Sinister Facts

More time has passed since my first post than initially intended, but my wife and I recently welcomed our first child into our lives…I don’t think any further explanation is necessary.  The last month has redefined many things for me personally, one of which being my definition of free time.  Not long ago I would have defined “free time” as an afternoon or at least few hours where my attention/presence was not required.  Now, “free time” is the drive to the Courthouse or maybe 30 minutes at the office to do some aimless web browsing.

During a rare stretch of “free time” I came across the short film (approx 6 mins) titled the Umbrella Man, by filmmaker Errol Morris.  It is not directly related to criminal defense, but for me, it provided an interesting example of something criminal defense lawyers are forced to deal with constantly…”sinister facts.”  Sinister facts in criminal defense are those that may have a perfectly innocuous explanation if observed in a broad context, but when a particular event is put under a microscope and cut off from the broader context, the prosecutor is free to attach unrelated and unintended meaning to those facts. Much like in the case of the Umbrella Man, the sinister explantion of the facts is often more plausible, or perhaps more attractive than the actual explanation.  Embedded here is just a small clip but I recommend watching the full 6 minute version linked above.

 

 

This came up in a recent drug casel and resurfaces in all types of cases.  Currently in New Jersey (hopefully not for long) the prosecutor is allowed to call a drug distribution “expert”.  The “expert” is essentially a former narcotics detective that has reviewed the evidence in a particular case and (based on their training and experience) will testify that certain facts are consistent with the sale of controlled substances.  He/she will testify that the amount of the illicit substance, the packaging, amount of cash present and denominations are consistent with drug distribution.  Essentially, the “expert” applies the Umbrella Man concept and attaches the most sinister motives to a certain set of facts.

For example, a defendant is arrested in possession of a relatively small amount of drugs, lets say 8 bags, individually packaged and the defendant is also found to be in possession of $300 in small denominations ($1, 5 10).  For arguments sake, let’s just say that possession is unassailable and there will be big difference if client is convicted of possession with intent to distribute, rather than simple possession.  The prosecutor, under the Umbrella Man theory, will argue that the cash is the proceeds of drug sales and the individually packaged drugs are his/her remaining inventory.  The defendant has multiple prior convictions, so he can’t just explain that he is a heavy user and earns his money from tips at a carwash/gambling/bar tending.

The challenge for the defense is neutralizing these facts by illustrating the broader context.   The defendant lives is a horrendous neighborhood, in a small apartment with 6 other family members, some are not trustworthy, all in need of some cash.  Would you leave your money there?  Of course not, money belongs in a bank.  But people forget that banks have minimum balance requirements.  You could probably deposit $300 with no problem, but you wouldn’t be able to take that money out.  If the balance dropped below $200, suddenly you are paying the bank at $20 a clip and eventually, you owe the bank money.  Bank accounts aren’t feasible for people working under the table or paycheck to paycheck.  The average juror will not understand  this, similarly the average juror will not know that 8 bags may be a light weekend for a moderate user.   Here, the sinister explanation is much more simple and easy to digest than the other explanation which requires traveling and adopting some socio-economic fundamentals.

There are countless ways to juxtapose the foregoing facts, and I got further off topic than I intended, but I’m not going to lay on the delete button at this point. This can apply to any number of alleged crimes.  To paraphrase the film, I think the main point  is that if you examine the surroundings of any event, you are going to find some weirdness and often the actual explanation may be less satisfying, even less believable, than the sinister motives that can be derived from the facts.  The challenge is getting jurors to acknowledge their own weirdness.  What if a crime occurred in your life at this particular moment?  What inferences would be drawn from the last website one visited, a recent sarcastic text message, outgoing phone calls, spouse’s insurance policy or any number of innocuous facts that could be twisted against an accused if the circumstances dictated.

Again, here is the link to the full video at NYT, not earth shattering, but interesting and made me think a little.

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Two Years in Solo Practice

It’s no coincidence that more than two years after starting my practice, I am just now finding the time to sit down and write my first blog post.  In the future I plan to use this space to write about more substantive criminal law developments, but for this introductory post I’m going to share some of my experiences starting a solo law practice over the last two years.  I have chosen this topic for a few reasons. For starters, I would like potential clients to know who I am and where I’m coming from.  Secondly, there are a lot of young attorneys going solo, or contemplating the solo path that may benefit from some of what I have experienced.  Finally, I wanted to record some of these thoughts while they were still relatively fresh in my mind, as I have a feeling I may benefit from reading them sometime in the future.  This is by no means a how-to-guide to starting a practice.  This is the way I did it, and I’m not saying it’s the best way, or even a good way…just a way.

I went to law school at American in DC with the goal of becoming a criminal defense attorney, specifically; I hoped to get a job as a public defender.  I graduated in 2008 when the job market was drying up, but was lucky enough to land a clerkship for a criminal judge back home in New Jersey.  In New Jersey, clerkships are a one year appointment, and are generally seen as a great stepping stone …however, that’s only when there’s somewhere to step to , and by 2009 the legal job market was non-existent.  In my case the public defender’s office was on a hiring freeze, and criminal defense, in my jurisdiction anyway, is a solo/small firm dominated field.  There are very few firms looking to hire criminal defense practitioners, so I had to decide whether to seek a paying job and give up criminal defense or figure out a way to make criminal defense pay.  I opted for the latter.

I got my start by sharing space with a two attorney criminal defense boutique outside of Newark, New Jersey.  The arrangement was simple, I did legal work for the firm and in return I received a nice office and access to overflow work. (This arrangement requires you to abandon all preconceptions regarding what your time is worth, because the time/hours ratio will not work out to $250/hour).  While it was nice being able to start a practice without a major expense like rent, the most valuable part of the arrangement was having experienced practitioners to turn to with questions, paired with the opportunity do substantive legal work, get into court every day and gain exposure to the criminal justice system and all of its players. One of the most difficult parts of criminal defense is learning how to get things done and figuring out who you need to talk to accomplish certain essential functions.  After law school we can all file a motion, and write a brief but effective representation often happens on the fly, and you could waste hours figuring out details like how to get your client up from holding, get a court interpreter, get a bail motion heard on short notice or lock down a bed in a drug program…the type of stuff that varies in every courthouse and isn’t taught at any CLE event (but should be).  After a couple months I became the go to guy for a group of established CDLs when they needed outside legal work and I was working all over New Jersey. Eventually, court appearances and brief writing turned into being brought into cases as co-counsel, then referrals and then an organic client base.  A few months in I was trying cases, while my contemporaries hadn’t sniffed a courtroom.

If I could stress one point here, it would be “just work”.  You could spend hours in your office tweaking your website, tweeting, answering questions on AVVO, (all of which I’ve done btw) but if you want to be a young solo the most productive thing you can do to build your practice is develop skills as an attorney and do good work.  A satisfied client or a courtroom full of witnesses to a winning argument is more valuable than anything you can say in 140 characters.  I’m not saying you should ignore the other stuff, but in my opinion it’s better to market the practice you are building than to try and build the practice you’re marketing.

People seem to like checklists on the internet, so if I had to distill what I’ve learned (still learning) into a few morsels (that I hope to remember)  they would be:

  •  Giving a crap goes a long way.  It’s not an outright substitute for experience but it can certainly close the gap.
  •  No matter how smart you are, you need someone to turn to for questions.  Luckily, CDLs are amongst the most generous and collegial in the profession.
  •  It’s always about the client first.  Just do good work and your efforts will be rewarded.
  •    Don’t expect a “thank you”, but if you get one, be grateful and you can be sure you earned it.
  • Be wary of off the rack advice – (paraphrasing) Alan Dershowitz, Letters to a Young Lawyer