The Criminal Lawyer

Holy crap, our last post was more than three weeks ago? We knew we were busy out here in the trenches, but didn’t realize we were that busy!

We don’t mind going a week without posting something. This isn’t the kind of blog where each post is a brief observation with a link, which lends itself to multiple posts per day. We love to read them, but we don’t write one. And we sure aren’t doing this in some misguided attempt to attract clients or maximize SEO or generate revenue — we really just write this because we want to — so there’s zero pressure to keep generating content regardless of quality.

But still… three weeks is too long. We’ve got plenty to write about, so we’d better get to it! BRB

We’ve never liked how most lawyers write. They overload their motions with a dozen words where two would do the trick. They use words incorrectly all the time (New York lawyers take note: “wherefore” means “why” — it is not a synonym for “therefore”). They employ all kinds of pointless stylistic tics, for no better reason than “that’s how it’s always been done.” We’re of the opinion that legal writing should be clear, period.

At least one judge is of a like mind. Minnesota federal bankruptcy judge Robert Kressel (shown above) is equally passionate about writing properly. It’s particularly annoying when lawyers submit proposed orders for him to sign, asking him to put his name to their stylistic messes.

So last week Judge Kressel issued some pointed style and grammar rules for proposed orders. You can check them out here. His tone is a little cheeky, perhaps, but his rules are golden.

We encourage all our readers to check them out, and pass them along.

(H/T: WSJ Law Blog)

So the Criminal Lawyer turned 1 year old, and we didn’t even notice. Our first post was on October 6, 2008. We promised…

…to give you thoughtful observations on the jurisprudence of crime. We will cover notable cases and events, offer analysis of deeper trends, and even throw in some juicy gossip from time to time.

We like to think we’ve been keeping our promise. We’ve delved into international criminal law, Supreme Court arguments, what the law is and what it ought to be. We’ve even gossiped about the latest crime show to get greenlighted.

And we have no intention of stopping any time soon. At first, we have to admit, we had some trepidation that we might lose interest, or that there wouldn’t be enough readers to make it worth our time. But we soon found that we love writing this blog. And we continue to be amazed that so many of you actually read this stuff. So we’ll stick around a while yet.

We considered writing a longer piece here about “why we blog.” But there’s really nothing to say, other than that we enjoy it. We love criminal law, we love thinking about the whys and wherefores of it. And we’ve found that the discipline of writing about it forces us to actually think through our own thoughts, which has made us all the better for it. (And we have fun photoshopping all these pictures, too. Yes, we do our own art, coding, web design, all of it.)

We’ve tried to avoid the danger of turning into yet another blawg that talks a lot, but has nothing to say. There are plenty of those out there. So we have made an effort to pick and choose what we write about. You’re not going to get a stream-of-consciousness, what’s-on-our-mind-today sort of blog here. Those are fine, just not us.

And it’s not one of those SEO-maximizing, marketing puff piece things. We’re not doing this to try to attract clients, nor should we. Blawgs that are made to attract clients are so painfully bad. It’s so obvious. It’s like meeting someone at an event who’s not there to have fun, but only wants to network. We don’t want to be that guy, and we’re not that kind of blawg.

We’ve also tried to steer clear of the topics that everyone else is talking about. Why? Because everyone else is already talking about them. We’d rather not be just one more drop in the bucket, thanks.

So we’re going to keep listening for cool and quirky stories that interest us. Stuff that inspires us to examine an underlying philosophy or social policy is going to grab us more than the latest DOJ press release. That means more talk about Supreme Court cases than notable arrests. More talk about the law than the practice thereof. That’s what we like to write about.

So happy belated birthday to us, and thanks for reading!

We apologize for not posting something last week, but an unending stream of urgent matters kept us in court or otherwise engaged the whole time. Clients obviously take priority, you know how it is.

You’ll hear from us more this week, we promise. For those of you who can’t wait, you’re welcome to listen to the third installment in our “Hope for Hopeless Cases” series with West Legal Ed Center this Wednesday. This one’s topic is how to calculate economic loss to advocate for better sentences in white-collar cases. You can check it out here.

Gluttons for punishment can also check out our first two lectures, on defending internet child porn cases and defending wiretap cases.

We’ll catch up with you here in a day or two. There’s got to be something newsworthy in the world of criminal law this week that we could write about…

We were surfing the net just now, and came across an excellent blog by Jonathan Kirshbaum, called “Habeas Corpus Blog: Keeping Track of the Great Writ for New York State Prisoners.” You can check it out here.

What particularly caught our eye was yesterday’s post on Davis, which started off discussing why Scalia’s dissent was probably correct, and then turned into an excellent analysis of the cases touching on actual innocence. It’s recommended reading. Here’s a sample from the second half of the piece:

What is important to keep in mind is that, at the time of Herrera, the concept of actual innocence was more abstract. The decision was rendered before the tidal wave of exonerations based on DNA testing beginning in the early 1990’s. Thus, DNA testing has made actual innocence claims a more certain reality than at the time of Herrera.

It should be noted that in 2004, Congress passed the Innocence Protection Act, which included the Kirk Bloodsworth Post-Conviction DNA Testing Program to help those already convicted obtain DNA testing in their cases. This landmark legislation demonstrates our society’s growing belief in the importance that the wrongfully convicted should obtain justice. In the face of this altered landscape, one would think that the Supreme Court would be compelled to find that a conviction of an actually innocent person does state a constitutional claim.

While Herrera concerned the execution of an innocent person, it would seem that actual innocence claims should apply with equal force in the non-capital context. It clearly is no less tolerable in our society that someone should be incarcerated and further punished based on a conviction for which he is actually innocent.

Once again, this type of actual innocence claim must be distinguished from the so-called “gateway” innocence claim in a habeas petition. In a habeas corpus proceeding, a state procedural default is not a bar to habeas relief where a compelling claim of actual innocence is made. In Schlup, the Supreme Court defined the standard for assessing this type of gateway actual innocence claim. The showing needed to meet this gateway claim would probably be lower than it would be for a hypothetical free-standing actual innocence claim. Schlup, 513 U.S. at 316.

Recently, in House v. Bell, the Supreme Court found that the petitioner had met the standard for a gateway actual innocence claim. House, 126 S. Ct. at 2078-86. The Court acknowledged that it remained an open question as to whether a free-standing actual innocence claim is possible under the U.S. Constitution. Id. at 2086-87. The Court refused to answer this question, stating that whatever burden a hypothetical free-standing actual innocence claim would require, the petitioner had not met it. Id. at 2087.

Thus, there have been strong indications that the Court will find that the claim exists. But it really is not clear under what constitutional right it would fall. But I guess that doesn’t matter so long as it exists somewhere in the Constitution. As I stated in my earlier post, the conundrum is that this right is not clearly established, so getting habeas relief on the claim will require jumping over some major hurdles. That’s why allowing Davis to present his claims to a court is based more on doing what’s right, than doing what’s possible at this point legally.

Good stuff. We’re adding him to our daily list of “must-reads”

Today’s Wall Street Journal has an article on how companies are starting to insist on flat fees for legal services. In the economic recession, companies are starting to complain that lawyers billing by the hour (or the tenth of the hour) only creates incentives for those lawyers to work inefficiently and rack up higher fees.

And of course that’s true. But people forget that it was clients, not lawyers, who first insisted on billing by the hour.

Most lawyers perform transactional services. A lot of this work requires little original effort — the vast majority of corporate formations, contracts, wills, filings, etc. are practically boilerplate. There’s no new research to do, nobody needs to write anything from scratch. Just fill in the names and a few key variables, and the work is done.

Back in the day, lawyers charged flat fees for these services. You want a lease? That’ll be fifty bucks. And everyone paid the same amount, because fees were fixed by the bar associations.

But then clients objected, asking why they should pay fifty bucks for a document that took five minutes to prepare.

So clients started to insist on paying only for the work that their lawyers actually did. They didn’t want to pay for the value of a service, but rather for the time spent performing it.

Lawyers, for the most part, are not dummies. They readily adopted this new way of doing business. Their incentives changed, predictably. Away went the fixed-fee focus on getting the client a desired outcome, and in came the hourly-fee incentive to provide as many incremental services as one could get away with.

By the 1970s, the billable hour had pretty much supplanted the a la carte fees of yore. Now, that fifty-dollar contract had blossomed into several hours of research delegated to a junior lawyer, more hours of legal memoranda summarizing that research for partners who probably already knew it, more hours of drafting and revising, plus phone calls and travel time and meetings and so on.

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Billing by the hour is not necessarily a bad thing. The client gets to see exactly what work is being done for him (if the bill is reasonably itemized). And although there is a real incentive to maximize billable hours, most attorneys we know are professional enough not to pad their bills with unnecessary or duplicative work. (Not saying it doesn’t happen, only that we haven’t had the pleasure of associating with such lawyers.)

Billing by the hour can actually be a bad thing if one happens to be the kind of lawyer who gets results. The lawyer who gets the job done, not just well, but soon. That lawyer has a happy client, but if he’s getting paid by the hour he’s not making a lot of money.

So there are plenty of lawyers who already charge flat fees, or minimum fees. These are very often criminal defense attorneys. The client doesn’t care so much about how many hours you spent researching the law of search and seizure, he just wants the evidence suppressed. He doesn’t care how hard you worked to negotiate a better deal, he just wants the deal.

When the client is concerned with the results, not how they were achieved, the billable hour makes little sense. The client should pay for the value of the service rendered.

That does not mean paying more for better results — that’s not ethical. What it means is, the lawyer can charge five grand to knock out a misdemeanor, even though it didn’t take five thousand dollars’ worth of time, because that’s what that outcome happens to be worth where he practices.

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The big problem we have with this whole discussion is that the participants keep talking about the law as if it is a business. Firms are all about maximizing revenues and profits, we hear. Flat fees are going to cost the same, or more, because the firms will calculate what they would have billed anyway, and add in a fudge factor. And clients will suffer when firms focus their energies on the hourly work, perceiving time spent on flat-fee work as an opportunity cost. And without the billable hour, there is little justification for all the junior associates who generate so much hourly revenue (or their salaries).

But the law is NOT a business. The practice of law is NOT about making money. The practice of law is a profession.

There are only three professions: medicine, the clergy and the law. What sets the professions apart from businesses is that the point is not to make money. Profits are not the point. The only thing that matters is caring for the patient, tending the flock, and representing the client. The client’s interests are paramount. The lawyer owes his loyalty not to his firm, not to any shareholders, but to the client he represents.

The second a lawyer or law firm starts focusing on maximizing revenue, they stop being professionals. There is no reason why lawyers should not be compensated for their representation. And there is no reason why that compensation should not be handsome, when the representation is valuable. (We charge far more than the average lawyer, for example, but we like to think we’re worth it.) Nevertheless, making money must never be the point of doing the work.

So to those who bitch and moan about how switching to flat fees would hurt their bottom line, we can only say that they should stop thinking like shopkeepers and start acting like professionals.

It seems like not a day has gone by since last October that we haven’t read of some firm laying off associates and the occasional partner, delaying new hires, and otherwise suffering through the dearth of corporate work that is biglaw’s bread and butter. This has affected the rest of the legal job market as well. It’s hard to get a decent job as a lawyer these days. We admit to being — not exactly smug, but definitely well pleased — with the fact that we were running our own firm. Can’t beat that for job security. And being a white-collar defense attorney in this day and age is pretty much a recession-proof gig.

So imagine our surprise at being recruited out of the blue. We weren’t looking, but of course that’s always when the best opportunities come a-knocking. A firm of former prosecutors asked us to come on board and keep doing exactly what we’ve been doing, only more of it, without having to bother with the administrative crap of running the business as well. It was hard to say no, so we didn’t.

We started our new gig this week. Of course, the past few weeks have been pretty busy, what with winding down one firm and transitioning to the new one. That explains why we haven’t been posting as often lately.

Now we’re up and running again. Those of you who have been pestering us to resume your daily fix of snark can finally relax. (Those of you who were enjoying the respite… well, sorry.)

No time to post on this yesterday or today, but it’s pretty clear we were 100% wrong with our prediction for the Osborne case. It wasn’t unanimous or a big majority — it was 5-4. It wasn’t in favor of the defense — got that wrong, too. And the Supremes didn’t touch the issue of whether there is a right to make a freestanding claim of innocence. We got it entirely wrong.

Good opinion though, worthy of substantive comment. More to come.

At least we called Yeager… mostly. Surprised a little that Scalia dissented, but it’s a good dissent. More on that to come as well.

Happy Friday!

An old Chinese story goes like this:

The emperor called on his advisors to summon the greatest doctor in China. His advisors all agreed that the most famous physician in the land was Dzang-gung. So Master Dzang came before the emperor, who asked him whether he was in fact the greatest doctor in China.

“No,” replied Master Dzang. “I am merely the most famous. I see people when they are about to die, when sickness has taken over their bodies. And sometimes I can heal them. So my fame is known throughout the world, and I have grown very wealthy.

“But my older brother is greater. He sees illness before it takes hold, and cures people before they are at death’s door. So although he saves many more lives than I do, his fame does not go beyond our village.

“Our father, however, is greater still. He sees illness before it happens. He prevents it from happening before people even become ill. He has saved thousands more than his sons, but his fame does not spread beyond our house.”

Or there’s this (embedded with permission):

We find ourselves in a similar dilemma to the old Chinese physician and the efficient lawyer in the funny pages. Our hourly rate is pretty darn high. But we tend to resolve things too fast for that hourly rate to add up to much.

So we’re considering a switch from the hourly rate to a flat fee, charging basically the value of the service to be performed. We know that lots of defense attorneys bill this way, but it would be a big shift for us.

In our practice, we’ve been selling our time and labor, no different from a plumber or an electrician. Someone has a problem to be fixed, and needs someone with specialized skills to take care of it. There’s no inventory to mark up for a profit, the only thing being traded is time and effort.

But that’s not really true, is it. There’s another thing being provided — the result.

Now lawyers used to charge flat fees for everything. You wanted a contract? Fifty bucks. You wanted a will? Twenty-five bucks. Whatever you wanted, there was a fixed price, and you paid it. You were buying the completed job. Fees were often fixed by bar associations, and lawyers could get in trouble for charging less. (Ah, the law has ever been a cartel. That ain’t changing any time soon.)

But back during the Eisenhower years, the billing standard did change. And it wasn’t lawyers who did it — it was the clients. Clients said “wait a second, how come you’re charging me two hundred bucks for a document you spend ten minutes on? You just used something you’ve already written before, and just changed the names. I’m not paying two hundred bucks for ten minutes of work.”

Lawyers tend not to be stupid. It was easy enough to switch to the billable hour, as demanded by their clients. And it was just as easy to use that billable hour to the fullest. The financial incentive switched from getting the client the result they wanted (which usually meant as soon as practicable), to providing an interminable series of sorta-kinda necessary services, all billed in 6-minute increments. By the 1970s, this was the norm.

The law stopped being a profession, to some extent, and became instead just another business. A “profession,” for those who misuse the phrase routinely, is not a job, but a calling — one in which the professional has a unique relationship with the buyer, a relationship of trust. The professional is trusted to act only in the client’s interest, never his own. The professional has an ethical duty to put that client’s interests ahead of his own. Traditionally, there have only ever been three professions: the law, medicine, and the clergy.

The professional’s job is not — absolutely, categorically, one hundred percent NOT — to maximize profits. It is to take care of the client, patient or parishioner. To see that their needs are met. Of course, one should be compensated for the service, but that’s not the point of doing it.

But that doesn’t mean billing by the hour is wrong. It isn’t. It gives the client some level of assurance that he’s paying for work, that something has been done in exchange for that dollar he just paid. And most attorneys bill honorably and honestly.

Still, it overcompensates the lawyer who enhances his bill with perhaps unnecessary tasks and expenses. And it woefully undercompensates the lawyer who gets the client a satisfactory result swiftly and efficiently.

So we are seriously considering switching to a flat fee for our services. It’s fairly common in the criminal defense bar, and at least one major law firm is famous for charging a single fee for its services. We’d be in good company.

There are of course issues to be hammered out, such as how much of a discount should be given if the representation ends before the case does — probably depending on what stage the case is at. Or how to best calculate the appropriate fee for a given case (thank goodness finance and economics are among our strong suits).

But those are minor details, which can easily be thought through. Overall, yes, the idea does sound more and more attractive. It reminds us of one last story:

There was an engineer who worked at the company for many years, earning an excellent reputation. He eventually retired. But several years later, the company had a problem with one of their super-expensive, super-complex machines. They had thrown all of their best engineers at the problem, to no avail. They had brought in consultants and specialists, but the problem could not be fixed.

In desperation, they called the engineer back out of retirement. He didn’t want to, but they begged and pleaded, and he eventually gave in.

The next day he showed up, and just stood there looking at the machine. Didn’t say anything, didn’t do anything. Just looked at it. A long time passed. Then he walked around the machine a couple times, took a piece of chalk out of his pocket, and marked a small “X” on one of the gizmos, a ten-cent piece of hardware. “There’s the problem,” he said, and went home.

The company replaced the ten-cent part, and suddenly the machine worked like a dream.

A week later, the company received a bill for $50,000 from the engineer. They were incensed! The engineer received an angry letter demanding that he present an itemized invoice, accounting for his time, labor, expenses and other charges justifying this outrageous bill.

The engineer replied with the following itemized bill:

One (1) chalk mark: $1

Knowing where to put it: $49,999

The company paid it in full.

First, we got sick (a lovely birthday present from the wife and kids). Then we got busy (unexpected new work is always nice, even if it does eat into our “free time” for blogging). And now we’re going camping. The Criminal Lawyer will return on Tuesday.

There’s probably some really juicy legal stories out there today, but we haven’t bothered to look yet. Instead, we’re spending our free time preparing for our upcoming CLE webcast at 11 a.m. Eastern this Friday at West LegalEd Center.

This will be the second in our “Hope for Hopeless Cases” series. We’ll be talking about ways to defend cases where your client’s on tape. Title III stuff, body wires and consent recordings. We’ll discuss weaknesses to look for and exploit in litigation, and give you some tools for cross examination and argument at trial. 1.5 hours, accredited in most states.

Your humble author has a new title in print. Strategies for Defending Internet Pornography Cases: Leading Lawyers on Analyzing Electronic Documents, Utilizing Expert Witnesses and Explaining Technological Evidence can be purchased for the modest sum of $90.00 at Amazon.com.

This title is sure to be snapped up by insomniacs everywhere, so get your copy while you can. Here is the publisher’s description:

Strategies for Defending Internet Pornography Cases is an authoritative, insider’s perspective on mounting a defense against charges of possession of Internet pornography. Featuring defense attorneys from across the country, these experts guide the reader through the key considerations necessary when investigating accusations of Internet crimes and examine the complex technology issues at work. Discussing the challenges of defending these technology-driven cases, the authors explain the concepts of shareware, unintentional downloading, digitally altered images, and temporary Internet file folders as they relate to false claims of Internet pornography possession and offer advice on selecting an appropriate defense strategy. From overcoming the public perception of pornography through your defense to utilizing computer and psychological experts, these top lawyers walk the reader through the steps of a case from initially meeting with a client and developing a trusting relationship to reviewing settlement and appeal options. The different niches represented and the breadth of perspectives presented enable readers to get inside some of the great legal minds of today, as these experienced lawyers offer up their thoughts around the keys to navigating this sensitive area of law made more complex in the digital age.

Hello, and welcome to The Criminal Lawyer.

Our mission is to give you thoughtful observations on the jurisprudence of crime. We will cover notable cases and events, offer analysis of deeper trends, and even throw in some juicy gossip from time to time.

We’ll link to compelling articles by lawyers and scholars around the Web, provide our own insights, and look to you for contributions. Your comments are eagerly invited.