May 17, 2013 Criminal defense is not for mere dilettantes, but for true believers and true doers
Recently, I bumped into a fellow lawyer when both of us were on the way to Maryland criminal court. I mentioned my intention to move to dismiss my case for being improperly charged by citation rather than by a statement of charges. (The case ended up getting dismissed when the prosecutor’s witness did not appear.) My colleague had never considered such an idea, at least not for this particular criminal accusation, and kept asking me about this defense rather than simply showing by words or silence that he was going to arrange to read the citation statute, which I had already cited to him. Md. Crim. Proc. Code § 4-101.
Criminal defense is about defending people’s lives and liberty, using all the lawyer’s skill, experience, persuasive ability, true grit, passion and entire person. Sometimes the work is like panning for gold. It might feel exhilarating to get a criminal defense victory by hearing a resounding jury acquittal, but getting a case fully and finally dismissed well in advance of trial on an novel or obscure argument or piece of evidence wins the defendant’s liberty sooner, reduces the defendant’s angst, and saves the defendant on his or her litigation budget. The goal is to win, no matter how the lawyer gets to the victory, so long as the lawyer works honestly and within the bounds of law.
Criminal defense is not for mere dilettantes, not when criminal defendants’ lives and liberty are on the line; not when persuasion in criminal court requires knowing the case and applicable law backwards and forwards; not when the criminal statutory and caselaw involve so many nuances, opposing lines of caselaw, and counterintuitive and even exasperating rules, tests and results; and not when too many judges too often find ways to avoid giving criminal defendants the relief they are entitled to, under the rubric of harmless error, lack of caselaw supporting relief (even when the applicable statute dictates such relief), waiver of rights, and lack of authority or jurisdiction over the matter when the judge does have such authority and jurisdiction.
Nobody in his or her right mind would go into the boxing ring against the world’s heavyweight champion without experience, wits, courage, and daily focused training and exercise. The same goes for criminal defense lawyers. Unfortunately, dollar signs and empty coffers can entice lawyers to foray into criminal defense if they find the clients; foray not for such mere reasons.
Yes, any professional needs to start somewhere. However, the difference between the dilettante and the devoted criminal defense lawyer is the difference between dabbling and taking on each case as if the life and liberty of the lawyer himself or herself — or the lawyer’s closest friend or relative — depended on it. No area of law — particularly criminal defense — should be viewed by the lawyer with dollar signs rather than as a way to serve clients, with money being a fringe benefit. I have had some lawyers tell me, unabashedly, that the practice of law is all about making money. They should not hold their breaths for me to refer cases to them. When I need to refer someone to a lawyer because of a conflict of interest or calendar, geography, or area of law, I want a lawyer who truly cares, is truly capable and is truly attentive. I want a lawyer who is a true believer and true doer.
What about my colleague, then, who kept asking me about my citation-dismissal argument rather than stopping the action by simply resolving to read the applicable statute? He is not necessarily a dilettante. If he did not care about finding expanded ways to succeed for clients, he likely would have paid little attention to what I had told him. He did not, though, engender confidence in me to the level of referring any clients to him, in part because he did not already know this basic area of the law, and did not exhibit that he was just going to read the short applicable statute for himself.
Devoted criminal defense lawyers are always ready to brainstorm with colleagues, and to expose their personal and intellectual weaknesses and fears in the process, out of the goal first and foremost of serving the client. However, adding to the mix of brainstorming is the necessity to fully and repeatedly engage with and do teamwork with the client, and the essential and often painstaking process of the criminal defense lawyer’s being alone with his thoughts and ideas. Criminal defense lawyers on the winning path welcome all opportunities to get closer to victory, and do not feel lonely, but totally alive, when alone in thought and preparation for each client’s defense, only missing having nobody else in the room to high-five when the lawyer discovers a new breakthrough towards winning his or her case.
Today’s blog entry is meant partly to urge lawyers to stay away from criminal defense unless they are going to jump into it full force, with their full true belief, devotion, heart, soul, time and attention, intellect, and experience. This blog entry is also meant to encourage criminal defendants to seek out such lawyers, not the ones who just talk the talk, but who have shown that they are walking the walk. The walk cannot always be easily found, but must be found, including researching and observing the lawyer, paying close attention to how the lawyer talks and pays attention to the potential client, reading some of what the lawyer has written, and asking the lawyer why s/he practices criminal defense.
I am grateful to know many true believers and true doers in the criminal defense practice, with all being great teachers to me by their teachings and example. I thank and deeply bow to them all.