Sunday, August 3, 2014

Are 80% of lawyers incompetent and lazy?

Are 80% of lawyers incompetent and lazy?

I recently had lunch with a circuit judge who thinks this statistic is accurate!

In 19 years of practicing criminal defense law, I have never had lunch with a judge.
I avoid the practice because I don’t think lawyers and judges should socialize because it can lead to charges of favoritism or an accusation of bias by the public who are quick to draw negative conclusions from innocent social affiliations.

When this judge asked me to meet, I had no idea why. Usually when I am summoned by a judge, the judge wants to ask me to consider taking some case so horrific the lawyers in that judge’s district won’t touch it. The child rapist or child serial killer is often to hot to handle for small town lawyers. (Think Atticus Finch in To Kill A Mockingbird.)

So, I arrived for lunch assuming I was going to be asked to take a case no one wanted.

To my surprise, the judge, who arrived with judicial staff in tow, told me a tale of a recent trial in which this judge became aware rather quickly that a lawyer representing the defendant was completely incompetent.

This judge told me that he’d considered declaring a mistrial rather than let the case go forward. He regretted that he didn’t do it after the defendant was found guilty. The judge was pondering voiding the verdict and ordering a new trial.

Then, the judge looked at me, his face a mask of deep concern, and explained. “I know you teach trial strategy to lawyers all over the place and I know you’ve written several trial strategy books. I know you do post-conviction relief as well. I want to ask you a question: Of all of the lawyers that you see in the courtroom, what percentage do you think are competent?”

I pondered the question for a moment and replied with a question. “What percentage do you think are competent, Your Honor?”

The judge sighed, dug his fork into his salad, and shrugged. “Maybe 30 percent.”

“I think it’s more like 20 percent,” I said.

The judge looked at me and shook his head. “I was going to say 20 percent, but I thought maybe I was being harsh.”

The judge then told me about his frustrations. Each week defendants come to court with both appointed and retained attorneys and all too often the attorneys don’t know even the basic facts of their cases. They come to court “winging it,” the judge said. “They’re trying to handle cases without having to do any work. They aren’t earning their money and they aren’t helping their clients.”

Even worse, the judge said, these lawyers don’t know the basic elements of how to conduct simple hearings like motions to suppress, motions to limit evidence, or even basic plea hearings.

“We’ve got an epidemic of incompetent – or lazy – lawyers,” the judge said sadly.

We talked about recent jury trials over which the judge had presided. He said the lawyers didn’t know how to strike a jury, offer an opening argument, cross-examine witnesses, make valid legal objections, make appropriate motions, argue a closing argument, handle a charge conference. In short, it was as if they’d never been to law school.

The judge also complained that the new contract system in Alabama, where lawyers are paid a flat monthly fee from the state to take indigent defense cases –  without having to file separate billings per case – was a failure.

“These lawyers are taking that steady monthly check and not doing the work,” the judge said. “I can tell. They think I can’t tell that they’re not prepared, but it’s obvious.”

I explained to the judge that the reason I write trial strategy law books and the reason I teach trial strategy seminars is to try and motivate lawyers to become better trial practitioners.

A full 1/3 of my practice is fixing the mistakes of other lawyers. Rule 32 petitions in Alabama, and habeas corpus petitions in federal court, are used by lawyers to void a wrongful conviction and get that wrongfully convicted person a new trial.

To succeed with these petitions, one of the things you have to allege is incompetency of the trial lawyer. The standard is this: But for the incompetency of the trial lawyer, there would have been a different result, such as a verdict of not guilty.

Sadly, it’s not very hard to reach that standard in most cases.

I told the judge the biggest problem I see is that most lawyers try their cases only on the facts. They analyze their cases only on the facts. If the defendant is caught red handed and confesses, these lawyers throw up their hands and tell the client to take a plea.

These lawyers don’t recognize that a criminal trial is like the famous five level chess board on Mr. Spock’s desk in Star Trek.

Lawyers are taught in law school to try their cases on three things: 1) the law; 2) the facts; and 3) the rules of criminal procedure. I explain in my seminars they also must be tried on 4) the poker and 5) the human psychology of the people in the system.

Lawyers who play poker are better lawyers than lawyers who don’t. Poker is a game of strategy, risk-taking, bluffing and knowing when to show cards or hold them. You also have to psych out your opponent.

All of the bad lawyers I see simply try their cases on the facts and the sequence of events. Period. You can hold a poker hand of two 2 cards and win a trial. You gotta know how to use the procedures and the poker in your favor. I’ve won trials where my client was caught dead to rights but the police or the prosecution violated a rule of procedure, voiding the evidence they seized. It happens often. It’s my job to win, using any of the above-listed elements to do so.

Sadly, I don’t see the bulk of lawyers trying to improve their skills. I wish I did, but I don’t.

Thankfully, 20 out of 100 lawyers care about their performance, care about their clients and work their butts off to win their cases. Sadly, that leaves another 80 percent that need to learn how to do their jobs or find another line of work.

Required by Alabama law: These recoveries and testimonials are not an indication of future results. Every case is different, and regardless of what friends, family, or other individuals may say about what a case is worth, each case must be evaluated on its own facts and circumstances as they apply to the law. The valuation of a case depends on the facts, the injuries, the jurisdiction, the venue, the witnesses, the parties, and the testimony, among other factors. Furthermore,,no representation is made that the quality of legal services to be performed is greater than the services of other lawyers.