Wednesday, February 9, 2011

Training a Lawyer or a Heart Surgeon...

In Illinois, a newly licensed attorney can hang up a shingle and start taking cases immediately. Not too many lawyers do this, but there's nothing in the law or rules of professional conduct that prevents it.

Consider how different this is compared to a doctor. Most medical schools are 4 years. But then there's more years learning their specialty. It takes 5 additional years to properly train a general surgeon. If that surgeon wants to further specialize in say, heart surgery, a post-residency fellowship must be completed.

Upon my entry into college at age 25, I aspired to be a heart surgeon. But somewhere about half way through undergrad, I started counting years. 4+5+3= 12. 12 more years after college before I could become a heart surgeon. This also assumes I did well in medical school and was chosen to be a surgical resident. In other words, it was no guarantee I would ever become a heart surgeon.

Had I chosen that route, and assuming everything went smoothly, I would now only be in the first year of my cardio-thoracic surgery fellowship. It's been almost 9 years since I graduated from undergrad and so much has happened. I can't imagine how I would be right now with 9 years of medical studies under my belt.

Personally, I like that doctors undergo extensive training within their specialties and sub-specialties. We put our lives in their hands. Patients that need the services of a heart surgeon are generally very sick. In heart surgery, there is no margin for error. One slip of the scalpel could be catastrophic. The pressure must be intense.

I've stood at an operating table on several occasions and watched a heart surgeon and his team work. I was impressed to say the least. I saw an elderly patient on the table under general anesthesia with his chest sawed open. There was a giant clamp across his aorta. The heart-lung machine was busy keeping oxygen rich blood flowing through the body. Except for the heart, which lie still in the hands of the surgeon. He was sewing small pieces of vein, removed from the inner thigh, to coronary arteries the width of a pencil tip. The other end of the vein was sewn to the aorta, thus bypassing an occluded coronary artery.

Once the bypass vessels were sewn into place, the clamp was released from the aorta and the heart-lung machine stopped. Blood again flowed through the heart. The tiny vessels sewn into place didn't leak. Amazing. But the heart lie still in its cavity, though now a different color due to the blood pooling inside.

All of a sudden...pop, the heart restarted. It was one of the most incredible things I'd ever seen or ever will see. But it's electrical pattern was a bit off. A shock with internal defibrillator paddles quickly fixed the problem. You could sense a slight lifting of the pressure in the room. A quick count of instruments, needles, and sponges confirmed nothing was left in the patient. The conversation quickly turned to all things pop culture as the patient's sternum was wired shut and his chest skin sewed up. A radio was even turned on.

After the procedure I was in the locker room with the surgeon where we removed our scrubs. He asked me what I thought. I was impressed. So impressed I asked how he managed to handle the pressure. He didn't flinch once during the multi-hour procedure.

"I do this everyday. It's like being a car mechanic. If you fix transmissions all day, it becomes second nature," he explained. I loved his humility. Then I asked what differentiated a good surgeon from an ordinary surgeon. Or were they simply all great surgeons? "Good surgeons know how to get out of trouble. Great surgeons don't get in trouble," was his answer.

Almost 15 years later, I've never forgotten his answer. He said exactly that.

I have written in the past that the fact I strayed into felony criminal defense isn't too shocking given that I wanted to be a heart surgeon. It's a high risk, high stakes profession. Our clients are in dire need of our help. If we screw up, they pay for it dearly.

I admit I like to play super hero at times. It feels great to win when so much is in the balance. I have often wondered if I am really in this because I genuinely want to help people or is to stroke my own ego. Given that I lose more than win, I would say my ego gets battered more than stroked, so it has to be the former.

I digress.

But if a heart surgeon messes up, or has a patient die on the table for reasons not the fault of the surgeon, the patient never knows it. They just don't wake up. Sure there's a family you have to go tell that their loved one just died. But the heart surgeon doesn't have to look the patient in the eye and say "I did my best. But I failed you."

We have heard about doctors who get the God complex. It's doubtful they would feel so God-like if they had more patients die on them then they cured. Welcome to the world of felony criminal defense, doctor. 

Criminal lawyers, on the other hand, are not done with the case when a guilty verdict is read. There's post-trial motions and a sentencing hearing at the minimum. Every time you have to go back to court after a guilty verdict, it's like revisiting the place where your mother and puppy were murdered. Ok, it might not be to that extent, but it's pretty awful. The memory of the exact moment that the word "guilty" came out of the court clerk's mouth is forever burned into memory.

No, when things go bad for a criminal attorney, the after effects linger for a long time. Much like a surgeon, we can't save everyone but damned if we don't try.

Is it right that an attorney can walk right out of law school into a murder case when the doctor gets on the job training for another decade?

The answer is yes, but with a caveat. Trying cases is not heart surgery. Heart surgeries have a logical order of steps. You must do this before you do that, etc. Repetition and practice develop the insane level of skill a surgeon must possess. There are books that tell new surgeons exactly how to replace a mitral valve.  But there are not books that tell a lawyer exactly how to try his case.

There are books on trial skills, such as cross-examination or closing arguments. But no book I've ever seen can instruct a lawyer how to work a case from the minute it's accepted through verdict. If nothing else, the practice of law is a thinking profession. Surgeries are procedure intensive. I don't think it's possible to teach a lawyer how to try a case to the extent doctors are taught procedures.

When young surgeons start cutting, there's always at least one senior surgeon there to keep an eye on things. In a criminal courtroom, there's also always at least two prosecutors trying a case. The prosecutors even do motion hearings in pairs. Defense attorneys tend to fly solo. I've been fortunate enough to have volunteer help from a law student, but they can only lightly assist, though I greatly appreciated it.

Without a residency in trying cases, what's a new lawyer to do? If one works in the public defender's office, they are brought up slowly and shown the ropes by more experienced lawyers. I imagine it takes a Chicago PD about 5 years before they try their first serious felony. PD's start in traffic and misdemeanor court for a few years. Then they spend at least a year doing felony preliminary hearings. Finally, they end up in the felony trial courtroom. By the time they get to this level, they know their way around a courtroom. They know how cases move through the system. Simply, they're experienced. But sadly, a lot of them are totally burned out.

But have they really been taught how to try a case? Or have they figured it out for themselves with a little help? I think it's the later. And every PD I know personally, would confirm this. On the other hand, prosecutors are taught a system. They all have the same demeanor in court. They use the same buzz words. They wear the same suits. They have the same haircuts. They even use the same trial notebooks. And during voir dire they even draw squares in their notebooks to make notes about each potential juror...the same way. Heading into my first jury trial, I had no system. I brought 3X5 cards to use for jury selection.

There are methods we defense attorneys can be taught. There are skills we can practice. But there is no one industry accepted way to try a case. While trials are structured the same way, no two are identical. There's different jurors. Different witnesses. Different facts. Different evidence. Different crimes, etc. With all of the possible variables, it's easy to see how duplicating a trial is impossible.

And now for the caveat I mentioned. Rule 1.1 of the Illinois Rules of Professional conduct reads:
"A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation"
What's that rule tell us? Not much, unfortunately. But the 2nd comment after this rule is a little more instructive:
"A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question."
To me this comment means that if you have a brain and are willing to hit the books and confer with other attorneys, there's nothing to prevent a lawyer from accepting any type of case, including a murder. And this is pretty much how I began my criminal practice. I watched. I read. And I asked a lot of questions from the older attorneys I befriended.

I cannot think of too many Chicago attorneys that became criminal defense lawyers one day with no criminal law background. It's just not done that much. And the list of reasons not to practice criminal law is much longer than the list of reasons to. But, it can be done. There isn't much that cannot be learned. I am still learning. I think I always will. While it's doubtful I will ever as be as skilled with my hands as a heart surgeon, I can learn to use my mouth and language to better teach a trier of fact my theory of a case.

And some day I would like to be able to know from first-hand experience that a good lawyer can push through nerves and shakiness to win, but a great lawyer believes in his case so strongly that he's impervious to self-doubt.



  1. What a fantastic post, especially for someone like me who's really just starting out. I would have liked to do the PD thing and learn that way, but so far, it hasn't happened, so I've been more or less learning as I go. Thankfully, there are a lot of senior CDLs here in San Diego (and on Twitter) who are willing to help. I think a good network of attorneys is invaluable and I really hope that eventually, I'll be a good criminal defense attorney. (I don't dare to hope for great just yet.)

  2. Hello Friends,

    This is really interesting take on the concept. I never thought of it that way. I came across this site recently which I think it will be a great use of new ideas and informations. Thanks a lot.


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