Hello 40. What took you so long?

I turn 40 next week. I remember being in high school and having friends whose parents turned 40. It seemed so damn old. My life hasn't exactly been text book in terms of a typical life progression. But then I don't think I am too typical.

I was still in undergrad when I turned 30. I was living in Austin, TX. I didn't mind turning 30. I was in a band playing original music. I was in good physical shape. I was surrounded by good people. I was able to do things I enjoyed. At 30, I hadn't even decided to go to law school yet.

It's 10 years later. I am 10 years older. But fundamentally not much has changed. I am again in a band playing original music. And it's the first such band since that band in Austin. I am still in good physical shape. Arguably better than 10 years ago. Again, I am surrounded by good people. I am still fortunate to do things I enjoy. I am pretty basic though.

At 30 I had stress. At 40 I have stress. It's a different stress but it affects me the same way. And I handle it the same way. It would appear that if your life is 100% tranquil, you might not be doing much. If you worry about nothing, you care about nothing.

In the last 20 or so years, 40 year olds have changed. My high school friend's parents seemed to be pretty boring. About the only thing any of them seemed to do for recreation was play cards. How many of them ran marathons? None. How many of them wrote music or played an instrument? None. How many went to rock concerts? Maybe one or two but it would have been to see Cat Stevens or someone like him.

I am not trying to convey that I am some super cool dude that deserves a magazine cover. I doubt my daughter thinks I am cool. Some of her friends do, however. The point I am making is that the times have changed. It's now ok to do cool things at 40, 50, 60, 70, or hell even 80.

There could be something in my blood, however. A few years back, my 83 year old Grandpa Lou went golfing one morning. He had been a golfer since way before I was born. All of my life I identified my Grandpa Lou with two things: gin martinis and golf. It was a warm early September morning. He had recently become unable to walk 18 holes at a pace the game demands. He had reluctantly started riding golf carts in his late 70's.

Grandpa Lou was never a great golfer. He was average. A good day on the course found his score somewhere in the mid 80's. But, he loved the game. It was his passion. He read golf magazines. Golf books. He wore golf clothes. And he watched it on TV. He was a golfer. As he aged, his scores kept getting higher and higher. He could no longer hit the ball as far or as accurately as he once did. By the time he was in his 80's, his scores gradually rose to the upper 90's.

But on that September morning, he shot extremely well and landed back in the mid 80's. It was an awesome round. Afterwards he went to the clubhouse and drank a couple of beers with his golfing buddies. This was as much a part of a round of golf as hitting of the golfball. Sometime in the early afternoon he grabbed his clubs and headed to the parking lot. He changed out of his golf shoes and headed home.

Upon arriving at home he poured himself a gin martini. He turned on his computer to check his email. Yes, he was 83 and had an email account. I remember his username clearly. It was: martinilou@something.com. As his computer was booting up he sat down in the chair right in front of it. Then he lit a cigar.

And then he died. Just like that. He was gone.

The next morning when I got the call from my father I was stunned. Grandpa Lou was healthy. I never knew the man to be sick. He had rotator cuff surgery back in the early 80's but that was it. It wasn't until his wake that we learned of his round of golf the day he died. The other 3 men from his foursome showed up. And each one of them, separately, told us about it.

This side of my family is extremely small. My father has one brother who has two sons. I am an only child. I have one child. So there were only 6 of us for whom to give condolences. I don't know how many people showed up. It had to have been close to 200. My cousin put together a picture collage that included pictures from Grandpa's childhood, though high school, through the Navy in WWII, into early adulthood, then as a father, then as a grandfather, and finally as a great-grandfather.

The next morning was his Catholic funeral. The attendance was much, much smaller. I gave a speech that I cried through much as I am crying right now writing this. Though we were once quite close, we had grown apart the last 5 years of his life. Now he had died before I could tell him how much he meant to me.

The point of this very personal story is that age is nothing more than a measure of time. Grandpa Lou never seemed like an old man to me. He just didn't. He took care of himself. He did things he enjoyed. And he had a passion he carried with him until the second his heart stopped and the last breath left his body.

He was also into younger women...but I'll leave that one alone. Oh...maybe just one little nugget...he had a 20 something girlfriend when he was in his early 70's. And don't think he was some sugar daddy or something. He wasn't wealthy. He could just keep up. And had the maturity and class of a man who had lived a few years. He didn't dress like an old man. He didn't smell like an old man, either. It was my grandfather of all people that turned me onto the cologne Eternity.

My Grandpa was an extremely handsome man that aged well. There is also no way on Earth he ever felt he was old. Impossible. I doubt he feared much. Even getting older. And why? Not much had changed. He never once said "oh I am too old to do that". That wasn't him.

When I sat down to write this, I had no plans to include a story about my late grandfather. I am serious. I am just as surprised that I just wrote this as you might be to have just read it. But I find myself incredibly similar to the man. And when I go, when it's my time, I want to check out in the same manner.

I want to do something I've loved doing most of my life one last time and then BAM, lights out. I sure as hell don't want to rot somewhere being slowly consumed by illness and disease. To me, that's breathing, not living.

So whether it's going for an hour run or maybe playing loud rock music on a guitar or watching a sunset on a beach or seeing my daughter smile, I'll be ready to go.

All I ask is that Dark Side of the Moon be played in its entirety at my wake. And a guitar pick be placed in my right hand. Oh, I also want to be buried in running shoes. I would also like my ashes throw into a brisk mountain wind. Then I'll rest. Then my circle of life will be complete.

But until then, I have so much more to do. I am barely getting started. So hello 40. Bring on 40 more.

When The Client Becomes Co-Counsel

Every now and then, I will get a client that finds his way to the law library inside the Cook County Jail. I've never been inside this library. I don't even know where it is. But I will assume it's like most law libraries. There's books of case law. Statutes. Treatises. Digests.

I have had a couple of clients that found case law that helped me prior to a motion hearing. I am not afraid to admit I don't know everything or have read every case on any given topic. Thus, in a few instances, the extra help was appreciated.

On the other hand, more often than not, the client begins to think he is also a lawyer. This causes a lot of problems. It forces me to spend huge amounts of time explaining why they are wrong about issues pertaining to their case. I sometimes get letters from clients laying out some legal theory that has no basis in the law. And then I have to spend an hour writing a reply letter correcting them. I suppose it's part of the job.

Clients do not know the rules of evidence. They don't seem to understand why an affidavit from a third person explaining that the client is innocent, cannot pry the jail doors open. They don't understand that lying is one thing, but proving the lie is something all together different. They assume people will testify truthfully. Only we in the business know perjury is as common in the courtroom as snow is in Alaska. You can't seem to have one without the other.

I can only imagine how frustrating it must be sitting in the county jail for months on end fighting a case. Is it unreasonable for a client to think they might be able to help their plight by a few trips to the law library? I guess not, though it's incredibly naive. If all it took was going to a law library to become a lawyer, most lawyers would be terrible in practice.

Of course, when the client creates a litigation plan, it's typically shared with the family too. Mothers and wives call me to find out when I will be putting this new plan in to action. Now not only do I have to correct the client, I have to correct the family as well. In some of my cases, I have spent more time teaching the law than actually practicing it. And it's very frustrating. No one seems to understand that credible testimony alone can be enough to prove up an entire case.

But no gun was found on my husband when arrested, so how can he be charged with armed robbery with a firearm? If there's no gun, there's no case. You can beat this, right? This one comes up a lot. Very few armed robbers are caught in the act or immediately afterwards. Most are taken into custody weeks or months later. It's hard for some to understand that if the jury or judge finds there was a gun, there was a gun. End of story.

I once had a client who wasn't being allowed to access the library. When he and I were before the judge, I mentioned the problem. I asked the judge to sign an order that I would draft mandating my client's access to the library. The judge looked up at me, smiled and said "Is Mr. Defendant now your co-counsel?" I smiled back, "no, judge. He is not."

The client clearly had other ideas. By the next court date he had assembled an impressive collection of legal nonsense and had crafted a defense that wasn't a defense. It was suicide. His well-crafted plan for trying his case was sure to end him with a 12-15 year prison sentence. The case was a dog. Absolute dog.

In the end I was able to convince him to take a negotiated plea deal and a 3 year prison sentence, of which he would serve about 13 months. Apparently, this client must have also studied for the Bar exam too because was able to craft a civil complaint and sue me for malpractice while in prison. This man had the worst criminal background of anyone I have represented. That is saying a lot. On this 13th felony, he got 13 months in prison and still sued me for malpractice. No good deed goes unpunished.

Fortunately, unlike most criminal defense lawyers, I carry malpractice insurance. My carrier hired a civil attorney to represent me and the case has been dismissed. This whole ordeal left a really foul taste in my mouth. It cost time and money. I am sure my insurance premium will go up next year. And for what?

Because a non-lawyer thought he knew the law better than his lawyer. From here on out, I am going to cringe when a client informs me he's been to the law library. Rarely does anything good come from it. Please let the lawyers be the lawyers.

When we need co-counsel, we'll ask.

www.schantz-law.com

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Spousal Consent To Search

I recently had a case where my client was charged with being a felon in possession of a firearm. I filed a motion to suppress the gun. Though many facts were in dispute at the hearing on that motion, the issue was clear: does a spouse have the legal authority to consent to the search of their husband's/wife's car?

The main allegation in my motion was that my client's wife did not have legal authority to consent to a search of his car. She signed a consent form. The car was searched. A pistol was found under the driver's seat. Case closed, right? Wrong.

My research into this issue found that a person must have some control over the thing they are giving a consent to search. This extends beyond spousal relationships. A roommate could consent to a search of a shared closet, but probably not the closet in your bedroom.

At the hearing, I got the police officer to admit that a registration check of the vehicle revealed it was registered only to my client. The cops also used keys taken out of my client's pocket to unlock the car. In fact, the officer admitted there was no evidence the wife co-owned or even shared the car.

The officers believed, though incorrectly, that a spouse could give consent to search a vehicle belonging to their better half. My research found otherwise. Going into the hearing, I knew I had to establish the wife had no control over her husband's car. How did I do this? As written above, I got the police officer to help. Then I called the wife as a witness. She testified she wasn't on the car's title, registration or insurance. She had no keys to the car and never drove it. Why? She had her own car.

Her testimony and the police testimony corroborated each other. Had she opened her purse and pulled out keys to the car to allow it to be searched, it would be a different story. Had her name been on the vehicle's registration, likely different outcome. But this wasn't the case.

The judge sustained my motion. Rather than immediately dismissing the case, the State asked for a check date. Legally the State could appeal the judge's ruling to the Illinois Appellate Court within 30 days. They didn't. Instead, the prosecutor handed me a case from the United States 5th Circuit Court of Appeals. We are in the 7th Circuit, thus this case had no controlling authority. He planned to make an oral motion to reconsider and handed me the case he was going to cite 5 minutes ahead of time and it was from another appellate jurisdiction.

An oral motion to reconsider is like telling the judge you have no real legal basis for your motion but are doing it anyway. If you have a good motion to reconsider, you write it, cite case law and argue like mad in the motion. But I digress.

I sat down to read the case and interestingly enough, it restated the law exactly as I argued it at hearing. The case held that a spouse with joint control over an automobile may give consent for it to be searched. There's that word control again. I thought we had settled this? The State made a pretty novel argument. It was argued that if this was a civil case, the wife would have a marital interest in the husband's car should the marriage be dissolved. Thus, it was further argued, she has control over the car.

I didn't see the logic behind this argument. Neither did the judge. Motion to reconsider was denied and finally the case was dismissed. This case is a perfect example of an issue for which I didn't know the law. Initially, I had no idea whether his wife could give legal consent to search. But I looked it up and though I didn't find a case directly on point, I did find the black letter law regarding giving consent to search property of another. I argued that being married does not create a legal authority to give consent to search your spouse's car. A showing of some control over that car must be shown to validate the consent, married or otherwise. And since it was not shown that the wife had any control over her husband's car, the consent was not valid and the gun must be suppressed.

The judge agreed with me.

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What Is Possession?

Here's a hypothetical based on a case of mine:

The police have an arrest warrant for Person A. They are able to trace him to a residence by phone calls he made from inside. The police assemble a small task force to go and apprehend Person A.

Person A is staying with his cousin. He has for about two weeks but isn't getting mail there. Her boyfriend, Person B, also lives there. Person A and Person B are both on parole, thus both are technically in violation of parole since they are both felons and are not allowed to reside together while on parole. Legally, only Person B resides at this residence. Person A is more of a guest.

The police arrive. They knock on the door and announce their office. Person A has a pistol. The cops know he likely has one. Person A panics. He heads for a window. Before he opens it, he throws his pistol on the kitchen floor. His cousin, the leaseholder, tells her boyfriend, Person B, to get rid of the gun. After all cops are about to bust down the door.

Person A hops out the window and is immediately arrested. Person B picks up the pistol and throws it in the oven. The cops are let in. They find the handgun. Person B and his girlfriend tell the same story. It's the version you just read. Person A, however, says the pistol belonged to Person B.

Both Person A and Person B are arrested and indicted for possessing the handgun. You might ask, how two people can be charged for possessing the same thing. I asked myself the same question. I was hired to represent Person B. He was immediately violated and sent back to prison where he remained for about 4 months until his parole was over. After that, he was sent back to the county jail.

His girlfriend hired me. They later got into a fight. She stopped paying me. What do I do with this case?

It's a great case in front of this judge. The state knows it. As charged it was a minimum 3 years. I filed a motion to suppress and later withdrew it. The issue wasn't the arrest, it was that he was even charged after the fact. And if I attempt to suppress the gun it's not going to fly. A defendant has to have a possessory interest in something in order to suppress it. In other words, you can't suppress something that's not yours.

The police were in the residence lawfully. They were granted consent to search. Though on the surface it appeared there was a legal issue, it was really just one of fact. Did Person B actually possess the gun for purposes of the statute? I felt he didn't. I think the judge would have agreed with me....but....

I decided to try the case anyway. It would take an hour at most. The State finally flinched. At my suggestion, they offered to reduce the charge so that a 1 year sentence could be given. My client had in enough county time that this sentence means nothing. He would what we call "dress in and dress out." In other words, he would walk into prison and shortly after walk out on parole.

The State made the offer. I relayed it. He took. He will be on parole before his case ever got to trial. And at trial....he could lose. Winners all around? I don't know. The State got a conviction. I got out of a trial I wouldn't be paid for. But what about the client? Did he win? That depends on your view.

Obviously another felony didn't mean anything to him. At this point he's already been locked up over this for 7 months. What's a few more weeks? Or at most a couple of months? He jumped at the offer and then thanked me up and down for sort of getting him out of this jam.

When taking his plea, the judge (a substitute) was told about his felony background. She remarked that he was getting an awesome deal that his attorney worked hard to get. I am standing next to him not thinking about my handling of the case. Instead, I was thinking about yet another client who just lost a year of freedom over a ridiculous case.

And the thing about this case is that it sailed through the grand jury. This case took less than 15 minutes to indict. Walking out of the courtroom I couldn't help but hope I never have to plead guilty to something I am not guilty of simply because the risk of maintaining my innocence could mean more prison time.

Was this case a winner at trial? I think so. If so, why did he take the deal? My own speculation is that the outcome was determinate. 1 year in prison. Trial risk was 3-7 years, plus a higher grade felony that could have really stung in the future. And also the fact that he will be home sooner than his trial would have been scheduled to begin. Trials rarely proceed the first time they are set. In theory, and based on my practice, he could have sat in county until May or June before he got his day in court.

There's just something not right about this.

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Carrying a Gun: Illegal Necessity?

The streets of Chicago are violent. We have a lot of gun crime. I have written extensively on gun-related issues. Over the last couple years, I've seen a pattern of gun possession cases that are alarming.

Many of our city's youth are carrying concealed handguns. That's a fact. But why are they carrying them? The reasons vary. Some kids want to be hard. Some kids want to shoot rival gang members. But many of my clients have carried them for protection. Or at least they say.

If you live in an extremely violent neighborhood where shootings are common, you have some limited choices (assuming moving isn't one of them):

A. Don't leave the house.

B. Don't carry a gun and risk being killed because you can't defend yourself if shot at.

C. Carry a gun and risk some prison time if caught.

Unfortunately all three choices stink, so maybe D. None of the above?

But I have had to ask myself what I would do. I know these neighborhoods. I know how violent they are. I've seen some of the bodies. I go in during the day and don't get near them at night. As the crow flies, Chicago isn't that big. But it's incredibly dense. My neighborhood is pretty safe from random street violence. But drive as little as one mile away and it's gangland.

My investigator is a retired homicide detective. He's allowed by law to carry a concealed firearm. He never leaves home without his .38. It's neatly clipped to the inside of his trousers like a beeper.

Survival is an instinct. A few million years of evolution have firmly implanted it in the human psyche. We eat to survive. We seek shelter in inclement weather to survive. We seek medicine to survive.

Thus the question is: is it morally wrong to arm yourself if it extends to your own survival? Not withstanding the law, is carrying a 9mm in Englewood different than wearing a winter coat when it's -10? Or eating to prevent starvation? This is an interesting philosophical question geared towards a college classroom where it can be examined in the abstract. I haven't the time for it. There's argument on both sides.

Arming oneself could also have a deterrent effect if it's well known you're packing. This could also work the other way if someone has to deal with you. They're going to be sure to bring a gun since they know you have one. You never want to be the one that brings a knife to a gunfight.

Personally, I don't condone arming oneself. I don't like pistols. But I understand why some do so. And it's probably why pistol cases are as benign to me these days as jaywalking. Two years ago my reaction was different. A mother would call and tell me her son got caught with a gun. I would think "oh, he must be a real thug if he's walking around with a gun!"

Then I would go to the jail and meet the son. And more often than not, son wasn't a thug. Son was  a 17 year old boy that lives in fear of getting shot and killed because he's surrounded by violence. Sure, I've had gang banging clients that sling dope. This is Chicago. I am a felony defense attorney. One party is sure to meet the other.

But I honestly believe that many of my pistol carrying clients were simply scared. The kind of person that would pull out a gun in a split second and shoot someone is markedly different than a kid carrying it for protection. They are as different as rabbits and pigeons. And I can tell in 2 minutes which one they are.

I've had very few clients that scared me. There have been a few, but most of them were just caught up in a series or poor decisions. Sometimes I think I've helped break that cycle, but in others, I'm just another tooth on the gear.

I still respect the law, however. Protection or not, it's illegal to carry firearms in most scenarios. The idea behind the law is public safety. But when too many people violate that law, public safety goes out the window and you end up with what we have now: violent streets.

This feeds the argument that if people (criminals) are arming themselves anyway, law abiding citizens should be allowed to as well. For protection. There's argument on both sides of this proposition as well. However, I don't see the logic of adding more guns to increase safety. I don't need a gun for protection. I don't live in fear. I avoid situations that unnecessarily put myself at risk. But if trouble somehow did find me, am I going to get in a shootout over my wallet? My car?

I don't carry cash and most would-be carjackers can't drive a stick, so I am ok. But not everyone in the city is like me. Some people do live in fear, like some of my clients. And they feel they need a gun for protection. But the law says "no".

If public safety is questionable and police efforts futile, what's one to do? Some choose to survive by any means necessary. A few months in prison is surely better than a box and 6 feet of dirt before you're 20, right?

I am thankful it's not a choice I have to make. Really thankful.

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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.

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2010: A Review

2010 was my second full year in private practice as a criminal defense lawyer. Compared to 2009, I took on about half as many cases but earned about the same amount in fees. And though I opened 50% less files, I worked the same if not more.

In 2009 I handled a lot of misdemeanors (~50). In 2010, it was only 3. In 2009 I took on cases in the suburbs. In 2010, I did not. So, I definitely did less running around this year and probably spent less on fuel for my car.

Starting in fall 2009, my cases started to become more complex and more serious. I don't know how it happened, either. It just did. I suppose I even welcomed it. But I was blinded by hubris. I wanted the tough cases.

That was until I experienced how it feels to lose one.

I liken serious felony defense litigation to playing the high stakes tables in Las Vegas. You can win big, but odds are you're going to lose big. That was my 2010 in a nutshell. I lost two very big trials. Each client ended up being sentenced to over 60 years in prison.

An objective look at my performance in both trials is frustrating. I wasn't perfect. But I did the best with what I had. I believed in both cases and I argued passionately for them. I can blame the jury for one and the judge for the other but that changes nothing. Because I know I lost. And that's all that matters.

At one point back in October when this year finally started to take a toll on me, I felt like running back to misdemeanor court with my tail between my legs. And why not? No one goes to prison in misdemeanor court. The majority of the cases are dismissed, which makes the defense lawyer appear brilliant to the client. But the lawyer knows better. At least I did.

Compared to felony court, misdemeanor court is a world away. It might be a Chicago thing, but no one seems to take it very seriously. The arresting police officers are regular no shows, thus the easy dismissals.

I guess I liked the grit of felony court. But by the time October rolled around, the grit had worn me to the core. I was one giant open sore. I became fearful of my job. And that's never good. At times I was scared to go to court because the thought of losing any litigation was unbearable. For a while the anxiety consumed me. It's no coincidence that this happened after the Chicago Marathon when I was injured and unable to run.

Apparently running is my means of coping. When it was gone, it got ugly and fast. I stopped sleeping. I stopped eating. I stopped smiling. I stopped caring. I stopped being me. I withdrew into myself in an attempt to make sense of what was going on around me. I knew the system is broken and largely unfair. But it didn't get to me until this fall. I kept it at bay until I was no longer able.

It would seem that November and December were saved for the worst to come: the sentencing hearings. Once the motions for new trials were argued and denied, it was time to add up the years. I couldn't put it off any longer. I had no more cards to play. The time had come.

Walking into court for the first sentencing hearing found me fresh off a night of no sleep and completely frightened. The sentence could have been life. Instead it was two 31 year consecutive sentences. The client is in his mid 30's. It was in effect a life sentence. And somehow he was more at peace than myself. How can that be?

In early December the second client was sentenced. He got 48 and 15 year consecutive sentences. He's young. He has a good appeal. I have hope. But he, too, was somehow a lot better off than his lawyer. When I saw him in the lock-up before his hearing I asked how he was doing. "I am blessed" was his answer. How?

For some unknown reason, both of these clients still have enough faith in the system to believe their situations will be corrected. I, however, do not. I am too familiar with the system that convicted them in the first place.

The second client had a co-defendant in his case. He was also convicted and sentenced almost the same. His attorney was a very experienced PD. I spoke with her at length before the sentencing hearing. I needed help dealing with all of this. She's been around for over 20 years. Like most defense attorneys, she's lost more than she's won. I asked her how she has managed to hang around so long.

She gave me some words of advice and I will leave it there. But it was a conversation I dearly needed to have.

2010 wasn't all bad. I prevented a couple of 60 year sentences. I sent a few people home that had no business being in the county jail. I also won a number of suppression motions. I probably won more than I lost. I don't keep track of statistics, however.

Looking ahead to 2011 found me remembering a scene from Band of Brothers. If you're not familiar with that title, it was an HBO mini-series that chronicled a group of men in World War II. To me, it's probably the greatest story ever told through film.

During the battle of Normandy a captain finds a young private in a fox hole. The private tells the captain that he's scared. The captain tells the private that everyone is scared. Then the captain tells the private the key to survival is to accept that he's already dead.

Pretty profound. But highly useful. Admitting you're dead allows you to let go of fear and actually function. Extrapolating this into my world isn't as obvious, but I've figured it out.

I welcome whatever 2011 has in store for me. I have been to the bottom. And I survived it. But barely.

It can only get better.

www.schantz-law.com