A Book from the Library of Defense

a few quick replies

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by: Ryan • July 7, 2012 • no comments

A few people have thoughtfully responded to my last post, and I wanted to address some of the thoughts and concerns.

(1) No, not being on the pond does not equate with being a bad lawyer. My main point is that interconnectedness is essential to doing quality work. There are a variety of forms those connections can take. The best way, probably, is routinely talking to other lawyers about legal issues.

I'm well aware of how painful the pond can be, and it's not the most efficient means of disseminating information. I have tried in my own small way to discourage unnecessary posts by reminding people to "unsubscribe" themselves via logging into the OCDLA website, so they don't clutter up everyone's in-box. Even worse, sending "unsubscribe" to the pond is like asking OCDLA staff to pick up their socks. Unfortunately, if I made a dent at all, it was only temporary.

So, the pond is not going to change, and it's not for everyone. But when it's helpful, it can be extremely helpful, and it's semi-predicated on the idea that if one person has a legal question, fifty more would likely benefit from the answer.

Similarly, having a bench trial doesn't make you a bad lawyer. I've had lots of bench trials over the years, when my defense was highly technical. I've just noticed that some attorneys avoid trials, that even those attorneys very good at avoiding trials can still be dragged to trial by a client who won't take a deal, and the lawyer convinces them to go bench while at the same time making sure everyone in the room knows that the lawyer doesn't think the case should go to trial at all.

(2) By disparaging the median quality of defense attorneys in some counties, I was not saying all attorneys in those (unnamed) counties suck.

But each county has its own culture. This culture can be shaped by a number of factors: the type of crime in that county, the number and quality of judges, the attitude of the DA's office, whether there's a PD's office or it's all independent contractors. And there are counties where, it would seem, not much is expected of the defense bar. That doesn't mean there aren't great attorneys doing great work in that county.

But take the following example. I've heard this from too many people to not believe it. There is one county in Oregon where it is routine that investigators -- not the lawyers -- bring the police reports to the in-custody, indigent defendants, the investigators ask the defendants for "their side of what happened," and the investigators tape-record the answers! At this point in the lawyer/client relationship, the lawyer hasn't talked about the facts at all with the defendant yet.

I could spend half-a-day talking about why that is a horrendous practice, but apparently it's fairly ubiquitous in at least one county in Oregon. Maybe it's not as widespread as I've heard, but it's not a mistake. It is a very bad way to practice law, but it's probably a good way to resolve a lot of cases, favorably or otherwise.

Coincidentally (or not), the impression I get is that that particular county is very much underrepresented at OCDLA conferences. I can't say for certain, although I would recommend to the OCDLA board that they determine which counties are underrepresented and try to target those counties in some way.

Again, going to OCDLA conferences is not essential to good lawyering, but it helps.

(3) Yes, I agree (quite strongly) that my last post put forth a very narrow vision of what makes a good or bad lawyer. In my defense, entire books could be written on what makes a good or bad defense lawyer. My post was never intended to be exhaustive. And perhaps the most valuable lawyers in criminal defense are doing things like drug or mental health courts, or civil commitments, and you simply can't judge their work by the same yardstick you would other attorneys.

And there are a number of other important skills I didn't mention, such as negotiation and client communication. But in my experience, the quality of negotiation and client communication are often tied to the lawyer's ability to evaluate a case. I'd actually like to spend more time on this topic at a later date, but suffice it to say (for now), that being a good defense lawyer means that you are vast, you contain multitudes, and no one is going to be perfect in all aspects.

(4) Let me paraphrase one observation: "being aware of cutting-edge or novel issues is such a tiny part of being a defense lawyer that it is wholly worthless as a guide to how good the lawyer is."

There is more than one reason I chose the example I did. The failure to object to the "natural and probable consequences" instruction was arguably a failure that lasted -- at a minimum -- ten years, between the Anlauf (2000) and Lopez-Minjarez (2010) opinions. It's hard to imagine many -- if any -- practicing criminal defense lawyers who didn't have co-defendant cases during that decade. And the erroneous instruction probably undermined the defense of just about every accomplice. This wasn't some trivial issue. It was a big issue. And ever since Anlauf, we had a pretty good idea the instruction was wrong.

Now, being on the pond, or going to OCDLA conferences, wouldn't guarantee that you were aware of the issue. But I suspect solo practitioners or small firms that are somewhat insular, who aren't routinely exhanging ideas and information with other attorneys, were probably the most likely to miss the issue. In contrast, anecdotal evidence suggests that the attorneys who were winning the objection were from the same county, and I'm sure that had something to do with them talking to each other.

The point is, there is always "an issue"; there is always a pretty big opinion that will soon come out that will change how we practice law, and it's only by being interconnected that we would learn about these issues ahead of time. Jess Barton was telling us for years about the significance of Apprendi, and I admit I was one of those who didn't pay much attention, and then Blakely came out. We've since had St v Hall, and Washington v. Crawford, and St v. Southard, and in the next three years, we'll have more of those decisions. Somebody is making those arguments now and, thanks to OCDLA, there's an infrastructure that would allow you to find about them while they could do your current clients some good.

(5) Odds are, I wasn't talking about you. If you have doubts that you're not doing a great job, or that you're missing something, or that you've just recently screwed something up, the very fact that you have those thoughts probably means that you're a good lawyer and that you're going to get even better. The lawyers I had in mind -- and I had a few very concrete examples in my head -- just don't seem concerned about whether they're any good, some of them are very high-handed in the way they treat their clients, and while they may talk about their practice with other lawyers, most of that talk is to complain about how difficult their clients can be.

(6) Lastly, I don't want people to grind themselves into dust to be good lawyers. We have obligations to ourselves and our families that we need to honor. But that is one of the most frustrating things about the failure to raise good arguments: 95% of the work is done for you. There's a great argument out there that would help half-a-dozen of the clients you have now. Maybe it's a demurrer, maybe it's a sentencing argument, but it's out there. And somebody has already written the memo. If you are the most genius lawyer in Oregon, in your entire career you're lucky to have two, maybe three, brilliant ideas that no one else has ever thought of. When you do, be in a position to share them, whatever form of communication that works best for you. In return, you'll get hundreds of great ideas from your friends and colleagues, and together, we will change thousands of lives for the better.