Trial Mode Off

Sometimes — often — usually we prepare for trial only to have it not happen when we’re expecting it to. (“Usually” because almost no case ever goes to trial the first time it is set.) We prepare and prepare and find ourselves ready or at least ready to announce ready, our loins girt, our witnesses subpoenaed, our files organized, only to be told to come back again in a month or two or three. Sometimes it’s a blessing — there is often one last little thing left undone on the eve of trial, and the delay allows us to do that last little thing and discover another last little thing left undone on the next eve of trial.

Trial preparation is work. It’s not digging ditches, but it requires a lot of energy to do right. In addition to planning strategies for jury selection, opening statement, cross-examination, direct examination, and closing arguments I dream up trial motions, research trial briefs, and write proposed jury instructions. At the same time I’m marshaling my witnesses, gathering my equipment, and rescheduling the hundred other things that might otherwise threaten to intrude when I’m in trial.

I’m also preparing myself physiologically. My body shifts into survival mode. A steady trickle of adrenaline drips into my bloodstream. I don’t need as much sleep. I might wake up at four in the morning with an idea and write it down. Then I might slip back into sleep, or just spend the rest of the morning thinking about the case.

The people who live with me see me slipping into trial mode and, since they’ve been through it before, prepare themselves for the trial. Jennifer might ask me to finish up any errands that must be done before the end of trial, or make plans to have less help from me in the day-to-day running of the household and the practice.

Mostly, though, I’ve begun (or completed, depending on the stage at which I’m interrupted) moving into the mental state that I’m going to be in when I try the case.

Everybody has a different trial style. However we try cases, though, our mental state for trial is not the state in which we exist from day to day. For my part, from day to day I look at my cases objectively, considering the chance that I might lose, and even seeking ways that I might lose. When I’m in trial, losing is not an option. It’s too late to red-team the case; what I call (and Scoplaw calls) “trial psychosis) takes over; I put on what Gideon calls trial blinders. In my mind I have a response to every prosecutorial argument and objection. My advocacy couldn’t possibly fail to raise a reasonable doubt in the mind of any juror with a brain. I’m Clarence Darrow, Earl Rogers, and Alan Shore rolled into one. The things left undone are unimportant; I have everything I need to win. I’m tuned in to every nuance of every word everybody says. I’m a mind-reader. The courtroom belongs to me, and I’m the best lawyer in it. I’m feeling sorry for the prosecutor who has to face me. I’m a superhero.

That’s where I was yesterday afternoon. I felt as prepared as possible for trial; the things left undone were truly minuscule. I could tell that the prosecutor wasn’t as well-prepared as I was. I knew what every one of the State’s witnesses would say, and I knew exactly how it fit into my client’s story. Then the State revealed the results of some forensic tests. They would have helped me tell my story, but counsel for one of my codefendants wanted time to respond to them. So the judge continued the case.

Click. The adrenaline drip is disconnected. The hundred things rescheduled can now be dealt with. The witnesses will have to be marshaled again later. My family has me back. And I have to shift back from trial mode to ordinary-life mode. This afternoon I took a three-hour nap. I feel like an ordinary human being again.

Almost.

Lawyer Personalities

Apropos of resilience,

What About Clients –> Geeklawyer –> I/P Updates post on the lawyer personality. It turns out that most of us are INTJ according to the Myers-Briggs Inventory.

I’m eNFj. Fifteen years ago I was ENTP.

What are you?

Manners

When we react with anger to someone else, we’re generally trying to teach them a lesson. A judge once told me that anger is usually the result of either a loss of control or a perceived loss of dignity; I think that he got it right. When we try to teach another person a lesson, we’re trying to show them that they can’t take away our control or dignity and get away with it.

Last year I tried a couple of road-rage cases. What is road rage but an effort to teach the other guy a lesson? Driver A makes a mistake, and driver B feels a loss of control. So Driver B then flips driver A off, and driver A feels a loss of dignity. So Driver A brake-checks driver B, and Driver B feels a loss of both control and dignity. So Driver B runs Driver A off the road, and Driver A feels a loss of control and dignity as well. Soon someone is getting shot on the median and someone is getting charged with murder. These things tend to turn brutally expensive for everyone involved really quickly.

The urge to “teach someone else a lesson,” or to “show them,” or to “teach them manners” is a strong one in our culture. It’s so ingrained that some of us aren’t embarrassed to write that we think there are situations that “call for being a jerk“:

If you cut me off in traffic, then you’ll probably get the finger. If you clearly demonstrate that you do not possess any elevator etiquette, then it will be obvious by the look on my face. That kind of stuff.

(Shawn: take this test!)
I think the world might be a better place if everyone feeling a loss of control or dignity took a deep breath and considered whether the person responsible could be taught to know better, or whether the likely result would be worth the effort.

It’s not my job to teach manners to adults. If you’re over 14 years old and don’t know to say “please,” “thank you,” and “I’m sorry,” I’m not going to civilize you. I’m not even going to try. If you push onto the elevator before I get off, I’m not even going to scowl. If you cut me off in traffic, you won’t be seeing the finger. It’ll just waste my time and annoy you. I’m out of the business of teaching grownups lessons.

Have Some Frickin’ Compassion!

This article from Saturday’s Houston Chronicle just came to my attention (thanks to Houston criminal defense lawyer Steve Halpert for the assist). In a nutshell, it’s an opinion piece (thinly disguised as news) about how the Harris County DA’s office should be working harder to put homeless, drug-addicted, mentally ill veterans in jail for longer terms.

Here’s the response I emailed to Peggy O’Hare, the author of the article:

Ms. O’Hare,

You related an anecdote and gave your opinion but totally missed the story. Mr. Lee’s case does expose a flaw in the system, but the flaw is not that we are too easy on cocaine-addicted, mentally-ill, homeless veterans.

There are countless people who come through the system time after time after time with — and at least in part because of — mental health problems. With 1400 inmates being treated with psychiatric medications, the Harris County Jail is the largest psychiatric hospital in the state. You pooh-pooh Mr. Lee’s psych history. Bear in mind, though, that very few of these 1400 HCJ inmates receiving meds are either (legally) insane or (legally) incompetent. You might say that their “mental health has never been used as a serious defense,” but they are, by any definition, mentally ill.

The 1400 receiving psych meds are not the end of the story, either. There can be no doubt that there are also people in the jail who are mentally ill but undiagnosed and untreated.

Jail officials have surprised me with their compassion; they are doing their best to help the mentally ill within the system. But this state does not dedicate enough resources to helping the mentally ill. The jail can’t do anything with mentally-ill inmates but hold them or release them to the street; if they are released to the street, they will wind up right back in the jail, or dead. If we send them to jail for two years, we’re warehousing them; mentally ill inmates are much more expensive to house than inmates who are not mentally ill, and when they are finally released, they’re going to be back in jail in short order.

I have had clients like Mr. Lee — homeless veterans with drug addictions (cocaine addiction isn’t a “weakness”, as you glibly describe it, but a disease) and mental health histories. I have seen them commit crime after crime after crime, until it appears to me that they are trying to get caught and sent back to jail. In fact, some of these crimes happen on the coldest nights of the year. Upstanding citizens say, “it sounds like they don’t learn a lesson.” No, they don’t. They’re mentally ill and drug addicted.

To the public, the easy solution would appear to be to warehouse them in jail or prison. Mr. Lee might have, if the State wanted to spend tens of thousands of dollars to take him to trial, been sentenced to ten years in prison (no lawyer worth a damn would plead him to that on the facts you’ve described). On a ten-year TDC sentence, he might serve ten years, or he might serve as little as 14 months. But treatment in TDCJ-ID is no better than in the Harris County jail and, without mental health and drug treatment, he would likely be back in jail shortly after getting out.

The flaw is not that we don’t put Mr. Lee in jail longer; it is that we don’t treat his illnesses to try to prevent his return there.

Mark.

Stephen Gustitis’s Trial Blog

I am not in trial. My misdemeanor possession of marijuana case, set for trial on Monday, settled. My client’s dealer turned up to testify against him (Bad dealer. Bad!) and seemed to be a fairly solid witness; discretion being the better part of valor, my client chose not to risk a full conviction.

Next up is a murder / aggravated assault case next week.

I’ve learned that a visiting judge will be presiding over the case; she happens to have been my trial advocacy professor in law school. She also happens to have been the judge who married me and Jennifer. Oh, and the last time I tried a case before her I prevailed. Not that any of that helps me on this case, but it’s good to know what I’m dealing with.

The State is intent on trying my client and his brother together. I’m happy with that — my client’s brother is represented by Tyrone Moncriffe who, in my opinion, is one of the best criminal trial lawyers in the state. Tyrone is also a fellow alumnus of the Trial Lawyer’s College. Trying a case at the same table as a first-class lawyer like Tyrone is always a learning experience and, more importantly, fun. There will be great symbiosis between Tyrone and me; I think the State’s odds of getting a conviction would be better if they separated us.

Meanwhile, in Bryan, Texas, Stephen Gustitis is in a felony jury trial. Yesternight he wrote about the restless night before trial. Tonight he wrote about day one, including a jury selection that appears to have gone about as well as a lawyer could hope. Go get ‘em, Stephen. (I always cheer for the defense — not for the defendant, necessarily, but for the lawyer.)

Technorati Tags: trial

Statute of the Day

Texas Penal Code section 9.04:

The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

That means that if you’re in reasonable fear that someone will cause you bodily injury (bodily injury simply means pain) you can threaten to cause serious bodily injury or death.

So, for example, if you’re charged with committing aggravated assault by threatening a person with a firearm, to establish a self-defense claim (or a defense-of-others claim) you don’t have to show that you reasonably feared that they would kill you otherwise, but only that you reasonably feared that they would hurt you otherwise.

For some reason I hadn’t happened upon section 9.04 in a dozen years of practicing law. But it turned up when I needed it.

Technorati Tags: law, self-defense

Advice to New Lawyers

I used to be an apostle of lawyers starting their own practices. I think it’s the best way for a young lawyer to make a living and keep her soul. But it’s been long enough since I started my practice that I’m not sure I know the environment well enough to recommend that course. This article from the Wall Street Journal makes the picture look pretty bleak for new lawyers, whether they’re looking for jobs or starting their own firms.

Houston criminal defense lawyer Nathaniel Tarlow wrote these ten suggestions for new lawyers hanging their own shingles (please let Nathaniel — ntarlow at gmail dot com — know if you find the suggestions useful):

As a new lawyer who went the “hang their own shingle” route, I can tell you that it’s not easy. Though there are things that people in this position can do to make it better and up one’s chances of success. Here are some that worked for me:

1. Be willing to do family law. Uncontested divorces are a simple and relative painless way to get rent and other bills paid. While not everyone knocks over a liquor store, people of all strata seem to be getting divorced or having other family issues that require a trip to court. This goes for other kinds of law too, but family cases are by far the most frequently filed causes, and tend to be steadier in coming in.

2. Be willing initially to take some cases for less money. While it can hurt one’s pride to be “that lawyer” who is walking into the courtroom for less, it’s better than sitting in the office drinking coffee and waiting for the phone to ring. Besides, with exposure in court comes more experience and the chance to pass out cards to people who ask for them. Time spent in the office can be used reading codes, reading the listserve (which in education unto itself), or brainstorming ideas.

3. Band together with others new lawyers in the same boat and share costs, including advertising. This eases overhead and helps with those lean months.

4. If you have a language skill, market yourself in that particular community. Being a Spanish-speaker, I make it a point to try to interact more with the Latino community, as people like a lawyer who speaks their language and can relate to them better in a communication aspect. I’ve enjoyed many a bowl of pho in midtown only wishing I could speak Vietnamese. It makes a difference.

5. Don’t be shy about asking for help. I often need it, and when it’s asked of me, I often give it. I clerked for some excellent lawyers during law school and they’ve always been willing to take call or a visit from me. They’ve helped me, and continue to do so. The wages of karma both good and bad can’t be ignored.

6. Get on court appointed lists in the counties where you qualify and can regularly go. I’ve gotten some decent referrals out of court appointed clients in Galveston Co. whose friends could pay. Besides, court appointed clients often appreciate you more when you do a good job because their expectations are frequently lower. So they’re often willing to help you in return when they can. And hey, just because someone doesn’t have money today and needs a court appointed lawyer, doesn’t mean he won’t have money the next time he/she needs an attorney.

7. Entertain to the extent possible, the “shop-around” types who come in for free consultations. While they often waste your time, it’s a good chance to sharpen one’s personal interaction skills and get to know people as a whole better. When they leave (usually without signing a contract) send them out the door with a few business cards. You never know, I’ve had some come back. It never hurts to get a card out there. Once your practice is more established, these can and probably should be phased out.

8. Try to get to know some lawyers in other counties. Often established lawyers have practices that are very heavily centered in one or two counties. They know they can’t be in 2 places at once, and might ask you to either cover for them in a county where you are that day or just straight out give you the referral. Covering for that attorney is a favor to that attorney, and he/she will be more willing to take time out of his/her day later on to give you advice if/when you need it in a hurry. And a referral or two can make a difference between a bad month and an average one, or an average and a good one.

9. Bring in other lawyers as co-counsel, even if they end up with the lion’s share of the fees in that particular case. While the recompense factor has been cut by having to share fees, what you can learn in that first go can justify your fee the next time such a case comes in. Knowledge is priceless, and if it costs you a chunk of the retainer to get it, I’ve found that it’s usually money well-spent.

10. This has been the most important lesson I’ve learned so far: Make peace with your situation. Being a new lawyer is a challenge, and the fact is that like in any profession, you’ve got to pay your dues. Accept the fact that getting a business off the ground is hard, and be prepared for setbacks. I’m still dealing with this, and still trying to learn.

The Business of Practicing Law

We trial lawyers often pooh-pooh the importance of business skills. “I’m a professional,” the thinking goes, “not a businessman. I need to be spending my time honing and exercising my skills rather than running a business.”

The problem, of course, is that the business end of the law practice doesn’t take care of itself. If the business isn’t running smoothly, we face distractions that make us less effective advocates for our clients.

Business skills are a force multiplier. An hour spent making the practice run better can make a lawyer much more efficient and effective at practicing law.

A specific business skill particularly deprecated by trial lawyers is marketing. In some legal circles, “marketing” is a dirty word. But it doesn’t have to be — marketing can be focused on determining what the clients need or want and how to provide it to them.

Look at it this way: are the clients better served by knowing about who you are and what you do, or worse?

If we attend consciously to marketing our practices, we can do it ethically. We can better find those clients who most need us, and can provide them with the services that they need most.
The same applies to advertising. We can advertise ethically and truthfully, broadening the group of potential clients while educating the public.

On the other hand, if we don’t attend to marketing or advertising, somebody else is going to, and that someone may not share our ethics. If we don’t market ourselves and advertise, the clients who need us most are going to hire people who don’t share our ethics — people, for example, who advertise deceptively, and people who think it’s okay for a lawyer to pay a ghostblogger.

Technorati Tags: advertising, ethics, marketing

Sun Tzu and Lao Tse

In a comment to my Anger and Fear post (in which I advocate trying cases in the moment and without fear), Oklahoma criminal defense lawyer Glen Graham wrote:

I disagree with the story. To me, it seems like the guy should being thinking about life. He should look for crevices in the rocks to grab onto and he should fight, fight, fight !!!. A lawyer who is thinking about how good the strawberries are instead of how to win his case is not being a true warrior and not being the best advocate for his client. The art of advocacy is in some sense the art of war. Zen philosophy tends to cause the advocate to loose his incentive to fight the good battle.
If you want to read good asian philosophy, take a look at “The Art of War by Sun Tzu.

The story Glen is talking about one that Jon Katz had cited as an example of living life without fear. I had quoted it, tagging it a “Zen story.” (Jon may not agree with that characterization — he learned the story from a t’ai chi master; as I understand t’ai chi, its philosophical underpinnings lie in Taoism, which forms a foundation for Zen Buddhism as well. As far as I know, the tiger story came from the Zen tradition, but it might as well be a Taoist story — or, for that matter, a Sufi story. To quote Pooh, “It’s the same thing.”):

A man is chased in the wilderness by two tigers, only to be forced off a cliff, hanging for life from a vine. One tiger waits above and the other waits below for a human meal. Two field mice gnaw away at the vine. The man sees a wild strawberry growing from the side of a cliff, reaches for it, tastes it, and — with his life hanging in the balance — thinks of how delicious the strawberry tastes.

While it should be required reading, the Art of War doesn’t, by itself, give us any idea what to do when the tiger chases us off the cliff. Without more context it’s strategy rather than philosophy.

To understand the Art of War a reader should understand the philosophy underlying it, and know himself. Sun Tzu wrote:

Hence the saying: If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.

If you don’t know yourself, the Art of War won’t do you any good — you will lose every battle. The book itself doesn’t provide us with any help in knowing ourselves; it doesn’t even tell us what Sun Tzu meant by “know yourself.” To understand Sun Tzu and the Art of War, first we have to understand what he meant by “know yourself,” and then we have to know ourselves in that way. Without an understanding of the philosophy underlying it, the Art of War is nothing more than a book of tricks. It doesn’t give you any strategic advantage because anyone can learn the tricks.

To understand the Art of War, therefore, first study the Tao Te Ching, or t’ai chi, or Zen, or aikido, or acting, or improvisational theatre, or any other discipline that seeks a state of presence in the moment. Then, once eating the strawberry makes sense to you, read Sun Tzu.

If You Have to Ask . . .

“If you have to ask, you can’t afford it.” I’ve never really accepted that. I considered it a snotty, pretentious response to a legitimate price inquiry. I figured that even someone with all the money in the world would be a fool not to ask how much something was before deciding whether to buy it. But now I realize that not only is it true, but it’s also a truism.

I get a lot of calls from people whose first question is, “How much do you charge for a ________ case?”; I find that these folks almost invariably can’t afford to hire me. I’ve tried several different approaches for dealing with these calls. Generally I’ll begin with “I’m sorry, I don’t discuss fees over the telephone.” Setting an appropriate fee in a criminal case is not a science but an art. A lawyer can’t properly practice this art over the telephone. I have a policy of not quoting fees over the telephone because I can’t get all of the information I need, much of which is intangible, without a face-to-face meeting. I like for money to be the last thing we discuss.

At first, after describing my policy I would suggest that we make an appointment to meet to discuss a) whether they wanted to hire me; b) whether I wanted to take the case; and, only then, c) what it would cost. After about the hundredth time that a potential client no-showed for one of these meetings, I realized that the folks whose first question concerned cost weren’t turning up. I was wasting my time.

So I adapted. After saying that I didn’t discuss fees over the telephone, I would add, “. . . and you really don’t want to hire a lawyer based on price” and explain that lawyers who focus on price can’t be focused on quality. This seemed, for some reason, to make no impression at all on the price-shoppers; I was wasting my breath.

Now if the first question a caller asks is “How much do you charge?” I simply explain that I don’t quote prices on the telephone. If the client then gets the idea of setting up a meeting, I’ll oblige him. I get many fewer no-shows. The price-shoppers usually can’t afford to hire me, but occasionally one of them will have the sort of case I feel compelled to take regardless of the money involved.

Lots of these callers say “I’ve talked to other lawyers, and they all charge too much.” When I hear that, I will explain that it’s unlikely that I’m cheaper than any lawyer who would quote a price over the telephone.

(That is true because I have a very low-volume practice. While many of my colleagues have dockets of fifty to a hundred active cases, I have twenty or fewer. Only by keeping a small docket can I provide each client the intensive representation that he deserves. I have plenty of time to spend on each of my cases, and time to communicate with each of my clients as much as he needs. By keeping my docket small, I am able to provide a premium service. If I cut all of my fees in half, I would have to take twice as many cases to provide my family with the things that they deserve, and all of my clients would suffer.)

Sometimes I’ll still try to help the price-shopping caller out by explaining the downside of hiring the low-bid lawyers. But it’s to no effect — those folks are asking not because they want to but because they have to. They aren’t cheap; they’re poor — usually working poor but poor nonetheless. And it really is true that those who have to ask how much I charge can’t afford me.

Technorati Tags: criminal defense, fees