Reflecting on 2007

I'm not much for odd numbered years, but 2007 was simply wonderful. As I think back over the year, my family, friends, and work as a criminal defense lawyer are what come to mind.

My family grew and I couldn't be more proud. Each of my children are smart, good looking, and a blessing to those around them. I attribute most of this success to my wife. And as all parents understand, each of my children are individuals. Different strengths, weaknesses, and interests. But three things, among many, we each have in common - One is a love for Texas A&M basketball. Second is a fascination with Jack Bauer (of 24 fame). And third, is an affection for flat-screen plasma TVs with surround sound audio. It's amazing how many hours of the day evaporated this Christmas season sitting in front of a big screen TV with my finger on the trigger of a remote control.

I started "The Defense Perspective" in 2007. Blogging has been both a rewarding and profitable experience. As a result, I've made many new friends and I've enjoyed the interaction with each. Thanks to Mark, Scott, Gideon, Robert, Shawn, Anne, Jamie, and others for their "link love" this year. I hope I've adequately reciprocated. My goal for 2008 is to spread the "love" even further. Thanks, too, for the folks who stopped in from time to time to read and comment upon my ramblings.

My criminal defense practice grew in 2007. I attributed much of the growth to my blogging as it distinguished me from many of the other great lawyers in Bryan/College Station. My practice reaped so many benefits from the writing investment I made in the blog. Beyond this, the practice of law continued to challenge and reward me. Retooling, refining, and revamping was the order of the day in 2007. My systems improved in 2007 and I plan on riding this wave through 2008.

And one final thought on 2007, I'd say the keys to the year were risk-taking and perseverance. That is, the willingness to try new and innovative things. But more importantly, the willingness to stick to them, even when I couldn't see the forest for the trees.

No, I'm not much for odd numbered years. But 2007 will go down as one of my favorites.

A Lawyer's Free Speech

Here is a very important piece. A Florida criminal defense lawyer faced ethics charges for lambasting a local judge on his blog. From what I can tell, the judge probably deserved the tongue lashing. But what she deserved, or didn't, is not the point. The piece noted:

The [free speech] debate resurfaced after the Bar found probable cause against Fort Lauderdale, Fla., criminal defense attorney Sean Conway for calling Broward Circuit Judge Cheryl Aleman an "evil, unfair witch" who is "seemingly mentally ill" on a blog about the courthouse. Formal charges against Conway are pending. Bar rules ban attorneys from making statements that impugn the integrity of a judge or the judiciary. Attorneys who violate the rules of professional conduct could face discipline ranging from a reprimand to disbarment.

The important question concerned the lawyer's right to speak freely. In other words, did Conway relinquish his right to criticize a sitting judge because he [Conway] was a member of the state bar? It seemed judges could stomach criticism levied against them in the relative privacy of cocktail parties. But when the criticism hit the internet, via the blawgosphere, they got really mad. A noted commentator on the case said:

Only since the advent of Internet and blogs did things get widely disseminated that at one time would be discussed at a cocktail party, []. Most lawyers are usually pretty cautious to avoid that kind of public commentary out of respect for the system, even if they don't respect the individual judge.

One argument asserts lawyers must not say things reflecting negatively upon the judiciary. This criticism supposedly causes the public to lose confidence in their judges. Conversely, the other side argues lawyers have a responsibility to educate the public. If a judge is conducting themselves improperly, the public has a right, indeed the need, to know about it.

I don't make a habit of bad-mouthing local judges in Bryan/College Station. I doubt it makes for harmonious relationships at the courthouse. But hey, if I wanted to rip into a local judge I hope I have the right to do it.

Victim Gets His Say - At My Expense

The CrimProf Blog posted here about an interesting case from the U.S. Court of Appeals - Ninth Circuit concerning the rights of a crime victim (W.Patrick Kenna) to say his piece during the sentencing phase of a federal criminal trial. This case was interesting in light of the discussion we had last month here and here about crime victims getting too much power in the criminal justice system.

The amazing thing about the Kenna case was the appeal rights granted to the victim. Apparently, Kenna was not allowed to make a statement concerning the effects of the crime during the sentencing of the defendant. After the federal judge refused to let Kenna speak (the judge had heard the crime victims speak at an earlier hearing), Kenna was accorded an appeal to the Ninth Circuit.

I wonder who spent time writing the brief and who paid for the court reporter's transcript? Who advised the victim of his appeal rights and preserved the error? This is a potentially objectionable use of my taxpayer dollars to give crime victims an attempt at "closure" following a criminal prosecution. I'm note sure I agree with it.

The Magic of Preparation

Malum writes here about the art of defending people accused of crime. He eloquently notes the job of the criminal defense lawyer is not to seek justice, but to represent the rights of the individual. I enjoyed the way Malum explained the job of the defense lawyer:

I don't think I could be unbiased and zealously represent 80% of my clients if I took time out to consider how best justice could be served. I can’t [fathom] having to weigh in the pain and losses suffered by their victims and their victim's families. I never personalize the alleged actions of my clients. I take and read the facts of their cases as part of a poorly written story.
My job is to fill in the blanks of this story and hopefully finish it with a happy ending. My advantage is that most of the time the DA only repeats and summarizes the poorly written stories, with its gaps, holes and missing pieces. Here is where i am at the advantage because I can fill in those gaps and holes with my version.

This is where the defense does have a great advantage. Although the wise Texas defense lawyer takes their client's version with a grain of salt and corroborates as many facts as possible, our clients can help us understand the story in its entirely.

And this is where the magic begins. Now we possess a superior mastery of the facts. Now ideas pop out from magical depths. This mastery empowers us to forge a story, an argument, that is laden with fact. An argument which now leaves room for the lawyer's own emotional commitment and appeal.

This is how the defense lawyer crafts the winning argument. Not an argument about justice necessarily, but a winning argument about the individual. This is the magic of preparation. Thanks Malum for giving us some insight into your day.

Frisco DWI Lawyer Wins

Hunter Biederman, the Frisco DWI Lawyer, posted here about his recent victory following a jury trial on a .21o breathtest DWI. Hunter won this case, not because the jury acquitted his client, but because he soundly beat the plea offer from the prosecutor. Commenting on the assessment of punishment Hunter said:

For him[the client], it [getting less jail time] is a win. Of course, our goal was to be found not guilty, but we still achieved a better result than pleading guilty.

Taking a case like this to trial is gutsy, but necessary since the only way criminal defense lawyers get better at trying difficult cases is to try difficult cases. Even the ones that seem un-winnable.

Scott Greenfield lamented here about the failure of the federal criminal defense bar to be ready, willing and able to stand up to the government. However, with more defense lawyers like Hunter, prosecutors in Texas state court should be getting a run for their money.

Prosecutors aggressively file DWIs in Bryan and College Station, Texas. The best way to beat a DWI is not drink and drive. But if you get arrested, give the College Station DWI lawyer a call since, like the Frisco Kid, we fight the good fight here, too.

Refusing Court -Appointed Appeals

Last week, criminal defense lawyer, Shawn Matlock, hypothesized here that most defense lawyers refuse to handle appeals because of the poor economic return. Shawn did not say so, but I suspect he meant "court-appointed" appeals. I agree with Shawn's conclusion. However, I disagree with his corollary that "real" criminal defense lawyers should handle their client's appeal with regularity. Shawn asserted:

I think that because so many people "practice" criminal law as a business, they view appeals as a money-losing endeavor. The time put into a good appeal can be extensive, and it can be exhausting. But, in my humble opinion, real lawyers do it.

Shawn argued defense lawyers don't take appeals because they are hard work. I agree they are very hard work. He postulated most defense lawyers don't take appeals because they aren't familiar enough with procedural and substantive law. I further agree lawyers must be well versed in all aspects of law which might bear upon the issues in a criminal appeal.

Nonetheless, many hardworking, smart, experienced, and dedicated defense lawyers don't take court-appointed appeals because they don't pay-off financially. I don't have a problem with that. I handled court-appointed appeals for years and learned an incredible amount of law. I learned how to preserve error. I learned how to establish harm so the appeal lawyer would not get "poured-out" under the harmless error rule. I learned how to write. But eventually the time invested in researching and writing appeals greatly outweighed my economic return. When that happened my other clients suffered.

For example, in Brazos County court-appointed appeal work gets paid on a fixed rate. A typical fee for a non-aggravated felony appeal is $1,750.00. Knowing I spend about 35 hours on a typical appeal, that works out to about $50.00/hour. That is not economically feasible. It does not pay my overhead. It does not fund my employee's IRAs. It does not pay for their medical insurance. It does not adequately pay me for my time.

My fee paying clients have purchased my time. I promised these clients attention and personal service. That is what distinguishes me from the other great lawyers in my community. But if I spend 35 hours on an appeal for which I only make $1,750.00, that makes no sense. My fee paying clients get the short end of that deal. I'd rather eliminate court-appointed appeal work and spend my time in more cost effective ways.

Young defense lawyers starting out should take court-appointed appeals. It increases the depth and breadth of their knowledge and experience. Their hard-earned experience eventually pays-off for all their future clients. I will take an appointed appeal now and then, too. Usually, it is a difficult case that a local judge knows I'll work diligently. I do this as a favor. They've come to depend on me - a great position to be in.

Let me say appeal work on "retainer" is financially rewarding. But I have no problem with defense lawyers who refuse to accept court-appointed criminal appeals. I have no problem with lawyers making a business decision to refuse work which is not financially rewarding.

If Shawn meant to scold lawyers who don't take appeals because they are lazy and don't want to work hard, I have no problem with that criticism either. But "real" lawyers are businessmen and businesswomen. If not, they risk failure at worst, and not reaching their potential at least. Neither a desirable option in my book.

Smile for Your Camera-Phone

If you're going to take your own picture while committing a crime, or record often indisputable evidence of your involvement, then please do it with a smile. See this story about Morgan Kipper:

Last year, Morgan Kipper was booked on charges of stealing cars and reselling their parts. He declared his innocence, but his cellphone suggested otherwise: Its screen saver pictured Mr. Kipper behind the wheel of a stolen yellow Ferrari.

Mr. Kipper, 27, joined a growing group of camera-phone owners who can't seem to resist capturing themselves breaking the law. "As a criminal defense attorney, it's very difficult when a client proclaims his innocence but incriminates himself by taking photos of the stolen items," says William Korman, the Boston attorney who represented Mr. Kipper. The snap-happy chop-shop owner, who pleaded guilty in April, is now serving a sentence of two-and-a-half to five years and couldn't be reached for comment.

The forensic challenges related to obtaining incriminating evidence from a camera-phone are different than those related to obtaining it from a personal computer. However, companies now sell forensic software designed to help the police download data from camera-phones without corrupting the evidence. The article went on to say:

. . . camera-phones seem particularly well-suited to spontaneous self-incrimination. Unlike traditional cameras, cellphones are always brought along, increasing the temptation to snap a picture and boosting the likelihood the phone will be on or near the criminal upon arrest.

So don't succumb to the temptation of recording your misdeeds for old-time-sake. First, avoid trouble by obeying your federal, state, and local laws. And for goodness sake, use some common sense when deciding what to snap pictures of.

The Power of a Handwritten Thank You

Lawyers underestimate the handwritten thank you. It contains power they don't see. It reveals one's heart. It lets the "other" know you recognize their importance. It's one way lawyers positively distinguish themselves from other lawyers and, for that matter, all types of business people. The key is to follow up immediately with prospective clients, referral sources, and new clients.

For example, after a meeting with a prospective new client the wise criminal defense lawyer immediately sends a handwritten thank you note to the prospect and the referral source. This prompt and thoughtful gesture makes a powerful impression. I am grateful for meeting you. I care about you. We can work to help each other in the future. Relationship is more important to me than money.

Or after a prospective client contacts the lawyer's office, they follow up with them immediately. The lawyer never leaves the office without first calling back every prospective client. When the lawyer is busy in trial, or otherwise unavailable, someone else in the office calls the prospect and informs them you're busy, but lets them know when to expect to hear back.

Or after a bar meeting, the wise criminal defense lawyer immediately follows up with new contacts made at the meeting with a handwritten note. The follow up may be sending them an article you offered to send, a call to set up a lunch, or a simple note telling them you were glad to meet them. Again, the message this sends is one of recognition and respect. Powerful, indeed.

Finally, after the lawyer is hired by a new client they immediately follow up with a written thank you. The client now learns his new lawyer takes personal responsibility for answering questions and keeping them informed. The client learns his new lawyer works with integrity and professionalism.

In other words, the handwritten thank you lets the "other" know how very important they are. It lets the "other" peek into the heart and see a crop of gratitude ready for harvest. It's power and it's powerful. Don't miss it.

Becoming The Expert

Clients don’t buy our technical competence as lawyers. They buy solutions to their problems. In short, they buy us. Rarely can potential clients distinguish levels of competency between lawyers anyway, except in the most extreme cases.

Technical competence in criminal law simply gets our foot in the door. It’s the minimum needed to get in the game. Criminal lawyers can learn all of the strategies and tactics they need to attract prospects and convert them to paying clients. However, it all breaks down if the lawyer is not technically competent. Eventually, the word gets out and will result in fewer referrals and poor word of mouth.

Beyond technical competence, however, the Bryan/College Station criminal defense lawyer must set out to be THE expert in their field. When the lawyer becomes THE expert, they become the problem solver and the go-to guy.

Set out to become the expert. Take the difficult cases. Work hard. Persevere. Stay on the cutting edge. Lawyers can set a goal to become board certified in criminal law by the Texas Board of Legal Specialization. Seminars and journals are other ways to improve expertise. Consider a trial college. Never stop learning. Constantly seek to improve. Finally, one of the best and quickest ways to become an expert is teaching, like teaching a criminal law course to paralegals at a local university.

But becoming the expert is still not enough. Once we've got it, we need to let others know. More on becoming known as the expert later.

Recipe for a Hung Jury

Anne Reed writes here about a jury foreman who felt so bad about convicting the defendant she agreed to pay her fine. Anne then adds her thoughts about empowering jurors to hold to their vote in the jury room.

Empowering jurors is key to success in trial work. The real art of empowering jurors probably developed in death penalty defense work where jurors where trained to hold to their "life" vote at punishment, resulting in a hung jury. A capital jury hung on punishment would then result in an automatic life sentence. Anne suggests letting jurors know "how important it is, and how hard it is, to stick patiently to their decisions when other jurors, and the promise of going home, press in." She suggests "helping them rehearse in their minds how they'll do it, if they need to." But there is much more to empowering jurors to hold on.

Certainly, individual jurors must be taught during voir dire that their vote is important. Their vote, whatever it may be, can be based upon any fact or factors important to them. That the verdict of the jury is not one verdict but 12 individual verdicts, which are based upon individual judgment and reflection.

However, another key component of training jurors to stand firm is to commit other jurors - the jurors in the majority - to respect the vote of someone else. And not only respect the vote of a holdout, but to teach stronger jurors to actually protect the vote of someone who has an idea different from theirs. Roughly, the voir dire go something like this:

Lawyer: Mr. Potential Holdout, you of course, believe the verdict of the jury is not one verdict, but twelve individual verdicts. [Yes, I do.]

Lawyer: Based on the jury instructions given by the judge, the law will demand each juror not violate their individual judgment and conscience just to reach a verdict. Do you believe your vote is important and deserving respect from other jurors, even if you are only one of twelve? [Yes, of course.]

Lawyer: Thank you. Now, Ms. Strong Majority Juror. You certainly believe each member of the jury deserves respect? [Yes, of course I do.]

Lawyer: You certainly believe their vote, even if different from yours, deserves respect and even protection from other jurors who might want to bully the holdout into a verdict? [Yes, absolutely.]

Lawyer: Then, can I count on you to protect the vote of a fellow juror even if you do not agree with it? [Yes sir, you can.]

Getting twelve people to openly committed to these ideas is a recipe for a hung jury. Although the lawyer still needs some facts to hang their hat on, the idea of empowering jurors to stand firm is a great strategy in the appropriate case. Regretfully for Joyce Buffaloe, the foreman of her jury had not been empowered, and other jurors not conditioned, to respect and protect the vote of a hold-out.