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...

John:

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.)

Well.

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. Post to Twitter