US Supreme Court Rules Like a Kindergartener

Last week the U.S. Supreme Court disappointed prosecutors and police when it ruled to require state experts who perform scientific analysis to also appear and testify in court about their work. In other words, the Court rejected the notion that a surrogate could show up for trial and testify about work done in their lab. But a kindergartener could have figured that one out. Persons accused of a crime have the right to cross-exam their accusers. That includes the person who performs a scientific test that incriminates them.

The case was Bullcoming v. New Mexico, No. 09-10876. It arose from the arrest of a New Mexico man on suspicion of DWI. At his trial, prosecutors presented a crime lab report showing Bullcoming's blood-alcohol levels were elevated. But prosecutors did not call the analyst who had prepared and signed the report, telling the court he was on unpaid leave for unspecified reasons. Instead, they presented a colleague who had neither observed nor reviewed the analysis.

The Supremes said that was unacceptable. Duh? Their ruling followed from Melendez-Diaz v. Massachusetts and Crawford v. Washington, which breathed new life into a person's right to confront the witnesses against them. Even Antonin Scalia and Clarence Thomas joined the majority opinion on this one. Taking a swing at the dissent's argument that such a requirement created an unreasonable burden upon the state, Scalia said: “The confrontation clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination.”

In any case, another small victory for the defense and the Bill of Rights. But even a kindergartener could have figured this one out.

Anticipating Client Needs Reaps Loyalty

I continuously encourage my staff to anticipate client needs whenever possible. Anticipating needs (and meeting needs before the client expresses them) sends the message we care about them as individuals. When clients know we care they become fiercely loyal to our firm.

Anticipating needs is achieved by simply paying attention and knowing the people we're serving. It's achieved by training each person in the firm to recognize the need for personalized service. Hiring support staff and other criminal defense lawyers based on a few key client-friendly traits such as warmth, empathy, teamwork, and optimism.

We work to align our systems to center on what clients really want from us. We endeavor to never treat anyone the same. Our great service requires custom fitting every day as we work with the special people who've trusted their future with us.

So, if you want to glue clients to your firm, learn to anticipate what they need and provide it before they ask. Thanks, Micah Solomon, for the many insightful tips into developing client loyalty.

The Death of the Bill of Rights

I'm no libertarian. (at least I don't think I am) But I'm appalled as the Bill of Rights continues to take a beating. I talked about the change in the "no-blow paradigm" months ago as it relates to DWI investigations in Bryan/College Station. I like Eric Peters' take on this tragic sequence of events. (h/t to my friend Robert Guest)

Putting Up My Legal Skills for Awhile

One of the easiest ways to alienate a client is to behave like a lawyer all the time. Sometimes criminal defense lawyers simply need to act like regular people to help their clients through difficult times. This is especially true when resolving client-service issues.

When clients point out "service lapses" by their lawyers, we must know how to accept responsibility and apologize. Most of the time the client doesn't need an "analysis of the facts." They don't need us to "allocate responsibility." Rather, they want our empathy. They need us to see their side of the situation. And most importantly, they require us to "man-up."

Regularly taking the client's side is another way to develop long-term client loyalty. Heck, it is just the right thing to do. Make this a habit and clients will forgive our small foibles. Make this a habit and clients will become immune to competitive entreaties from the firm across the street.

Another Quiet Defense Victory

Most victories in criminal defense work are very quiet. Nothing in the newspaper or on the radio. Many are worked out by agreements with prosecutors and plead-out before a judge in the, proverbial, dead-of-night. No one hears about them but the office staff. And the only recognition for a job well done is the thanks of a loving mother and the gratitude of a relieved client. That's enough . . . it needs to be enough.

We concluded a very important case last week in which my client was indicted for sexual assault of a child. The potential long-term damage to my client involved sex offender registration, conviction, a destroyed career, and limitless unintended consequences. He was a teenaged boy who meet a teenaged girl on the Internet. They got together one day and had sex. My client confessed. The problem was he was 19 years old and the girl was 15. In Texas, that is a felony offense.

The sexual assault indictment was ultimately dismissed by the prosecutor and I owe him thanks for that concession. In exchange, my client accepted a plea agreement for a misdemeanor offense of assault. No sex offender registration. No destroyed career. Two years probation and big fine was the worst of it.

It took four years to resolve, but in the end my client was pleased. His parents relieved. It was a quiet victory plead-out in the dead-of-night. No newspaper article, no radio coverage. Just a happy client and family. It was enough for this week.

It's About the First and Last Thing We Do

According to Micah Solomon, psychological studies show our clients remember the first and last thing we say during a meeting or phone call more vividly than anything else. It's the principles of primacy and recency at work during a customer service encounter. Another way of looking at it is whether we, or our support staff, sound interrupted when the client calls. That's the first thing they hear. Wouldn't it sound better if our voices communicated genuine pleasure to hear from them? At the end of a case, what is the last thing the client hears from us? A form letter advising our legal representation agreement is terminated, or genuine thanks for trusting us to provide them such a valuable service?

Criminal defenses attorneys should assure the first and last elements of our client interactions are well-engineered, since they will stick in the client's memory the longest. What our clients remember first, and last, will go far in developing the client loyalty we can be proud of.

Fast Service is King, But Delay Wins Cases

Fast service impresses clients and fosters client loyalty. Even though clients don't know what's involved in completing our work as criminal defense lawyers, modern clients expect speedier service than previous generations. However, the key tenets of criminal defense work are deny, delay, and defend. So how does the effective defense attorney square the need for speedy service with the necessity of delay in successfully defending a criminal case?

Most importantly is adjusting client expectations at the front end of the representation. The criminal client should be informed how the process of delay works in their favor. How police witnesses lose memory, how prosecutors lose interest, how mitigating facts can be developed over time to favor the client.

Adjusting client expectations, notwithstanding, is never a justification for tardiness in other areas of the representation. For instance, returning phone calls and keeping clients informed of case developments. This is where fast service is king and where improved client loyalty is developed.

In other words, take good care of your clients by responding quickly to their questions. But let them know, up front, the best results in a criminal case often come after long periods of delay.

First Step to Client Loyalty

This month's Texas Bar Journal had a great article, by Micah Solomon, on steps toward developing better client loyalty. Much of what Micah concluded were ideas most good business people develop on their own as they gain experience in the business world. This includes criminal defense lawyers, too. In any case, developing better client loyalty means, in the end, the criminal defense client is happier. That's always the goal.

Step One is to remember and acknowledge each client in a way that is personal to them. In other words, treat each client as unique. Micah believes, and I agree, that criminal defense law firms thrive once they dedicate themselves to achieving the effectiveness of a beloved bartender or hairstylist. Remembering something special about each client leads fosters this important relationship.

That's step one. With six more to go, please check in for later thoughts.