I am often called and told about very problematic criminal legal situations. It's doubtful I am the only attorney being consulted. In some cases, what other attorneys supposedly say is thrown at me.
"Attorney Smith said if I pay him $1000, he will beat this case at preliminary. Can you do it for $750?" I hate calls like this. But they happen. I don't know who attorney Smith is. But if he's claiming he can beat cases if you pay him enough, I have problems with that. It's unethical and illegal. And it gives lawyers a bad name. We have enough problems.
When someone calls about a preliminary hearing I just tell them the truth. Most defendants lose their preliminary. They do. It's a fact. But I tell the caller if only a small amount of drugs were found, the case might get thrown out. This is also true.
What about a pistol case? Can I beat that? Probably not. Those almost always lose at preliminary. I have seen one beaten. I was the attorney. It was a unique fact pattern as opposed to the typical car search or protective pat down.
There is some myth about cases getting beat at preliminary. It's also as inaccurate as the myth about how easy it is to get house arrest. These jail house myths spread by jail house lawyers can make my life frustrating.
Some callers already have their minds made up about how things are going to go. If I try to gently correct their perceptions one of two things happen. They either believe what I am telling them or they choose to argue with me. I don't argue on the telephone. I argue in court.
I run a business. I have to make money. I make money by taking cases. The initial phone call is where it all starts. If I have to spend time telling someone what they don't want to hear, it's unlikely I am going to be hired. Honesty can also be costly in the short term.
At some point they are going to realize I was 100% honest with them. But it will likely be too late. I have gotten calls like this: "We're sorry we didn't listen to you." I have yet to pull the trigger on the "I told you so!"
There are lawyers among us that only do preliminary hearings and guilty pleas. This has to be true. I see a lot of private attorneys at prelims. But I see so few actually in the trial court litigating by motion or trial.
I have a problem with that approach. If I take a case before the preliminary hearing, I am prepared to handle the case until it's disposed of, by whatever means. Of course, I have to be paid, but mentally I am already there.
Taking a case for an initial little bit of money with no intention to follow it through isn't client servicing in my opinion. We have two generic phases in a felony criminal case: preliminary and trial.
The phases are in different courthouses and in front of different judges. The preliminary phase is short and sweet. It's about 5 minutes worth of lawyering. Whereas the trial phase can equal months or years of work.
And I recently felt how lovely it is to have almost a year's worth of work tossed aside by a 45 minute verdict. That still stings. In writing this just now, I have figured out why so few of us litigate. It's work. It's a lot of work. And no matter how much work is put in, a bad outcome can still happen.
Losing a case that you have lived and breathed for a long time can really damage the spirit. I can't really describe what that type of loss feels like. It's unique. Maybe some can't handle it. Perhaps it's like losing the Gold medal hockey game in the Olympics. Or game 7 of the World Series....so close....but NO.
But my approach is still to go the distance, no matter how long that is.
At the end of the day, all I can promise is to show up and be a professional advocate for the defendant. Promising a bond will be reduced or that a felony will turn into a misdemeanor is dangerous business.
I don't like to make promises unless I am sure I can deliver. And I am never quite sure what's going to happen in a courtroom.