How to Become a Federal Criminal Defense Lawyer

If you’re a young lawyer interested in defending people in federal court, listen up. A few days ago an anonymous commenter to this post asked:

How would you recommend that a new lawyer get started defending people in federal court? How did you get started?

I started in federal court long enough ago that I hardly remember how I did it; most likely I went about it all wrong (my first jury trial ever was a bank-robbery trial in federal court). But having made plenty of mistakes qualifies me uniquely to advise others; this question has acquired some urgency in my mind recently as I have noticed a glut of young lawyers seeking advice on practicing in federal court.

One of these young lawyers told me a couple of days ago that, if all else failed, he would go to trial and ask the jury to determine if the arrest was legal. No, I told him, you won’t: while we have that option in Texas state court, federal law does not provide for juries to decide suppression issues. Today he reported that, as far as he was concerned, it was still an open question — two other defense lawyers, one of whom used to be a federal prosecutor, had told him that juries could decide such issues in federal court.

So the first and most important thing for the aspiring federal criminal lawyer to know is this: you don’t know squat. Accept that with calm humility and good cheer. You may have edited the law review . . . and captained the mock trial team . . . at Yale. You are not prepared in the slightest to defend people accused of crimes anywhere, let alone federal court. Even if you spent years as a state prosecutor, even if you spent years as a defense lawyer in state court, even if you served as a federal prosecutor, you are now officially a federal criminal defense newbie, and a newbie you will remain until you have tried several federal criminal cases to juries as a defense lawyer. Pleading people guilty does not count. Only after you’ve tried some cases as defense counsel in federal court will you know squat.

How many? It depends on you. If you’re a fast study, two or three should do; if you were paying attention when you were a federal prosecutor, one might be enough; if you’re lazy or slow or set in your ways, you probably won’t be trying cases anyway. The bar for admission to the U.S. District Courts is frighteningly low, and lots of lawyers in the courthouse are eternal newbies. Don’t set your sights on being as good as the worst of them, or as good as the mean. Work to be as good as the best, or go back to state court, with its bus-station atmosphere, its semi-pro cops, and its forgiving rules.

Don’t be so afraid to lose that you never try cases. If you set your client’s interests (freedom) above your own (dignity), you’re not going to win every case you try. Trying cases and losing them is good for your ego, and will raise you above newbie level, but no matter how much of a badass you were in law school, or the DA’s office, or state court, or the U.S. Attorney’s office, you are nothing more than a speedbump over here in U.S. District Court until you’ve proven that you can beat the United States Government in a jury trial.

Don’t pretend to know squat. Don’t pretend in order to impress your colleagues — we know that you’re a newbie, and we’re not impressed. Don’t do it to intimidate the AUSA — he knows that you’re a newbie, and he’s not intimidated. Nor to persuade the judge — she knows that you’re a newbie, and she’s not persuaded. Most of all, don’t pretend in order to sign up the clients. They don’t know that you’re a newbie, but it’s dishonest, unethical, illegal, and sleazy not to tell them.

“But they won’t hire me if they know how little federal experience I have.” First, that’d make it fraud, wouldn’t it? Second, a few special clients will hire you despite your lack of experience. They won’t pay you what they’d pay a more experienced federal lawyer — and rightly so — but people with a limited budget will be willing to take a flyer on a green criminal-defense lawyer who will work hard to do a good job. (You’re not just coming over to federal court to make money, are you? Well, are you?) Instead of trying to convince the potential clients that you know your stuff, show them that you’ll work harder than anyone else.

Work harder than anyone else. Study hard. Observe. If you don’t work hard, you’re going to do an incompetent job. Apply for the CJA panel, and take advantage of the Federal Defender’s training programs for panel lawyers. Go to every federal-specific CLE program you can afford. RTFM. Get Georgetown Law Review’s Annual Review of Criminal Procedure. Browse it frequently. Get a copy of West’s Federal Criminal Code and Rules and carry it with you to court. You may be the only lawyer in the courtroom with the book. Get the Sentencing Guidelines Manual, read it and understand it. Get a copy of Defending a Federal Criminal Case, by the Federal Defenders of San Diego, and refer to it often (word is that there is a new version in the works).

The easy way out of a case is to get the client to plead guilty. The sad truth is that most clients need to plead guilty.

There is a happier truth, though. Write it on your bathroom mirror. Put it on a sticky on your car windshield. Print it on a card, and put it in your wallet. Make it the screensaver on your computer:

Many federal defendants need jury trials.

If you try a case for a guy who should have pled guilty, his punishment is likely going to be somewhat higher than if he’d pled (an extreme example of the disparity between plea and trial: today I pled a guy guilty to an agreed 60 months on a kilo and a gun; if he’d gone to trial and lost, his sentence would have been at least double that). Pleading a guy who should have gone to trial is much more costly: he’s going to go to prison when he should have walked. If you don’t consider a federal jury trial an option, if you plead every case, you are screwing some percentage of your clients (5%? 10%? 20%). (If you didn’t consider a plea an option, you’d be screwing more of your clients less severely. But who doesn’t consider a plea an option?)

Whether a defendant should plead or not does not depend at all on whether he is “guilty” or not. The only thing that matters is whether the government can prove its case beyond a reasonable doubt in the face of all the resistance you can offer.

Not knowing squat, you don’t have any way of knowing if the government will be able to prove its case beyond a reasonable doubt in the face of your greatest resistance. So how do you learn which cases to try? Sit second with someone else who is not a newbie. Do so at every opportunity. I have second-chair counsel at every trial, and I still sit second whenever I get a chance. Do it pro bono if necessary. Offer to sit second on CJA cases — sometimes the court will pay for a second-chair lawyer who is not otherwise qualified to be on the CJA panel. When those special clients hire you, get someone else who is not a newbie to sit second with you. Split your fee with her if necessary.

If you can get on the CJA panel, treat appointed cases no differently than you would hired cases. Many of my jury trials, and some of my greatest wins, were on appointed cases. (I would bet that indigent defendants have jury trials more often than paying clients.)

Find mentors. I’ve said before that the criminal bar is very supportive. Sure, we federal criminal defense trial lawyers don’t much care for the idea of a glut of newbies in the U.S. Courthouse, but all of us were newbies ourselves once, most of us would prefer that the newbies not be entirely incompetent (you’re probably going to wind up representing a codefendant, and we’d rather not have you screwing up our defense), and many of us are willing to help you become competent. If you can’t find anyone local, email or call me. (Someday I may be trying a case in your district, and you’ll be representing a codefendant; I sure would appreciate it if I don’t have to babysit you to keep you from inadvertently torpedoing both of our clients.)

If you haven’t already joined your local criminal defense bar (why not?), do so now. Find the helpful experienced federal defenders in your area (speaking of which: make friends with the lawyers in your local federal PD’s office; many of them are better lawyers than you will ever be, and they too want to help you become competent) and don’t be shy about asking them for advice.

Even when you think you’ve got a case figured out, ask a mentor for his take on it. Before your client pleads guilty, run the facts by someone more experienced than you and see if she concurs with your judgment. Until you have tried several federal criminal cases to verdicts, getting an experienced lawyer to check your work should be part of the due diligence that you perform on every case.

Finally (for now): You’re going to make a fool of yourself in court. Making a fool of yourself, if you’re aware of it, is inevitably a learning experience. Get over your bad self.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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18 Responses to How to Become a Federal Criminal Defense Lawyer

  1. Matlock says:

    Can you tell me where Deferred Adjudication is in the Sentencing Guidelines? I can’t seem to find it anywhere.

  2. Andrew DeLuca says:

    As a young attorney, with life experience, your commentary is some what offensive. According to your expert figures, nearly 80 percent of cases settle. In that regard, we as lawyers, minimize exposure, taking into account the facts of the case. It does not take years of experience to size up a case. With regard to defending a criminal client. I submit that a young hungry attorney, that excelled in mock trials, is absolutely ready to try a case. In fact, given the facts of your article, much more so than you were in your first bank robbery case. I am a humble lawyer and know that there is more to learn each and every day I practice. I watch and listen to seasoned attorneys and hope that I will be able to speak as eloquently as them and grasp the law as they do. However, if you prepare as a young lawyer, you can make up for lack of experience. And at the end of the day, when you pull back the curtain on criminal law, the fact is the great wizard of oz is just a man. You are not as important as you might think and you yourself should be more humble and willing to be a mentor from a place of humility rather than arrogance.

    • Mark Bennett says:

      In a decade or two you'll look back at this comment and laugh at the lack of self-awareness you had back in 2013.

      If you were the humble lawyer you profess to be, you wouldn't have written this (nor would you profess to be humble, but that's a paradox for another day).

      You are just dead wrong that "it does not take years of experience to size up a case." What we lack when we get out of law school—what mock trial cannot teach us—is wisdom. Only time, and getting your teeth kicked in a few times for real, can give you that.

    • shg says:

      Almost 6 years since this post was written, and still it's as needed now as it was then, if not moreso.  What a sad, clueless, arrogant, pompous comment. Bennett has been kind to suggest that in a decade or two, you will realize how utterly foolish your comment is.  With your attitude and lack of self-awareness, I would toss your baby butt out of the courtroom.

    • Oh cool, criminal cases "settle" now. 

  3. Andrew DeLuca says:

    While I appreciate your comments, I certainly don’t agree. Again, it does not take decades of pleading out 80 percent or more of your cases to ascertain what leverage you have as a defense attorney in any given case. I agree that that kind of analysis is not apparent directly out of law school, but certainly it does not take decades. I believe that I will still be learning years from now and will be happy to pass what ever wisdom I have freely onto young lawyers from a much different place than your article suggests. I have had my “teeth kicked in” and learn every day I am fortunate enough to be practicing. In this profession, it is my opinion that I will always be learning. In fact, with or with out a mentor, the learning experiences of fumbling your words in court and looking foolish are inevitable. This whole take your medicine and leave the practicing of law to seasoned lawyer is somewhat amusing. I have the same three letters after my name as you. I fully understand my place as far as being somewhat new to the profession, but believe in teaching and mentoring from a place of encouragement and empowerment, not from a place of fear and doubt. If I was humble, I would not respond to the seasoned defense attorney, telling me that he does not want to hold my hand, as I try and forge ahead just as he did years ago? I can say that I am humble and willing to learn, just smart enough to know that In years to come I will teach from a different place than your article suggests. That in and of itself would be considered by some to be wisdom. And shg, not sure who you are, but you would have to have cause to bounce me out of the courtroom. You are not that powerful. There is a system of checks and balances in the law. Thanks for your time Mr. Bennett.

    • Leo says:

      Andrew:

      I'll start this by mentioning that I am a 2010 grad. There is no distinguished gray in my beard or along my temples, and I can't fool anyone into thinking I have more than the 3 years experence I actually do. Here goes.

      You sound like the ignorant new lawyer who doesn't know any better that you are. You're coming from a position of ignorance. And what's that they say about a little bit of knowledge? (here's a great This American Life episode on the subject: http://www.thisamericanlife.org/radio-archives/episode/293/a-little-bit-of-knowledge)

      I came from a similar situation as you. I'm out only 3 years now. While in school, I clerked for Judges, was on Law Review, made Moot Court, interned at the local DA and then tried misdemeanor cases while at our local PD clinic. I had top grades in Evidence, Professional Responsibility, and decent grades in Crim Procedure. Surely, I thought that made me "prepared" to try cases on my own. Nope.

      I knew jack shit when I got out. I know slighty more than jack shit now. When it's a real client facing real years in prison next to you at counsel table, you feel real adrenaline, real sweat on your palms, get real dry mouth, and experience real fear. If you don't the first few times you're in court, you're either 1) lying; or 2) too stupid to know better. Real life is not some fairytale mock trial NITA scenario.

      But if you're smart, you'll stop taking nonsense, and start listening to Bennett et al.

      Not that he needs defending, SHG is a preeminent criminal defense lawyer in NYC who has been trying cases for longer than you've likely been alive — you might want to read what he has to say on his own blog.

      What are your special three letters after your name worth to a client whom you fuck over due to your lack of knowledge and inexperience?

      Your petulant responses to attorneys who actually do know what they're doing indicate to me that you are not humble as you imagine yourself. Not to get all Dunning-Kruger on you, but I imagine you're likewise not as competent, knowledgeable, or clever as you imagine yourself, either.

      Shut up and listen. These guys are worth hearing and learning from. Prove to me that there's hope for my generation of young lawyers yet.

    • "but believe in teach­ing and men­tor­ing from a place of encour­age­ment and empow­er­ment, not from a place of fear and doubt."

      Meaning you want people to tell you what you want to hear, not what you need to hear. 

      That is a very strange attitude from someone who is "humble" and "wants to learn." Becasue part of the learning process is being told "no, you shouldn't do that, even though I know you want to."

    • Mark Bennett says:

      I just went back and reread the post you were commenting on, Mr. DeLuca. It includes a great deal of evergreen good advice (and an offer of long-distance mentoring, which I revoke) which you seem hellbent on ignoring because you're "offended" by the suggestion that until you've tried several federal jury trials you don't know squat.

      In order to have a reason to be offended you had to read into what I wrote something that wasn't there. "Decades of pleading out 80% or more of your cases"? That's what you want me to have said, so that you could feel justified in taking offense.

      Here's what I actually said: "a new­bie you will remain until you have tried sev­eral fed­eral crim­i­nal cases to juries as a defense lawyer." The cases you plead don't count for anything; nor do mock trials, state cases, or cases tried for the prosecution. Only the cases you try—for real—for the defense—in federal court count for anything. Would you care to argue with that? Better bring some facts to the table, rather than just "I want to believe," which is all I'm seeing from you.

      I know a few "naturals"—people who somehow have an innate ability to try cases well. I know many lawyers who think they are naturals, but aren't. Those who are naturals don't think they are, while those who are not are certain they are (the Dunning-Kruger effect, to which Leo alludes). While some of the former participated in mock trial in law school, all of the latter did.  Which category do you fit into?

      Are you a natural? Are you "much more ready" to try a case than I was in my first jury trial? You've got no basis for saying so other than pure ego. You know neither how ready I was to try that case, nor how ready  you are. If you believe it, it's only because you want to.

      Maybe you're right. But judging from your twice-demonstrated inability to write a coherent paragraph, I would bet heavily against it. Writing is thought reified; if you can't write persuasively it's not likely that you think well, or can speak persuasively.

      Even if you were (despite the objective evidence to the contrary) a natural, you would need to consider this: even naturals need real trial experience to distinguish the cases that need to be tried from the cases that don't. Most federal criminal-defense lawyers think that every case needs to be pled. Most federal criminal-defense lawyers are wrong.

      As I pointed out gently in my response to your first comment, you are exhibiting a lack of self-awareness. Humble people don't brag about their humility, and they don't get offended by the suggestion that they get over their bad selves. They are already over their bad selves. You are clearly not.

      Like Joseph Rakofsky, you're in love with your mad advocacy skills and the illusion that law school has prepared you to do what must be done. Maybe experience will cure you before you screw up too many people's lives or, like Rakofsky, destroy your own future—which implies "maybe not." Greenfield sees in your attitude a generational malady, but Rushie, Leo, and Lee, all from your generation, disavow it.

      You might just be pathologically unselfaware.

      MB

      p.s. You don't have "the same three letters" after your name as me. No self-respecting lawyer—me included—gives himself the honorific "Esq."

      • shg says:

        Perhaps Jordan, Leo and Keith are the exceptions that prove the rule. Give them some credit for their metacognition.

    • Mark's Dad says:

      Andrew, do you remember that question on the LSAT asking, "What do Dunning-Krueger, Charles Darwin, Bertrand Russell and William Shakespeare have in common?"

      I didn't think you did.

  4. Keith Lee says:

    I could go through and give the same sort of story as Leo, but since he’s already done that, I’ll just skip to the part where I tell Andrew that he doesn’t come across as humble at all – but comes across as a pompous douchebag instead.

  5. Andrew DeLuca says:

    Mr. Bennett,

    I see I have become the straw man used by you and your facebook followers in order to showcase your writing abilities and admire one another.  I am happy to have brought you all closer together in this mundane constricted place you choose to exist in.  If you go back and read my posts, you will note that I never once touted my ability as a lawyer.  I never stated that I participated in a mock trial group.  My intent was simply to object to the overall tone of your post; the way in which you choose to mentor and lead young men.  Since objecting to that post, your facebook friends have used words like douchebag to describe me.  I found this attack rather unprofessional coming from a group of educated individuals and following this post,  will not waste my time reading your facebook followers responses. 

    I never intended to compare my prowess as an attorney to you or your facebook followers.  I enjoyed Leo's comment, almost as much as he did.  His opening paragraph was sure to capture your attention, using a bit of creative writing to set the tone for his commentary.  I could not help but wonder what Leo really knows about life.  How many struggles did he have to overcome in order to become an attorney?  The kind of struggles that shape a man, prepare him for the challenges of life, all the while giving him perspective.  The kind of perspective one needs to lead and teach from a non ego based place of detachment.   While I understand that this maybe entirely unfair to Leo, I will nonetheless take the same liberties that your facebook friends took while commenting on my post. 

    I picture Leo driving his Daddy's slightly older model BMW to class, in his Brooks Brothers suit and pastel tie, meticulously prepared for each case, vying for the attention of his classmates and his professors much in the same way he is seeking your adoration by posting to your facebook page.  Mark, Tell Leo he did a great job, build him up, empower him so that he can forge ahead in the years to come and possibly become a better more accomplished lawyer than you, or does that threaten your sense of worth and importance?  Would it bother you if Leo, a lawyer, like you and I, became a more accomplished and a better overall attorney than you?  Might he "gum up" the federal court system as he presses ahead?  Why not give him the attention he seeks, so that he uses your praise as fuel to succeed?  

    Perhaps if you examine your influence on a young lawyer that is part of a profession that will exist long after you are gone, from a rather different and seemingly more appropriate place, my objection to the breadth of your post will become more coherent.  How many people might a young, fragile Leo, seeking, in fact needing guidance, bursting at the seems and full of potential, help if empowered through encouragement and effective leadership?  Wouldn't that type of connection to a young lawyer do more to further the profession in a much more profound way than being a bully on your facebook page?   An intelligent bully, nonetheless, but nothing more than a egotistical lawyer that regular people with a bit more perspective on life have grown tired of.

    It is these people that have grown tired of your esoteric legal posts, that we as attorneys represent.  How do you represent someone effectively when you can not connect with them?  The type of perspective that is only learned by life experience or lifetimes of experience and allows us to connect with our clients fears, their hopes and their outlook on life that has been shaped by the influences and opportunities, or lack thereof, that they had growing up in much different place than you or Leo.  It is my humble opinion, in the practice of criminal law or law for that matter, that it is essential to understand your client.  It is only through this understanding that we will be able to effectively connect with our audience in order to advocate on our clients behalf.  

    Your court room prowess and knowledge of the law might be as good as any, but you certainly failed to connect with a new lawyer that was searching for an article on how to become a federal defense attorney at midnight over Memorial Day weekend while enjoying an 18 year old scotch and reading a book by Charles Bukowski.  I have no grand delusions that I am a "natural" or even trial ready.  I know who I am, how I learn and what I can do to prepare in order to give my clients my best.  I know myself, Mr. Bennett and I strive to understand people and my clients.  I know that absent the grace of God, that I could be sitting in his or her chair given the same set of social or economic circumstances. 

    You must know Bukowski, Mr. Bennett.  He is a great writer.  I would certainly be open to criticism from the late Bukowski regarding my writing.  Your use of the semi colon and parenthesis are, like your facebook page and take on becoming a competent attorney, boring.  In fact, there are couple pieces that I read the night of my first post that I would like to share with you and some of your facebook friends.  Both are quick reads and sum up my message nice; make it more coherent, if you will.  

    For you, Mr. Bennett, on this Memorial Day 2013, My Friend William, by Charles Bukowski.  http://iljosja.blogspot.com/2011/01/charles-bukowski.html

    For you Leo, I suggest a much different piece as I truly believe that you will be as accomplished as Mr. Bennett in years to come and have a small amount of hope that you will change the dynamic and lead and mentor young lawyers from a more evolved place than Mr. Bennett. 

    For you Leo, on this Memorial Day 2013, Don't Try, by Charles Bukowski.  http://www.goodreads.com/quotes/39207-if-you-re-going-to-try-go-all-the-way-otherwise

    I will be sure to check back in a decade. 

    Regards,

    Andrew DeLuca, Esq.

      

    • Mark Bennett says:

      Hey, look who discovered the paragraph break once the fog of cheap scotch cleared.

      You are obsessed with Facebook. Sorry, I'm not on Facebook.

      You find my punctuation boring. Sorry, clarity is what I go for. If you find muddied rambling incoherent paragraphs more compelling, then you should definitely keep on writing that way, and to hell with clarity.

      You object to the way I "choose to men­tor and lead young men." Sorry, mentoring is not what this blog is about. (One of the first pieces of advice in the post: "find mentors.") I do my mentoring locally, and sometimes by telephone. Mentoring is not cheerleading. You can tell yourself what you want to hear; a good mentor will tell you what you don't.

      You think I should "exam­ine [my] influ­ence on a young lawyer." Sorry, I think you're a self-absorbed twerp who is doomed by his sense of entitlement  to a career—a life—of self-inflicted failure. If you would follow the advice in the post, you would do okay when that federal criminal case comes along; if you could just turn the page on news that you don't want to read, you might find your own way; that you instead imagine reason to take offense bodes ill.

      I'm sure you've grown up (as much as you can be said to have done so) being told you're a special snowflake. You're not. There are ten thousand young lawyers like you. Some I can help, most I cannot.

      I owe you nothing, but if you had taken the time to browse here with an open mind, rather than draw your conclusions from a single post that you decided—for some reason still mysterious to me—was offensive, you might have found a great deal of other helpful information and advice. At least that's what guys like Leo tell me.

      you cer­tainly failed to con­nect with a narcissistic new lawyer that was search­ing for an arti­cle that confirms his preconceptions on how to become a fed­eral defense attor­ney at mid­night over Memo­r­ial Day week­end while enjoy­ing an 18 year old scotch and read­ing a book by Charles Bukowski

      There, I've fixed it for you.

      I expect that we'll see your name in the disciplinary reporters before that decade is up. Until then, I'll be following Rule One.

    • You entire comment can be summed up with this:

      http://www.youtube.com/watch?v=0MRmxfLuNto

      Also, I am going to steal a line from Ken at Popehat:

      "If you want the law to be an instrument of self-actualization, start a blog. Law practice — the profession of providing services to clients who need you — is not your personal voyage of self-discovery and empowerment. If you practice as a lawyer, you owe it to your clients only to do the things you are competent to do. Embarking on the defense of a man accused of murder as your first trial is a moral and ethical outrage. Regrettably, the profession is barraged with eager voices telling us that attracting clients with puffery and keywords and Twitter accounts is the way to build a practice. Nobody's reminding us that you have an obligation to know what you're doing before you accept the client. Somebody should."

      PS – I half skimmed over your comment before I fell asleep. For your information, Leo drives a 1998 Cadalliac Deville. Pearl white. A client gave it to us as part of their fee. That has nothing to do with anything, except it's pretty cool, right?

      PPS – Why do you feel the need to sign your posts at the end, using Esq., when your name is already at the top of your post? That said, I have to admit, I am always quite impressed with people who sign their name and use "Esq." after it. It's like you're special and have a fancy title.

    • Andrew -

      Your writing is terrible. I am almost impressed that you expressed so few cogent thoughts using so many words. Your "retort" is mostly rambling and incoherent. It jumps from thought to thought, many of which have no point. (Like what Leo drives, Facebook, and what you were drinking). You make broad generalizations about many things, including the importance of "understanding and connecting with your clients", which has nothing to do with representing them effectively. I read your post three times and I still have no idea what your point is, except that you don't think Mark should criticize your writing skills because he is not Charles Bukowski (someone I've never heard of). 

      Your writing is also strangely narcissistic, like you believe you're making very intelligent arguments while everyone in the room is looking at you and feeling a little embarassed. 

      I'm not saying that to be a mean bully and hurt your feelings. But if you wrote like that in a court or to opposing counsel, you would be skewered. And if you think your writing style will impress or persaude others, perhaps you should talk to someone…

      Your retort was can only be described as both strange and self indulgent.  I can ony hope you are not representing actual clients like this. 

  6. Jeff Gamso says:

    I've restrained myself from weighing in on this.  But then I noticed that A.D.Esq. is drinking 18-year-old scotch, which I guess he takes emblematic of his . . . actually, I have no idea what he takes it as emblematic of.  

    Me, I've got a humble 12-year-old to hand.  Highland Park if it matters to him.  It's a good scotch, humble as I said, from the Isle of Orkney. It doesn't make me the least bit special.

    I suppose I need to say a bit more as introduction.  I'm not a facebook friend of Mark's.  Hell, I'm not on facebook (and I notice that he says he isn't, either).  I'm comparatively old.  Grey hair, trifocals, hearing aids.  Law is my second profession, but I've been practicing (it's always practice) criminal defense for more than 25 years now. 

    As I say, I'm not a facebook friend of Mark (or anyone else).  I do however read Mark's blog.  Why?  Because even though I've been practicing criminal defense law for decades, he regularly tells me things that I don't know or didn't grasp as well.  Because, see, he's teaching in his blog the one really important thing every criminal defense lawyer needs to know:  How to be a better criminal defense lawyer.

    Because we can all be better.

    One way, not the only way but one way, we can get better is through experience.  Experience matters not because it's a cure all.  Hell, it's not even a guarantee.  (One of my favorite, albeit likely counterproductively snarky, questions was asked by a lawyer cross examining the state's lab technician who'd just explained that he'd conducted some 10,000 tests to determine whether this or that bit of whatever was a controlled substance:  Did you do any of them right?)  There are incompetents who've been trying cases for years.  And there are, as Mark said, a few folks with incredible natural talent who get it almost from the start.

    But even those naturals need experience.  Why?  Because with experience comes judgment.  Proof is what the jury will believe.  Even if you know all the rules and are great at asking questions and never miss a trick, you've somehow got to get the hang of figuring out what those twelve good men (and women) and true will or won't buy.  It's not what you think.  It's not what your Aunt Sadie thinks (though she's probably a better judge of it than you are).  It's what those 12 think, what they believe, what will or won't sway them.

    You want encouragement rather than correction?  OK.  I encourage you to put down the fancy scotch and the volume of Bukowski, get off your ass and listen to what the old guys who've been around the block a time or 25 have to say.  Pay attention even if they aren't telling you how special you are.  Because, really, you're not.

    Oh, and Bukowski's a terrible model for a lawyer.  He relied on inspiration, random thought.  The immediacy of his work reveals a great natural talent but little of the discipline and diligence you need as a lawyer.  Here's a basic fact of criminal defense:  The government generally has both the facts and the law on its side.  What we have is whatever creativity we can muster but mostly we have, knowledge and hard work.  We have to be more diligent and more disciplined, to work harder and smarter.  And we need to learn to do it while getting kicked in the teeth.  

    It's not a job for the folks who want strokes.

  7. Josh C says:

    Bragging about 18 years almost certainly makes it Macallan. That’s a little ironic, because the 12 is the sweet spot for price, and it’s not worth paying more for the 15 or 18. (I understand that after that, it’s worthwhile again, but haven’t tried.)

    The thing is, for the same price he could have gotten some truly amazing bottles. That bland dram could have been any of the low-end Murray-McDavids or Alchemists, or a Bruichladich if he just wanted something simple and good. There’s a whole world of scotches out there, and he chose the overpriced, oversafe one.

    Any parallels are left for the reader.

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