Tuesday, May 4, 2010

The Civility of Criminal Court

Before I did criminal defense work, I never brought work home with me. I used to be a suburbanite. Riding the train home from downtown everyday, allowed me to cleanse myself of work stress before I got home. I never thought about work when I wasn't at work. And I never had dreams about work.

In my mind, however, though a licensed attorney, I didn't much feel like one. Or at least what my mind had always thought a lawyer was. When I would meet people and they would find out I am an attorney, the next question always followed, "what type of law do you practice?"

"Workers' compensation defense" I always answered while trying to keep a straight face. And the token response was "oh". Then I would try to make my job sound interesting. But I would always fail because it wasn't very interesting to me. It was boring, repetitive, mundane, and nothing I did seemed to ever matter.

I was a machine. I sat in an office, behind a desk, and billed hours for my bosses. I was never underpaid per se. I had good benefits. However, if I was being paid, say $50 an hour, but my work was being billed at $200 an hour,  someone was profiting off my work.

I know about overhead and the salaries of the non-lawyer employees, but the partners were lining their pockets with every hour I billed. But it's their firm and that's how it is. At some point I made a realization: I could go the rest of my professional career earning what someone thought I was worth, or I could work for myself and earn what I am indeed worth.

[Note: I am not offering an opinion about lawyers that do what I used to do. It's honest work. It takes intelligence and attention to detail. It just wasn't for me.]

Somehow I ended up doing criminal defense work in Chicago. This isn't the career trajectory of someone wanting to build wealth. At least not in Chicago. The fat cat PI lawyers make millions suing insurance companies, which causes all of our rates to keep going up. These guys are the high rollers and they are whom most lawyer jokes are about. I don't hate them. I don't even really know any of them. But I could never be one.

My heart could never have been in litigating over money. I played a part in a civil jury trial and the lawyers in civil court are much nastier and contentious than we criminal attorneys. And a fellow criminal attorney recently pointed that out.

Think of all of the horrible things people do to each other over money. Take that and feed it into an adversarial system full of lawyers. What comes out the other end is big money litigation. And it's fierce.

During my last trial, all 4 attorneys and the judge were in chambers. I don't remember what we were talking about, but it was friendly. And it usually is. My co-counsel remarked that both defendants, if convicted, would spend the majority of their lives in jail and here we were chatting it up with the prosecutors like friends.

There are probably at least a few reasons that criminal court is more civil than civil court. First off, there's not too many of us lawyers. With 39 felony trial courtrooms for city of Chicago cases, at 3 per room, that makes 117 felony trial prosecutors. That number may sound like a lot, but it's really not. The State's attorney moves her assistants around very frequently.

I am constantly running into the same people over and over again. And the younger prosecutors I have known since they were in misdemeanor court (in some cases). 

I was told by a judge to always maintain good relationships with the State. That was good advice. I don't kiss butt, but I am courteous and respectful. And I look around the see defense attorneys who have been here for 30 or more years. There's even less of us in the defense bar. And the old ones, well they look really, really old. 

My point is that it's unwise to make enemies in such a shallow pool of lawyers. You never know who will end up a judge. And most of the Chicago criminal judges are ex prosecutors.

Defense attorneys and prosecutors are not that chummy though. I have yet to see a scene like something from Raising the Bar. There is definitely an Us v. Them mentality on both sides. And I will never trust a prosecutor fully. No matter what, their job conflicts violently with mine.

The reality is that it's the rare case that goes to trial, thus most matters are disposed of by way of a plea deal. Having the 1st chair prosecutor as an enemy isn't going to help the client if the case has to be plead. For my money, the best deals are made when everyone involved is as pleasant as possible. If you want a good deal, be nice. That's my rule.

As a side note, some judges approve all deals in their courtroom. Just yesterday I had a case where my client was caught with a gun. It was his first felony in about 15 years. He was scared of being robbed. I felt his fear was more than reasonable. But, he shouldn't have had the pistol.

The 1st chair ASA in this courtroom isn't a super pleasant person. Last year in a different courtroom, she shoved a case so far up my rear that my waist size expanded 2 inches. But I was always nice. It was a crap case, but she didn't do my client any favors. And I never forgot.

Speaking with her about the current matter found that nothing had changed. She said no probation. Prison. Prison. Prison. But my client is 45, epileptic, and has about 12 teeth of which 3 are in his right pocket. He hasn't had a case in 15 years. Too bad. This time, however, we are on different grounds. New courtroom. New judge. And this judge controls the deal making.

The judge initially said he would give my client the minimum 3 years. I opened my mouth. Then I shut it. A minute later, I walked out of chambers with probation (over the State's objection) and a feeling of satisfaction. Heh.

Was the money the client paid me to take the case from the PD and make 1 court appearance worth it? I don't know. It wasn't much. Way less than I would pay to stay out of prison.

Some defendants and/or their family think PD's work with the State. In reality, they do. Everyday. Those folks have to work together since they deal out almost all of their cases. But the perception is that due to this closeness, the PD never has the defendant's best interest in mind.

I know this to be factually untrue. But perceptions are what they are. Some private defense attorneys take it too far in the other direction. They come into court snorting and acting like jerks. Though it's probably done for show, I think it's counter-productive. No one likes jerks in my business. I mean no one.

If looking like a hard-ass is the only way that a client can be kept happy, perhaps that's a case better left alone. You can have it. But at the same time, it's important to actually have a spine and let everyone know it's there. Not everyone will test you, but when they do it's important to stare them down.

The main reason I think we are all relatively nice to each other is because of the work. I have written in the past there we are all part of the same criminal justice system. And I think in some strange way it bonds us. We all chew the same fat but from different angles.

This is very dirty work. We are not in criminal court dealing with Enron-type crimes. This is Chicago and it's always been a violent city. I predict it always will be. We see, hear, and read the true crime stories that feed movies, television shows, and books. This work is very up close and personal. But after a while you get numb to it. At least I have. For the most part. Some of it can still make me cringe.

I think I have written before that sometimes my job seems like something out of a movie. It really does. I go to the jail and hear things. I go out on the street and hear other things. I see guns. I see drugs. I see crime scenes. I see evidence. I see pictures of dead bodies. It doesn't get any more real and gritty.

But yet we in the business somehow carry on like probate lawyers. I can be in court on a very violent case talking with the prosecutor about baseball before the case is called. It's very strange. I think we all have some type of self-protection mechanism that keeps the work from eating us alive. For a while, I was honestly worried it might happen to me.

As recently as January 2010, I was, at times, feeling like I was being consumed by the very nature of my work. Not the work itself. The nature of the work. It would appear that a couple of long weekends in Mexico staring at the Pacific Ocean while watching the sunset every evening sorted me out. Or so I hope.

Back to the civility bit...

When I was in the military I was in the infantry. And we looked down on anyone not infantry. Again, it was Us v. Them. But in a time of war, we all need each other. We need the supply people to bring us food, the gun bunnys to throw 155mm Howitzer shells at the enemy,  and the helicopter pilots to fly us around.

We were all part of the same Army. There is a major difference between my job now, and my job then. In the military everyone is working towards completion of the mission. In criminal court I wish I could be naive enough to claim everyone is working for justice. But it simply isn't true.

No, in criminal court all sides have their own mission and it often conflicts with the mission of others. But somehow we remain fairly harmonious while having competing interests.

It's because there's always tomorrow and a new case.




  1. This comment has been removed by a blog administrator.

  2. Great story and advice. It really seems like you know what your doing. Keep up the good work.

  3. Thank you for pointing out what happens in a criminal court. Reading about how the criminal court system can be a civil atmosphere is surprising and interesting. Good read.


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