Total Quality Management and the Practice of Criminal Law
by Jamison Koehler on April 14, 2012
Nobody talks about Total Quality Management (TQM) anymore.
An outdated fad from the 1980’s, and even then applied mostly within the automobile manufacturing industry, it may have questionable applicability to the practice of criminal law. But still I believe: You think ahead. You show up to meetings early. You return phone calls. You meet deadlines. You don’t make excuses. You don’t make promises you aren’t prepared to keep.
It is a label that is applied to what really is common sense. You recognize it when you see it in people even if you don’t know what to call it. It describes what you know you admire anyway.
For example, I have always admired my wife. People know her as warm and friendly. But you don’t mess with her. There is no one who works any harder than she does. And when it comes to what matters, she is completely uncompromising. I watched her leaving a secure partnership at a big established firm to set up her own practice while I was still in law school. I saw her hiring people and then firing many of those same people when the circumstances demanded it. My wife doesn’t make threats, and there is not a petty bone in her body. She just gets results. She is TQM incarnate. She could have written the book.
A Deputy Administrator brought TQM over from the private sector back when I was just starting out at the EPA and still at that impressionable age. It is like the men of a certain generation who wear dark socks with shorts. At one time, probably when they were a certain age, that must have been fashionable. I still like narrow ties because they were all the fashion when I came of age.
A lot of the career bureaucrats were skeptical. How could improving production processes through continuous improvement and quality control have any application to the amorphous, messy stuff we do in government? I decided to embrace it instead, taking from it certain principles and aspirations that continue to guide me today. It may have been because it excused certain tendencies in me that, up until that point, I had viewed as shortcomings. Suddenly my anal retentiveness wasn’t an aberration but an ideal.
Law school, for example, was a good thing for me. I was used to being the uptight nudge, first in college and graduate school and then during my first career, the one who worried and fretted. Going to law school was like an adopted child finding his long-lost biological family and discovering that everyone was exactly like him. Suddenly, with many people far more uptight than I, I found myself sitting toward the comfortable average.
Although I may be the very last adherent, TQM still appeals to me.
There is a messiness to what we do. Court dockets are backed up and slow. Clerks drop the ball. Clients fail to show up for court. Prosecutors don’t return your emails or phone messages.
You can go with the flow, telling yourself you can’t be fretting over every detail, every missed opportunity. Then you wake up one morning to find that the messiness has become nothing more than an excuse for dropping the ball. That is one of the problems about being a public defender; you are forced to make compromises all the time without even realizing you are doing it.
TQM sets a standard. It imposes order on the chaos. You make a bargain with your clients: You are in good hands now. I will worry about these things so that you don’t have to. Good enough for government work, as the saying goes, is not good enough for the work we do.
I lost out on some potential clients recently, and I would be lying if I said I wasn’t disappointed. I liked the people, and we seemed to have good rapport. The cases interested me, and the dates worked. There is always the potential for second-guessing in this type of situation: Am I charging too much? Too little? Am I not coming across the way I should? I was also discouraged – and annoyed — when one of the potential clients called me back to tell me she was going with someone else because this guy knew all the judges and prosecutors. This lawyer seemed to have an “in” that I just couldn’t offer.
I try not to dwell. Driving into Georgetown to meet with another potential client on a bright, sunny Saturday morning, the streets clear from the normal congestion and parking spots aplenty, I resolve instead to stick to my guns and to worry only about the things I can control.
I do not negotiate my fee, for example. I charge what I believe is a fair price even if I know the client could afford far more. But then I stick to that fee. If it was fair when it was too low for a potential client, it is still fair even though this particular person cannot afford it. And I’ll let the other lawyers make unrealistic and potentially unethical promises. That’s on them.
Nose to the grindstone. Plug away. One client at a time. All of that. Or so I tell myself.