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

Sunday, May 01, 2011

This Is How The Profession Really Works. Really.

Sixty comments. 60. I've never had 60 comments to a post. Yes, I'm talking about the last post, the one inspired by John Wait. I throttled John. He responded. He used his name, not like the growing crowd of anonymous cowardly "lawyers" posting on blogs as if they are leaving a pile of shit at someone's doorstep and running away like children. John engaged me in a discussion. Don't be surprised if we continue the conversation down the road. While he disagrees with some of what I said, and probably thinks I acted like an asshole, don't confuse that with the impossibility of beginning a relationship..

The discourse was great. The comments were a tapestry on the subject of criminal defense. Two comments near the end caught my attention (My comments appear in bold in parenthesis):

"You have a good strategy. Criminal law is a great place to learn the fundamentals (on the backs of poor defendants who don't need lawyers who are committed to criminal defense or have any experience in the field) and also to generate cash flow (because it's all about the cash flow) while you build a civil practice (and hopefully quick so you don't have to defend guilty scumbags); especially if you are building a contingency fee civil practice. This is because of the following reasons:

1. Most criminal cases are bite sized. (like m&m's). Stay away from murders and big felonies unless they can pay a big fee (if they can pay a big fee, take them and fake it. Hopefully the client won't figure out you aren't experienced. Hopefully you've created a false online presence that can convince anyone you are "experienced."). They are too much stress and usually too little money (and the practice of law should never include cases that are stressful without the requisite "big fee."). This does not apply to drug conspiracies; drug dealers have lots of money (or at least they did in 1983). Take lots of DUIs (because you can only go to jail for 6 months for DUI), small drug possessions (only 60 days in jail), domestic batteries (maybe a year, but hey, what's a year in jail?), misdemeanors and the like (hopefully you'll get a lot of "the like."). Try to take them to trial (whether you know how to try a case or not). Most clients are guilty and, in state court, the punishment is usually minor (so try to keep a straight face when you do voir dire and speak of the presumption of innocence, and try to keep a straighter face when you tell your client you are sorry he's going to jail for 30 days when he could have pled guilty and received probation). Win if you can (but only if you can. If you can't, at least you'll have the experience for when you "go civil":). Loose if you must (or lose). But have fun (fun, like at Disney World). Even if you don’t try them, you learn other important skills like negotiation, case management and client control. (These are things you will learn on your own, no need to seek mentors to help you. They are all mean and will only tell you about practicing in areas in which you are "passionate," and when we're dealing with cash flow, there is no room for this so called "passion.")

2. Criminal trial and negotiation skills are transferable: You cross examine, direct, argue and negotiate exactly the same way in civil litigation. (and the rules are the same, well not exactly the same, but similar, kind of, like almost, maybe.)

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 (lots, wink). The deadbeat who can barely get $500 for you to do a quick plea might get a $200,000 PI case next week. (or the week after)

Some caveats:

1. You pick up bad habits as a state criminal defense lawyer (but not as a PI lawyer, or commercial litigator, never). Federal civil litigation is very precise and methodical and the rules are followed. (they are not followed in federal criminal court, just go in and see for yourself.....)
2. You won’t learn civil discovery and complex research and writing from criminal law. (right, and you won't learn how to grow tomatoes from taking a class in American history)
3. There’s no homework in criminal (none, not a single criminal lawyer does anything but walk in and out of court.) but lots of homework in civil (but don't confirm this with any civil lawyer, because you might be confused). 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. (just tell the judge this is how you need it to be, trust me, they will all understand.)

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”. (first true statement) Former public defenders hide that they ever worked at the public defender’s office. (ut oh, I better start hiding this) It’s ridiculous, but that is the perception.

Good luck to you. (yes, especially if you take this anonymous advice - GOOD LUCK.)

And then there's Anonymous 2, who has all the answers:

Anonymous said...


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. (this is true.)

But criminal law (or insert any type of law) can be a refuge for complacent lawyers. Criminal defendants are poor (all of them, even the wealthy ones, just go with it). There aren’t many cases where the client pays enough money for you to make a big deal out of it (and who's going to "make a big deal out of it" if the money is not good?). 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. (yes, this is how the scumbag lawyers do it). After you are paid, you resolve the case to the client’s satisfaction with a five minute plea negotiation (five minutes, not a second more). You tell the client what a great lawyer you are (repeatedly); and you move on. If a client has unrealistic expectations or expects lots of work, you charge an exorbitant fee and he moves on. (never take on a client where there may be "lots of work," we don't want that. We're not trying to build a reputation here, just cash flow.)

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. (do this, you can make lots of money and never have to worry about being a good lawyer - this is the goal of this generation.)

But with legions of young lawyers who can now repeat the marketing tricks (taught by failed lawyers selling said 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. (it's also their fault for taking the advice to be complacent lawyers and make money instead of building their skills as lawyers.)


This is the advice out there. This is why I laugh when people ask me why I ride these marketing trolls, the ones teaching twitter instead of trial. The ones teaching SEO, instead of BOLO.

One thing I've learned from this is that in many jurisdictions, taking criminal cases is as easy as asking to be on a list. Where I'm from, we have screening committees. No experience, no cases. You want criminal appointments in Miami - apply, and hope you get selected. It's not a training ground here like it is elsewhere. I understand though, in smaller jurisdictions there is no ability to be selective because fewer people want to take criminal appointments.

But my question is this: Does pride matter anymore? Is there any desire to be good at what you do? Or is it just a factory - an exercise in cash flow?

There are many complacent lawyers, in many disciplines. The civil bar tolerates us criminal lawyers. We know this. They think we walk in to court and just plead people guilty, and for the most part, that's what happens every day.

Let's not forget though that in those moments where a client wants more than a plea machine, more than a "complacent" lawyer, more than a kid trying to generate cash flow, there is a need for non-anonymous criminal lawyers who are in this for the purpose of a zealous defense.

And this is how the profession works, really.

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. Anonymous10:38 AM

    "Let's not forget though that in those moments where a client wants more than a plea machine, more than a 'complacent' lawyer, more than a kid trying to generate cash flow, there is a need for non-anonymous criminal lawyers who are in this for the purpose of a zealous defense.

    And this is how the profession works, really."

    Once again, amen, Brian. Amen!

    Lance Mixon
    Jackson, Mississippi

  2. Anonymous8:10 PM

    Good post.

    What is BOLO?

  3. Anonymous8:33 PM

    Those two lawyers sound like assholes.

    I don't like to admit this, but they probably make money. In the old days, you did as well as your reputation. Advertising has destroyed this. Now anyone can declare on his advertising that he is an "agressive former prosecutor" and is "well respected in the legal community".

  4. Anonymous10:44 PM

    What these guys said is not innacurate.

    The way you get mentors is by taking the case and then splitting the fee with an experienced lawyer. He mentors you by doing it with you. After a few cases, you've picked up the basics.

  5. Why so many anonymous comments? Are you Mossad, member of Clud Ned, channeling Publius?

    The idiotic comments of which Brian writes were similarly posted anonymously. Has there been a sudden epidemic of eunuchs?

  6. Well said. I was disgusted when I read those comments, I was glad to see such an amusing response.

  7. Scott Ball4:44 AM

    I am an avid reader of your blog and your recent posts regarding young attorneys have really piqued my interest. As a 2008 law school grad who was more or less forced in to private criminal defense practice straight out school, these posts have really hit home. In a way, the trend of focusing on simply signing the client at any cost, online marketing, and leaving a client with inadequate representation has saddened me, because I certainly do not want to be identified as a part of that demographic. However, I am working hard to distinguish myself from my peers and am hopeful that is evident to my clients. Since I have graduated, I have wanted nothing more than to learn how to be a great criminal lawyer, and I understand the best way to do that, to actually learn the law, is through a public defender or prosecutor job. Unfortunately, in southern California, that has been an extremely difficult position to obtain (if you want to get paid for it, anyway). So I have set out on my own, with some fantastic mentors, and I am happy to say I am making it work, and I hope I am doing it in the "right" way, by relying on doing a good job for my clients. I limit my practice exclusively to criminal defense, and I cringe when I see websites for lawyers who graduated in the past few years who are willing to take on criminal, family, PI, or any other client matter that comes through the door (or a well placed google ad). I have been careful not to bite off more than I can chew, and the story of the young lawyer in Washington who basically left his client out to dry definitely serves as a warning.

    I appreciate you bringing these issues to light, and I believe your opinions are spot-on. However, I want you to know that there are young, relatively inexperienced, but bright and hard working attorneys out there who share your opinion on building a practice an reputation the right way.

    Thanks for sharing your opinions, and please continue your thought provoking and interesting posts.

    Scott Ball
    Orange County, CA

  8. Scott Ball has it right. The primary focus has to be on the client. If any lawyer--young or old--is unable to adequately represent someone on a particular matter, the lawyer should either refer it to someone who can handle it, or get a mentor to work with him or her.

    The obvious problem is the outrageous marketing tactics, coupled with a willingness to grab the fee and cop the plea. You can make money that way. However, sooner or later you will find yourself in a Rakofsky type of situation. A judge will be looking down from the bench, directly at you, and asking [in proper judicial language] "Counselor, do you have any idea what the f*** you are doing?" That's not a good position to be in.

    Let me take issue with those who appear to claim that civil litigators are somehow more capable than criminal defense lawyers. That is not what I have observed. Moreover, having been involved in this crazy business for over three decades, there are quite a few of my former colleagues who sit on their asses in black robes. They tell me that the so called "civil bar" is mostly comprised of folks who are intellectually challenged when it comes to the law of evidence. [There are exceptions, especially, but not exclusively, among those who handle medical malpractice--many of whom are former prosecutors.] One of these days, I may try a civil case, just for the hell of it,

    One final note. I practice in Nassau County, NY. To get on the list of assigned counsel one must have experience. It's not a training ground. As for the rest of the state, we do have some places where the quality of counsel might leave something to be desired--at least that is what I am told. In any event, there are some highly dedicated, very competent, people working to correct that. (Check out the New York State Defenders Association. www.nysda.org and you will learn more about public defense in New York than you want, or need to know.)

    Notwithstanding all of that, we still have our share of whores. Some of us, at least, are trying to weed them out.

    Oh, yeah, I don't want anyone to think I'm posting anonymously. My name is John Marshall [no relation to the chief justice.]

  9. M. Stephen Stanfield1:25 PM

    BOLO means Be On the Look Out or what in the old days was an All Points Bulletin.

    I mentor a couple of young lawyers right now and have not asked for one fucking red cent. Any lawyer who does and calls himself a mentor should be flogged.

    One of them gave me a bottle of good (very good) scotch last year for Christmas that I tried not to take. I accepted it because to not so do would be ungracious of me. Giving me the booze meant a lot to him. Why did I try not to take it? I was only doing for him what was done for me.

    We, the older and experienced lawyers, owe it to the younger generation to help them. Why do we owe it to them? The clients they represent deserve zealous advocates.

    Everything we do is about the clients. If you're not working as a lawyer because you sincerely want to help people then go be a used car salesman.

    I've been doing this job for 15 years now. I've a statewide reputation. It took me that long for that reputation to come into existence. Part of that reputation is if I make a bad business deal because I underestimate how much work a case will require then that's on me. I have to eat it.

    I frankly don't give a damn about all the problems young lawyers have. They're not new problems. My first year out of law school I made $27,000.00 a year and pulled 60 to 70 hour weeks. My father, a lawyer with over 40 years experience, routinely worked 80 hours a week his first year out and made $12,000.00 a year. Lawyers work a lot. That's just the way it is. You start at the bottom of the totem pole; slug your way through the trenches; eat grilled cheese sandwiches while driving Honda Civics with 80,000 miles on the odometer; and go balls to the wall every time single time you set foot in the court outworking the other lawyer even if you've no case.

    If you're not willing to do this then don't be a lawyer. I don't want you in my profession. You make the rest of look bad.