Beware the Generic Brand

Scott Greenfield, today, looks critically at a lawyer’s website. The lawyer boasts that he started his practice with nothing and now has 500 clients. Mr. Greenfield’s post struck a chord with my thoughts of late. If you have 500 clients, you aren’t giving much time to any one of them or their case. Worse than that, you are rendering legal service as a commodity. And what we do, particularly as criminal defense lawyers in private practice and especially in post-conviction practice, is not a commodity. Though there are times when clients see us that way. There are so many lawyers out there willing to take on cases for less than they are worth that it makes sense that we would be viewed that way. There are some real dangers of discounting legal work for significantly less than what it’s worth (namely that clients don’t value what they don’t pay for and the pressures to deliver according to price even though the bar rules expect so much more).

I encounter the repercussions of the “WalMartification” of law at two distinct points in my practice.

• First, I encounter it when clients or their families come in for an appeal. The story I hear is virtually formulaic (and perhaps not true some of the time). They were charged with a crime. They found a lawyer in the yellow pages or because he did a good job on a friend’s will. Or he was the least expensive of the ones interviewed. Or he oversold what he could do. Or he undersold all of the things that might happen. Or he underestimated the State’s case. After retaining the lawyer, he suddenly became impossible to get on the phone. The emails went unreturned. Some court dates came and went. The client would see the lawyer at those court dates, but he was in a hurry. The lawyer would have just enough time to reassure the client that everything was okay and not to worry. Until one day, the client came to court. This day was unlike the others. The lawyer had a grave look on his face. The offer involved jail time — a significant amount. And the choice was either to take it right there or start a jury trial a little later in the day. Either a plea was entered, and I am being asked what can be done to undo it, or a trial was had. In which case I am going to review the transcript. I read the transcript, and I am disappointed as I see objections not raised, motions not filed, defenses not asserted, and error waived.
• I also carry some trial-level cases. When I meet with prospective clients about those, I carve out about two hours, more or less, to discuss the road ahead. I talk about how much work goes into doing a case right. I note that a lawyer’s ability to have an impact on the outcome diminishes the longer a case hangs around. Often, the most critical time is between the moment of arrest and the moment that the case is presented to a grand jury. Hard work and thorough preparation at this stage pays the highest dividends. And time and skill is all a lawyer has to offer. The higher the skill level and the more time devoted, the higher the fee. It is at this stage that I will often lose the case to one of the vast numbers of lawyers I described in the paragraph above.

If you have a high-volume practice, it is hard not to practice neglectfully of defensively. You saw neglectfulness described above. Practicing defensively is about as bad. When you practice defensively, you show up for the bond hearing. You wait for the case to get indicted. You wait for the discovery. You wait to hear a plea offer. You advise the client to take it. Sometimes you advise a trial. You shoot from the hip during the trial. Maybe it works or it doesn’t. You close the file. By the time you’re being assertive, the case has come out of grand jury, has been assigned to a judge, has lingered around for a while, and it’s almost time to try it (some cases should be worked that way, but it’s not a good general practice).

Law is not a commodity. But I’ve noticed it being treated that way in the past few months when I speak with families in my conference room. I spoke to someone facing a serious charge and who was on his way to be interrogated at the police station (in law enforcement parlance, “coming in to clear some things up”). I was informed that he thought he might be “in the market for a lawyer.” My concerns about not going to the interview without a lawyer or maybe not going to it at all were brushed off as if I were a car salesman giving him a pitch. I wonder how that all worked out? I never heard.

To take the commodity thing a step further, there are lots more generic lawyers out there than there are generic brands of peanut butter or mustard. But the generic brand of peanut butter or mustard isn’t toxic.