5 Lessons on Being a Better Advocate from The Rainmaker

/by

The Rainmaker is available on Netflix. In my earlier snobbier days I scoffed at lawyer movies and written legal thrillers. I’m either not as picky as I once was, or I’ve learned to find actual value in this kind of entertainment in spite of the inaccuracies. I’ll start with a no-spoilers overview of the plot and proceed to tell you my five big takeaways from the film.

Rudy Baylor (Matt Damon) plays a recent law school graduate who goes to work for shady personal injury lawyer, Bruiser Stone (Mickey Rourke). Assisted by Bruiser’s long-time law clerk, Deck Shifflet (Danny DeVito), a guy who can’t pass the bar, Rudy ends up taking on a huge personal injury case against an insurance company where he is pitted against Leo F. Drummond (John Voigt) and his team of defense attorneys. He also falls in love with Kelly Riker (Claire Danes. Remember her?), a domestic violence victim he meets while studying for the bar/trolling for clients in a local hospital.

An earlier snobbier version of myself would have been obsessed with the inaccuracies, such as how is it that cases go to trial so fast in legal thrillers, particularly one like this which likely would have been in the discovery phase forever. But I’ll move to the lessons.

  • Rudy Builds a Practice by Connecting the Everyone He Meets and Looking for Ways to Be Helpful. Rudy builds his practice essentially from two people he meets in a law school clinic. The first, Miss Birdie, is a wills/estates client. From his work with her, he finds an inexpensive place to live and a safe place for his girlfriend to hide from her estranged abusive husband. And his other client becomes his big break. The girl he meets at the hospital becomes his first criminal client, a murder case he successfully negotiates to a dismissal without formal charges. When his boss flees the FBI, he and Deck go off to start their own firm. Rudy’s marketing comes from being helpful to those around him and his willingness to ask for help. He’d have killed it in the modern era of social media marketing.
  • Rudy is Adept at Technology, Even with a Limited Budget. Rudy goes to battle with a big firm. But he used essentially a video camera and tripod to interview his client for later use in his closing. He also took a critical document and presented it effectively in court. While taking his client through the document, he puts the document up on screen with a pull quote. Nothing fancy here. It’s just one document being put to great effect. And he leaves it up so that his opponent has to demand that it be taken down. And note that Rudy is using his own tech. He’s not relying on the defendant’s stuff as many of us do when against the government or a techier opponent. He’d have killed it in he iPad era.

Rudy Courts the Judge by Being Honest and Humble. When judicial sentiment is against your opponent, it’s best to stay quiet. And if you feel outgunned, it’s okay to say so. But even better if the judge makes a truthful observation about your position, it’s good to be candid. Later in the movie, the judge assists Rudy every every way he can.

As Important as Niceness is, You Have to Stand Your Ground at Times. Leo Drummond tries to act as a condescending patronizing version of a mentor figure. Rudy takes is well for the most part. However, during depositions, Leo tries to dictate the order of deponents. He also does some shady stuff to hide witnesses. At which point, Rudy is firm, threatens to involve the judge, and refuses to be pushed around. There are limits to the nice approach. And Rudy stands up when the moment requires it.

 

 

A Paperless Office is a Good Idea But a Good Staff is Even Better. Rudy is not a one-man show. His paralegal is constantly out there taking care of him, gathering information, and helping with points of evidence. Every office needs at least one Deck Shiflett. Rudy would do well to get a case management system in place though.

There you have it, five lessons from The Rainmaker to be a better trial lawyer. (1) Build a Practice by Connecting with everyone you meet; (2) Being adept at technology will put you on par with even the biggest opponent; (3) honesty and humility will carry you far with the Court; (4) be nice but don’t back down when the fight is on; and (5) You can’t go it alone. Build a good reliable team.

Thoughts on Plea Bargaining and the Role of the Client

/by

Yesterday, appeared as an expert witness in the United States District Court for the Middle District of Tennessee on a 2255 hearing that involved a question of ineffective assistance of counsel at the plea bargaining stage. Essentially, the question for the Court was whether counsel’s advice led to Federal jury trial that should never have taken place. The Supreme Court held in Lafler a few years ago that there is the right to effective assistance of counsel at the plea bargaining stage — which makes sense. The criminal justice system is a system of pleas more so than a system of trials. This is particularly the case in Federal court where jury trials are rare. In the wake of Padilla and other cases, plea bargaining is a high stakes game with which comes a host of collateral consequences. I don’t make it a practice to comment directly here on the cases in which I am involved. So, I won’t do so here. However, my preparations for court yesterday caused me to reflect on some of the pitfalls criminal defense practitioners fact. And many of those pitfalls come from the curious intersection of criminal law and procedure and the mindset of the criminal defendant. I imagine the issues to involve three C’s — certainty, clarity, and completeness. All of these things sound easy on paper but are nearly impossibly complex in the trenches.

  • Certainty — There was an old joke in law school that all legal questions yield a single answer. And that answer is as follows: “that depends.” All clients and families are caught up in the trauma of the circumstances, even if that trauma is of their own making. And they seek certainty in their most essential questions. These are some but not all of the questions for which certainty is nearly impossible: What are my chances? Can you win this case? How can they go forward against me when they only have her claim about what I did but “no evidence” of my guilt? How long will this case take? Can’t you prove he’s lying? Worst case, what is going to happen to me? Best case, what is going to happen to me? Can you get me out of this? Clients will ask these questions, and you will say “It depends.” You will have a discussion. And a week later you will have the same discussion. They will then rephrase the question MMPI style. And if they don’t like your answer, they will sometimes seek to wear you down until you give a different response that soothes. Of course, you cannot spin reality to shape your words. And the temporary relief you experience from just saying what they want to hear will always revisit you ten-fold in misery when the case reaches its conclusion, particularly if the conclusion is unsatisfactory. “But Mr. Key, you told me ….” Key’s maxim number one: “never ever use the language of certainty when you are in an uncertain landscape.” If you think you’re right about the law and the State is wrong, you can say so. But you must do so with the additional proviso that the judge can and often does rule with the State when the State is wrong.
  • Clarity — But where the law provides clarity, you should so state the law. If a client is charged with two offenses for which the range of punishment is 1-20 years to serve, you should tell the client that he can expect a potential sentence of as little as a single year of probation or as much as 40 years to serve in prison. And you will not know the sentence until it is imposed. If you are taking a plea to ten years to serve in which the client will have parole eligibility, you should tell the client that parole is a matter of grace. You cannot say when or if the client will be paroled and that, in taking a plea to ten to serve he should be prepared for the possibility of serving every day of ten years on prison. Key’s Second Maxim: “where the law offers clarity, you should offer it, particularly where the clear possibility paints the bleakest landscape.” 
  • Completeness — Your advice should be complete and comprehensive. Yes, this seems an obvious point. Yes, this seems like a truism. But keep in mind, Key’s Third Maxim: Never provide legal advice where the environment does not allow for the giving of a complete answer. What do I mean by this? If the answer is better rendered in writing than orally, then do not try to answer without putting the answer in writing. And the answer should just about always be reduced to writing. Do not allow your opponent or the court to box you into a situation where the client has minutes to make a dramatic life-altering decision. Be mindful of the environment in which the question is posed, and be willing to refrain from answering the question until you can enter into the appropriate environment. A text message is virtually never the right environment to discuss a complex client matter. If circumstances allow for anything less than a complete response, then do not attempt a response. And if you have any doubts regarding whether the environment is proper for giving complete advice, then you are likely in the wrong environment.

Plea bargaining is tricky because often the biggest hindrance to you doing an effective job in explaining the plea is the client herself and her mental or emotional status. The client craves positive news and will sometimes push you to be more positive than you can be at the moment or ever. Which leads to Key’s Fourth Maxim: practice as if the glass is half full but advise as if it is half empty. In your preparation, presentations, and negotiations, you should be confident and positive in your abilities and command of the law. Be unstoppable in the courtroom. But in the conference room be candid and maybe even a little pessimistic.

Some Advice Regarding Second Opinions

/by

Appellate lawyers are rarely the first lawyer on the case. Sometimes, the trial lawyer stays on for the appeal. And sometimes the appellate lawyer was part of the trial team. But appellate lawyers are very often the lawyer who renders a second opinion. Frequently trial and appellate lawyers are consulted to render a second opinion or as a possible substitute for previous counsel. And I’ve been thinking about how to handle these things lately and wanted to share a few thoughts.

What’s the Ethical Response?

It’s perfectly okay to communicate with a person presently represented by counsel who is seeking to hire a different lawyer or who is seeking a second opinion. Comment 1 to Rule 4.2 of the Georgia Bar Rules provides as much. The rules do not “preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter.”

However, I’ve often been told that the rules of ethics are the bare minimum of what we should do. And some advice is in order about the most professional response where counsel seeks a second opinion.

Not All Clients Fit with All Lawyers

A client has the right to switch lawyers during a case. And a client’s decision to do so does not make previous counsel a bad attorney. Not all clients are for all lawyers. And some “fits” are better than others.

Think About The Big Picture

Clients come and go. But your colleagues are with you for your career. So, there are a few things to avoid. The first essential rule is that, no matter how dissatisfied the client may be with current counsel, do not speak negatively about the attorney. And I will generally require the client to inform current counsel that she intends to consult with me. Also, should I take on the case, I will never become the client’s agent to negotiate for the return of the fee from previous counsel. I tell the client that I will speak solely about the client and the matter at hand. I will refrain as much as possible from discussion about the other lawyer. And if the lawyer is someone I know and respect I make it appoint to speak positively about that lawyer. If there were ever a moment to think of the golden rule, it is where you are being brought in for a second opinion. Finally, if it is at all possible, I will work to become previous counsel’s teammate rather than the replacement. Whether a team situation is appropriate depends upon the lawyer, the client, and the dynamics of that relationship.

A Second Opinion is Not Necessarily a Substitute Opinion

While the law is malleable, I’ve reached a point in my career where I can generally know how things are likely to turn out. And generally a situation is what it is. Sometimes, I’m the fifth lawyer on the case or my opinion is being sought because the client does not like the truth as revealed by previous counsel’s research. It is important to be up front about the fact that the client may spend money on me in addition to what has previously been spent and find himself in the exact same situation. Indeed, a common refrain from clients to their retained lawyer is the following: “I could have had an appointed lawyer and gotten this result.” And the client may not be wrong. The skill, experience, workload, and reputation of the lawyer matter, but no lawyer has the power to alter reality, the laws of physics, or an armed robbery captured on video plus a Mirandized confession.

It is rare moment where the appellate lawyer is the first lawyer on the case. And if you are taking over with a new client and case, then congratulations. However, a big-picture approach will keep you away from difficult clients and help you navigate a second opinion situation with grace and professionalism.

Sketchy Trip to the Apple Store

/by

I now have my doubts about The Genius Bar at the Apple Store. On Friday, after court, I stopped by an Apple Store to get some technical help from the folks at The Genius Bar. A few weeks ago, I left a set of airpods in their charger in a pair of pants and ran it all through a wash cycle. I was surprised that the airpods worked great, but the charger did not. So, when the airpods died, there was no charging them.

The Genius Bar was booked up. So, I made an appointment to come back. I received a text to come back in. And all was good.

I’ve always perceived the Apple Store as not aggressive or into high pressure sales. And I’ve always viewed the Genius Bar as sort of walk-in tech support, separate from the sales process altogether. So when I spoke with their representative, I trusted his advice when he said that the airpod would ultimately fail over time due to the water contact (yes, I was honest about the wash cycle thing, which may have made me seem to be an easy mark.). Then there was what came next.

He advised that I buy a replacement charger, and two replacement airpods separately at a price of $69.00 each since water damage is out of warranty. I then asked him, a few seconds later, why I would buy three pieces for more more than I could pay for brand new airpods off the shelf. And he looked like I’d caught him. All of this made me question his original advice regarding replacing the charger versus the entire set. But I ultimately just bought new airpods because I didn’t (1) want to be out the time that it would take to call tech support or return to the Apple Store or (2) pay for a whole new set of airpods plus purchase a new charger now.

Maybe the guy was following a script and didn’t think it through, but I also see the Apple Genius Bar thing no longer as tech support but an extension of Apple sales. And I also wonder if I was “taken” at some level. The genius also asked me some questions about my business to take an opportunity to try to have someone call me later to upsell me a bunch of business products. It was a bad time to discuss long-term sales with me.

I’m wondering how much lawyers do this at the beginning of a new case by filing a bunch of pleadings that don’t advance the client’s cause,

My Interview with Erin Gerstenzang

/by

A new episode of the podcast of the Georgia Association of Criminal Defense Lawyers is out. This one features an interview with Atlanta criminal defense attorney Erin Gerstenzang. Erin and I discuss the basics of marketing for lawyers. We discuss her office in a co-working space at Ponce City Market. And my favorite moment was when Erin and I discuss her decision to give her cell phone number out to clients — the number on her website is her cellphone number. It turns out that this is not a modern millennial thing. Rather, it was a lesson she learned from her father who gave out his home number frequently to clients when Erin was growing up. I have been experimenting with giving my cell phone out to a small sample of clients. And I have been surprised at how well it works. I hope you enjoy the podcast.

In Defense of Expertise

/by

I recently listened to Sam Harris’s interview with Tom Nichols on Harris’s Waking Up Podcast. Nichols discussed the “Dunning-Kruger Effect.” If there is a zeitgeist for our age, it may well be the Dunning-Kruger Effect.

Before I define the Dunning-Kruger Effect, let me describe the setting where you may have experienced it. Most often you observe it at a family get-together. Likely, your loudest relative on topics in the political arena fancies himself an expert is likely not much of a political scientist. And you also may experience it in client consultations in the form of the relative who comes to the office who took a business law course at one time about a decade ago. This relative arrives at the office with the client and acts as the family spokesperson. Or you may see it in the thick handwritten correspondence from the client who has been spending time in the law library.

The Dunning-Kruger effect is a cognitive bias in which people with very little knowledge about a topic are overconfident about what they actually know. Meanwhile, folks with expertise tend to see the nuance within a topic and limit their commentary to what can be confidently known. Language may be understated and carefully precise. In the political sphere, a sizeable number of voters fall victim to the phenomenon and vote for the most vocal and confident-sounding candidate. Add to that phenomenon a bias or resentment of professionals (egg heads in their ivory tower) and a bias for “just folks” and you have the Dunending-Kruger effect.

If you are in the business of  law, the Dunning Kruger effect can be tricky. We went through a painful process as 1Ls that taught us to “think like a lawyer.” And this thinking process was as important if not more important than the topics we were learning. In many ways, torts was a vehicle that we used to learn a method of thought. And this approach to legal problems was why we spent the tuition dollars.

It is fairly easy for the client in the market for an attorney to go on FindLaw and find cases that appear to be relevant. And the client can go into a prison’s law library or contraband electronic device and have access to the same database of law that you have. But the context of a legal education and years of courtroom experience do not come with the material. And it can be easy to become bogged down or incorrectly directed when you divorce the material from all the of sleepless nights learning how to understand it in context. Add to all of this, a national ethos of distrust of experts, a suspicion of the legal system and its officers, and the Dunning Kruger effect can take hold.

To make matters worse, the law is not a computer into which we feed facts and out comes an answer. Statutes and precedent are malleable. And the client’s fate is often subject to the preferences, biases, and even mood of the trier of fact and interpreter of law — the judge and/or jury. When asked such questions as “how is it looking for me?” “was the officer wrong to do what he did?” Or “when will this be over?” We give an honest answer that speaks to the uncertainty. Ask those questions to 10 honest lawyers, and about 8 of them will answer “well, it depends.” Clients are invariably frustrated by how tentative we are about things and wonder why we aren’t “shooting straight” with them. The irony is that we would not be shooting straight if we answered their questions with the level of certainty that they want. However, the jailhouse lawyer or the “family expert” has arrived at a more definite and most certainly optimistic answer. And they state it more confidently that you will. But the client comes to you looking to hire a lawyer.

Fight too hard against the Dunning-Kruger effect and the client will go elsewhere — to the lawyer who charges a third of what you charge and who is willing to agree with anything that the family’s legal expert says. This lawyer is in the client entertainment business and does not mind that the folks in the courtroom are going to roll their eyes when the lawyer comes in the door. Go along with the “expert” for too long and you will find yourself in front of a judge who will not be amused to hear what you have to say.

There is no clear answer to how to handle the phenomenon in legal practice. It requires active listening and a calm and steady effort to talk the client down from the ledge. Also, to be fair, we must be careful that we are also not falling victim to the Dunning-Kruger effect in being dismissive at competing ideas. The canary in the coal mine for whether you are suffering from the Dunning-Kruger effect is a sense of confidence confidence that you know the outcome. In the long term, I have to believe that authenticity is the best long-term strategy for marketing and reputation. I have to believe this, because an alternative to that view of things is frightenting to imagine.

Some Great Advice from a “Door Lawyer”

/by

I heard some great advice a few days ago in an unexpected place — a county jail. I was there for a bond hearing and preliminary hearing. And it was the typical scene. Inmates were everywhere. Law enforcement agents were lining the walls as they awaited their hearing. The DA was there with a huge box of the day’s files. All of this activity was confined to a large stale institutional room inside of the jail.

It was there that I ran into a lawyer I had not seen in a while. The lawyer was one of many that you will encounter in small Georgia towns who practices “door law,” or whatever case comes in the door. On that day, it happened to be a preliminary hearing in a criminal case. We spoke for a few minutes. I observed that he was seated in one of the few chairs available in the room. He told me that he had been there for a while. And then he started telling me a story.

He once had a conversation with another small town lawyer, whom he described as the “elder statesman” of the county. This lawyer was known for arriving, on the day of court, as soon as the door was opened. And he would occupy a familiar spot in the jury box where he would watch all who had business enter the courtroom. The elder statesman had once told my friend, “when people pay you to handle their case for them, they do not need for you to give them one moment of anxiety. When it is time for court, you should always be there before they arrive. That way, they never have to wonder where you are.”

I am seldom late for court. And many criminal court calendars are like the one I just described — such bedlam that the judge would probably not notice your tardiness. With that said,  I often arrive somewhere between ten minutes before a hearing or right on time. And, as I thought back, I recall that there have been times when I’ve gotten seated and received a text from my office with something along the lines of “Did you make contact with the Smith family? They were looking for you.” This text will have been sent about 30 minutes before court. Of course, I wasn’t late, but I arrived later than the client.

I am doing to heed the advice of a “door lawyer” passed down to him by an elder statesman whose name he doesn’t remember and try reaching the courthouse before my client the next time we have court.

The Hardest Part About Being in Jail

/by

Yesterday was Friday afternoon, but I needed to see an inmate to let him know when he would go before a judge on bond. Some work around the office pushed that visit into the afternoon. And when I finally arrived at the jail, the entire facility was on lockdown. Lockdowns are not unusual. And when they happen, visitation suspends. I made a joke about the receptionist “going back there and taking care of business” so I could get my visit done and I left to work on some other things. For an hour or so I worked on some paperwork and set some things in place for next week.

I returned to the jail at around 4:00 p.m. Visitation was re-opened. However, the facility only has one attorney booth. And detectives were using it to interview somebody. And quite a few new inmates were being booked in. So, my client and I had to meet on the benches in the visitation area. About 8 feet away were two inmates sleeping on pallets underneath gray jail-issued blankets. There is a good bit of sleeping in the jail.

When they finally brought my client out, he looked a bit dazed. I told him the good news: we have a hearing set. And I told him the bad news: we will not have it for a couple of weeks, and he will remain where he is at least until then. I reiterated my standard advice to incarcerated clients. (1) Don’t discuss your case with anybody; (2) Don’t learn the details of anybody else’s case; (3) Don’t talk about your case, your lawyer, the State’s lawyer, the detective, the jail staff, or anything criminal justice related on the telephone; and (3) Don’t discuss your case with anybody.

I expected more disappointment at the timeline. But he took it in stride. As I was leaving, he thanked me. “The hardest part of jail is not knowing what is about to happen,” he said. Even bad news is news. And bad news is better than not knowing anything at all.

America Should Adopt the British Solicitor/Barrister Model

/by

Let me tell you about my latest obsession: the British legal system. I came upon this topic by accident. Two weeks ago, I had a two-day hearing in Barrow County, Georgia, with some colleagues. For those of you who do not know much about Georgia geography, Winder is not near my office. And to get there from here requires a Hobson’s choice of routes. Either (A) I go through Atlanta traffic on the interstate to work my way there, or (B) I avoid all of that in exchange for a set of two-lane roads where I will inevitably travel behind buses, garbage trucks, or the elderly. A smarter version of me would have stayed in Winder for two nights. But I opted to commute both days. And so I do what I do when I have a bunch of driving, I cash in an audible credit. And when I truly need the stress relief, I seek out a legal thriller. Mind you, I do not really care if the legal thriller I choose is completely mindless. Indeed, I may ever prefer the mindless variety. I also did not research my choice very well. I searched for my book from the driveway before I left. And I have a very short window of time for such things in the driveway before my wife comes out and throws up her hands in disbelief that I am in the driveway with the car running for a long period of time.

And so it was that I bought Nick Stone’s The Verdict. I realized after it was too late that I had downloaded a British legal thriller. But I couldn’t fiddle with the phone too much as I had opted for the two-lane route to Barrow County. And the narrator had a pleasing accent. And all this was fine because I was quickly enthralled in the story. And as much as I was enthralled with the story, I was intrigued by how a client with a criminal matter hires legal representation in England. I just finished up the book this week. And I’ve now watched a documentary on barristers. And I also have a law student this semester who grew up in England who has endured my OCD questions to her about all of this (may God have mercy upon her).

So, I am about to launch into some fairly sweeping opinions with my research on this subject consisting of (1) nearly two decades of experience as an American criminal defense attorney; (2) having listened to a British legal thriller; (3) having read some John Mortimer Rumpole stories a long time ago; (4) having watched a short documentary; and (5) having quizzed a British law student of mine about all of this. Feel free to correct me if you know more than I do on these subjects. I am very aware of the flaws in our system, and I may be blind to the flaws in the alternative.

Flaws in the American System

Here are some of the differences. In America, you get in trouble, and you retain a lawyer. The lawyer is your one stop shop for your representation. You might go to a big firm, but most American criminal defense attorneys are in solo practice or a very small firm (2-3 lawyers tops). If you’re in some deep trouble as a CEO in a large company, you might end up in the white collar division of a large law firm. But generally you are going to hire somebody in a small shop. If you cannot afford a lawyer, you may get a public defender of some sort, either from a government office or by appointment. And if you get your lawyer by appointment, it will be a lawyer who takes appointments and who does some retained work — somebody in a small shop as discussed at the beginning of this paragraph. Your lawyer will not prosecute and defend cases at the same time. He may have been a prosecutor in a past life. Or he may one day close up his shop and be a prosecutor. But we do criminal defense the way we do marriage in America. Just as we have multiple spouses here serially (one at a time), so we can either be wedded to the State or to the defense serially. Your lawyer will not have prosecution and defense clients (there might be some exceptions. But this is the general rule).

You will have found your lawyer any number of ways, ranging from the sensible to the absolute lunatic method. The sensible and more educated client will have sought out a referral from a trusted lawyer, friend, or family member who has some insider knowledge of who the good lawyers are. That is one side of the spectrum. On the other side of the spectrum (may God have mercy on your soul), you will have googled “DUI Hahira Georgia” and have come to find your lawyer that way. In which case, you may have found a great lawyer or you may have found the lawyer who is great at search engine optimization and is not much of a lawyer at all. Or you may hire the guy who wrote Aunt Jeana’s will. Or the lawyer may have found you after purchasing the police blotter from the day you were arrested and directly soliciting you (I cannot invoke God’s blessings if you go with this lawyer, as God has clearly long since abandoned your soul and taken your IQ away). By the way, the appellate clients have been burned and become the savviest shoppers for legal services at this point in the case (if they haven’t become sovereign citizens).

The lawyer you find may be great, or he may show up to your hearing two hours late, wearing a stained shirt and wrinkled suit, with a fresh buzz from the oxycodone he just freebased out in the parking lot. You are sort of playing the lottery. More likely than not, the judge will pretend that your lawyer’s shirt is clean, his suit is pressed, and that he is not falling asleep as he selects the jury who will decide your fate. From the judge’s perspective, it’s hard to move the docket if you remove lawyers or take other remedial action (Every docket has lawyers like this. Seriously, every docket.). And under the Strickland standard, the appellate courts will likely find that buzzed lawyering was “appropriate trial tactics” and that there wasn’t much of a likelihood of a different result with a sober lawyer who smelled good.

The lawyer you hire will do it all. He will run the office, take your fee, investigate your case (perhaps with the assistance of a paid investigator), serve the subpoenas, find experts, take your calls and emails, negotiate a resolution, and represent you in court.

If your lawyer wears a coat and tie when he meets with you, it is as dressed up as he will be. When he is in court, he will be wearing a coat and tie there, too. And in court, you will sit at the table with him during court. As the proceedings unfold, you will pester him mercilessly and break his focus as you lean over to whisper in his ear, “he’s lying” while witnesses testify.

Enter the English System

In England, you hire a solicitor. This solicitor runs an office and acts like something of a coordinator for legal services. The solicitor takes your retainer. She develops a strategy at the 10,000 foot level, including the hiring of an investigator and the selection of expert witnesses. The solicitor then hires the barrister, who will be sort of the professional athlete in the courtroom. The barrister does nothing but court work. If the barrister develops a nasty opioid habit solicitors will stop turning to him. The solicitor does a job. The barrister does a job. And if you are a barrister, you can eventually get a promotion to QC, which is a higher level barrister. Your barrister may be defending you but prosecuting others. There is no prosecutor’s office. The barrister has a mixed workload. When you are in court your barrister will sit in a different place in the courtroom. And your actual barrister will be wearing a robe and (here’s what I love the most) a wig. You will mainly deal with the solicitor, and the solicitor will coordinate with the barrister. So, when you find interesting things 5 times a day on the internet you want to run by your representative — the solicitor screens all of that. The barrister prepares for and executes in the courtroom.

Here is why I think the American legal system needs to embrace the British model:

  1. No “True Believer” Syndrome. I am going to get myself in trouble with many of my colleagues when I say this, but if I could take a 50/50 split in defense cases and prosecution cases, I would absolutely do that. I love trying cases and being a criminal lawyer first and foremost, and it would make absolutely no difference which side of the “v.” I am on. I’m agnostic about it all. I’m a defense attorney because I do not want to work in a government office and I like being selective about what cases I take. I do not prosecute out of any sort of choice. I can’t. In criminal work, I meet my share of “true believers.” They come in two varieties. They are equally terrible and annoying to be around. On the one side are prosecutorial true believers. See, e.g. Nancy Grace. They view all alleged victims as noble and truthful who are to be avenged. They view all police officers as ethical and intelligent. And they seek maximum punishment for all, in spite of whatever mitigating circumstances may exist. On the other side are true believer defense attorneys. They think that all victims are lying, all police officers are corrupt at their core, that the criminal code should be merely aspirational, and that an arrest or conviction for a serious felony is a prerequisite to sainthood. They live to find the beautiful pure heart that is just beneath the surface of the triple axe murderer whom everybody else just misunderstands. They would like to amend the rules of the appellate courts so that they could file their pleadings on tye dyed paper. True believers of both stripes lose perspective and cause much damage. If we had a mixture of prosecution and defense cases, we would probably be better defenders and prosecutors. Barristers have this benefit.
  2. Barristers have a Buffer and a Focus. The barrister is focused on performing in court and doesn’t have an office to run. The barrister isn’t being a salesman to the client (“oh my gosh, that is a fascinating piece you’ve printed off for me from Findlaw. Of course, I’ll talk about this in court,[ because I want you to hire me and keep me on as your lawyer.]”). The barrister is focused on a winning court strategy. The solicitor gets to discuss the fascinating winning legal theory that the client’s brother-in-law, who took a class in college on business litigation once, has developed. The barrister is getting ready for court.
  3. Quality Control. If you are bad at trial law or you are going through some “personal stuff,” the solicitors will likely know. And you won’t be inflicting your mental distress or lack of chops on an unsuspecting clientele. The solicitors, who are in the know, will just go elsewhere. The barrister’s target audience are professionals and not folks who can be easily manipulated. Hence, there will be less incentive to employ slimy internet marketing tactics to get clients directly.

It is entirely possible that I am just an Anglophile. But I don’t think this is the case. My modest proposal is that we, as a legal institution, switch to a British system, at least in the criminal realm. We should do this pretty much right away. I will go wig shopping first thing this morning.

 

Today’s Talk on Wellness for Lawyers

/by

We, as a profession, are not doing well. A very large percentage of us are suffering from significant mental health issues. We are one of the top five professions for rates of suicide. And many of us battle significant substance abuse issues. Today, Bob Rubin and I gave one of the most significnt CLE talks I have ever given. And our topic was what lawyers can do to better cope with stress. We were slated to talk about an entirely different talk and made a gametime decision to switch it up. Bob had a Powerpoint from a previous talk on this topic, and I had information because this topic has been of personal interest to me for quite some time. For those who attended today for for everyone else, I want to provide more information and some links.

  • Running. Running has pretty much saved my life. About 3 years ago, I was about as unhealthy has I have ever been. My weight had peaked. My suit buttons had not seen their buttonholes in quite some time. I came home and zoned out. I was irritable and unhappy. On a friend’s recommendation, I downloaded a couch to 5k app for my phone. I did the program. And I ran a 5k. Then I ran another. And I did another. I’ve since run a full marathon and a few half marathons. I am currently getting ready to run another full marathon in Chattanooga in October I owe my health and sanity to running. For me, it has made all the differene.
  • Meditation. Equally important to me has been meditaiton. A year ago, I put the Headspace app on my phone after hearing a TED talk for its creator. This app is absolutely the best. But, in the past few weeks, I’ve noticed a change in my meditation practice. I want more silence and less of a guiding voice. On a friend’s recommenation, I downloaded Enso, a meditation timer. When I spoke with Bob about meditation, he said he considered himself to be an unsuccessful meditator because he can never focuse on the breath and lots of thougths pop up. But I told him what I’ve heard in a few places. If a meditation session produces only a minute of focus, then it was a good session. Noticing all the thoughts is a big part of the value of the exercise. The value in the excercise may be simply noting all the thought in an observational way.
  • Email Practices. I’ve blogged about this topic before. But email will kill you by a thousand cuts if you constantly check it. I don’t. I use two services for email. One is called SaneBox, which clears out a bunch of the clutter before I check it. The other is InBox Pause, which holds email out of my inbox until I schedule it to come in. Right now, email comes in at 4:00 p.m. on Monday through Friday. I process and take my email to zero for about 30 minutes to an hour. After clearing out the email, I return calls. If something important is going on, I will suspend that pratice from time to time (if I’m in a plea negotiation, for instance). This practice is entirely in keeping with a lawyer’s duty to communicate with a client. Our job is to provide the client with the necessary information to make informed decisions, to respond to reasonable requests for information, and to keep the client apprised regarding my strategy on the case. The Bar does not require me to be on 24/7 call, interrupt family time, or to answer messages instantly at all hours. And If I did that, I would not get much case work done. I highly recommend, by the way, Cal Newport’s Deep Work, on this topic.
  • Journaling. This never came up, but I meant to cover it. I spend thirty minutes every day writing whatever comes to mind. Sometimes what I write generates a great idea. But more often than not, the activity clears the cruft out of my mind. The app I use is DayOne. All the posts live in the cloud and sync among my devices. But I’ve also done this activity on a yellow legal pad.

I’ll repeat here what I said today, No client, no judge, opposing counsel, or case is worth my health. And if you make being a great lawyer your second or third priority, you are more to be a great lawyer because you will have the health and heart to reach your professional goals.

ADDRESS

199 W Jefferson St.
Madison, GA 30650

PHONE

678-610-6624

EMAIL

tori@scottkeylaw.com