Hold Out, Cossack & Other Adages

December 30, 2011
/ Author: Rick

This post may sound self-congratulatory.

I don’t give a sh*t. It’s not meant to be that way. But after you read the post, maybe you’ll understand why I’m grateful my year can end on such a note.

This post is about how it feels sometimes to be a criminal defense attorney and about the occasional need to stop and remember that, no matter what, I have to keep going.

This last year has been a rough year in my area for criminal defense attorneys. At least, that’s what I’ve been told — and, yes, to some extent, experienced myself — but if you are a criminal defense attorney practicing in my geographical area, reading this, and thinking, “huh?,” well, all I can say is, count your blessings.

The economy has taken quite a toll this year. People don’t have much money. Typically people who are accused of criminal activity tend to have even less. For one thing, it’s true what they say that “crime doesn’t pay.” But not all people accused of crimes are criminals. Some of them are just people who made mistakes — although I guess they’ve still committed crimes, so the adage still fits. Others, though, are innocent; their only crime is that of being poor, or brown, and so they come into contact with nasty law enforcement types who abuse — and accuse — them for no other reason than that. For these innocent poor or brown (or both, as if often the case), nothing pays, even though they’re smart enough not to try crime.

In any event, it adds up to the fact that fewer people can afford adequate legal representation this year than last.

That not only reduces the number of potential clients who can pay, it sometimes forces defense attorneys to lower their fees to try to catch the few. I’ll confess I try very hard to avoid that myself, which can add to my pain as I see clients run off the hire someone not because he’s a better attorney than me — oftentimes I know that’s not true — but because he offered to do the case for less money.

Sometimes a lot less.

And I don’t feel the better for being able to stop and think of another adage: “You get what you pay for.”

To make matters worse, my practice is 100% criminal defense. I don’t take personal injury cases. I don’t do family law. So far, I don’t even take civil rights or prisoners’ rights cases, although the former is certainly tempting me these days, because I do enjoy “fighting the man,” as we used to say when I was younger.

What I have done more of this year is take more cases “on payments.” When you think about it, that amounts in the long run to the same thing, I guess, as bidding out the case at a lower price, because lawyers have an adage I’ve heard repeatedly, but seem unable to learn: “Make sure you get enough up front, in case that’s all you get.”

Or something to that effect.

As I was saying, it’s not necessarily been a great year — some attorneys with greater longevity than me say they haven’t seen anything this bad in 30 years of practice. I’m certainly not homeless, dying, or even, when I sit down and think about it, really suffering. I maybe didn’t give my office person as much of a bonus as I’d like, but hey, I have an office person. (She was quite happy with her bonus.) Many of my friends had to shut down their offices this year; I’m the last private attorney left on my floor of the building. I’m still here.

Money, of course, is not everything. When it comes to sometimes feeling worn down, it’s not even necessarily the biggest thing. Let’s face it, criminal defense attorneys don’t always get to defend innocent people. As I’ve said before, the police — *ssholes though they too often may be — don’t always arrest innocent people. There may be a trend in the direction of arresting people for nothing, but it’s still not the norm. (Dear current or future juror, as I mentioned last time I said this, please remember that until you hear all the evidence, you don’t know which people were rightly charged and which were not.)

At any rate, people who break laws also have no scruples that prevent them from abusing their attorneys. If you win, they love you. They might even thank you. If you’re very, very lucky, they’ll remember you long enough to recommend you. Usually, they just move on with their lives.

And there’s nothing wrong with that.

When you don’t win — and for reasons that should be obvious, even the best criminal defense attorneys lose more cases than they win — they’re less kind.

Hell, some of them can’t even wait that long. They’ll harangue you while you’re trying to defend them. They’ll occasionally curse and yell at you in front of large crowds of people, claiming they are in the mess they’re in not because they were accused of a crime (whether they did it or not), but because of you. If they’re still in jail the day after you were hired, it’s because you aren’t good enough. If they’re convicted because of fingerprints, DNA, eyewitnesses, or confessions, it’s your failure.

Not all clients are like this. Not at all. If they were, I really would quit, however much I believe in what I do.

I’m just saying you don’t necessarily get the same kind of love doing this job as, say, being Tom Hanks.

But every once in awhile, perhaps just about the time you’re really needing it, you get what happened to me today.

The local judiciary is playing musical chairs. Most, if not all, appear to be getting moved to different courts than where they’ve been sitting. Some of these judges, I’ve been appearing in front of for years, and now they’re moving to courtrooms where I won’t see them again (remember, so far, I only do criminal defense).

Today, a judge called me to bench after my case was concluded. I won’t say who he is, but I’ll tell you he’s someone with whom I’ve more than few times butted heads. (Anyone who knows me knows that number is large enough that it doesn’t help you figure out who the judge is.)  He told me he was leaving. He said,

I wanted you to know you’ve taught me a lot. And I’m not just talking about law. One of the things — for example — is that sometimes you have to be a burr in someone’s side to change things, like what you did with the shackling issue.

It’s been awhile since I had to deal with the shackling issue. For the record, I wasn’t the only one who worked on that shackling issue. I may — may — have been a bit more forceful and vociferous than some. But I wasn’t the only one. And after we nearly shut down the courts by constantly challenging the shackling of juveniles, the policy was changed to comport with the law.

That’s not the point, though. The point is, he remembered. The point is, in spite of our butting heads, he said this and, by saying it reminded me of another adage which all defense attorneys probably need reminding of from time to time.

Hold out, Cossack, thou wilt become Hetman.

I don’t know if I’ll ever become Hetman — defense attorneys only rarely even get judgeships! — but I’m going to hang on and keep fighting.

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