On Criminal Defense and Listservs

by Jamison Koehler on April 12, 2011

As a former English professor, Jeff Gamso is no stranger to allegory, metaphors and other literary devices. In a nostalgic and almost wistful entry on baseball over at Gamso For The Defense, Gamso writes about a lawyer posting on a listserv about doing some criminal defense work.

On the “precipice of hanging out a shingle,” the lawyer writes that he would like to get some “trial experience” while starting up a practice. He hasn’t done any marketing and he doesn’t even have business cards. Despite three years doing civil work, he has never done criminal defense. He wants to know what the very minimum is in order to get started: “What is absolutely necessary before you start other than office space and malpractice insurance?”

Writes Gamso: “Because, you know, criminal’s easy. The clients are all guilty, so who cares what happens to them.  And besides, it’s not like you have to deal with the Rules of Civil Procedure (gasp) or even learn where the law library is.  (I notice he didn’t wonder about where he’d do legal research.)  There won’t be any of those motions for summary judgment.  Just the trials he’s eager to start doing.”

And later:  “Criminal law is different.  Money matters, but we’re dealing with what, frankly, matters more.  Liberty in absolute terms.  (Money, too, actually.)  Our clients face jail and prison and even death.  And the law (in theory, but it’s a theory we hold dear) insists that our clients are innocent unless the state can manage to prove otherwise.  It is we who stand there, beside them.”

To this, I add:  Thank goodness he doesn’t have any business cards.  Thank goodness he knows about malpractice insurance if he ever does get business cards.

There was some discussion in the blogosphere a while back about listservs, with some people saying that listservs are completely useless and others claiming some benefits to participation. While the focus of that discussion was on what we get out of participation, Gamso’s post brings to mind another benefit to listservs:  education and deterrence.

It’s not that the person who posted the question will necessarily get the point. Most people, when challenged on this, act surprised and a little bit offended.They may write off Gamso as cranky and his reaction as simply protecting his turf.  Yes, yes, they may think to themselves, what you do is VERY, VERY important and I am sorry if I have suggested otherwise.

But there are 4000 other lawyers who participate on the listserv Gamso refers to, many of them lurking, who will have read what Gamso wrote. The message is bound to resonate. It is bound to make some lawyers think twice about taking on criminal defense work without the necessary education, experience, preparation and commitment.

There seem to be four of us on the listserv who take turns making Gamso’s point whenever the inevitable post crops up, although no one does it as eloquently and as passionately as Gamso. The most egregious, I thought, was a message a couple of months ago from someone informing us that she was facing a felony trial in three days, a trial she was convinced the judge would not allow to be continued.  Should she be filing any motions?  What else should she be thinking of to prepare herself?

When someone politely informed her of the stakes involved and suggested she not be taking on such a case (if at all) without the guidance of an experienced defense attorney, she replied somewhat huffily that she had in fact been working with an attorney with 40 years of criminal law experience.

Which of course led to the question:  Why then are you posting inane questions on the listserv?  I’m thinking its primary purpose may have been to get Gamso’s blood pressure to rise.

5 Comments on “On Criminal Defense and Listservs

  1. I just wanna know which list serve! Sounds kind of familiar…

  2. I responded publicly and will continue to do so until I get kicked off that listserv. There is so much bad advice, so much idiotic blather that I just can’t take it anymore. I was going to write a post about it, but it is draining and exhausting and I just am losing faith in humanity. Those folks are right, this has become nothing but a business and we deal in the flesh and blood of our clients. It is heart breaking. Truly just heart breaking.

  3. And this listserv has another one. This time a 3L, with no experience, who intends to open a criminal defense practice. No mentor at this time.

    Wow. Just wow.

  4. Lyle: Gamso didn’t mention the name of the listserv so, following his lead, I didn’t either. But I don’t know that it is any secret: it is the ABA listserv Solosez for solo and small firm practitioners.

    Robert: I was thinking of you among the four people on the listserv who make Gamso’s point. I’m thinking we haven’t exactly ingratiated ourselves to many other people on the list.

Leave a Reply

Your email address will not be published. Required fields are marked *