Wednesday, December 12, 2007

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.

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