Wednesday, October 27, 2010

Lawyering for Liberty

Before I began practicing in criminal court, I was a civil attorney. Most civil attorneys fight over money. Personal injury, tax, intellectual property, probate, commercial, contract, divorce, medical malpractice, workers' compensation, etc. At the end of the day, it's about money.

One party is trying to get money and the other party is trying to prevent that from happening. Or at least attempting to minimize how much money the client has to pay the other party.

In some criminal cases, money is an issue too. This is especially true when forfeiture comes into play. But predominantly criminal cases are about liberty. In felony court, the State is usually trying to send my client to prison. I try to prevent that or minimize the amount of time. See the corollary with the preceding paragraph?

As a civil lawyer, I could never really get my heart into my job. Why? I couldn't identify with any benefit I ever provided to a client. I was in workers' compensation defense. If I handled a case well it meant the client had to shell out less money.

In other words, I worked for the benefit of a corporation's bottom line. Or an insurance company, but you get my meaning. I spent my entire work day chained to a billing clock that measured in 6 minute increments. And I had to account for all of it. Anything I did for the benefit of a client had to be accounted for and billed properly. I didn't like that.

Identifying with my criminal clients is much easier. If I have a client facing 10 years in the joint, that gets me fired up. I was in the Army. I know what it's like to lose personal liberty. Of course prison is much more extreme. But I had just enough taste of it to know how bad it is. Or at least I imagine how bad it is.

I have written in the past about how much more civil criminal court is compared to an average civil court where money is in dispute. I have seen opposing counsels on civil cases screaming at each other. In court. Like children.

I have gone running with a prosecutor. I have had drinks with a number of them. When we see each other in the court house we exchange pleasantries. There's really only 1 prosecutor in the entire Cook county that ever got nasty with me. She apologized the next time she saw me, much to her credit. She still doesn't like me though.

There's simply not enough of us lawyers in the criminal business to make enemies. Why? You never know who's going to end up a judge. Also you don't want a reputation as someone that's an a$$hole. No one does those folks any favors.

We are all expected to be professional, respectful, and courteous. I don't have a problem with that. A few do, however. The a$$holes.

When I first started handling felony cases at 26th & California, I introduced myself to a judge. I asked for advice in appearing in his court room. He told me to make sure I always get along with the State. That was sound advice.

I recently watched the first episode of the new NBC series Outlaw. Jimmy Smits plays a former Supreme Court justice who left the court to make a difference. In the episode he takes the case of a man who was horribly injured due to a design and manufacturing defect in a car.

He initially settles the case for $10 million. That took about 30 minutes. Then his conscious gets the better of him since part of the settlement agreement is that the cause of the accident could not be disclosed. In other words, the car manufacturer was trying to sweep their serious safety problem under the rug.

Jimmy's character, Cyrus Garza, then does something unbelievable. By his own actions, he gets the settlement offer retracted by intentionally leaking it to a reporter. He knew it would happen. In Illinois (and I am sure every other state), that could get an attorney disbarred. But I digress.

Of course when he tells the now dead client's daughter the settlement offer was yanked from the table, he fails to mention his obvious role. And this guy sat on the Supreme Court? Of what? Candy Land?

The case ends up going to trial. The plaintiff is awarded a huge judgment. And at the end of the episode attorney Garza looks like a crusader for all things just. Oh I forgot to mention that an associate from Garza's office goes to Detroit to get hired on by the car manufacturer. Once hired, she hacks into the CEO's email account and uncovers incriminating information.

Hmm. That doesn't pass the sniff test either. Does it?

In this one episode we see all of the lying, cheating, and stealing which fuel lawyer jokes. This is TV. And it's clearly not real or even close. For one you could never get a civil case to trial and have a jury verdict in a mere 60 minutes. Try 60 months. Maybe.

I cannot stomach television courtroom dramas because of how silly and unreal they really are. The irony is that, but for television courtroom dramas, I wouldn't have gone to law school. Being a lawyer looked cool on TV.

There's an article in this month's ABA Journal about why it's great to be a lawyer. Even before I graduated from law school, I met scores of attorneys that claimed if they had to do it all over again, they would have picked another profession. Today I hear of law students complaining because the job market is to bleak. And they're right.

Recently I have become somewhat disillusioned about my work. I've had trouble getting paid. Problem clients. Really difficult cases. Rapidly slowing new business. It's just been bad. But reading about how others view their roles as attorneys has lifted my spirit.

I am fortunate enough that in my practice, I get to help my client in a very one on one sort of way. And if his situation is bettered, it's a trickle down benefit to his family. My job is very people oriented. It's up close and personal. Of course, the flip side is obvious. When things don't go well, there's people lined up behind my client that are going to be adversely affected. To date, I have found it impossible to shield myself from, at times, feeling like I let a lot of people down. I have a mother. And I don't like to see mothers crying. It gets to me.

When the rubber meets the road, however, I am the only person in the courtroom working on my client's behalf. Innocent until proven guilty is an antiquated, idealistic notion that our criminal justice system was founded upon. In the Chicago felony courtrooms, however, it no longer has a place. Everyone thinks the defendants are guilty and that's how they're treated. Well everyone except his lawyer. Some of the time.

Every prosecutor I have ever spoken to about every case I've handled functions from the presumption my client is guilty. They refuse to think otherwise. I once had a very serious case where my client could have been death penalty eligible. I knew he was innocent like I know my own name. At his arraignment, I told the lead prosecutor the cops got the wrong guy. He nicely brushed it off. For the next 6 months, I was on a quest to prove my claim. And I did. Case dismissed on the day of trial.

On that day, it felt GREAT to be a lawyer. But I wonder if every lawyer out there would have believed in his client's case. Would they have directed the investigation as I had? Could that case have gone to trial and the defendant been convicted? Sadly, it's very possible because after all, the system assumed he was guilty. I am not Joe Super Lawyer but I believed in my case. I kept digging until that belief was justified. And justice prevailed. I just wish it happened more often.

The moral to the story is that, at times, I stand as the only obstacle between my client and a serious loss of liberty. For me, it simply doesn't get more real. Standing between my client and a loss of some money, however, just never took root.

Withstanding that, I do not dislike civil attorneys nor am I dismissing their work. I am also not claiming criminal attorneys are in any way superior to our civil brethren. There are lots of types of law and lots of types of lawyers. Different strokes for different folks. I've met many attorneys from across the board who have their heads on straight and do honor to the bar.
At the end of the day, however, the client's interest must come first.

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