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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


A lawyer's duties

I sometimes do work with an attorney who has one of the most unusual ways of practicing criminal law.  Most of us take a reactive posture:  we respond to what the State does.  We look at their case and figure out the weaknesses, and how we can attack it.  As I've said before, defense lawyers rarely win cases by putting evidence in; we win cases by trashing the State's evidence, or by keeping evidence out.

My friend doesn't believe that.  He approaches a criminal case like a plaintiff's lawyer in civil case:  he figures out what he wants to prove, and then assembles the evidence to prove it.  He'll file motions with forty or fifty pages of supporting documents.  One time, he felt he needed to prove that his client had been living at a particular address for a number of years, so he got copies of the last nine White Pages and had them carted up to the judge's chambers.  His approach is to beat the prosecutor into submission, and it works much more often than not.  He's gotten some really good results for his clients.

And the client pays for that.  Boy, does the client pay.  You want a Cadillac defense, you're going to pay for a Cadillac defense.

But here's the question:  are you still entitled to a Cadillac defense if you only pay for a Corolla?

There is no duty a lawyer is more cognizant of than the obligation to represent his client zealously.  (In fact,that word was taken out of the last revision of the ethical rules; apparently, the powers that be thought we were being a little too zealous.)  We all like to think that we're going to provide just as vigorous representation to a defendant that we've been appointed to represent on a kiddy rape case was we would be if we were paying paid tens of thousands of dollars to do so.

And up to a point -- especially when the trial begins -- I think that's true.  On Friday I wrote about a case I tried last week, where on the day after jury selection my client told the judge that he wanted a new lawyer.  The judge turned down the request, and we continued, with me cross-examining the victim, and the state subsequently dropping the firearm spec when they're police officers didn't show up.  My client's mother sat through the whole trial, such as it was, and later told me that she thought I'd gotten "fired up" when her son tried to discharge me.  Not at all.  Once the bell rings, the only thing I'm concentrating on is winning.  Hell, I once had a client in a civil case accuse me in mid-trial of taking a bribe from the other lawyer to throw the case -- this having supposedly occurred in the judge's chambers, with the judge present -- and, other than perhaps spending a bit of time pondering the benefits my client would receive from a regimen of  psychotropic medication, it didn't distract me in the least.  So some 19-year-old kid thinks I'm a bad lawyer because I didn't get the deal he wanted.  Boo hoo.  Not exactly the kind of thing that's going to get me to add the suicide hotline to my speed dial.

But truth be told, I'm certainly not going to do the handholding in an appointed case that I'd do if I were retained.  You want some romance, you pay for the romance.  Yeah, I'll go over to see you when I need to talk to you about a plea offer or to prepare for a hearing or a trial, but if you think I'm going to traipse over to the jail and wait around twenty minutes until they bring you up so we can sit in a little room and I can tell you about how nothing happened at the pretrial we had the other day or you can tell me about the crappy jail food, well, that's a conversation that's just not going to happen.  I don't feel in the least bit bad about that.  I'm being paid to represent you, not hang out with you.

It's in the in-between areas that I run into trouble, and I'm not sure how much.  I had an aggravated murder trial in January.  It was an assigned case, and at $50 an hour for out-of-court time and $60 for in-court, with a trial just a bit over a week, I submitted a fee bill for $6,400, knowing full well that I'll get $3,000, because that's the cap.  I was going to file a motion for extraordinary expenses, but Dave, the guy in my office who co-counseled the case with me and tries five or six murder cases a year (the day after we finished ours, he started another one), told me not to bother:  the last time he tried that, he spent three hours putting together a motion and explanation for why he should get more money, and they gave him an extra $300.  Still, I can honestly say that Dave and I tried the hell out of that case.  We worked it to the bone.  I can't think of anything else we would've done if we were getting paid to do it.

But in the marginal cases?  The rule of thumb is that you're supposed to spend three hours in preparation for each hour of trial.  If a lawyer that tells you he spent nine days in preparation for a three-day crackpipe case trial for which he got paid $500, run to the bathroom and look in the mirror to see if somebody wrote "I am stupid" on your forehead.  Doesn't happen.  It's human nature.  Do we do the best we can?  Yeah, for the most part we do the best we can with what we've got.  I'd like to be a little more affirmative in that, but in all honesty, I think that's about the best most of us can say.


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