What Makes this Job Fun

Considering that my business involves dealing with some of the worst things people can do to each another on a daily basis, one might think that the practice of criminal law is not fun. Oh, to the contrary. Trying getting stories like these out of people who work in normal offices.

Yesterday morning I headed off to the courthouse, as is my custom, to go fight for truth, justice, etc. I arrive to find half of the defense lawyers (and defendants) in town milling around outside the courthouse and the Travis County Sheriff's Office informing everyone that they can't come into the building. I soon learn that something set the fire alarm off, but no one is quiet sure what yet. Despite the unknown cause of the alarm, the sheriff's office decides to let attorneys into the building (wistfully hoping for our demise?), but not any of the other people - leaving the lawyers client-less for court.

Once inside, I learned that the fire alarm going off in turn makes the elevators a potential deathtrap. The sheriff's office, in their collective government wisdom, proceeds to put yellow crime scene tape (three long pieces of it) horizontally across the first floor elevators so people wouldn't use them to go up. The only problem with this approach is that they didn't let the people on the 8 floors above know not to use the elevators, so those folks continued to get into the potential death trap and ride it down. Upon arriving at the first floor, the elevator doors would open, and the occupants would stare in confusion at the crime scene tape trapping them in the elevator. After a short consultation with their fellow elevator-mates, people would then crawl through the crime scene tape to freedom. I watched with enjoyment from a nearby bench as each new round of unsuspecting folks solved the case of the crime scene tape, and couldn't help but wonder - what other job could possibly match the practice of law?

What a Relief

So, some days slogging through all of the little tasks on cases can be a bit mind-numbing. At times like those, I try and remind myself of the bigger picture and the payoff that comes from noticing details. You know, hum something patriotric and picture the Constitution in my head. Or take a mental break for a few minutes and surf the internet or check email.

I'm on a number of list-servs, which include some really smart people (and, of course, a corresponding number of really dumb people as well). As I was working through my afternoon to-do, this precious bit appeared in my email inbox from one of my wittier list-serv mates:

"Finding myself unwilling to do real work this afternoon, but unable to admit I'm lazy and simply go home, I turned the Webb County Jury charge into a blank form. I now will share it with the list." Attached was a jury charge on the newly enacted castle doctrine, which strengthened the self-defense law in Texas. My thanks to my refreshingly honest and altruistic list-mate for sharing - and validating that I am not the only one who has those kind of afternoons.
Castle%20Doctrine%20Jury%20Charge.pdf

The Business Side of Law

I detest writing this post because I was trained by a generation of lawyers who said law is a profession, not a business. That being said, every lawyer must learn how to set and collect fees or go the way of the academic. As a younger lawyer (and probably older lawyer too), this can be a difficult balance to strike. You want to help people who need help; you also want to keep the lights on. I take a certain number of pro bono cases each year, and have enjoyed them immensely (one guy hugged me and offered to come change a flat tire for me whenever I get one). The downside is that people you help for free like to refer other people who would like free services. Oops.

My recent challenges in this arena have resulted in what I will call the top 3 biggest misconceptions about lawyers and money. Unfortunately, I hear them frequently enough from clients that I know (and dread) that it's really happening:

(1) Myth: "So and so lawyer said if I paid X amount of dollars, they would get the case dismissed." FACT: WOW. I'm pretty sure that guaranteeing a client an outcome is a violation of ethics rules. How the case ultimately works out is based on the facts, the lawyer's skill, and the prosecutor with whom you're dealing. Any lawyer who guarantees an outcome for some outrageous fee has just guaranteed you one thing - you shouldn't trust them.

(2) Myth: "Can't I just pay some additional money and you talk to the judge/prosecutor and make this go away?" FACT: File this one under "great ideas that are actually a felony." Buying off judges and prosecutors may make a good Grisham novel; unfortunately, it rarely works in the real world and will put you (and your lawyer) in a world of hurt. Again - UNETHICAL, illegal, and not the strategy you want to take. Avoid the lawyer who advises you that this is a sensible course of action - a fifth grader could tell you that it's not.

(3) Myth: "If I pay you more money, can you get a better offer?" FACT: Again - Wow. That's so offensive. I'm working hard on your case for the fee agreement we discussed. If the offer we're getting is not all that great, I'm going to guess it has something to do with the facts or the 5 prior convictions the prosecutor is taking into account. When it comes to getting the best outcome for a client, most of the lawyers I know are motivated by a non-monetary concern for their client's welfare. If your lawyer needs that additional $500 to get motivated, time to start looking for someone who took their oath seriously.

I don't mean to sound Pollyanna or naive about this, nor to gripe endlessly about it. There is a business side to the practice of law - but for the lawyer you want handling your case, it shouldn't be all about business. 'Nuff said.

Confession - Good for the Soul . . .

But really, really bad for the case. I am always astounded at people's willingness to tell others - friends, family, THE POLICE - that they have committed a crime. Really, there are some things that shouldn't be shared, and if they are, can and will be used against you in court.

I've never had a deep, dark secret, so maybe therein lies my confusion about why on earth you would choose to disclose something that could land your ass in prison. I imagine that maybe it's like a pressing weight on your chest, an itch that can never be satisfied - maybe it tugs and tugs at you and the only relief is: (Ah!) to tell someone.

Here's a few reasons why that's maybe not such a good idea:

(1) If it involves harm to a child, whoever you tell it to probably has a statutory duty to report it. This includes, but is not limited to: counselors, clergy, and social workers. Check out Texas Family Code Section 261.101 which requires just about anyone (including a lawyer), to report. Interestingly, the drafters of the statute did not address the little issue of attorney-client privilege and the glaring conflict between this provision and a lawyer's duty of representation. Yikes.

(2) Whatever relief or absolution you get from telling will be pale in comparison to the prison sentence you will have just earned for yourself. Confessions (even false ones) are powerful evidence. With a few rare exceptions for legal reasons, they will likely be admissible against you at trial, and they will help ensure your speedy conviction.

(3) "But they didn't read me my rights!" This is one of my favorites. Somehow mainstream TV shows have convinced the general public that if the police don't read you your "rights," the whole case just goes away. WRONG. Miranda warnings only apply to people in custody: a.k.a. you are under arrest or the functional equivalent. If you voluntarily go down to the police station and give a statement, it's coming into evidence - warnings or not.

(4) "But the police just want to hear my side of the story." A close second on my favorites list. That may be entirely true, but please remember when you cheerfully head down to your local police station to give your side of the story, you will likely not be meeting with Barney Fife who wants to understand your perspective on the matter, but rather a skilled interrogator trained to gain admissions from you. Even if you have a completely innocent explanation, odds are they're not going to buy it. You are the target of the investigation - and their job is to get the evidence to prove it. Do the math, folks.

(5) As in many areas of performance, most people think they are better liars than they actually are. If you have committed a crime and think you can convince the police otherwise with some half-baked version of what happened, you are deluding yourself (except for the true sociopath who can lie without batting an eye).

The moral of the story is: even if you are as innocent as the pure driven snow, our system is not necessarily set up to recognize that (if you don't believe me, google "exoneration" and see how many people have fallen into this trap). Recognize that and contact a friendly criminal attorney near you before talking to anyone.

My First Felony One

The indictment says "Aggravated Robbery with a Deadly Weapon - F1." F1 is short for first degree felony. As I look at the charging instrument, it hits me. The moment of truth has arrived. I have been hired on my first first-degree felony.

As a baby lawyer, I have the good sense to appreciate the gravity of the situation. This is as serious as it gets, short of a capital charge carrying the possibility of a death sentence. With the return of this indictment, my client (who, unbelievably, is actually even younger than I am) now faces a charge that carries a term of imprisonment of 5-99 years in the penitentiary. Cases this serious normally go to lawyers with a lot more grey hair on their head (or no hair at all, as the case may be). I, on the other hand, have only found one grey hair so far, and its offending presence was quickly remedied.

The case is assigned to one of our more conservative judges (bad news), and has a deadly weapon allegation, which means that if convicted, you serve 1/2 any prison sentence day-for-day (even worse news). The prosecutor and I, to put it mildly, do not see eye-to-eye on how to resolve this case. Despite all of these things, and the intimidation I feel about finding myself in this situation at the ripe old age of 29, I find another emotion in the mix . . . would it be preverse to call it excitement?

This is what I wanted to do with my life. While many of my friends practice comfortably in high rise buildings, I wanted to be a trial lawyer. I wanted to be in the trenches, on my feet, battling for clients every day in court. I wanted to fight for the least of those in society, to understand how and why things happened, and to tell their story in such a way that a group of their fellow citizens could come to identify with (and acquit) them.

It's no small task, and I wonder everyday if I'm up to it. I tell myself that nothing great in this world was achieved without risk. I remind myself that a trial is nothing more than a democratic decision about the rightness (or wrongness) of a person's conduct. In the words of Wayne's World, "Game on!"

Jail Call in Travis County Darkens my Sunny Disposition

Formally known as the "Jail Reduction Docket," this is perhaps the worst part of my job. Each day, 20 to 30 inmates being held on misdemeanor charges in the Travis County Jail are brought to court to try and settle their case. The defendants are poor, unable to hire an attorney, and for the most part, desperate to get out of jail as quickly as possible.

I had serious reservations about getting involved in this type of appointment system. I couldn't imagine a worse practice of law than introducing yourself to someone for the first time, and 20 minutes later, pleading their case out. My time working for the innocence clinic taught me that not investigating and really defending a case has serious ramifications for the client. A criminal conviction is never a small thing - who you are today is not who you will be ten years from now, and in Texas at least, final convictions never come off your record.

But, I thought, (cue Pollyanna) maybe I could have a positive impact on the process. I could go out and meet with clients in advance to get to know them and their situation. Which I do. (Sadly, most clients respond with a confused "I've never had a court-appointed lawyer come and see me before court before" - which simply confirmed my concerns about the appointment system). I could do what investigation and issue spotting needed to be done in advance and talk to the client about it before the jail call setting. Which I do. I could try and get information on collateral issues that affect them, like outstanding surcharges on their license that could result in them being rearrested. Which I do.

If the case ends in a plea bargain, the county pays a flat fee of $175.00 - whether you spent 10 hours or 10 minutes working on case. Which leads me to what happened today and why my mood could best be described as "foul" right now. I was appointed to a case, did my usual work up - spent about 4 hours preparing the case and arranged for the client to get out of jail today. I show up in court only to find out that the family has retained another attorney, who did not bother to let me know he's on the case.

I'm not upset in the least that they hired another lawyer - it's your right to have counsel of your choice. What aggravated me is that (1) no one told me, so I wasted a bunch of time and (2) the county only reimburses you if you obtain a disposition on the case (so, if you're going to be all mavericky and do the work you are ethically bound to do on a case, you will not be compensated (at all) for your time unless you happen to be there at the end of the case); and (3) I did about an hour of running around on this case IN HEELS, which makes my toes hurt and does little to improve my mood.

After spinning my wheels today, I can see why some lawyers decide to do as little as possible on court appointed cases. Despite my frustration today, I will continue to work the cases the way I have been, even though the economics of it suggest I do otherwise. I took an oath three years ago to vigorously represent every future client, and I meant every word of it. And there is no dollar value for the look on a client's face when they realize the extra steps you took on their case.

I don't like posting bitchy bits, so I'll end on a positive note, Academy Award style. I'd like to thank my agent, for never giving up on me . . . just kidding - but seriously - Thanks and a shout out go to Austin, TX criminal defense attorney Rick Reed, who graciously endured the long elevator ride down with me today while I spewed my frustation; the runner for the newly hired attorney, who acknowledged that I wouldn't be paid for my work and at least looked like he felt bad when I handed him my complete file which would save them hours of work; and our wonderful legal assistant Adrienne Deal who, upon hearing this story, validated my emotions and normalized my reaction with a "Not Fair! They all suck - WHOEVER they are!" - you're the best.

Trial bubble rudely punctured by guilty verdict

After deliberating over three hours, the jury in our case returned a guilty verdict. The time after a case is submitted to the jury may be the most harrowing part of the process. All of the thinking, strategizing, and debating of trial strategy is over. All motions have been filed, questions asked, and arguments made. The only thing left to do is sit and wait, wondering what the twelve people selected will do with the case.

It's too early at that point to armchair quarterback your performance - that will come in the days and weeks to follow. Your mind is strangely empty, like the a computer busy backing up data that can't be bothered to process any new information just yet. "CPU usage at 100%" - "This program not responding" - these are the error messages of trial brain. Then the word comes from the bailiff that the jury has reached a verdict.

Out of the entire practice of law, the few seconds before a jury verdict is read are the most terrifying, hopeful, and strange. It's hard to describe the feeling, but disconnected or out-of-body might be a good starting point. Your mind races as the jury enters the room - is the body language good or bad? Are they making eye contact? Do those things even mean anything?

Even when the evidence of guilt seems fairly overwhelming, I think all criminal defense lawyers carry a secret hope in their heart that it might be a two word verdict, despite all logic to the contrary. It's not naiveté, but rather a hope that maybe our better qualities of reason or compassion might prevail. Sometimes it's just not warranted or likely, but I keep hoping all the same.

On the Road in Erath County

One of the great things about this job is the strange places it takes you. Tonight I'm hunkered down in the (surprisingly nice) Hampton Inn in Stephenville, Texas, preparing for jury trial tomorrow. Being in any trial is like floating temporarily in an alternate reality bubble - things move differently, the usual noise in your life fades into the background, and nothing really exists but the mini-world of the courtroom. This can be an unbalancing feeling when it collides with the day-t0-day ringing of the phone, email, and other responsibilities known collectively as "your life," which by the way, rudely continues to barrage you with little care for the sanctity or necessity of the trial bubble.

Which is why trying a case in another county is so great. Hotel rooms contain none of the to-dos or distractions of home. The pile of work sitting on my desk is, well . . . on my desk 200 miles away. The laundry I didn't fold or the groceries I didn't buy will just have to wait. In a profession where there's always something more to do and you're often pulled in different directions at once, out-of-county trials give you a chance to fully devote your attention and concentration to one task - a rare luxury in a multi-tasking world.

Here, the trial bubble reigns king. Lawyers sleep peacefully by 10:00 p.m. in their hotel rooms. Coffee brews by 6:00 a.m. to awaken and energize. And the outside world relents - at least until I check my voicemail.

Appellate Briefing Proves I'm not a Geek

Well, not a total one, anyway. Having just finished an appellate brief to the Third Court of Appeals in Austin, I am relieved to find that I do not enjoy writing appellate briefs. I take this as a positive sign that while I am a geek in some (well, many) ways, there remains some residual "coolness" in my personality that wrinkles its nose at the lengthy and technical process of appealing a criminal conviction.

The process of appellate work is itself an invitation to stick a fork in the middle of one's forehead. It begins by reading the transcript of the trial you just lost (rub salt in the wound, eh?) and making notes on everything you (and the State) did wrong. After that self-esteem boosting exercise, one turns to gleeful task of trying to find case law that is not adverse to your position, which turns out to be a considerable task given that appellate courts go out of their way to avoid overturning a conviction that would give a criminal defendant another shot at trial. After cobbling together the available caselaw, it's time to park it and write. And write. And write.

The finished product does of course, make you proud. This appeal involved a conviction of a Class C misdemeanor for which the maximum punishment is $500.00. The amount of time involved in appealing the case far exceeded the actual fine assessed, but you know, right is right. And appeals are for righting injustices, no matter how small. To our client, and hopefully the Third Court, it's no small thing at all.

In case you were wondering . . .

Maida does do something other than sleep. Note the intense look of concentration as Gerry and I discuss legal strategy. A "funny" from Jennifer: Maida is going for her juris dog-torate. He he!

Monday Morning Twilight Zone

Somehow I beat everyone to work today. What's the big deal you might ask?

Here's how it normally goes down. I arrive after everyone else, with just a hint of a snarl, eyes narrowed in annoyance that the day began with yet another morning, sipping my iced coffee from Starbucks and waiting for its caffeine goodness to help me be the wonderful cheerful person I can be. In summary, I am not a morning person.

Compare to my boss, who arrives happily every morning whistling and ready to start the day. While I do not begrudge him his morning cheerfulness (he can no more help being cheerful than I can help being a snarler), I have to hibernate until I feel myself becoming human. I have come to the conclusion that this is simply the way I am right now, and probably will not respond well to any internal "I should be a better person" chiding.

Which makes what happened next that much more unusual. I woke up voluntarily at 6:30 a.m. this morning. I realize this is not much of an accomplishment for most people, but for the "morning-challenged" among us, it's certainly noteworthy. Add to that the fact that I actually got out of bed and got moving instead of petting the dog, daydreaming, or doing any of my other usual goof-off maneuvers.

When I arrived at the office and saw no other cars parked in the parking lot, the uncertain creepy Twilight Zone feeling settled over me. You know, the "Is it really a work day or did I just drive all the way in on a Sunday thinking it was Monday?" I was pretty sure it was a Monday, so I headed up the stairs. Turns out I was right (yay!), so I get to start my week basking in the self-righteousness of being the first one to work. Apparently my office mates noticed the peculiarity of this as well, as evidenced by Gerry's question to me: "Did you sleep here last night?"

Sleeping beauty?

In the midst of preparing for a Monday hearing, I take a break to find this great sight in the reception area. Always ready with the camera, Jennifer snaps yet another picture of Maida sleeping . . . the cool 64 degrees outside means sweater weather for the Office Dog. I promise myself that I will blog about something else at some point, but this image seems to best capture the flow of life right now. Snarky challenges still exist on both the work and personal fronts, but they thankfully settle into a more manageable perspective when I adopt the "Maida approach" to life - just relax and let everything work itself out.

Meet the Office Dog!

Meet Maida, who graces our office most days and reminds everyone about the importance of tempering hard work with a balanced perspective (and naps). Her legal duties include greeting and entertaining clients, promoting employee wellness with a quick game of fetch, and providing a friendly ear (or two) after court. This one's for you Maida - we work hard so you don't have to.