A couple of days ago I was contacted by a colleague here in town on a criminal case she had just taken on. My colleague set up her own firm right out of law school, and this is the first criminal matter she has ever handled.
My colleague is smart and went to a good law school. She has reached out to me and to other criminal defense lawyers in the area. She has been sitting in at D.C. Superior Court, and she is working her butt off on a straightforward misdemeanor case. In other words, there should be no question but that her client will be well-represented. And, I should add, she was completely upfront with the client about her lack of experience. The client understands why her representation is costing him so little.
But it did lead me to wonder to what extent it makes sense to go into criminal law as a solo practitioner right out of law school.
Mark Bennett looked at this question a couple of months ago in a blog entry he did entitled “Actually, There Are Stupid Questions.” He wrote that he now regrets the advice he has been giving to young lawyers and soon-to-be lawyers over the last decade or so that, with “hard work, intelligence, and humility,” they could “do well without hurting anyone.”
Bennett said that he had come to this conclusion in large part after reading a series of “inane questions” posted by “youngish lawyers” on a number of listservs he follows: “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-threatening 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.”
As I understand it, Bennett himself went into solo practice as a criminal defense lawyer right out of law school, and I can’t help but think his conclusion is based more on a frustration with the laziness of many new lawyers than any firm belief on the practical impossibility of doing it — and doing it right. This goes back to his orginal advice on making it work: hardwork, intelligence, and humility.
Ideally, everyone could begin as a prosecutor or public defender or as an apprentice to a senior criminal defense attorney. I spent three years as a public defender in Philadelphia where I was trained, supervised, monitored, and evaluated. If my supervisors ever concluded that I didn’t make the grade, I would have been out on my ass. We had weekly and then monthly training courses, and access to investigators, social workers, probation workers, and file clerks. Members of the appeals unit alerted us to new cases. If you ever had a question, you could walk into the office next door or out into the court hallway to find another public defender who might have the answer. There were parties and happy hours; a social network to support you.
And even then it was sometimes very difficult. Many PDs burn out. Our office of over 250 lawyers averaged about one burnout a year when I was there – someone breaking down in court or simply packing up belongings and leaving without saying a word to anyone.
Yes, it is clearly much more difficult to do this right out of law school without any type of support network. I don’t know that I could have done it. It’s lonely. You feel like an idiot. Everything takes four or five times as long to do as it should. At the same time, at least for the right type of person, I can’t help but believe that it can be done.
First of all, assuming some basic knowledge from law school of criminal law, criminal procedure, evidence and trial advocacy, there are many reference sources you can use to begin to familiarize yourself with what you will need to know.
In D.C., for example, the Public Defender Service (PDS) puts together the Criminal Practice Manual, a two-volume set of materials providing the basics of everything you will need to know on D.C. practice related to pre-trial release, investigations, preliminary hearings, discovery, sentencing, etc. I read through this material cover-to-cover before I even came to D.C. PDS also hosts numerous training sessions throughout the year that private attorneys can take advantage of. So does the D.C. Bar.
Second of all, you can take advantage of numerous listservs and databases that are available to criminal defense attorneys. For example, I am a member of three listservs: the ABA listserv Solosez for solo practitioners, the D.C. Superior Court Trial Lawyers Association, and the National Association of Criminal Defense Lawyers listserv for DUI.
Bennett is rightfully skeptical of people relying too heavily on listservs for practical advice. At the same time, the listservs can provide a good starting off point for many questions. Advice can be cross-checked. Sample letters, motions and other materials available through shared databases should be used not through cut-and-paste but, again, as starting off points. While there is no quality assurance for what you will find there, they give you an idea of what at least one other lawyer has done. You will still need to check the statutes and the cases and do your own quality control. You will still need to write your own motion or letter.
Third, there are many experienced criminal defense attorneys who will be more than willing to spend time with you to answer your questions. Since I don’t want to impose too much of a burden on any one lawyer, I spread out my questions among a host of different attorneys I have met in D.C. I also go to the lawyer’s lounge at D.C. Superior Court every time I have a question. There is always someone there willing to spend some time with me. An added benefit is the friends I have made.
Fourth, as my colleague with the new criminal case is doing, you can learn court procedure by sitting in on court. (Beware that it is sometimes hard to keep a low profile. If you are dressed up and look lawyerly, the judge and court keep checking with you to see if you have a case in the room that needs to be handled.) You can watch a show-cause or probation hearing, a preliminary hearing, a suppression motion, and, if you’re lucky, a good jury trial. You learn the procedures and jargon specific to the jurisdiction.
Fourth, start small. While Bennett’s example of the stupid listserv question had to do with murder, it is hard to believe that there are many people charged with a serious crime who would hire a brand new lawyer out of law school. Begin with minor misdemeanor drug, theft and other charges where the stakes are not so high.
Fifth, manage your case load. Don’t take on more than you can handle. Again, assume everything will take you far longer than you expect it to. The notion that you can do a few criminal cases while you get your real practice up and operating is ridiculous and irresponsible.
Sixth, manage your expectations and keep your overhead low. In a comment to Bennett’s entry, Matt Brown of Chandler Criminal Defense estimates that a new criminal defense attorney can expect to make less than $35,000 during the first year of practice, at least if he or she is committed to doing a good job by not overextending him/herself. It takes a while to figure things out. It also takes a while to develop contacts, reputation, and a steady stream of referrals.
Finally, suck in your gut, leave your ego at the door, and work your butt off. As Grey Tesh commented, the ability to succeed may have more to do with the lawyer him/herself than the level of experience: “It’s not just a new lawyer problem – or a lazy lawyer problem (it can be a combination of both) but it also can be just a plain old stupid problem. You can’t cure stupid.”
The flipside of this, presumably, is that if you are not stupid, if you are willing to put in the hours, if you are absolutely committed to representing criminal defendants, and if you can afford to get by with very little income in the early years, you might just be able to make it work. Again, I am not saying that I could have done it right out of law school. I am just saying, using Bennett as the prime example, that it can be done.
More like this: