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.