse circumstances with respect to my former business plan?" I see that.

    And John, I don't blog for business. I was doing this well before your marketing gurus who provide business plans told lawyers like you that blogging is a way to make money. Read a little about me John, and take notes.

    And yes, we all need to eat. Some of us pay for our food with money we've earned through being a professional, not by parading as empty suits on behalf of the Sixth Amendment.

  16. The problem with echo chambers like solosez, despite the presence of mean old lawyers like Gamso and a few others, is that the baseline for new lawyers is so low and misguided that they don't realize how wrong their thinking is. Carolyn, much as I love you, is wrong. Coddling just enables wrongheaded thinking.

    The practice of law isn't about how lawyers can make money. It's about how lawyers can serve clients. There is no other starting point than clients, and no amount of marketing makes a lawyer less of a fraud and danger.

    Rather than have your feelings hurt because a distinguished lawyer like Tannebaum (yes, little lawyers, he's quite well known and well regarded, and you should be honored that he's taken the time to offer you his advice) has told you that you're ugly, learn from him and Gamso. Strive for excellence in the service of your clients. They don't exist so you have something to do during the day and a chance to make a buck. These are real people who really need legal representation. You should be honored that any client is willing to allow you to represent him. Thank that client profusely, as you are as yet unworthy of his trust.

    And maybe, someday, you will have the actual competence to represent clients, and you will be an excellent lawyer because clients say you are (you never have the right to decide for yourself that you're excellent), your practice will grow because clients decide that you are good enough to be entrusted with their care.

    But you don't hear things like this in the solosez echo chamber, which is why you should thank Tannebaum for offering you a lesson you desperately need. And stop being defensive and pay attention.

  17. I anticipated that my first comment would throw some gasoline on the fire. I hope this comment does not, but if I was one of my defendant-clients, I would tell myself to shut-the-hell-up. Nevertheless, I am not on trial, at least not yet, and I want to do something to try to save everyone's opinions of new lawyers . . . however unadvised my attempt might be.

    Brian, shg, Carolyn, and everyone else, I will take your advice. It is not lost on deaf ears. I also apologize for the tone of my original post on Solosez. Quite obviously, it failed to convey the message I intended. I am candid about my experience with my clients, and I value each one that I have. I enjoy providing a service and the relationships it brings. It's the sole reason I left my prior employment to go solo.

    Brian, I am not sure this will help, but I will qualify my prior comment that I am "excellent." I work hard, I prepare well, and I communicate constantly with my clients. When I don't know something, I research thoroughly, and then consult with experienced attorneys to make sure I have not missed something. These are good habits, and I believe they have been the reason for my current small successes. I am otherwise deficient in many areas (some of which you described). I do not contend that my small successes and good habits somehow make me equal to other well-established and respected attorneys.

    I do not agree with everything that has been said, but I wanted you all to understand that I am listening instead of tuning you out. My defensiveness was instinctual, but it's not the end all be all of my personality. I will learn, because I must. I'm not a fan of hard knocks, but sometimes they are necessary. Cheers.

    John Wait

  18. John,

    If you want to "build a reputation as a civil litigator" focus your efforts on civil litigation. The idea that you would drop in to criminal courts to get some litigation experience is offensive.

    Imagine the outcry if you had posted a similar question on a medical list serve and wrote the following:

    "How am I supposed to get open heart surgery experience and earn bread and butter pay while I am trying to build a reputation as a proctologist"

    I hope that helps you see how absurd your cry for help is.

  19. John,

    Now that you've properly hit your head against the wall a few times, get some ice, have a seat, and listen.

    You've been practicing for a year and a half, or 5 minutes. I've been doing it 16 years, or let's say, an hour. It's called the "practice" for a reason. The day any lawyer thinks they know it all, is a bad day - and time in practice has nothing to do with it. I've received some great advice from newly minted lawyers, and been asked for advice from those in practice 25 years or longer.

    That you are not a fan of hard knocks, is to your detriment. You'll never learn anything from those who agree with you, those who think you're great, and those afraid to tell you that you're a complete moron. I can tell you that my greatest mentors are those that have rarely said anything complimentary to me. I remember as a very young lawyer, winning a case, and afterwards the judge invited me into chambers solely for the purpose of excoriating me for some "why the hell did you ask that" questions during a cross examination. Tell me I'm lazy, fat, ugly, stupid, and I'm pulling up a chair. Tell me I'm awesome, and I'm looking for the door.

    I know your situation. You live in a small town. You can't just practice in one area and make a living. I get it. But don't be a jack of all trades, don't lament the perceived loss of a few clients who have no money anyway and deserve appointed counsel - it makes you look small. It makes you look like some of the many new lawyers who went to law school for the money that was "supposed" to be there.

    You want to be a beacon for the profession? You want to show lawyers like me that there are new lawyers out there that care about the profession - then do that. If you want to be a civil lawyer - be a civil lawyer. Don't buy traffic ticket lists, fire the SEO fraud, and yes, network. Buy lunch for people, sponsor charitable events, speak at the local Rotary club, say hello at your kids school, reconnect with old friends, take a small ad out in the local business journal, get on a Bar committee, write about something interesting.

    Become who you want to become. It will take time, maybe more time than you wish, but in the end, you'll look back and not only be happy you did it the organic way, but that there were people along the path ready to slam your head in to a wall.

  20. John's post made me leave the list. Well, let me correct myself, John's was the straw that broke the camel's back. Solosez is a place where you can say whatever idiotic thing you want to say (folks say gay couples adopting is a social experiment and that it is unnatural, and if you say it's a bigoted comment then you are viewed as non-supportive) If someone says criminal defense is a stepping stone and you say WTF, you are not being supportive. You are supposed to HELP them, Brian. They are full grown fucking adults and you are supposed to tell them it should be about the clients.

    There are baby lawyers - and I mean folks just out of law school - who claim to have all the experience in the world. One woman in particular gives out WRONG advice like hillbilly heroin and no one takes her to task. One guy asked THREE DAYS BEFORE THE START OF A MAJOR FELONY TRIAL what motions he should file. He followed up by saying his pappy was a judge and his brother is a lawyer, so you know. Um. Yeah. That's also on his website, by the way (along with the fact that, despite the fact he has been admitted to the bar for 1.5 years, no one has his unique set of experiences) There is a woman - also a 2010 admitted attorney, who gives out incorrect advice like hillbilly heroin. And folks say you don't need mentors anymore in the age of the listserv. Sigh. We are certainly doomed. I didn't want to believe it before, but the law school industry has made itself a pile of cash at the expense of clients.

    And, by the way, these guys and girls really don't understand that you don't blog for business. When I first came back to work I was asked "why are you blogging then if not for marketing?" I could go on and on, but I think there's a blog post in there somewhere.

  21. And Brian, your last comment was stellar. I'm stealing it. It is absolutely inspiring. (and you know I don't even really like you)

  22. Brian,

    I am responding partly as a lawyer, and partly as a former journalist and newspaper editor.

    This is my first experience with your blog. From what I gather, you are a good lawyer who takes the profession seriously. But, this blog post violates important principles of journalism, and frankly basic principles of decency. You are quick to hand out chastisement to others. I think you need to take a dose of your own medicine.

    You posted a highly-critical and demeaning attack on another lawyer, and you didn't bother to contact that lawyer to get his perspective. That's not fair. In fact, it's just plain wrong.

    You know how journalists always say that so-and-so wasn't available for comment, didn't return phone calls, etc.? That's a recognition of the basic principle that people should be offered an opportunity to respond to negative charges. You didn't do that.

    And, this is doubly bad considering that John's question can be read in a much more charitable way than you suggested. His website shows that he has published two articles on criminal law. I haven't read them, but the titles suggest that they are scholarly papers, not "how to beat a speeding ticket." Did you even bother looking at his website before you blogged? (If so, isn't your post a little disingenuous?)

    For a lawyer of his experience level, he appears to be taking criminal law seriously - more seriously than some others in his shoes. Would you prefer a young lawyer dedicated solely to criminal law, but only half serious about being a good lawyer?

    This young lawyer found himself being made a public spectacle on a blog popular among his fellow lawyers. When he did respond here, you attacked him further and said that he had responded as you "expected." I'm not sure if you actually meant what you said there, but did you actually expect this lawyer to respond? And, if so, didn't you set him up for a defensive response?

    Whatever the failures of this young lawyer, I think you have done the profession a disservice in this post. I've read through other posts on your blog before writing this, and I appreciate your perspective - even when I disagree. Please keep posting, but there is no need to sucker punch other lawyers to advance your own point of view.

  23. David,

    Thanks for your comment.

    I categorically reject that this blog, or the writings of any lawyer, are required to be in step with journalistic standards. John wrote an email on a public listserv seeking advice. I am entitled to respond in public.

    Could I have called him and asked, "what did you mean there? Sure. But let's not paint the journalists as angels here. This wasn't a sucker punch, this was an exposure of what is going on in the world of young lawyers.

    John made clear from his post that he was upset that his ability to make money practicing criminal law while trying to become a civil lawyer was being taken away. Now he's further explained himself.

    Don't you think this has been an important discussion? Or should we maintain this type of discourse in private?

    As for taking some of my own medicine, you have to try harder David. I love criticism. It's what has made me a better lawyer, and I hope it will make John a better one too.

  24. I am a regular reader of your other blog and generally an admirer of your point of view. Plus, I enjoy a good curmudgeon expounding on almost any topic of current affairs. But I concur in the objections to your use of individual and attributed Solosez posts without notice or permission. And there's irony afoot here in that you as blogger consistently claim the moral high ground and task the rest of the profession to meet you there.

  25. Am I supposed to rule on objections here? Because John, the writer of the solosez email, didn't make one. Not sure you have standing to object, if it even mattered.

  26. I do not buy John's explanations of what he meant. I think his original post speaks for itself. He was visibly upset North Carolina was going to go to a PD system where he might not get appointments because *gasp* there may be standards. I have no idea how excellent a lawyer he is, I just have his words and his words set me off.

  27. I am not a lawyer, but I have been involved as a Trial Consultant in a good number of cases. As a result, I have had the pleasure of working with a few truly “excellent” lawyers, in both civil and criminal trials. It is not their advertising, financial success, fame, self-promotion, blogging, or tweeting to their peers that sets them apart.

    A few qualities seem to form the common thread:

    Passion, Hard Work, Dedication.

    I could expand on each of these, but there is no reason. I know what it “feels” like. You either have them, or you don’t. They may not make you rich, but they might just help you feel satisfied at the end of the day.

  28. No coincidence that I've spent the week on a civil plaintiffs-side list in Oregon berating those who send accident solicitation advertisement letters to people who have been in motor vehicle collisions. The young attorney who went off defended the practice by saying he was sticking it to the man, and he was providing important information to consumers. He also mentioned that he needed to make money. On a separate list, the young attorney posed a question related to motor vehicle cases that demonstrated breathtaking ignorance of the same area.

    Your post and my week point up recurring problems unbounded by geography or practice areas. A few thoughts: 1. This is a profession. Our clients come first, the justice system comes second, and we are--at best--third in line. 2. The sense of entitlement (money NOW) is breathtaking. Sorry, but it doesn't work that way unless you are working in a large corporate firm. And even then, not without high costs. 3. It takes years to build a practice.

    As I noted on Twitter, I take some comfort that I am not alone. Thanks for pursuing this.

  29. It had a rough beginning, and I take full responsibility for my part, but I like the way the discussion here and on Solosez has evolved. Since I feel like I am closer to the goal I started with, I will provide a few more comments.

    As for Brian's use of my original post, I do not object. I sent an email to thousands of attorneys in the hopes of getting assistance. I understood the risk, but I did not edit appropriately. That's my fault. Others on Solosez may feel that it should have stayed "in-house," and maybe that would have been polite. To me, however, it was not a requirement. As for Brian's use of my name without some sort of obscurement, I would have posted my name in these comments regardless (assuming I would have stumbled upon it at any rate). I like to own my words, for good or bad.

    Regarding the issue of "using criminal law as a stepping stone," I will attempt to tread carefully since this is where most of the derision has focused and I want to avoid further derailment. Before going solo, I asked many, many attorneys about business plans, especially solo attorneys who do civil litigation. Not all, but a lot of them, told about me the value of doing criminal-appointed work while developing a civil practice. It was not because the defendants have no choice and not because you don't have to work hard or be knowledgeable. Rather, there are just some parts of criminal law that are so fundamental that an attorney should be required to have experience with them, regardless of his area of expressed interest. They pointed out other benefits as well of which I have already written about. I still think this has been good advice on the whole. Criminal-appointed work has been valuable, rewarding, and I think tangently applicable to my civil work (ID theft, fraud, and hit-run vehicle collisions having the most applicable overlap for me thus far). My original post expressed my frustration with losing this experience. I did not intend to cause others to "lose faith in the profession." I do not oppose statewide PD offices if they do, in fact, raise the standards of representation.

    In the end, maybe the original advice I received to do court-appointed work was bad advice, or at least not the best advice. To Brian and everyone else, thanks for the guidance, suggestions, and feedback. Brian, perhaps after more experience I will feel the same way about hard knocks as you do and seek them out with vigor. For now, I think an Easter whisky will be more appropriate for me.

    John Wait

  30. Anonymous8:22 PM

    It is nice to know that criminal defense lawyers are the only "real lawyers" in the profession. That frees the rest of us from any obligation to deal with that practice area, and especially frees us from any pro bono obligations in that area.

    It also frees us from having to concern ourselves with any problems associated with that area. We will remember that the next time you come begging to the general bar with your pleas for support.

    Thanks, Brian.

  31. "We" meaning who? Are you the leader of the anonymous cowards with law degrees who stand up for nothing on a daily basis? Trust me, this post will have no effect on the members of the legal profession who advocate for the judicial system. I'm not worried about the meaningless anonymous folks among us.

  32. Anonymous8:42 PM

    "Anonymous coward"?

    You make assumptions that are not valid. The fact that I don't want my name associated with the shill blog of the likes of yours does not make me a coward. It simply shows prudence

    I have no doubt that you are sincere in your belief in the superiority of your field in the profession, but I do not accept that belief. Nor do I believe that you have shown a degree of professionalism superior to those in other fields.

    On the contrary, your attack mode says a lot.

    Are you really advocating for the judicial system or your really only advocating for yourself.

  33. It doesn't matter to you, you're too worthless to be part of this debate. Go hide on someone else's blog, coward.

  34. Anonymous8:58 PM

    Am I to take your ad hominem attack as evidence of your professionalism?

    Inadvertently, you have raised a legitimate question of the professionalism of lawyers, or lack of it in certain fields. Not all lawyers in the criminal defense area are unprofessional, but such attacks tend to indicate that not all attorneys in that area grasp the concept of professionalism.

  35. You just don't grasp it Anonymous, do you? Your opinion, thoughts, words, are irrelevant, meaningless, (and extremely boring) as long as you remain Anonymous. You're presence here is irrelevant. But you keep talking, maybe someone other than you will care.

  36. Brian, I posted this on Solosez, and I believe it is applicable here as well.

    "There is no pretty bow to put on this, and I think I have to own responsibility for that fact. To those that gave my original, yet incredibly inartful, post the benefit of the doubt, I thank you for your input. For those of you that expressed outrage with my original post, I think I understand your frustration and concern, and I hope my subsequent posts have shown that that I am not quite as ego-centric as my first post portrayed. I also hope you understand that I have the utmost respect for the criminal defense bar in whatever capacity they serve, whether private-paid or government-employed.

    I think young lawyers should look at this landmine I have stepped on and learn, as others have suggested I do. I put "Barriers to Entry" in the subject line for a reason. That's how I feel in this job market, and the PD situation in NC has presented me with another challenge. That does not give us young, new lawyers license to be manipulative, deceptive, and over-confident in order to compete with our more experienced counterparts. This is a referral-type business, and you have to earn your stripes. My original post did not convey such a respect for the older, more experienced bar, and for that I am regretful. I do not show this kind of unprofessionalism in my non-cyber life. Sometimes young lawyers can be effective, but that does not mean we have the right to convey disrespect to our elders. Those that hated me for my original post believed that I somehow felt entitled to money or respect simply because that is what they are accustomed to hearing from the young bar everyday. As a new bar, dealing with new challenges, we have to be more mature. With my critics on this point, I fervently agree.

    My post, as well as others on here from the new bar, have offended people worthy of respect. We need to listen to the overall message, and stop being so defensive. As Brian reminded me on his blog, such actions might actually earn us more respect. I will listen to his advice along with others. God Almighty, this sounds like it should be at the end of a South Park episode.

    John Wait

  37. Brian,

    It appears that this is winding down, so I'll not spin it back up. Still, you asked me a couple questions in your response. I don't want to leave them unadressed...

    I do believe that this is a valuable conversation, maybe not for the same reasons you would, but it was valuable nonetheless.

    However, remember that this might not have even BEEN a conversation (at least with John) if he didn't independently find your blog. The dialog portion of the conversation did not occur by design. That's largely my point.

    I also think it was unfair to invoke Rakofsky in your opening. You were clever in how you presented this. But, something less clever would have bordered on actionable libel. John Wait looking for court-appointed work (which presumably is assigned with some regard for expertise and ability) is nothing like a charlatan promoting himself as experienced and taking on a capital case. They aren't even living in the same moral universe.

    Since the original post, John Wait has been fairly gracious, and you've been graciously fair. I think that's enough.

    But, I will add this last comment. I'm an adjunct professor teaching Wills and Trusts. The crop of law students coming through today is totally unlike anything you encountered in law school. They are wired differently. They grew up in a different world. And, our society has changed, too. Some of your ire seems to be tilting at windmills.

    Simple point, a 22-year-old defines "expert" differently than you or I did at that age. Most human knowledge is available in seconds through a Google search. Old-style learning was part knowledge and part application. Modern-style learning centers on application almost exclusively.

    A bright lawyer today can reach a level of expertise in five years that would have taken 20 years previously. (Understanding that some things take 20 years, no matter what.)

    I'm not suggesting that anyone should accept the expertise claims of the new crop. But, I am saying that we ought to understand where the expertise claims are coming from and seek to lead and influence, rather than mock and belittle.

    If you truly hope to influence the legal profession (and I believe you do), I would hope that you might take my comments into account. Whether you accept them or not is your own business.

  38. David,

    If I "truly hope to influence the legal profession," you "would hope that (I) might take (your) comments into account? How very arrogant of you. I have some influence over those who take my advice or are willing to accept another point of view. I need not tailor my personality or comments to comport with someone else's vision of who should influence the legal profession.

    John is to be commended for coming here and engaging me and others in this discussion. Many wouldn't, because they are too scared to think there is a legitimate point of view that differs from their own. I guarantee John's experience over the last 24 hours is one of the most valuable he's had in his career thus far.

    As for Rakosfky, I've been threatened with libel and slander for years, as have other bloggers I know who take a stand against the scum of our profession. It's all a joke, and we all know it. I mentioned Rakosfky here not to compare his legal skills to John's, but to make the point to those lawyers who wonder how our profession has changed, that "experience" is something that can be created differently in the age of the internet.

    Which leads me to your comment about expertise. Becoming an expert has not changed. Access to information has changed. Experience is still what creates expertise, not surfing the internet.

    And I understand law students are different these days. I represent quite a few, as well as young lawyers, and I talk to them about their careers and view of the profession - for the most part, it scares me.

  39. Hang on.

    Expertise that used to take 20 years to develop now takes 5? That's because, I take it, the internet is an unqualified source of spectacularly good information which can be grasped and fully understood and developed through 20 years worth of practice in 5 when all that book learning and real world experience, gee it just took so damn long?

    I know many incredibly bright and capable young men and women. Some are lawyers. None is as fully seasoned after 5 years as after 20. We may lose brain cells over the years, and reaction time certainly slows, but experience is part of expertise. (Though just having lived is no guarantee of having grasped anything - older isn't always wiser.) And the internet is not a faster teacher or a vastly more efficient imparter of knowledge or skill than the old fashioned book.

  40. "A bright lawyer today can reach a level of expertise in five years that would have taken 20 years previously"


    Congratulations Adjunct Professor Hiereskorn! In once sentence you convey so much ignorance that I question your fitness to practice law.

  41. To quote the respected legal scholar Winnie the Pooh, "oh, bother."

    I hope it was clear that I was trying to explain the mindset of young lawyers and specifically how they have a different definition of expertise. I devoted 12 sentences to explaining that I was talking about the changing attitudes of young lawyers. Yet, both Brian and Jeff focused on one sentence and interpreted it contrary to the plain meaning of everything else I wrote. (And directly opposed to the sentence immediately following.)

    I plainly said that some things could not be learned at an accelerated pace. I also said, "I'm not suggesting that anyone should accept the expertise claims of the new crop." I don't know how anyone can read the totality of what I wrote and think that I was arguing a normative truth. I was presenting the mindset of a young lawyer.

    As for the five-years-to-expertise comment, I was honestly just following the premise of Malcolm Gladwell's book "Outliers," where he argues that expertise takes 10,000 hours of effort, which translates into five years of full-time work.

    But, the point really isn't whether those claims are true. The point is that those claims are out there, young lawyers are reading them, and they believe them. I'll quote again the thesis of my comment:

    "Simple point, a 22-year-old defines 'expert' differently than you or I did at that age."

    Moving on to Brian's other comments, I can't understand him calling my statement arrogant. I was simply suggesting that Brian take my comments into account. I believe that I was accurately describing young folks and that my comments had value. (And, point of fact, Brian actually agreed with my thesis that "law students are different these days" - his words.) I didn't suggest that Brian tattoo my comments on his leg, set them to music and chant them daily. I merely suggested that my perspective had value.

    Lastly, I didn't say that Brian's comments were libelous. Instead, I said that they weren't. I said that if he had been less clever, they would border on libel.

    In each instance, you are attacking things I didn't say. That makes continued discussion somewhat meaningless.

  42. To be a criminal defense lawyer should take more than just a JD and a bar membership. An Oncologist MD has additional training in their specialty before they are allowed to practice that specialty. The same should be required for Criminal Defense work. Liberty is at stake, and it is not an arena to just play around in to build another branch of business. Mistakes can often not be undone with a Herculean effort. With all the additional appeal rules and AEDPA it should take a special designation to be a CDL. Just like an oncologist, when a lawyer loses because of poor training or inexperience, the entire profession suffers.

    Want to get experience when you don't know what you are doing in the courtroom? Please go work in a prosecutor's office. Who knows..you may well end up being a judge someday!

  43. It's quite amusing to watch David dig himself out of his hole. When everyone reading your words seems to get a very different message than the one you claim to send, it tends to be one of two things: You are either remarkably unclear or you're disingenuous.

    Since I prefer not to impute venality, I would attribute the error of your defensiveness to the former, despite the fact that your raising, then disclaiming, issues suggests that your purpose is to wrongly smear while maintaining plausible deniability.

    I note that you've been admitted to practice law in California for all of six years, undermining your claim that those five year lawyers don't think like "us". You're an adjunct at Trinity Law School, unaccredited by the ABA. You have an Avvo rating of 8.4, despite your self-serving claim on your website of being "a respected leader in the field of personal and business law," whatever that means. And yet you think yourself the peer of Gamso and Tannebaum. Why isn't your resume on your website, with your dates of graduation or admission?

    At least one lawyer has been enlightened by this discussion. What say we go for two, David? Or will you continue to keep digging?

  44. Scott (shg), there is a third option you aren't considering. Perhaps, the host of the blog misread my comments, and then everyone else (his readers) are simply echoing his error.

    You say I'm digging, but I don't see how. I'm simply pointing back to things I've already said and suggesting that the commenters aren't reading my statements correctly. Until someone responds to what I actually said - the entirety of what I said, I'm not going to waste any more time debating what is plainly clear from my original post.

    Then, you trot out the ad hominem. You've gone that route with me before. It seems to be your modus operandi.

    I have been a lawyer for six years. Law is my second career. I'm in my 40s. My comments were about YOUNG lawyers, not NEW lawyers. I was describing the mentality of a 20-something and describing a generational difference. My comments about attitude would not apply, for example, to a 50-year-old career changer who became a lawyer yesterday. My comments are accurate and not misleading.

    Trinity Law School is accredited by the California Bar. You may not realize it, but California's standards are fairly rigorous. Trinity is not ABA accredited because it could not meet the library requirements - i.e. multiple copies of every national reporter. It's a money issue. The school can't meet the requirements without buying a new facility. It's about a $10 million commitment. Still, the school has a strong faculty who teach there because of the school's faith commitment.

    Avvo ratings are not normed, and you are the first lawyer I've ever heard cite them as authoritative. Still, I don't know what point you are trying to make by noting that I have an "Excellent" rating. Plus, read my endorsements on Avvo. I received glowing marks from attorneys who themselves have 10.0 ratings. As for your question regarding my "respected leader" comment on my website, here are some of the facts I base that on:

    I am a co-author of a business succession planning practice guide published by CEB, the official publisher of the California State Bar in conjunction with UCLA. I have been an instructor for the California Society of CPAs Education Foundation since 2008. (I also wrote the 400-page instruction manual being used by a national education program that has taught estate planning to thousands of CPAs.) I have presented numerous times at events sponsored by local bar associations, and I have presented at national estate planning conferences on four occasions since 2009. My national-platform audiences have ranged from 150 to 350 attendees. Lastly, I am a fellow of the Laureate Center, and an instructor in their estate planning program. In the estate planning world, that program is among the most respected in the nation. Worth Magazine used to rate the top 100 attorneys in the country, and 19 Laureate graduates were rated in the top 100 in the final year of the ratings.

    I suppose you can draw your own conclusions. But when I'm a published author, and national organizations pay me to speak at their conferences where I draw multi-hundred person audiences, I'd say that warrants "respected leader" status.

    Finally, I have been a lawyer for six years, but I passed the bar exam nine years ago. I spent three years post-bar in intensive study in the estate planning realm. The enormous dollar amounts that I was going to work with scared the crap out of me, and I didn't want to swear in until I felt "ready." In those three years, I had enough CLE class time to satisfy more than 50 years of required education. I kept track of my study time, and my non-class time over that three year period was nearly 5,000 hours. Last year, as a practicing lawyer I logged 194 hours of CLE against a state requirement of 15 hours.

    You have a mental picture of a guy, but I'm not that guy.

  45. You say I'm digging, but I don't see how.

    Heh. I win the bet, though I feel guilty about taking Tannebaum's key lime pie for something so brutally obvious. Not guilty enough that I won't taken, but each bite of delicious pie will include a bit of bittersweetness.

    I didn't read the rest of your comment, David, as it looked very long and boring, and frankly, I don't care. I can explain it to you, but I can't understand it for you.

  46. Scott (shg), fine, then. You've chosen deliberate ignorance. Of course, that's not a recent decision.

  47. I know. It's really hard to imagine that you aren't overwhelmingly fascinating. But really, tell me more about you.

  48. Scott, you crawled up my ass with a flashlight, and then you pretend to be disinterested? Please, that's schoolyard antics.

    I never made this about me. You did. Your feigned disinterest now is just, as I said, deliberate ignorance.

  49. This comment has been removed by a blog administrator.

  50. Is the flaming narcissist getting upset? I checked out your claims here and found out that you're full of shit. All your self-promotional claims used to manufacture credibility turned out to be garbage, requiring you to backtrack, explain, qualify. You got caught.

    I don't do this because of you. Nobody cares about you. You've already established yourself as meaningless and irrelevant. I do this to show the young lawyers how trying to bullshit their way into pretending they're a real lawyers can turn them into a pathetic joke, just like you.

    And you've done your job admirably. And you, you pathetic narcissist, still think it's all about you, and you're so clueless that you don't realize that your only purpose was to be the example of how bullshit turns you into the joke.

  51. Scott,

    My self-promotional claims? Until you attacked my reputation, I didn't mention anything about my background, other than to mention something I've observed as an adjunct professor. My teaching position is necessary to explain that I have actually observed law students behaving in the way I spoke about. But, unless you can explain to me how I might personally gain by posting about my academic position in a criminal law forum, I don't think you have much of a point there. I only responded on this forum to defend a young lawyer who I thought was getting attacked unfairly. I didn't come here to promote myself.

    Then, you attacked me personally. What was I to do? Nothing? I suppose that you think I should have just told myself, "Well, that Scott Greenfield is such a notorious asshole that nobody will take him seriously anyway." Is that the proper response? Just to ignore you?

    Or, should I have jumped in the mud and attacked your poor grammar and misuse of the word "venality?" (It refers to dishonesty that is purchased, not merely being disingenuous.) I suppose there are lots of things I could have done. But, I chose to defend my reputation.

    And, there is a difference between defending your reputation and engaging in self-promotion. Are you too stupid to tell the difference? Scott's world:

    Scott: You're ugly and no man would ever touch you!
    Girl: No I'm not, and I'm married.
    Scott: Pathetic narcissistic stuck up bitch!

    I hope you can think more clearly when you work on your clients' cases.

    My statements here are accurate. If you have evidence otherwise, then out with it. See, you've tripped over the line now. I know for a fact that my claims here are accurate. Apparently you assumed that I was inflating or overstating my background and you thought you could just bluff your way through this one. But, I know you are wrong. So, put up or shut up. Back up your claims.

    Of course, you can't and that's the point.

  52. Sorry David, but you've served what little purpose you can and my interest in you has waned. The record speaks for itself.

  53. Anonymous1:21 AM

    Wow. This is one interesting thread. Have you guys ever considered: (1) putting a limit on the number of people who can become lawyers to avoid this race to the bottom and (2) have law school actually teach people how to practice law the way medical school teaches people to actually treat patients. There is something basically flawed where you spend 200,000$ for a degree that doesn't actually prepare your for basic things like court arguments and motion filings. My interest in law is more for political advocacy ("lawfare"), but it comes across quite clearly that the system you guys live in is broken. Three years of expensive professional training and you STILL aren't prepared to do BASIC criminal work?

  54. "Three years of expensive professional training and you STILL aren't prepared to do BASIC criminal work?"

    Here's the thing, Anon -- I'm not sure what you think you mean by BASIC criminal work.

    Is someone who just graduated capable of sitting at a table and handling an arraignment calendar? Sure. Young DAs do all the time. Some young PDs do. But private attorneys need to be ready to understand and handle a case all the way through.

    Someone just out of law school might even do a fine job -- if their client is lucky -- all the way through a basic criminal case.

    But lives are at stake. You don't have a doctor go through four years of school and internship and residency to handle the times when the patient needs Advil. You have them do all that to spot the times the patient needs brain surgery.

    Frankly, anyone of average intelligence could be taught how to look up cases and how to figure our the rules of criminal procedure and how specific court rules work. What takes experience is knowing what questions to ask the client, knowing when the client is lying, knowing how to get information out of the client, knowing how to spot lies and errors and omissions in police reports, knowing how to handle a clerk or a judge or a prosecutor, knowing how to do an EFFECTIVE opening or direct or cross, knowing what motions have a shot at success and what motions don't, knowing how the government is likely to prove something up, knowing whether an offer is good or lousy, knowing how to manage setbacks and surprises and problems. All of that stuff involves judgment and experience.

    "Law knowledge" is not generic. I had tried more than a dozen jury and bench trials as a prosecutor, and it still would have been foolish for me to wade in to representing defendants without working with a mentor. Thankfully I didn't.

  55. Anonymous9:28 PM


    When you graduated law school, before any other training were you taught how to: (1) handle a bankruptcy, (2) a divorce (3) a child custody case (4) traffic court cases (including OVI) (5) criminal defense (6) drafting a will and guiding one through probate (7) arguing a criminal case appeal or seeking an expungement. Not that you would be perfect at (that takes experience like anything else) those things, but could you do those tasks based solely on they training you received in 3 years of highly expensive legal education? I graduated from the police academy with a basic working knowledge of my state criminal and traffic code, basic knowledge when I could and could not arrest someone, tons of training on use of force (mainly to NOT use it unless you want to get sued out of existence), driving, and a bunch of areas. It took time to get good at those things, but coming out the door I knew more or less, "here is a possible drunk driver, I know and can do the steps in the process to investigate and if warranted to charge the guy."
    From some blawgs I have read, law school doesn't do that. I may be wrong, but that is what I have read and what 3L student told me.

  56. Anonymous10:23 PM

    You have a good strategy. Criminal law is a great place to learn the fundamentals and also to generate cash flow while you build a civil practice; especially if you are building a contingency fee civil practice. This is because of the following reasons:

    1. Most criminal cases are bite sized.. Stay away from murders and big felonies unless they can pay a big fee. They are too much stress and usually too little money. This does not apply to drug conspiracies; drug dealers have lots of money. Take lots of DUIs, small drug possessions, domestic batteries, misdemeanors and the like. Try to take them to trial. Most clients are guilty and, in state court, the punishment is usually minor. Win if you can. Loose if you must. But have fun. Even if you don’t try them, you learn other important skills like negotiation, case management and client control.

    2. Criminal trial and negotiation skills are transferable: You cross examine, direct, argue and negotiate exactly the same way in civil litigation.

    3. Clients overlap. The people who commit run of the mill crimes are the same ones who are workers comp/ PI plaintiffs. Tell your criminal clients that you do PI and you’ll get lots of good cases. The deadbeat who can barely get $500 for you to do a quick plea might get a $200,000 PI case next week.

    Successful lawyers who cut their teeth on criminal:
    Joseph Jamail: a tort and business litigation billionaire began as an Assistant State’s Attorney. Gerald Hosier: a patent litigation centimillionaire began as a public defender. Johnny Cochrane is famous as a criminal lawyer but he made his real money on big personal injury. Lots of big firms take “pro bono” state court criminal cases to practice trial techniques.

    Some caveats:

    1. You pick up bad habits as a state criminal defense lawyer. Federal civil litigation is very precise and methodical and the rules are followed.
    2. You won’t learn civil discovery and complex research and writing from criminal law.
    3. There’s no homework in criminal but lots of homework in civil. Spending too much time in court takes you away from your desk. Bunch up all of your criminal cases on only 2 days each week so the rest of the week is free for work.

    Your concern about public defenders is unwarranted. The average client looks down on the public defender. They think PDs are like medical residents: lawyers in training. Or they think PDs are lawyers too bad to have their own practice. This is not true, but that is the clients’ perception. Guys who spent 3 months in the state’s attorney’s office brag for the next 25 years that they are “aggressive former prosecutors”. Former public defenders hide that they ever worked at the public defender’s office. It’s ridiculous, but that is the perception.

    Good luck to you.

  57. Anonymous10:46 PM


    This is how the profession really works: A lot of lawyers start with criminal. They get experienced. They then move on to bigger and more lucrative civil litigation.

    But criminal law can be a refuge for complacent lawyers. Criminal defendants are poor. There aren’t many cases where the client pays enough money for you to make a big deal out of it. State criminal law is a bit of a confidence game. You ask the clients’ expectations. He may be terrified of going to jail. You know that he’s not realistically going to go to jail; but he doesn’t. During the interview, you gather economic status information. Multiply FEAR x ECONOMIC STATUS = LEGAL FEE. After you are paid, you resolve the case to the client’s satisfaction with a five minute plea negotiation. You tell the client what a great lawyer you are; and you move on. If a client has unrealistic expectations or expects lots of work, you charge an exorbitant fee and he moves on.

    Complacent lawyers can make money. They refer PI and other civil cases for a 1/3 cut and don’t bother learning to be good civil litigators. I know guys making over $300k who work 20 hours a week and haven’t tried a jury in 15 years.

    But with legions of young lawyers who can now repeat the marketing tricks and undercut in price, the complacent lawyers are complaining. It’s their fault for being lazy and not having moved up market years ago.

  58. Anonymous11:16 PM

    So this whole thing is really just about making money then. Where is the "defending my client against the government", "seeking justice against oppression" and all that sort of rhetoric I have heard before as justifications for charging 200+ per hour from (mostly) guilty people who can barely make rent? The client as cash cow. And if there is no money, then there is no lawyer (except the public defenders who are looking better every day) even if the client is factually innocent.

  59. Anonymous6:45 PM

    @11:16: Good lawyers are not "seeking justice against oppression". The clients know that they are not being oppressed. They committed a crime, got caught, and now seek to minimize the damage.

    Middle class kids go to law school where idealistic professors teach them to "seek justice against oppression". They become public defenders where they fight a war against the hated oppressive government with motions and trials. In the process, they treat their actual flesh and blood clients, who are poor working class whites and minorities that the kid lawyers don’t identify with, as props in an ideological struggle. The annoyed prosecutors and judges then take it out on the clients.

    I do not judge my clients. I don’t pretend that I’m not judging the clients; I really honestly do not care what they did. I treat drug dealers and child molesters with the same nonchalance that I treat business clients. They like me for it. They also understand that I only care about money.

    I make money by my reputation as a good lawyer.

    What is a good lawyer? It’s a lawyer who manipulates the situation to minimize the client’s exposure. Occasionally this means a motion or a trial. Usually it involves much more subtle manipulation. The good lawyer cultivates good relationships with prosecutors and judges who, truth be said, have no real interest in the cases outside of appearances. They look the other way while the criminal lawyer continues the case, wastes witnesses’ time, delays, and then quietly reaches a resolution where the clients suffers little, or no, incarceration or other punishment.

    A good lawyer wants criminals to say: “He’s expensive as all hell, but he can take care of it if you can afford him.”

  60. First meet "face to face" with the Lawyer who will be defending you in court. then make you decision as to whether this will be the man/woman who will be representing me. Don't rely on self hype on Internet sites, don't rely on "case managers" rely on your "gut"

  61. Anonymous10:34 AM

    I think there has been a lot of misunderstanding as regards Mr. Wait's concern. In NC private assigned counsel (court appointed) handle indigent "civil matters" such as IV-D child support and DSS juvenile proceedings. In addition to the public defender's office expanding in every county there is also a move for the PD's office to now handle DSS parent representation which is "civil" in nature and more family law oriented then criminal law oriented.