I recently spent quite a bit of time with a potential client. He assured me that I had put him at ease, and that I had gone far above and beyond the call of duty.
What we take for granted as lawyers, comprises sheer oblivion to uninitiated criminal defendants.
I recently spent quite a bit of time with a potential client. He assured me that I had put him at ease, that I had gone far above and beyond the call of duty to anyone who had not yet signed a fee agreement, and that I was going to be his choice for a lawyer in the coming days and weeks. He would, in fact, be bringing me a check if, indeed, there was further law enforcement contact. I believe initial consultations like this, whether they result in retainers or not, are part of the job and I derive a significant portion of my job satisfaction from them for that reason.
What we take for granted as lawyers regarding knowledge of the distinctions and agendas of various players in the criminal injustice system comprises sheer oblivion to uninitiated criminal defendants. It wouldn’t dawn on the average person that a prison guard isn’t actually involved in the courts. It only matters that they are somehow involved in an amalgam that has euphemistically come to be known as “criminal justice,” albeit at the back end of that experience, with absolutely no involvement in the courts.
For example, notwithstanding the one-sided Law and Order introduction that identifies the police and prosecutors as the only components of the criminal justice system (absenting defense attorneys) most people don’t understand that the police and prosecutors have different jobs. It’s a bit like the difference between a car salesman and a mechanic. Some people call car salesmen when their car breaks down. Different department.
And would-be defendants and their families seldom recognize that prosecutors need to be lawyers because they operate in a courtroom, and file pleadings, while the police sometimes need to remove their gun belts in front of the jury because they are not the police in the courtroom—they are simply fact witnesses. And when someone is convicted and gets the worst sentence possible—prison—they meet prison guards. So, yeah, in that way prison guards are involved.
Yes, it’s true that police are imbued with the responsibility to investigate and the authority to arrest. But when they turn over their investigative file and recommendations to a local prosecutor, a legal mind must sift through the evidence to determine if all the facts meet the elements of a criminal offense, and present that information first to a judge and then to a jury. That lawyer may even exclude police witnesses from a prosecution—and sometimes tactically do so, to streamline a case, or to avoid damaging testimony, even if those police officers were actively involved in an investigation.
Because my law firm came up first in his web search, I was his first call. But I wasn’t his last—and I encourage comparison shopping. However, there are some occupational hazards to this phenomenon.
After his fear and anxiety subsided and I had been assured that I would be retained, he asked a very good friend, a prison guard, who he should hire. Without missing a beat, the voice from inside the prison wall confidently and authoritatively named a competitor. And so we move on with no hard feelings.
However, deconstructing this initial consultation and the potential client’s decision to go with someone else revealed to me the sheer irony of someone looking to a prison guard for advice on who to hire in a criminal prosecution.
So, back to the potential client who listened to the prison guard to hire a lawyer. It reminds me of the E.F. Hutton advertising of the 1980s where in a crowded restaurant or airplane, someone utters the tagline, “My broker is E.F. Hutton and he says . . ,” as a crowded room hushes to glean the valuable knowledge that will inevitably follow. The ad was meant to convey E.F. Hutton’s expertise, experience, and knowledge (if it was truly implicit, query why there was a need to advertise, but I digress). The necessary inference was that the speaker was familiar with E.F. Hutton’s positive qualities because the speaker was a brokerage client. The ad would make no sense if the speaker was filing for bankruptcy or was a bailiff in bankruptcy court who dealt with debtors all day long, like a prison guard deals with inmates who have been convicted and been sentenced not to probation, not to community service, not even to jail—but prison.
Typically, anecdotally, my conversations with people who get recommendations for lawyers—including recommendations to my firm—someone says, “oh, you should use my lawyer,” to highlight that they, themselves, made a good decision, got a desired outcome, and you should do the same. Feels good when I get those recommendations. But I’m not going to pretend they are accurate reflections of my abilities or anyone else’s. Human nature covets validation. And that validation can obscure any such recommendation. People listening to such advice should beware—to become an informed legal consumer, they must ask questions about communication, outcome, expense, and experience. This is a competitive business and there are many good lawyers out there. There are also few barriers to entry and anyone who just graduated from law school can hang out a shingle and profess to practice in the area of criminal law. In short, ask questions not just of your would-be lawyer, but your neighbors, too. Be wary when they say, “my lawyer is E.F. Hutton and he says…”
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