Monday, January 19, 2009

White Collar Crime and the Solo/Small Firm Practioner: Why Going "Small Law" Makes Sense

If history is to be believed, Dreier and Madoff is the tip of the iceberg in the prosecution of White Collar crimes. If the Junk bond debacle is any indicator of what is to come, a lot of people are about to be investigated and indicted. Many of these folks will be in New York, but there will be cases in many smaller legal venues as well. Many of those who are arrested will make the move to hire big law firms and big legal names. This time however, that may be the biggest mistake they will have made.
Wall Streeters and other white collar clients, who seek out big firms are usually thinking that :

1. Only big law firms will have the resources to handle the kind of paper and evidence that accompany the big white collar crime cases.
2. They want lawyers who are familiar with the "way things work" on the street.
3. They also want lawyers who have worked on the "other side" of the law. In other words, they want lawyers who have been Former Assistant US Attorneys.
4. Finally some believe You get what you pay for. The more you pay, the better the lawyer.

While each of these myths have some validity, the truth is that in today's white collar cases, all those instincts may wind up guaranteeing a conviction.

First of all, there is the myth of that the solo small practice cannot handle the paper. While that may have been an issue 20 years ago, modern technology has more than helped the solo and small firm criminal defense attorney keep up with the paper in these cases. Moreover, thanks to the invention of intranets, many small firm practices make use of the same off shore attorneys used by the big firms for cataloging and sorting the myriad of reports, e-mails, documents, and other evidentiary items that make up the thousands of pages and tens of boxes of evidence in most modern White Collar cases.

Second, I think that knowing how things "work" on the street is a hindrance to helping to win in court. Main street and the people who live around Main street are going to be your jury. These people have a fundamental issue with the way things work on "the street." In fact most think that "the street" is geared to hurt them and it is the Wall Street mentality that "greed is good" that put the defendants in the soup to begin with. This is further complicated by their own anger that Wall street and Wall street lawyers took down the little guy with everyone else.

A lawyer who regularly works on regular criminal cases, can bring an air of truth and appreciation for what a local feels and may be in better position to explain that a Wall Street executive's behavior was at the worst not meant to harm a little guy (like the juror) but to protect all the little guys that were in the market. It may be nothing more than an idea that just failed. Further it may be hard for a Big firm lawyer whose starting salary is three times the national average salary (not the national starting salary) to convey to people who will never earn that much money in a decade, how the white collar criminal is no different than they are, and how they and he are just, after all, neighbors.

Thirdly, there are lawyers who worked for the Government who did not go the Wall Street route. Now I am not enamoured of former prosecutors. I think they often fail to see the defects in the prosecution's case because they never saw them as prosecutors. Many are so sure of the governments superiority, that they are afraid to take them on in court. Some fear it will hurt their relationship with their former mates in the office whom they rely on to get good plea bargains.

On the other hand, there are some that are very good once they make the switch. Either way, whether you need a former prosecutor or not, they work on "Main Street" too.

Finally there is this idea that you get what you pay for. I guess some of that is true. The question I have with most Biglaw firms is, Do I need what I am paying for? Do I need a lawyer at Four Hundred Dollars an hour reviewing files and notes? Do I need him to summarize documents? Do I even want to pay someone on the hour to do this? Is an hourly rate the best way of paying a legal fee for me and my family?

These are questions that most Main Streeters ask before they start thinking about fees. It doesn't help you much if you win the case but lose your home in the process.

Finally a big advantage to a Main street lawyer, is the opportunity to be his biggest client. You are the priority case, there is always someone working on your file and only the most senior lawyers are assigned to the file. There is a benefit to being able to speak to your lawyer quickly and to know, he knows, everything there is to know about your case.

In all, the White Collar Criminal Defense Client has a lot to gain, and nothing to lose by coming with his case to a local Main Street lawyer. Now if they only read this before they lose all their money to Biglaw.

Tuesday, January 13, 2009

Lawyers Help. How to Answer the Question: What Do You Do For a Living?

Laser speech; elevator talk; hooks. These are all concepts that Public Relation experts have introduced into the lexicon of the lawyer. We are told at countless "Marketing Seminars" that we have to develop a way to tell people what we do in a short, attention grabbing way. I found this a little challenging at first. I am not a man of few words.

I am a story teller. I like to tell them and I like to hear good stories told. If you think about it. Story telling is what I do. I mean I do it in part. I tell the client's story as well as I can to a judge, a jury, an adversary. I tell it to a claims adjuster and to investigators and police. Sometimes I tell it to the clients family too.

But I do more than that do I not? After all, I am a Doctor of Laws. I am a "Man of Letters." I have been "hooded." I guess if asked what I do, I could say I write letters.

In fact of course I am a trial attorney. I handle criminal cases and civil cases. I am a Matrimonial lawyer. I handle crisis. I do so many things in the course of a day, I am unable to really find a way to tell people what I do in a short pithy manner.

The best way for me to explain my dilemma is to tell you a story:

Last week, a I received a phone call from a distraught mom. Her child was arrested for shoplifting. The child, a college senior has always been a great kid and gifted student. She has dreams of grad school and some kind of a professional license. Although time was tight, I decided to see her the same day. She and her parents came in. As they walked in, I could see what had happened and why. When they entered, Dad was on one side of her mom on the other. Mom was a wreak and the young girl, though apologetic was the calmest one in the group. She was huddled in a heavy coat and while it was cold outside, it was temperate in my office. The coat was a giveaway as to what was to come.

After a few pleasantries I asked the mom and dad to leave the office. I noticed that when they left, the client sat back a bit in her chair. She was still bundled in a heavy coat but it was not that cold in my office. It was almost as if she were hiding from me behind her coat. I asked if she was cold but she said no. I then asked her about what had happened the day before. I tried to ask her questions in a non-cognitive way. That is to say, I took things out of order and mixed in questions that had nothing to do with the previous question or even the facts, so as to keep the client from feeling too comfortable and developing a "rhythm".

The kid readily admitted she stole the item from the store. She had almost no emotion in telling me this. She seemed to have no insight as to why she even took the item as she was more than capable of paying for it. I used this as an opening. I asked her if she was ever overweight. She acknowledged she had been and felt she was presently a little "fat(ter)" than she wanted to be. Personally I thought she was beautiful. As a result I felt the next question would be a gateway to determining what had happened here. I asked her if she used binging and purging as a way to control her weight. She thought for a second about admitting this but then she acknowledged she had for a while, had stopped and then had begun again about a month ago. This would soon become significant.

After her admission on the binge/purge phenomenon I asked her point blank when she had been assaulted. She immediately denied ever being assaulted or abused. I waited a moment and looked her in the eyes. She hesitated, and the tears filled her eyes. She then admitted she had been attacked by two strangers outside of her dorm a few weeks into her freshman year. She had been drinking. She said she was not raped because a boy she knew happened onto the scene and broke it up. She had told no one about it. She told her new boyfriend about it just before winter break, a month ago...

Now in full sobs, she didn't want her parents to know. They are old and would be upset and she didn't want to upset them. She was afraid they wouldn't let her return to school. That they would be angry at her because she "let" herself be put into a situation she lost control over.

Of course I knew that they would be upset because she had been hurt and that if they found out they would readily understand what had happened and why the petty theft had occured. I knew they weren't going to pull her from school and that she needed to tell them. I also new they weren't going to fall apart. They weren't that "old". In fact they were MY AGE!!!! It never fails to amaze me how our children think their parents feeble when they turn eighteen...

Anyway, upon the parents return, she and I spoke to them. They were confused until she gave me permission to tell them what had happened. Then the waterworks started, and she got the love and support she needed. Her mom hugged her and cried. Dad was obviously concerned and upset but he handled it just right. I knew they were going to handle it well, they had produced a brave, smart, wonderful child and that didn't happen because they were judgemental, unsupportive or feeble. While it was tough to do, and not easy to handle, healing was beginning before my eyes.

I referred the parents to a Psycotherapist that handled sex crimes and victims so that they could process their feelings and then I referred the client to her Mental health facility at school. I am now going to seek dismissal of the case with the District Attorney and this kid will go on to achieve her dreams and fufill the promise she displayed. She is again her parents "golden child."

I am not a shrink, nor do I play one on TV, but I am a gatekeeper. I am a person who has some streetsmarts and life experience. I am a student and a teacher. I am a parent and a spouse which was the main reasons I handled that situation as well as I did. (It helps that my sons are the same age as my client above.)

I came home and was telling the story of what happened to my family. Both of my sons work with me in the office, and my wife still helps out with "managment issues" when I need her to (she was the best secretary I ever had). My youngest son, Frank, looked at me and said " Hey dad, I have a new laser speech for you." "I'm a lawyer and I help." I had to smile. In six words he encapculated exactly what I do, and what I aim to do. He says he wants to be a lawyer too, but he may have a career in public relations.

I have a new answer for the question "What do I do for a living?"

"I'm a lawyer, and I help."