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Don’t let prosecutors rejoice over divisive competition among criminal defense lawyers

Feb 17, 2013 Don’t let prosecutors rejoice over divisive competition among criminal defense lawyers

We must, indeed, all hang together, or most assuredly we shall all hang separately.”- Ben Franklin.

Prosecutors’ offices likely share with each other on email listservs and at conferences to help make each other better prosecutors. Plenty of criminal defense lawyers do the same, and more should.

Then there are the criminal defense lawyers who reply to possibly lazy listserv questions with “Do your own damn research”, and to listserv messages that do not seem thoughtful enough with flaming replies. It is enough to intimidate plenty of less courageous lawyers to stay quiet — and to risk screwing their clients, whether knowingly or not — by falling into a pattern of not talking to colleagues who are more experienced or insightful in defenses that they are handling.

One day, I called a lawyer, “Melvin”, in a neighboring county to figure out an obscure but vital detail about the vagaries of one of the county’s judges. I told him that his “colleague” Leroy thought that Melvin likely would have the answer. Melvin happily answered my question, but only after proclaiming without any exaggeration that Leroy “is not my colleague. He is my competition.”

Soon after I joined a national lawyers’ organization that has a selective admissions process, I heard of two types of members of this group: One type that welcomes new members with open arms, and another type that barely masks resenting that more competition has arrived in the mix.

I hear some lawyers go on the attack over others who send direct mails seeking clients. I hear of public defender lawyers believing they are practicing more pure criminal defense law because they do not do it for profit and only do criminal defense, and of private criminal defense lawyers who believe that they are better than public defenders for risking the capitalist marketplace and for not having overburdened caseloads (although plenty of private criminal defense lawyers charge so little that they are indeed overburdened). I reject both characterizations.

Then come the angelic top-notch criminal defense lawyers like SunWolf, Lisa Monet Wayne, Steve Rench, Andrea Lyon, David Lewis, Judy Clark, Nancy Hollander, Larry Pozner, and the list goes on, who give so freely of their time to help criminal defense lawyers succeed for their clients that they frequently have flown around the country at their own expense and without payment to teach at the National Criminal Defense College, and federal and local conferences of criminal defense organizations.

In this still-challenging economy, lawyers feel the increased competition when some others cut their fees to a level that they would not otherwise do so in a better economy, when marketing goes on at a dizzying pace, and likely (but hopefully not) when lawyers will unfairly badmouth their competition in seeking to grab a new client. I prefer to view the competitive legal market as one of abundance, with an abundance of potential clients, an abundance of paths for a personally and professionally rewarding career, and an abundance of creative approaches on the way to victory. I believe strongly in helping colleagues rise as I rise, and not to step on their heads in my own efforts at success.

Perhaps some colleagues feel so comfortable talking to me about their financial concerns that one criminal defense colleague not long ago told me that his direct mailing approach to getting new clients was about all that was keeping himself financially afloat. He told me that he was again taking Virginia court-appointed cases after he had vowed he would not do so (court-appointed cases are great for helping equal access to justice and to varying one’s practice mix and experience, but are not good for pay in Virginia state courts). He said that he now has a practice of parking his butt on a chair near heavy foot traffic in a courthouse hallway before court starts, in case potential clients might have questions for him. Rather than cutting my fees, offering payment plans, or sitting in the courthouse hallway, I pursue a law practice focusing on collaborating with colleagues and taking care of and serving my clients as best I can, just as Bill Evans spoke of taking care of the music for the music to take care of the musician.

Speaking of the foregoing lawyer who spoke of scarcity, although I insist on honesty (silence can also be honest), the late cosmetics millionaire Mary Kay had a good point that answering “Hanging in there” does not make sense as an answer to “How are you?” “Fake it til you make it,” urged Ms. Kay. Similarly, a long-successful D.C.-area lawyer once told a crowd at a seminar on opening a solo law practice that when asked how her then-budding solo law practice was doing, she did not lament that she was still waiting to get a full complement of clients and an income to cover her expenses. Instead, she said things are going great and are very busy. She was in fact busy, because her professional time that was left over by having only a small number of clients was taken up by such activities as getting her name out there by writing and publishing legal articles in her areas of practice. Looking at one’s law practice — or any career situation — as scarce helps bring more scarcity, because it is a serious psychological barrier to focusing on the possibilities for serving clients well and, in the process, doing well as a lawyer.

The foregoing paragraph is not mere platitude, and is inspired by such people as my wife (who brims with infectious optimism and has introduced me to Ihaleakala Hew Len, has focused me on some of the best of Wayne Dyer, and reminds me not to get sidetracked by obstacles in life and work); fellow criminal defense lawyer Ferris Bond. who urged me in 1992 (when the economy was also very challenging for lawyers and all others) to become my own boss; Dr. Ihaleakala Hew Len (see here, too);  Wayne Dyer; Bill EvansLao Tze; and John Coltrane (who said There is never any end… There are always new sounds to imagine; new feelings to get at. And always, there is the need to keep purifying these feelings and sounds so that .. we can give … the best of what we are). When I as a lawyer and person focus on the abundance of possibilities for my clients and my personal and professional life, my clients and potential clients are going to feel that abundant energy and to be positively influenced by it, and opponents, judges, jurors, and opposing witnesses are going to experience that positive energy rather than fear energy about the challenging economy. What happens when one laments scarcity? Two of my previously favorite local ethnic restaurants became less attractive in my eyes and to my stomach when the co-owner of one of the restaurants complained about making any profit after paying for rent, staff and food, and after the owner of the other restaurant (which is purely vegetarian, making me want to support the restaurant all the more) complained about people wasting food at his buffet and about the high cost of a case of tomatoes. I asked myself if and where these restaurants cut corners to eke out some sort of profit.

Consumers prefer service providers who are abundant. How did Michael Jackson, for instance, sell out performances and albums when plenty of recording artists complained about copyright infringement privacy eating into their profits? I imagine that he focused on delivering superior performance rather than on lamenting piracy. He focused on his abundance.

I have a choice between walking into a courthouse and letting my heart sink over all the injustices being inflicted on criminal defendants in that and all courthouses, or to see myself as a peaceful guerrilla warrior ready to reverse that trend one client at a time, and also by helping my colleagues who seek my counsel.

A tremendous number of my criminal defense colleagues have great experience, ideas and good energy to share. I have benefited so much from that sharing that I would be unable to pay back such benefits even if I spent every waking hour trying to do so. When I attended the National Criminal Defense College’s two-week Trial Practice Institute and the one-month Trial Lawyers College, a big theme was that attendees were being given so much by the volunteer attorneys there, that we naturally had an obligation to give back. That sounded like a natural given to me.

One of the best ways for criminal defense lawyers to help each other is through collective brainstorming, where no judgment is being made and where the speakers are not overfiltering their thoughts, lest they filter out any winning thoughts. I am very fortunate to know many great lawyers locally and nationally who are willing to engage in such brainstorming, so I focus on such abundance rather than on the lawyers who will just judge, judge, judge during such discussions. I have even heard about brainstorming sessions where any judgers get squirted with a water pistol. That is a soaking variation on the theme of Wavy Gravy’s practice at Seva Foundation meetings — according to Ram Dass — of having hyper-serious meeting participants wear funny nose glasses for not taking themselves less seriously.

Some of the best brainstorming that I experience is when lawyers and non-lawyers gather for a weekend morning without distractions of phones or emails, along with the client who is the subject of the gathering, to find the paths to trial victory through role playing and reverse role playing/psychodrama, by answering the protagonist lawyers’ central concerns, and by throwing idea after idea onto the table. I have been blessed by my many colleagues who have helped me and my clients in doing that, and am here to reciprocate.

When a criminal defense lawyer is in dire need of input from colleagues — for instance when the prosecutor drops a discovery bomb less than an hour before trial, that will not automatically get a continuance — that lawyer needs non-judgmental, generous, on-point and compassionate ideas (the colleagues who go into tangential and even non-listening answers and then say “I gotta go” are too many) all the more, and not a colleague who will call the lawyer a dummy for his or her questions.

Everything is a two-way street. When lawyers call upon colleagues to share ideas, they should be respectful of the other lawyers’ time and personal needs. For instance, on one recent late afternoon, a colleague called and emailed me about a hearing the next day for a student discipline client he had been representing for over a month (I knew that, because he was on the phone with me for a lengthy talk about that client weeks before). Clearly, this colleague knew about the hearing at least a few days before calling me, but he decided to call me late in the afternoon before his hearing, when I had my own clients with pressing issues to handle before the day was out, with a trial set for the next morning. I decided not to call this lawyer before his next day’s hearing, because his self-created emergency in calling me at the last moment was not my emergency, when I had my next day’s trial to take care of and other clients seeking my replies to various inquiries. Instead, I compassionately emailed him the end of the next day saying that I would have been delighted to talk had he given me more advance notice, and he replied by apologizing for calling on me at the last moment.

Another colleague was freaking out over his client’s conviction and sentencing exposure in a child pornography possession case, and asked me my thoughts on a specific aspect of his case when he saw me at the courthouse. When I “dared”, unsolicited, after answering his question, to suggest that he check such defenses as lack of knowledge of unlawful images on the computer, and questioning whether the images were of underage models, he went berserk that I would dare be anything but a puppet dutifully answering his questions. I figured that this lawyer was experiencing issues well beyond this case, and decided to minimize any contact with him. A few weeks later, he apologized in his own non-apologetic way by joking with me about a trivial matter while we waited on line at the court clerk’s office.

Sometimes colleagues are simply in over their heads — often without realizing it — and, for their clients’ sake, need to be told that, even if unsolicited. I have sat in court more than once when a Virginia or Maryland District Court judge handed jail time to defendants without their lawyers asking for appeal bonds to keep their clients out of jail pending appeal, where such silence seemed a matter of ignorance rather than calculation. More than once, I have passed a note to the lawyer in such situations, reminding him or her of the option of seeking an appeal bond.

Criminal defense involves defendants’ lives and liberty. Criminal defense lawyers cannot afford not to discuss strategy on their cases with colleagues, nor to refuse to do likewise when asked.

Prosecutors will delight at criminal defense lawyers struggling alone, without the benefit of the ideas of their colleagues. Do not let them experience such delight.

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