Actually, There Are Stupid Questions

I admit it: I was wrong.

For a decade I've been encouraging young lawyers and soon-to-be lawyers to start their criminal defense practices right out of law school. With hard work, intelligence, and humility, I thought, they could do well without hurting anyone; the question, I thought, was not whether they would provide perfect representation, but whether they would provide better representation than the other people who their clients might use instead.

I wanted to believe, because society is better served by having those who are dedicated to freedom serving that cause (rather than the State) from the start of their practices, and because here in Harris County the only way for a lawyer to serve freedom from the start of her practice is to start her own practice.

Forget all that. You can't do it. Those few who have managed to build practices from scratch right out of law school are aberrations. Take my word for it: you don't have what it takes. Not on your own.

I have come to this realization thanks to a string of inane questions posted by youngish lawyers to various criminal-defense lawyer listservs (do other professionals rely as much on listservs as criminal-defense lawyers do? I suspect that, because of our nature and that of our job, we use them more than most): If the police want to come into his house, does he have to let them? (If they want to sleep with his wife, does she have to agree?) What's a 3g offense? What's an expunction? How can I keep this case off my client's record? If the police want to question my client, does he have to talk to them?

Yech. If a lawyer has so little understanding of the rules that she needs to go online to ask other lawyers if her client really must chat with the cop who is investigating him for murder, what life-destroying mistakes has she made because she didn't realize there was even an issue? I cringe to think that anyone asking these questions might have based her decision to hang a shingle even in part on my encouragement.

But wait, there's more! The young lawyers who bother to join the associations and participate in the listservs are the diligent ones. There are more new lawyers who go about their business that they sprang fully-formed from law school knowing everything they need to know. Such lawyers have no business entrusted with people's futures and freedom.

I'm glad that some lawyers are willing to ask stupid questions publicly—better out than in—but I'm starting to come around to thinking that, by answering stupid questions and making it possible for incompetent lawyers not to go down in flames, we do more harm than good. Better a few months of gross incompetence than a lifetime of mediocrity. (Unfortunately, a lifetime of gross incompetence is also an option.)

New lawyers, it's good that you know that you don't know everything. Questions that are stupid when asked on a listserv might not be stupid when asked of a mentor who can keep an eye on you and make sure you don't screw up other cases without knowing it. I don't know if it's because you haven't sought them out or because there is a deficit of experienced lawyers willing to provide the sort of supervision that would be required to make sure you aren't screwing your clients, but, clearly, you don't have such mentors.

Lacking such, the only way for you to become a competent criminal-defense lawyer is to work under a competent criminal-defense lawyer, either privately or as an assistant PD. And, since there are few openings for either newbie criminal-defense lawyers or APDs, you're probably out of luck.

(Quit smirking, ye current and future former prosecutors. Some of the stupidest questions, betraying the greatest failure to comprehend the criminal-defense lawyer's mission, come from your brethren and sistren. Whatever you learned in the DA's Office, it wasn't how to be a criminal-defense lawyer.)

32 Comments

  1. I am frequently shocked at the q’s that come from the listserv. I think there are dumb questions. I don’t answer the really fundamental questions, although other people do because they say it gives them credibility as an ‘expert’ in that field. I just want to answer “I cannot believe you took someone’s money and don’t know the answer to that”. The best one’s are from people who aren’t CDL’s and are just doing it to make $ because of the ‘fast, flat fees” I’m not kidding. They write that. In public. Or, the ones who respond to the posts marked “Water Cooler” and talk about how people convicted of crimes should get life in prison and drug users should die or whatever, and you look at their websites and they advertise as CDL’s. Shall I continue? No? OK. Good.

    1. I watched a case unfold in court with an attorney who attempted to withdraw from a case, on the eve of trial, because her client refused to plead guilty. She was obviously not prepared for her client to insist on a trial for her “fast, flat fee.”

      The client ended up pleading guilty the next day. He went from a 4 year sentence the day before to a 10 year sentence (2 without parole) the very next day.

      I did some research on her the next day to find out her specialty is tax law. I guess she just need a fast few thousand.

  2. Mark-

    I love your blog, but I gotta disagree with the general concept regarding former prosecutors. At least here in New York, outside of New York City the quality of Legal Aid attorney is generally so piss-poor that I wouldn’t let a former PD defend my grandmother on a jaywalking charge. That being said, there are some good ones, who learned how to do it right after leaving Legal Aid. The former prosecutors, due to the significant resource advantage they enjoyed while in the DA’s office, turned out to be far better defense attorneys (not including yours truly, for modesty’s sake at least).

    Of course, this argues for increased Legal Aid funding more than anything else.

  3. I was worried for a second when I had to Google what a 3g offense was. I was quite relieved when the first hit explained it’s a Texas thing. Whew. For a second there, I was concerned my complete lack of knowledge about 3g offenses was going to make your point.

  4. Former prosecutors make better criminal defense attorneys. End of story. They are more seasoned, knowledgeable (both legally and tactically), and have exponentially more trial experience than their counterparts who came straight out of law school. Most were tossed in to the arena right away and learned their skills on the field of battle. Having been the proponent of the evidence, they are used to having to take the initiative and carry the burden of proof. They are accustomed to the unrelenting pressure of the courtroom and to juggling an often enormous caseload — alien concepts to most newbie defense attorneys who might be lucky to have two cases at a time. Most former ADAs are a bit cynical, and haven’t “drunk the kool-aid” like their starry-eyed counterparts who seem to believe everyone is innocent. But, far from being a liability, this helps them see the weaknesses in their clients’ stories and anticipate how the State will attack. Former ADAs know how their brethren think, know what factors are likely to persuade them, and know the best avenue to getting good results.

    If you really have any doubts, just take a poll at the Harris County Jail and ask them if they would rather have a former prosecutor defending them or an attorney who had never been a prosecutor. I suspect it would tilt about 90% in favor of us smirking, ex-government stooges. The clientele knows.

    1. 1. Prosecutors learn how to build cases; defense lawyers tear them down. When a building needs to be demolished, a demolition specialist should be retained – not a construction firm.
      2. Prosecutors build the bulk of their cases by conducting direct examination of professional witnesses – cops, crime lab technicians, pathologists. Defense lawyers demolish accusations through cross-examination.

    1. I’d put it at the very end, but you may take yourself more seriously than I do.

      My mentor (who had been a prosecutor) described three years in the DA’s office as “six months’ experience, six times over.”

      1. Mark – you hit the nail on the head! Obviously, the difference comes with how long one was a prosecutor, But as a general rule, one spending about 2-3 years in the Harris County DA’s office, would be about the equivalent of 6 months, over and over. I’m certainly not saying it isn’t good experience, but it really does not prepare one for being a criminal defense lawyer. It does help you understand the rules of evidence better simply because you are in trial more. But unless you actually tried cases against great defense lawyers who challenged the Harris County Rules of Evidence, you didn’t learn to master them. And more importantly, if you didn’t find a defense mentor before you signed up your first client, you really had no idea how to defend anyone! You might have thought you did, but then you’d have been wrong!

  5. I was a prosecutor. I think it taught me my way around a courtroom. I learned the law, but that’s because I started in appeals and that’s what I did. I was the duty DA so I learned to take crap from judge’s without crying about it. I got to know the clerks, the secretaries, the ladies at the lunch counter. All of this was very helpful as a CDL (cut in line to get a sandwich during a break in trial)

    With that said, I didn’t get being a prosecutor. My oath said something about justice. . .

  6. Not all Criminal D lawyers are fortunate to work in the DA office -or live in a ciity with a public defender- by way of reference , a Doctor in Florida removed a person’s foot a couple of years ago- great job- wrong foot- it is called the practice of law for a reason- I am better now than when I took the bar- at age 50-hopefully I will be better next year than this year- stupid questions are those not asked- as far as the “fast flat fee’ comment, there are people in our profession- as well as others – who promise more than they can deliver-that being said, maybe a good idea to do your own research prior to posting a “stupid question” on the listserve- the resources are essentially endless – I say bring on the stupid questions- I need the opportunity to feel smarter than someone-

  7. Another problem is those folks who used to do other types of law but because of the economy are now “dabbling” in crinimal defense law.

    Oh and before Mr. Harris county prosecutor gets a big head, the reason the inmates of the jail want a former prosecutor is because they think you all have the hookup to get the cases dismissed, not acutally go to trial and win.

    1. Bob, I’m not sure your premise—that jailed defendants want former prosecutors—is correct. I’ve talked to the families of enough people represented by (former) prosecutors to cast heavy doubt on the premise.

      I thought Mike’s comment was absurd enough not to need a substantive response, but if you must respond, why not start with the internal absurdities?

      For example: Prosecutors can tell that defense lawyers really believe their clients’ stories, but defense lawyers couldn’t possibly predict prosecutors’ next move.

      Or: (Former) prosecutors don’t believe their clients’ stories, and that’s why people in jail want prosecutors for defense lawyers.

      Or: Prosecutors are used to an enormous caseload, which competent defense lawyers don’t even have.

      1. But Bob’s premise is correct that former prosecutors who promote themselves as such do so to suggest that they know the secret handshake that will get clients the magic deal. They’re insiders; hire an insider and enjoy the ride.

  8. You are right Mark I did think of those and thought those went without saying. But I also know that a number of the clients believe that premise, whether true or not, with or without the suggestion by the former prosecutors, because they have told me that also when I was in private practice.

    But I must admit I probably wouldn’t have posted anything more than my first sentence if I had not read that absurd first sentence. Clearly there are a lot of good criminal defense lawyers who were prosecutors, but his statement seems to suggest he needs to make that statement to feel better about himself..

  9. Mark, I resent (resemble? I hope not) your remarks. To be fair, it’s not just us new guys. I’ve answered more “stupid questions” from grey-haired lawyers who can’t take five minutes to RGDS (read the goddamned statute, lesson number one from my mentor, Pat Metze) on a certain Texas defense list in the last 4 months than I’d like to admit.

    I think it’s a lazy lawyer problem more than it’s a new lawyer problem.

  10. Being an assistant public defender is the best job right out of law school. Even if they’re not hiring, you can volunteer. Nobody turns down free help. Once you get in there, you can show them what you’re made of.

    Starting off at the PD’s office will minimize the stupid questions. However, there are still plenty of people – even at the PD’s office – that never get it. It’s not just a new lawyer problem – or a lazy lawyer problem (it can be a combination of both) but it also can just be a plain old stupid problem. You can’t cure stupid.

  11. The advice to start up your own practice straight out of school is bad advice for any profession. If you start out on your own, you’ll learn everything the hard way – my actually making the mistakes. You’ll learn more quickly working with more experienced practitioners who can give you the benefit of their experience. Even if you are not fortunate enough to have someone mentor you, you’ll learn more quickly in such an environment.

    Can you imagine a doctor setting up a medical practice on their own straight out of school? Or a pilot setting up their own passenger service? Even in my own area, computer software, the person who starts a company straight out of school is the aberration. Of course, there have been a few very high profile successful aberrations – but by far the majority of successes have been made by people who have spent the time learning their trade.

  12. I am not as much concerned by the “stupid” questions as much as the stupid responses. It disturbs and alarms me that someone will go to the trouble to post a scenario, sincerely in need of assistance, and long-time practitioners, some of whom may be board-certified or have taken upon themselves the task of training new practitioners, give a flip, clearly not-so-well-thought-out response.

    It does all of us a disservice. There are are lots more stupid responses than questions lately. And lots more nonsense.

    If you have to think twice about responding, step away from the keyboard. I wish more people would think twice.

  13. I don’t think starting your own practice straight out of school is for everyone – in fact, it’s probably not a good idea for most. It certainly is significantly more difficult that a job where you do have a superior and/or mentor to guide you. However, there are some of us who did start our own practices coming out of school, but the learning curve was not very elevated due to previous experience – in criminal defense clinic and in volunteering/interning for the public defender’s office.

    I never planned to start my own practice, but the job prospects were bleak when I graduated and I could not afford to wait a year to be placed with the public defender’s office and to work for free in the meantime. Although it was difficult at first, someone with intelligence and dedication can do a great job. It is important to not be lazy and to do a lot of research, read as many relevant books as you can get your hands on, and take CLE’s when they are offered. It has certainly been stressful, but very rewarding at the same time.

  14. I agree with the premise that an experienced mentor could make for a much smoother transistion from law school to the courtroom, but as a law student who has tried relentlessly to find a mentor only to be repeatedly told no there is really no alternative but to learn on the job. I didn’t go to law school to work for the PD for 35,000 dollars a year so until the criminal defense lawyers start practicing what they preach there will only be new lawyers out there giving all criminal defense guys a bad name.

    1. Aaahhh, my dear Watson,
      Criminal defense lawyers are practicing what they preach! If you’re in Texas, join the Texas Criminal Defense Lawyers Associataion (TCDLA.org), and if you’re anywhere near Houston, join the Harris County Criminal Lawyers Association (HCCLA.org). You will find all the help and mentorship you can take by asking the members of these organizatons for help. Better yet, join the second chair program sponsored by HCCLA to be matched with a mentor. Members of the organizations are always offering to have young lawyers assist in trial.

  15. Joanne:

    I may have misspoken because the state I am currently in is not very friendly to law students, but I look forward to returning to Texas and joining a more professional group of criminal defense attorneys.

  16. I didn’t go to law school to work for the PD for 35,000 dollars a year.

    Jim, the money you will make going off on your own will be a whole lot less than a PD’s salary for the first couple of years (if you really are committed to learning how to do a good job, that is). The PD is the better bet from a financial standpoint. Considering that, I’m hoping it’s the PD part, not the 35,000-dollar-a-year part that makes you upset about your choice to go to law school (and even then, I don’t see the problem; most of the best CDLs I know are PDs).

  17. Mark:

    I went to law school to become best defense attorney I could be and to provide the best for my family. My route to law school was a little different than most though. I was a cop for 18 years and so I have a little more experience than most new lawyers. I feel that if I had some guidance from an experienced CDL I could hit the ground running straight out of law school and be very successful. At this point alot of the CDL’s I have met look at me as just more competition rather than someone who brings some unique skills to the table and who could benefit them as well.

  18. Actual questions by atty in dep: “Did you injure any of your knees in the 2010 motor vehicle accident?” followed by “Did you injure any of your ankles in the 2010 motor vehicle accident?”

    Different atty, different case, in dep: “You were never any part of any investigation that the state of ___ did not do of ___ prior to the time that the state filed this lawsuit in 2005?”

    Different case, different dep: The witness: “I have been an Ohio native my entire life.”

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