Take the client and run

Car­olyn Elefant’s recent post on her blog asks the ques­tion, what should we do with the small and solo firms who are behind the times and don’t even seem to be aware that there are times to be behind? In short (don’t believe me, go there and read it your­self) she sug­gests that we should lend a help­ing hand to the technologically-stunted for the sake of their clients.

I’m not con­tent to let the old firms sim­ply rot and die off if they take clients down in the process.


This is an admirable posi­tion. My only prob­lem with this raised itself in the back of my head when I read the fol­low­ing phrase in her post in describ­ing some of these attorneys:

What about the lawyers too busy to return clients’ calls — and who con­vince clients “that’s just how it is,”…

Some­one very close to me recently had to engage a lawyer for a fam­ily mat­ter. The lawyer in ques­tion is one half of a small local law firm; the firm had come rec­om­mended by trust­wor­thy peo­ple. I was pretty bummed that I was not able to help this per­son, being a mere law stu­dent and hav­ing passed up on Fam­ily Law this semes­ter in favor of Law Prac­tice Man­age­ment. How­ever, since I’m the only per­son who is at all acquainted with the legal sys­tem who is close with this friend, I was kept in the loop and con­stantly apprised of the legal situation.

Imag­ine my sur­prise when my friend started to com­plain about how phone calls were returned days later, about how my friend was never noti­fied by the lawyer as to a change sit­u­a­tion — the lawyer only offered infor­ma­tion once my friend called. When my friend raised these issues with the lawyer, the response was that busi­ness prac­tice is to call clients 7–10 days later and that my friend should feel lucky that the lawyer was return­ing calls after only 3–5 days!
I pointed out to my friend that both books we were assigned for LPM, Jay Foonberg’s and Car­olyn Elefant’s own “Solo by Choice” sug­gested that a lawyer return calls within hours and hardly ever more than a day later.
I pointed out to my friend how both experts agree that lawyers should not “nickel and dime” clients over min­i­mal fees when the lawyer charged for 5 minute phone calls.
I had noth­ing to say when the lawyer started yelling and curs­ing at my friend for not pay­ing in a man­ner that this lawyer thought was proper. My friend was pay­ing off the bill, just not fast enough for the lawyer — this after the lawyer failed to even use an engage­ment let­ter or fee agree­ment.
My advice from the begin­ning was to get rid of the schmuck and find a good lawyer.

If there are lawyers and small firms out there who are delib­er­ately hold­ing out on ways to bet­ter serve their clients, we’d be bet­ter off edu­cat­ing the clients about what they should expect and demand from their lawyers. If the clients decide to cut-bait and run, deservedly so.

Published on 04/01/2009 6:49 pm.
Filed under: blawg Tags: , , ,

3 Comments »

  1. Frederic Abramson says:
    04/01/2009 at 7:44 pm

    I believe that most attor­neys really want to answer clients inquiries asap. How­ever, what do you do if you are on trial and you have 15 non-urgent mes­sages wait­ing. Or, you have a fil­ing dead­line and the same client con­stantly calls with non-urgent messages.

    If it is slow, it is really easy to answer mes­sages asap. How­ever, clients need to under­stand that at times attor­neys get busy and need to prioritize.

    Reply
  2. mglickman says:
    04/02/2009 at 9:15 am

    That is absolutely true. I think what just about every aspect of client ser­vice comes down to is the atti­tude with which you treat your clients. Car­olyn men­tioned in her book the “bed­side man­ner” that lawyers need to have — do you tell the client that his/her call had to wait just because, or do you explain the rea­son why?

    Reply
  3. Carolyn Elefant says:
    04/06/2009 at 2:05 am

    You are right that if we are in con­tact with clients who are rep­re­sented by sub-standard lawyers we should tell the client to find another lawyer. How­ever, in a sit­u­a­tion where we’re not able to tell that to the client, I think we should try to see if there are things we can do to get lawyers to improve ser­vice. Also agree that client edu­ca­tion is para­mount, so that clients know to expect bet­ter and can find alter­na­tives when a lawyer doesn’t work.

    Reply

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Love of justice

This post is some­thing I have been think­ing on for a while, but Laura McWilliams prompted me to post it with her Love of the Law, part 2 post.

I went into law school with a gut feel­ing that I could never defend crim­i­nals, and that if I went into Crim­i­nal Law it would be as a prosecutor.

Then I was intro­duced, through the eyes of cases skimmed dur­ing class and through the per­spec­tive of the Crim­i­nal Defense attor­neys I “met” through twit­ter, to the Crim­i­nal Injus­tice sys­tem of our country.

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Published on 07/02/2010 7:30 am.
Filed under: blawg Tags: , , , , , ,

Scott Greenfield

Today is Scott Green­field Day.

I know it is because the blawgers I enjoy fol­low­ing have told me it is.

I have quoted Mr. Green­field exten­sively (or what counts as exten­sively for this blog) here, and it’s not a coincidence.

It’s also not a coin­ci­dence that he is one of the main rea­sons I have become so incred­i­bly inter­ested in crim­i­nal defense.

That will be all.

Published on 06/07/2010 9:27 pm.
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Berghuis v. Thompkins

The Supreme Court issued Berghuis v. Thomp­kins today. In it they held that a defen­dant must make an affir­ma­tive invo­ca­tion of his or her right to remain silent and to an attorney.

Thomp­kins, the defen­dant, was sub­ject to a 3 hour inter­ro­ga­tion in an 8 x 10 foot room. dur­ing the entire inter­view, Thomp­kins remained silent — exer­cis­ing his right to remain so. SCOTUS decided that remain­ing silent isn’t enough, a defen­dant must make a “sim­ple, unam­bigu­ous” state­ment such as “that he wanted to remain silent or that he did not want to talk with the police.” (page 10 of the major­ity opin­ion) and that fail­ing to make such a state­ment meant that he did not invoke his right. To remain silent. By remain­ing silent.

The court then decides that remain­ing silent for nearly 3 hours and finally giv­ing a mono­syl­labic response is “suf­fi­cient to show a course of con­duct indi­cat­ing waiver.” (page 14 of the major­ity opinion)

Among the ridicu­lous­ness of this deci­sion — and I believe it is ridicu­lous — the thing that strikes me the most is the way the court ana­lyzes the issues. The Miranda warn­ings exist to inform defen­dants of their rights, and the options open to them. They are asked whether they under­stand the rights, so the warn­ing is obvi­ously for the defen­dant. So why does the court (and I’m not lim­it­ing this to Berghuis, it applies equally to ear­lier cases such as Davis, which this opin­ion relied upon) assume that the defen­dant knows he must break his silence imme­di­ately after being told that he has the right to remain silent?! Change the #$!@#& word­ing of the warn­ing! Every­thing else in the opin­ion stems from that sim­ple idi­otic assump­tion. Waiver only comes up since the court found that Thomp­kins never invoked his right to remain silent.

I know I’m not adding any new or bril­liant analy­sis, but I had to get that off of my chest.

Published on 06/01/2010 3:28 pm.
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One man’s anal retentiveness is another man’s freedom

In my Mary­land Crim­i­nal Prac­tice class this evening, the pro­fes­sor men­tioned an unre­ported opin­ion of the MD Court of Spe­cial Appeals that was issued on Tues­day, May 24th.

Par­en­thet­i­cally, this is an incred­i­bly inter­est­ing and seem­ingly prac­ti­cal class that is taught by Judge Dana Levitz, a for­mer State’s Attor­ney and head of the trial divi­sion for Bal­ti­more County and for­mer Md. Cir­cuit Court judge who is now the judge who deals with the ini­tial incom­ing prayers for jury cases from the Bal­ti­more County Dis­trict Courts. I plan on devot­ing an entire post to Judge Levitz and his phi­los­o­phy regard­ing his cur­rent position.

The opin­ion, Clark, Dar­rell Mau­rice Jr. v. State, Docket 1393/08, was issued by Judge Davis. To (very briefly) sum­ma­rize, a first-degree bur­glary con­vic­tion which car­ried with it a 20 year prison sen­tence was vacated as a result of a slight, but incred­i­bly impor­tant, defect in Bal­ti­more County’s form first-degree bur­glary charge lan­guage.
The form lan­guage uses a short-form cita­tion to estab­lish the ele­ments of the crime, which I just learnt is per­fectly accept­able. How­ever, instead of cit­ing the statute within the charge, the cita­tion is recorded after the required con­clud­ing phrase of “against the peace, gov­ern­ment, and dig­nity of the State.”
The defense attor­ney moved to dis­miss the charg­ing doc­u­ment as defec­tive on this ground in pre­trial but the trial court refused, ask­ing how that could make any difference.

The Court of Spe­cial Appeals begged to differ.

Spec­u­la­tion as to how this will affect claims of inef­fec­tive assis­tance of coun­sel and whether this would or would not be counted as being charged in terms of dou­ble jeop­ardy were bandied about in class, but the most impor­tant thing Judge Levitz wanted us to get out of the case is how ripe with pos­si­bil­ity charg­ing doc­u­ments are for defense attorneys.

Like I said, this seems like a prac­ti­cal class.

Published on 05/27/2010 9:00 pm.
Filed under: blawg Tags: , , , , ,

Think of the children!

Sex offence is a treach­er­ous subject.

As a father, I am gripped by the slight nau­sea and imme­di­ate gut-reaction of want­ing to hurt some­one who hurts chil­dren. I’m okay with that. Child rapists are among the low­est of the low; that’s not some­thing I will change my mind about.

I feel sim­i­larly, if less vis­cer­ally, about a man who forces him­self on a woman — your stan­dard rapist.

If our laws were directed specif­i­cally at those mis­cre­ants, there wouldn’t be the (same) prob­lems we cur­rently have. Unfor­tu­nately, some­one, and I’m not sure who, decided that the only way to keep our chil­dren safe is to come down hard on sex offend­ers. Sex offend­ers has become syn­ony­mous with child rapists in the mind of the pub­lic, so any­thing done to and in pur­suit of sex offend­ers is fair game.

That by itself is wor­ry­ing, since even the low­est of the low have rights, but it just keeps get­ting worse.

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Published on 04/30/2010 12:43 pm.
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Sentencing anarchy

Sen­tenc­ing is hard.

I know, it’s an incred­i­bly dif­fi­cult line to toe; try­ing to bal­ance pub­lic safety, pub­lic opin­ion, vic­tims’ expec­ta­tions, deter­rence, reha­bil­i­ta­tion and equity. How much def­er­ence is due to any of those fac­tors? When politi­cians decide to get involved in the sen­tenc­ing, it mud­dies up the already murky pool.

There are some things, even among hard deci­sions, that should be no-brainers. If I were to ask you whether a con­victed crim­i­nal should get 5 or 15 years in prison, it’s not always an easy deci­sion to make. If I were to ask you if the leader of a vio­lent drug gang should receive a lighter or harsher sen­tence than a young woman who placed a 13-yr old boy’s hand on her “brasier-covered breast,” as Scott Green­field put it, that’s not such a hard decision.

One would think.

Yes, there is leg­is­la­tion that is in play. And yes, these are dif­fer­ent states. But this type of arbi­trary dis­par­ity occurs day in and day out.

I’m not offer­ing any solu­tions. I’m just point­ing out how bro­ken it is.

Published on 04/29/2010 10:14 am.
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Hank Skinner

I sub­mit­ted my request at http://www.governor.state.tx. us/contact/

I am weigh­ing in on the impend­ing Hank Skin­ner exe­cu­tion. I believe it would be a shame to allow this to go for­ward for two main rea­sons.
The first rea­son is one of jus­tice. If there remains untested evi­dence that may excul­pate Mr. Skin­ner, not allow­ing it to be tested prior to his exe­cu­tion would cast a pall over all aspects of the crim­i­nal jus­tice sys­tem.
The sec­ond rea­son is one sim­ply of pub­lic rela­tions. Allow­ing a 30 day reprieve, solely for the pur­pose of test­ing the DNA, seems like such a minute ges­ture to com­bat the seri­ous pub­lic­ity issue that this has generated.

Please make the right choice, and help guide any oth­ers nec­es­sary in mak­ing that choice.

Moshe Glick­man

Published on 03/24/2010 9:46 am.
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Abbot v. MD

Over a year ago, I helped a local attor­ney on a crim­i­nal appel­late case. I did some legal research and helped draft the argu­ments for the client’s appeal to the MD Court of Spe­cial Appeals.

In Octo­ber, I sat in the court­room after meet­ing the client and lis­tened to oral argu­ments on the case. I was still involved enough that I was mouthing answers to the court’s ques­tions from my seat against the wall.
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Published on 02/26/2010 9:35 am.
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Thoughts on Maryland v. Shatzer

The Supreme Court recently ruled that there is a 14 day time limit to a defendant’s Miranda rights.
Scott Green­field has writ­ten about it, as has Orin Kerr.

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Published on 02/25/2010 10:23 am.
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Wreaths over water

Scott Green­field over at Sim­ple Jus­tice posted today about the cus­tom of lay­ing wreaths on the graves of those who have made the ulti­mate sac­ri­fice for their coun­try, thanks to a pro­gram called Wreaths Across Amer­ica.
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Published on 12/16/2009 11:44 am.
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