Atticus Finch

If you practice law in a small town–and especially if you practice criminal law in a small town–chances are pretty good you’ll eventually experience the joy & thrill of appearing before some school administrators at an expulsion hearing.

And you may be thinking to yourself, that doesn’t sound too bad. What harm could come from developing a niche practice in a small town, a practice in which you might be able to help confused students (and their parents) find their way back into school to pursue their future academic and extracurricular promise?

Well, Dear Reader, the problem is YOU WILL LOSE YOUR MIND.

Welcome to the Land of Zero-Tolerance, a place much like Alice’s Wonderland, where your client gets a mad tea party instead of a hearing with due process, conducted by a school administrator who could be easily confused with the Queen of Hearts. It doesn’t take long to find out that a “policy of zero-tolerance” can be the modern-equivalent of “Off with their heads!”

Now, some solace can be found in understanding  this frustration is  not new. One of my favorite sages, Mark Twain, once quipped:

In the first place God made idiots.

This was for practice.

Then he made School Boards.

So, you can’t say you weren’t warned. But that doesn’t mean it hurts any less when you bang your head against the schoolhouse wall.

I once represented a young man, who had never been in any real trouble at school, for an expulsion under a zero-tolerance statute for the offense of  “possessing a firearm facsimile.” His transgression? He had made the mistake of asking to see the object another student had brought to class. It turned out it was laser-pointer in the shape of a gun. A very small gun. Like a tiny toy gun. Which he could hold in the palm of his hand and then close his fist around without anybody else knowing what it was. Which is why he stupidly asked to see it in the first place because he didn’t know what the other kid had in his hand.

The school principal said he was compelled to expel my client for a year under the law and it didn’t matter what my client’s intent was. I appealed to the school board and pointed out that the language of the statute clearly required that the “weapon facsimile” be capable of being confused with a real gun. The school board was unimpressed with my logic. After all, as one school board member commented, it could have been just like one of those tiny guns that James Bond uses.

OK, then.

Luckily, a district court magistrate–employing a shocking amount of common sense–didn’t buy the James Bond approach and overturned my client’s silly expulsion. The school board, wounded by this judicial rejection of their power, appealed.

The appellate gurus can probably predict what happened next. I made arrangements to have the little gun-shaped laser-pointer brought to the oral arguments, where I showed the Court of Appeals just  how small it was and how it could be held inside a fist without any sign it was there. And the Court of Appeals judges shook their heads in approval and asked really good questions that showed just how absurd they thought the school board’s decision was.

And then they issued an opinion upholding the expulsion–because it was the school board’s decision to make–not some pushy, common-sense wielding judge.

And, not for the first time, I went insane.

So imagine the state of my mental health when coming across this item in the New York Times:

Finding character witnesses when you are 6 years old is not easy. But there was Zachary Christie last week at a school disciplinary committee hearing with his karate instructor and his mother’s fiancé by his side to vouch for him.

Zachary’s offense? Taking a camping utensil that can serve as a knife, fork and spoon to school. He was so excited about recently joining the Cub Scouts that he wanted to use it at lunch. School officials concluded that he had violated their zero-tolerance policy on weapons, and Zachary was suspended and now faces 45 days in the district’s reform school.

Please be sure to click on the link to the NY Times story to view the picture of this scary transgressor Zachary. Nefarious, ain’t he?

The NY Times correctly reports that zero-tolerance policies concerning weapons started with the tragedy at Columbine High School, here in Colorado. But the reference to Virginia Tech and the claim that the “growing debate” over whether these policies have gone too far being a recent development are not accurate. The shooting at Columbine was over ten years ago, and most of these laws were passed soon after in the typical knee-jerk fashion so loved by state legislators. The shooting at Virginia Tech is only one such awful and sickening demonstration of the ineffectiveness and futility of these laws.

But zero-tolerance policies are very effective at one thing: demonstrating the definition of “absurd.” Thus, I could barely wait for the answer when the NY Times posed the question “on the minds of residents” where Zachary lives: “Why do school officials not have more discretion in such cases?”

The mind-bending, psychosis-inducing answer? School board officials don’t have more discretion because, essentially, they’re too stupid. (Score one for Mr. Twain, thankyouverymuch.)

It appears “some school administrators argue that it is difficult to distinguish innocent pranks and mistakes from more serious threats, and that the policies must be strict to protect students.” Protect the students from whom? From other students? Or from imbecile school administrators too dumb to distinguish a prank from a serious threat?

And the answer is??? Of course! It’s from imbecile school administrators:

Charles P. Ewing, a professor of law and psychology at the University at Buffalo Law School who has written about school safety issues, said he favored a strict zero-tolerance approach.

“There are still serious threats every day in schools,” Dr. Ewing said, adding that giving school officials discretion holds the potential for discrimination and requires the kind of threat assessments that only law enforcement is equipped to make.

There you have it. Zero-tolerance laws are designed to protect students from school officials who possess zero-common-sense and are unable to make unbiased decisions that an average cop, who presumably has less education, makes on a daily basis.

So, while school officials might be in charge of educating our children and inculcating values like fairness, equality,  and respect for authority in this nation’s future generations, we can’t trust them to tell the difference between a Cub Scout utensil exuberantly and proudly displayed by a six-year-old and a deadly weapon intended to be used to hurt somebody.

No wonder some school officials have tried to ban Mark Twain.

How hard should a defense lawyer push his client to take a plea-bargain when the client resists? Does it make sense to try a case you’re not likely to win? These are just some of the questions banging around my head after a couple of weeks of hard work and then some time perusing this here blawgosphere on the world wide web.

Both Scott Greenfield and Mark Bennett have penned posts about competence–Scott commenting on how a lawyer’s ego can get him or her into trouble and we should all be careful what we wish for, and Mark making the point about about the need for both general & specific competence. Scott Greenfield writes in another post about the need for a specific kind of competence when it comes to plea bargaining. Scott tells of a case where he was trying to help a client who had been convinced to plead guilty by a lawyer who didn’t really consider any other alternative:

Some years ago, I did an evidentiary hearing before Judge Kimba Wood in the Southern District of New York on a habeas motion, where the defendant had a great defense but was pushed into a plea in a New Jersey case with the lawyer misstating the consequence on his federal parole.  The Jersey lawyer took the stand.  On cross, I asked him whether he told his client that he was a very experienced criminal defense lawyer.  With his chest puffed outward, he proclaimed that he was indeed a very experienced lawyer.

I then asked him to tell the judge how many felony cases he had tried to verdict before a jury as a defense lawyer.  He hemmed.  He hawed. I asked whether he had a problem, and he muttered that he was thinking.  Judge Wood grew impatient, and finally, said, “So how many?”

His answer was spoken so softly that if could barely be heard,  “None”.  Of course, he never informed his client that he was highly experienced in pleading his clients guilty, but nothing more.

Anyone who’s practiced criminal defense for more than a few years can point to at least one lawyer just like the one Scott Greenfield describes. It doesn’t take long for both prosecutors and criminal defense lawyers to figure out who will actually go to trial and who will avoid it–even if that means giving a case away or convincing a client to take an less than favorable deal.

The problem for clients–as Scott Greenfield’s client illustrates–is that it can be difficult for the uninitiated to determine if the lawyer they’re about to hire is someone who goes to trial or not. Most clients don’t even know it’s an issue they should worry about. When hiring a criminal defense lawyer–if they think about a lawyer’s trial skills at all–clients just assume that all lawyers (a) go to trial regularly and (b) are comfortable in the courtroom and (c) know how to try a case. The truth is that lawyers who fit into all three of these categories are the exception, not the rule.

We are not all Perry Masons.

Nor should we be. Many, if not most, legal issues a typical person confronts don’t require an experienced trial lawyer. But it’s hard to think of a criminal defendant who wouldn’t benefit from someone who can and has actually tried a number of cases and who has more than a little experience picking a jury.

(OK. I’ve probably dated myself with the Perry Mason reference, so I provide that last Wikipedia link for anyone under 30 who may have somehow wandered onto this blawg. (Welcome!) I use Perry–although I can barely remember when he was on TV–because a client’s mother recently brought him to my attention. She had asked me what a “transactional lawyer” (shudder) is, and I gave a very long-winded lawyerly answer, comparing and contrasting what I do and what a “transactional lawyer” does. So I might have faked the “what a transactional lawyer does” part a little, but I’m pretty sure I  guessed right. Anyway, when I was done, she responded, “So you mean you’re like Perry Mason and this other lawyer isn’t?” I leave to you, Dear Reader, to imagine how I modestly demurred.)

But there’s also a flip-side to worry about: while its rare, what if a criminal defense lawyer is foolhardy about going to trial when it’s not in the client’s best interests? One of the things we defense lawyers get paid to do is to know when our clients should take a deal and how to convince them to do so. Believe it or not, sometimes criminal defendants have a serious lack of judgment, reason and/or common sense. Some even possess what might be considered a reckless disregard for what’s in their best interests. (Not my clients, mind you, but I’ve noticed that other criminal defense lawyers seem to represent people who are a mess.)

I’m sure anyone who’s been practicing for more than a few months can tell you about the client who insisted at the first meeting that the case was going to trial–no matter what the plea offer is or how great the stakes if they are unlucky enough to get convicted. Sometimes this approach–what my former partner Frank Henderson liked to call the “Millions for defense, sir, but not one cent for tribute!” approach–is the correct one. But usually it isn’t.

Still, it’s always the client’s decision–not the lawyer’s–whether to accept a plea-bargain or not. Sometimes a case calls for the lawyer to push and cajole a client hard to take a plea-bargain; sometimes to do so in a case would be an irresponsible abuse of the trust the client has placed in the lawyer. The hard part, of course, and where experience and good judgment are indispensible, is knowing which case you’re facing. Among what seems like a cajillion factors to consider, when it comes to plea bargaining or going to trial, you best know where your ego is.

Two of my recent cases reminded me of why it’s so important to keep my ego in check when helping clients decide whether to plea bargain or not. A few weeks ago I tried a case I was pretty sure would result in a guilty verdict. But my client was adamant in not taking the s0-s0 plea-bargain on the table and I was unable to persuade the prosecutor to do better. The problem is I’ve been on a pretty good run and I had yet to lose a jury trial this year. The truth is I didn’t want to “spoil” my record. But my client had made the decision to stand on his constitutional rights–and eventually even my ego had to agree that my client’s rights trumped my silly record (they were mostly misdemeanor jury trials anyway). For reasons I can’t go into here, and even though my client was found guilty, I believe my client made the right decision to reject the plea offer. Sometimes clients need to go through a trial for reasons other than whether they can do better than a plea offer.

Which brings me to my other case. This week I was supposed to be in another jury trial. My client had been offered a very favorable plea bargain in this case, which he rejected, even though I didn’t think the expense of going to trial was worth the risk of possible conviction–and especially in light of how favorable the DA was willing to resolve the case. I typically judge my success or failure in a trial by whether my client got a better result than the best plea offer made, so I had to work hard in this case to obtain an acquittal–the only result that would be better than the plea offer my client had rejected.

My hard work paid off, and a few days before the trial was to begin, I had the pleasure of calling my client to inform him that the DA was dismissing the case. We had achieved Sun Tzu’s ideal: “To subdue the enemy without fighting is the acme of skill.” I couldn’t wait to dial his number and hear how impressed my client was going to be with the result. Instead, he was pissed. He wanted his day-in-court! I had robbed him of his opportunity to show that jury–and the world!–just how innocent he is and how horribly mistaken the statements and charges against him had been. Instead of triumph, I got an earful of disappointment.

Just another weekly reminder to check my ego at the office door.

I’m taking a short sabbatical. It’s time for the Taylor & Rapp annual partnership retreat.

Every year the lawyers in my office make a retreat to Almont, Colorado, for some fly-fishing, mountain-bike-riding, beer-drinking, and some rest & relaxation–and a partnership meeting (just to keep the IRS happy). Almont, Colorado is really just an intersection half-way between Gunnison and Crested Butte, but it has some interesting history. In 1940, presidential nominee Wendell Wilkie, along with 10,000 guests, visited the Almont fish-fry to kick-off his campaign. It turns out that Almont is a great place for a fish-fry. But not such a great place to kick-off a presidential campaign.

Anyway, I won’t be posting much this week (and I’ll be in trial soon after I return).

But here’s a picture of one spot where I fished:

The Taylor River

Here’s one of my fish:

A beautiful brown trout

Our regularly scheduled program will return soon.

Tight lines!

I got retained on a new case today. As he was paying the retainer, my client looked me square in the eye and said, “This money was hard-earned.”

I assured him I had no doubt it was, and that I respected his investment in me. I also assured him I would work hard to earn the trust he was showing by hiring me–and to merit those hard-earned dollars.

What I didn’t tell him was that–in comparison to my other cases–his case is “minor” and the retainer he paid “small.” I didn’t want to be rude to a new client. But I also try not to think that way. Still, it’s easy to fall into the trap of thinking I’m just a “small town lawyer” with “small cases” (that unfortunately come with “small retainers”). Such thoughts inevitably lead to the conclusion I’m just handling “small issues,” and then it’s not that far a jump to end up thinking I’m just representing (God forbid) “small people.”

Of course, it’s a cliche to say, “There are no small cases.” I wish I had trademarked that phrase so I could charge every lawyer website that uses it a fee. Espousing a cliche is easy; really meaning it is not. If I’m honest, the truth is it’s easy to slip into the “small case” mindset. The bread-and-butter cases for most small town lawyers are the traffic and misdemeanor cases, or the no-asset divorce cases, or the small asset will & estate cases. These are the sort of cases which an experienced lawyer can handle without much thought or effort.

And, of course, therein lies the problem. Small cases can be handled without much time & attention to the client. Small cases are often paid for by clients with modest means–folks who actually work for a living–and the retainers they pay often represent a significant portion of their incomes. If a corporation dropped 20 or 30 percent of its monthly income on legal fees, you better believe that corporation would expect the full time and attention of its lawyers. Part of the ethos of being a small town lawyer is believing your clients deserve–at a minimum–the same sort of time, attention and respect for their hard-earned money.

So I try to remind myself–and I confess it can be a daily affair at times–that for my clients their cases are likely the most significant event in their lives at the moment. At least important enough to walk into my office and hand over a large portion of their income to a stranger (that is, to me). My clients are often motivated by fear, anxiety, concerns for their family or livelihoods–or like my client today–the real possibility of a jail sentence. It’s doesn’t matter that it’s only a misdemeanor. A 10-day jail sentence can be the difference between making ends meet for the month or losing the house. Likewise, a “routine” divorce case can cause a new mother months of agony if she spends all her time worrying about whether she’s going to “lose” her children or how she’s going to feed, house and clothe them when she “keeps” them.

I’ll admit I live for the “big” cases (which hopefully come with “big” retainers, but alas, that’s not always the case). It’s easy to get so caught up in being Important Lawyer Man and forget the practice of law is a service industry. I realize it cuts against the grain of the popular imagination about the legal profession (lawyers are greedy, crass, asshats — think: the lawyer getting eaten in Jurassic Park). But we’re supposed to like people and we’re supposed to want to help them with their problems.

Our clients are not just conduits from their bank accounts to ours. They are silly, confused, scared, unpredictable, and sometimes irrational people and it’s our job to use our experience & education to help them become less of all those things. The truth is that small cases present proportionally more opportunities to be helpful than do big cases. Glamor & recognition? Probably not. A meaningful chance to effectively & artfully practice our craft? Yes.

So, if I can get my ego out the way, a small case presents one of my best chances to do what I became a lawyer to do. I just have to remember that my client worked hard for the money he just paid me. Then I need to return the favor.

What are the chances?

I’ve just discovered a great blawg, People v. State, through a “blatant shoutout” from Mark Bennett at Defending People, one of my favorite blawgs and all-around criminal defense lawyer inspirations.

So as I was whiling away my evening by spending a few minutes traipsing through the blawgosphere and smelling the virtual flowers, it occurred to me I should stop by and see what John Kindley’s doing over at People v. State. I was pleasantly surprised to find he had written a post announcing that “Law is like poker,” a post about one of my favorite games, but also (sort of) about one of my favorite cases and clients.

I also discovered that John Kindley is really good poker player. Making the money at the Big Event takes a lot of skill–no matter how much luck you might run into getting there. (He’s also a former competive chess player, just like one of favorite poker pros, Howard Lederer.) A criminal defense lawyer and a blawger and a poker player??? That’s my sort of guy.

John Kindley notes that “Jonathan Adler at the The Volokh Conspiracy asks himself the age-old question, “Is Poker a Game of Chance or Skill?” Jonathan Adler’s post, in turn, references this Los Angeles Times article about a Colorado poker case, in which I just happen to have been trial counsel and in which I’m still involved in the appeal. That’s my client, Kevin Raley, in the photograph smiling & gleefully playing poker.

(N.B. I take the admonitions offered by Scott Greenfield recently very seriously and share his conviction that blawging & client confidences do not mix. But since Kevin Raley has participated in the publicity surrounding this case, I’m making an exception to the Greenfield Rule.)

The jury found Kevin Raley not guilty of illegal gambling in connection with a Texas Hold’em poker tournament organized by some of his friends and played at a local restaurant and bar–a tournament played typically once per week among 15-30 people and which cost each player $20 to enter for the evening. (The case was locally profiled here.) The trial court allowed us to present the expert testimony of Dr. Robert Hannum, a professor of statistics at the University of Denver, who opined–without contradiction from any prosecution expert–that tournament poker, while possessing elements of chance, is a contest of skill.

So, to answer Jonathan Alder’s question, “Is poker a game of chance or skill?,” the answer is a resounding, “Yes.”

The prosecution was apparently upset that the jury found Kevin Raley not guilty, so off to the appellate races we’ve gone. The prosecution appealed the trial court’s ruling allowing Dr. Hannum to testify that tournament poker is a bona fide contest of skill (which is one of the exceptions to the offense of illegal gambling under Colorado law). For those who have nothing better to do, you can read the brief I filed on Kevin’s behalf here. The amicus brief filed by Thomas Goldstein on behalf of the Poker Players Alliance is here.

We won in the trial court, but we’ve had a setback in the first round of appeals. Kevin Raley is in no danger; he can’t be re-tried. At issue, however, is a criminal defendant’s right to present expert testimony related to an element of the offense. Since the appellate judge has now ruled, essentially, that “poker” equals “gambling” in Colorado (although the statute doesn’t define any specific game as gambling), it’s possible the Colorado Supreme Court will grant certiorari as to the issue of whether poker is gambling as a matter of law in Colorado.

In order to hedge our bets in the Colorado Supreme Court, we’ve been fortunate enough to convince two of Colorado’s best appellate lawyers to join the cause: Jean Dubofksy and Dean Neuwirth. The Poker Players Alliance will also likely file another amicus brief in support of the Colorado Supreme Court granting certiorari.

As a criminal defense lawyer, the most compelling issue to me in Kevin Raley’s case is whether a defendant has the constitutional right to present a defense through an expert witness when the expert’s testimony negates an element of the offense. But, as the media attention shows, the sexier issue for most other folks is whether poker is a game of chance or skill.  As John Kindley so aptly illustrates with this anecdote from Mark Twain, the issue of skill (or “science”) versus luck depends primarily on what side of the table you’re sitting on–and whether you’re winning or losing the game. (And don’t be surprised if Mark Twain gets quoted in our Petition for Certiorari. Thanks, John!)

Poker clearly involves chance in the random deal of the cards. But just as clearly, poker is different from true games of chance like roulette or slot machines. The easiest way to demonstrate this difference is to ask the question: Can you intentionally lose at the roulette table or at a slot machine? The Colorado Bureau of Investigation agent who arrested Kevin (and who assumed a false identity and tricked one of Kevin’s friends into inviting the CBI agent to play in the tournament) testified at trial that he intentionally lost during the time he was playing poker with Kevin and his friends. The CBI agent also admitted on cross-examination that he couldn’t intentionally lose at roulette or slot machines.

Poker involves a number of strategic decisions not found in true games of chance. And unlike in true games of chance, a player with the worst hand can still win the pot by using skillful and well-timed deception to bluff better hands to fold before the showdown. Try doing that the next time you’re in Vegas at the roulette table. (Actually, don’t. You’d likely get kicked out of the casino or arrested.)

Whether you have to be more than just lucky to be a good poker player is an interesting issue, but the issue John Kindley raised in his earlier post about poker and chess is more important. The State of Colorado allows its citizens to gamble on a regular basis–through both state-sanctioned lotteries and the establishment of gambling towns. In the case of the lottery, Colorado actively encourages gambling through advertising. Recently, the stakes for the gambling towns was raised to $100–that’s per hand, which makes the $20 per evening Kevin and his friends were playing with look pretty small in comparison.

In that context it’s hard for the State to maintain there is some inherent evil present in gambling–a dangerous vice from which its citizenry must be protected when stepping outside the geographical boundaries of Blackhawk or Central City. (Trust me, there’s nothing so special about Colorado’s gambling towns that it would lead you to believe they provide some extra protection against the wages of sin.) So why should Kevin Raley and his friends be prohibited from spending $20 over the course of an evening while enjoying each others company and playing a game they all enjoy…?

I’ll let my dear readers speculate. What I do know is that Kevin Raley is a great guy, not a criminal. He’s hard-working, decent and honest. I couldn’t have asked for a better client. He loves to play poker, but he’s no pro; he’s got a regular day-job. He’s just looking for some fun and relaxation with his buddies when he’s not working. But Kevin Raley is also a fighter. Pretty early on the prosecution offered to resolve his case with a $100 fine, but Kevin said, “No, thank you.” And so I got to fight the good fight for a client I really like, and with no real worries about lengthy prison sentences or destroyed lives. It’s a criminal defense lawyer’s dream.

But make no mistake. Kevin Raley plays hard. We’ve got some real talent rallying to the cause. So, while we may down the last round in this fight, don’t bet against Kevin Raley.

He just might win.

There’s been a lot of discussion in the blawgosphere of late about money, marketing and lawyers. Scott Greenfield opined there’s too many lawyers; John Kindley responded that we need MORE lawyers, not less. Some of the undercurrent of this debate flows from the perceived ethical lapses of lawyers (ab)using social media–either blawgs or Twitter or online lawyer marketing or from the cursed & diseased “social media experts.”

Ultimately, the debate is about that root of all lawyer marketing evil: money. Scott Greenfield notes Dan Slater’s report in the New York Times, “As firms begin an industrywide overhaul, which has entailed slashing jobs and reconsidering hidebound inefficiencies like the lockstep salary, students will compete for half as many $160,000-a-year jobs this year as they did last.” Scott Greenfield then laments the loss of professionalism he sees as a consequence of too many lawyers expecting $160,000-a-year jobs:

But when there are either too many lawyers running around, or too many lawyers culled from people poorly suited to handling the responsibility of a lawyer, a mess ensues.  Lawyers start taking on cases that lack merit, in the off chance that they can glom some quick money out of it.  Lawyers start raiding the escrow fund to keep up appearances because the phone hasn’t rung in a while.  Lawyers make promises they can’t keep to separate a client from his money, lest anyone with cash in his pocket walk out the door.

In contrast, John Kindley proposes that, rather than limit law school admission, the solution is to “turn the spigot wide open” and flood the legal profession with more lawyers. John Kindley reasons that then the “profession would undoubtedly become much less attractive to status-seekers and rent-seekers, while those who are genuinely interested in the law and have an actual talent for it would still pursue their calling on that sounder basis.”

But both Scott Greenfield & John Kindley agree on one point: too many young lawyers are joining the profession for the wrong reasons, whether it be for mo’ money or mo’ status.

“A profession is a vocation founded upon specialised educational training, the purpose of which is to supply disinterested counsel and service to others, for a direct and definite compensation, wholly apart from expectation of other business gain.” In other words, a professional is supposed to worry about more than just money.

Of course, while it’s a nice ideal, the practical reality often falls far short. The tension between vocation and remuneration in the legal profession has been there from the very beginning. Going back as far as 204 B.C., Roman advocates were barred from taking fees (wink, wink), although, as reported by John Crook in Law and Life of Rome: 90 B.C. to A.D. 212, “if Cicero did a client proud the client’s purse, friends and influence would be available to Cicero later at call.” Cicero’s fine example notwithstanding, John Crook notes that the rule against fees was infringed constantly. Although I think they’ve found some creative ways around the problem, to this day British barristers still technically collect “honorariums” and aren’t allowed to sue clients for unpaid fees.

In the Satires, Juvenal thought the problem of getting paid was a reason to avoid a career in the law:

“There’s no money in it. Argue yourself hoarse before some bumpkin of a judge–what do you get? A couple of bottles of vin rouge; and you’ve got your clerks to pay. The only way to get a name is to live like a lord; that’s how clients pick their counsel. And Rome soon eats up your capital that way. If you’re thinking of making a living by speeches you’d better get off to Gaul or Africa.”

So not much has changed in the practice of law in 2000 years. You still find bumpkin judges. (But, for the record, none of the judges I appear before are evil or unfair, at least as far as a reasonable attorney would understand those terms.) You’ve still got your clerks to pay. Some clients still pick their counsel based on their high-falutin’ ways and larger-than-life reputations. (That’s what my blood-sucking social media expert tells me, anyways. Something about, “You are what Google says you are.”) And Rome! Don’t even get me started…

So it’s off to Gaul and Africa to make the fine speeches–and today’s small town lawyer may have to settle for a couple of bottles of wine, or whatever their modern equivalent may be.

It turns out that one advantage to being a small town trial lawyer is that you find you’re already living in Gaul or Africa. You also find that your clients are more likely to be put out–not turned on–if you’re living like a lord. My clients want to be served, they want to trust me with their confidences and their livelihoods, and while they don’t mind if I like to make speeches from time to time, they’re more impressed by how I and the people I employ treat them and care about their problems.

Online marketing? Some of the highly respected lawyers in my town don’t even have a Yellow Pages ad. Relying on their hard-earned reputations, won over years and decades–not months–of consistent high-quality work, attention to detail, and earning their clients’ trust, most of my colleagues in the local bar don’t have a clue about websites, SEO, and Google placement. Twitter is beyond their comprehension and I would feel foolish just trying to explain.

The thing is, they can only dream about making $160,000-a-year and few, if any, will ever get there. Many didn’t attend a fancy-pants law school (whose graduates, by the way, are apparently expecting too much from our profession and aren’t very happy). They all expect to make a living from their chosen profession, but money was not their primary reason for becoming lawyers. I suppose status is important to them on some level, but who are we kidding? The status you get from being a small town lawyer compares to the status you get for being that family member who can program the DVR. You possess some useful, specialized knowledge–knowledge and experience that very well may help solve a confusing & frustrating situation–but you still need to empty the dishwasher when it’s your turn just like everyone else.

These small town lawyers may not be rich. They may not drive a Porsche or BMW. They may not have someone to answer their phone on a Friday at 4:54 PM and so they do it themselves. But they are hard-working, ethical, dedicated lawyers and I wouldn’t hesitate to trust them with a legal problem of my own or a close family member’s. Like all smart professionals, they’re upfront about the money. They understand their obligations to their families and the importance of being paid appropriately for their work.

But I also know that they would put all the time, energy & effort into solving that legal problem whether they were getting paid or not. I know that they take their profession seriously and that they’re as concerned about the product that goes out as they are about the money that comes in. I know that they are good, conscientious lawyers–living right here in my small town. No doubt they are a few wherever you live, too.

A recent article in the Denver Post reports some startling news: treatment works. By giving free medication to mentally-ill prisoners who were released to community corrections facilities, the recidivism rate was reduced from 56% to just a measly, eye-popping 3%:

A 2-year-old program designed to provide medication and monitoring to inmates with mental illnesses has shown the potential to dramatically reduce recidivism among those who participate, according to a new study.

The program provides free medicine to two different kinds of inmates: those who are being released from prison to community halfway houses and parolees who break rules and are sent to community corrections facilities.

In 2006, the year before the medication program began, 92 mentally ill inmates, or 56 percent of the offenders sent to community corrections facilities, violated rules or committed new crimes and were returned to prison.

In the first two years of the medication program, only 2 mentally ill inmates, or 3 percent of the 61 prisoners getting psychotropic medications at community corrections facilities, were sent back to prison.

The number of mentally ill offenders who were released from prison to community corrections halfway houses, only to end up back in prison, also dropped, from 47 percent in 2006 to 37 percent in 2007 and 2008, recently released research shows.

Of course, the dirty little secret of our prison system is the number of mentally-ill prisoners who are locked behind bars–often with no or little mental health treatment. In 1998, the Bureau of Justice Statistics reported there were an estimated 283,000 prison and jail inmates who suffered from mental health problems. According to Human Rights Watch, “that number is now estimated to be 1.25 million. The rate of reported mental health disorders in the state prison population is five times greater (56.2 percent) than in the general adult population (11 percent).”

Women prisoners have an even higher rate of mental health problems than men: almost three quarters (73 percent) of all women in state prison have mental health problems, compared to 55 percent of men.

Those numbers are staggering, but for anyone who spends much time in the criminal justice system, it’s no surprise our prisons have a large proportion of mentally-ill inmates–an especially high proportion for women sentenced to prison.

“While the number of mentally ill inmates surges, prisons remain dangerous and damaging places for them,” said Jamie Fellner, director of Human Rights Watch’s U.S. Program and co-author of a 2003 report, “Ill-Equipped: U.S. Prisons and Offenders with Mental Illness.” “Prisons are woefully ill-equipped for their current role as the nation’s primary mental health facilities.”

With tough economic times and spending cuts, there’s little resources for the mentally-ill and many struggle to find even minimal treatment. It’s often only a matter of time before someone suffering from a mental illness finds their way into the criminal justice system, and unless they’re lucky enough to run into an understanding and compassionate defense lawyer, prosecutor or judge, prison is often viewed as the only alternative for “treatment” and “rehabilitation.”

Time Magazine reported in 2007:

“If you think health care in America is bad, you should look at mental health care,” says Steve Leifman, who works as a special advisor on criminal justice and mental health for the Florida Supreme Court. More Americans receive mental health treatment in prisons and jails than hospitals or treatment centers. In fact, the country’s largest psychiatric facility isn’t even a hospital, it’s a prison — New York City’s Rikers Island, which holds an estimated 3,000 mentally ill inmates at any given time. Fifty years ago, the U.S. had nearly 600,000 state hospital beds for people suffering from mental illness. Today, because of federal and state funding cuts, that number has dwindled to 40,000. When the government began closing state-run hospitals in the 1980s, people suffering from mental illness had nowhere to go. Without proper treatment and care, many ended up in the last place anyone wants to be.

“The one institution that can never say no to anybody is jail,” Leifman says. “And what’s worse, now we’ve given [the mentally ill] a criminal record.”

It doesn’t help that the prison system is often viewed as a solution to society’s ills, that if we just “lock ‘em up” we can effectively fix the problem of criminal behavior. Andreas Kluth, a correspondent with The Economist and author of The Hannibal Blog, reports:

• Most people know that America has the highest incarceration rate in the world, but did you know just how much higher? America locks up 732 people out of every 100,000. The G7 countries, which should be the appropriate comparison for America, lock up 96 people for 100,000. The country in the world that comes closest to America is Russia, yes Russia, where the number is 607.
• Was there ever a country for which we have numbers that surpass America’s current incarceration rate?  …. the Soviet Union during the years of Stalin’s Gulag!!!
• America has about 5% of the world’s population but 23% of its prisoners.
• America also has by far the highest ratio of prisoner to each kind of crime. What that tells you is that there is not more crime in America that would justify more imprisonment.

Treatment programs and real attempts at rehabilitation are not politically popular. It’s not often controversial for lawmakers to fund new prisons, but a push to put more tax dollars into treatment and rehabilitation programs is typically hampered by controversy.

It’s shameful were not trying harder to give prisoners what they need to repair their broken and damaged lives–mentally-ill or not. If simply providing free medication can have such an overwhelming positive effect on the recidivism of mentally-ill prisoners, just think what providing comprehensive, sustained treatment might do.

The saddest part of the Denver Post article is found halfway through: “The Colorado legislature in 2006 approved the $1.3 million pilot program designed to increase success rates of inmates moving into the community. Budget cuts have reduced that to $171,000.” Don’t expect any great progress soon with that dismal level of support.

Oh, my. What have I gotten myself into by starting a blog?

“Blogging is not rocket science,” I’m reminded by Popehat. “To be a successful blogger requires only work.” Aye, there’s the rub. While I’ll proudly claim my membership in the “frustrated poets & comedians” club, I’ve tried this blogging gig before–and it was a lot of work. And work I get enough of at…well…at work.

I supposed I could just  “splog” instead. But just from that nasty sound of the word itself, you could probably guess that “splogging” isn’t very nice. As Austin Criminal Defense Lawyer explains:

Taking the easy way out is… well, the easy way out. It’s what most people will do. That’s why they call it the easy way. Attempting to profit off of someone else’s labor, whether physical or mental, has always been around, always will be.

So it turns out that splogging–while apparently much easier–is actually much worse than working. Plus, as lazy splogger & lawyer Melina Benninghoff has hopefully learned, splogging can really piss off the wrong people, like Houston criminal defense lawyer Mark Bennett, who not only puts in a lot of hard work blogging the old-fashioned way, but also has a lot of friends in this here blogosphere.

True, Mark Bennett’s friends may be a little geeky and possibly live in a “cloud” somewhere–think of a bunch of Deadheads with laptops living in some groovy commune in Poughkeepsie, except they wear suits more than normal people and probably don’t like the Dead that much and live in a bunch of different cities–but keep the laptop thought going–and they’re really serious and smart and like to talk about boring lawyer stuff. They may not make People’s Sexiest Blogger list this year, but Mark’s friends are fiercely loyal. They also know how to wield a computer & keyboard like a frickin’ virtual “Flamethrower of Doom.” See, e.g., Scott Greenfield, Brian Tannebaum, Colin Samuels, Charon QC, just to mention a few in addition to Popehat & Jamie Spencer.

It’s enough to make your local social media expert wet his or her dweeby zombie pants. (I’m sorry, but I can’t help myself. I also have to link to this Scott Greenfield post. Hee-hee.) (Just in case you didn’t already know, social media experts are the “cancer of twitter.” And they’re zombies.)

Anyway. What was I saying?

Oh, yeah…DON’T piss off the friends of a technologically-savvy, blog-authoring, hard-working, & gun-toting Texas criminal defense lawyer. (OK, I don’t really know if Mark Bennett totes a gun for real, but it sounds good–and remember, I’ve already confessed to being a frustrated poet–so don’t be surprised if my poetic license is a little frustrated, too.) Because you have to remember what Mark and his friends do when they’re not blogging about boring lawyer stuff: They work really hard at fighting the Government. And they’re pretty good at it, at least good enough that people pay them money to do it. Plus, I get the feeling they like being the underdog and whooping up on THE MAN!

(My wife won’t let me talk that way at home, so you’ll have to excuse me if I do it here.)

So it’s no surprise that Mark Bennett & Friends aren’t afraid to take Ms. Benninghoff to task for stealing borrowing without proper attribution. They certainly aren’t afraid of her Little Web-Monkey. (Popehat may not be a criminal defense lawyer, but he’s got the chops to fight like one.) Oh, and look what splogging can do for you on Twitter!!! It’s sooo much better than Yellow Pages.

So what’s the point of this post, again?

Umm…I’m going to try to blog for more than a couple of months this time around. I’m going to try to ignore Popehat’s snide reference to inconsistent bloggers with little endurance and not take it too personally. I’m going to w-o-r-k at this blogging stuff. (Sometimes. Other times I’m just going to post funny random cartoons & YouTube videos.)

Oh, and I’m NOT gonna piss off Mark Bennett and his friends.

H/T the(new)legal writer (from the rut. via Language Log)

Two roads diverged in a wood
And I took the one less traveled by
And that has made all the difference

Robert Frost

Beginnings are important. Some of the best advice I’ve received for success as a trial lawyer is the unsolicited advice my grandmother freely offered as I grew up. “You only get to make a first impression once,” she would remind me. Although I usually didn’t appreciate the advice at the time, like many of her cliches, I’ve come to grudgingly recognize the truth in her simple wisdom.

I tried to dismiss the idea that my grandmother–born and raised on the hard scrabble of the Rocky Mountain prairie–had anything to teach me about being a “professional.” She had, after all, grown up in a one-room farmhouse made from mud and her greatest educational success had been to graduate high school with the 17 others in her class. I had my sights set on bigger & better things–far away from the Colorado plains. I was going to be the first in my family to graduate from college. I was going to law school. I was going to be a Big City lawyer who toiled away in a big glass office high up in a skyscraper for rich clients who would gladly share their wealth with me. I saw no value in her experience to my own dreams.

Yet, over time the shallow sophistication I so casually adopted around the age of 13 has worn thin through the usual “slings & arrows” life throws at us all. Oh, I am blessed to say that I’ve been able to achieve many of my aspirations–in no small part due to my grandmother’s unwavering support and encouragement. But my life has taken some unexpected turns here & there and I’ve some different choices–some more voluntary than others–than I expected to. Along the way I’ve discovered that it’s as important to know what to dream for as it is to achieve your dreams. I’m also beginning to understand that “simplicity is the ultimate sophistication,” as Leonardo DaVinci recognized. I’m sad to report my grandmother is no longer living, but her voice lives on inside me. It turns out that the voice I was so easily irritated by as a teenager has become one of my most treasured advisors. I’ve happily discovered my grandmother has as much to teach me about being a good lawyer as any of the law professors with three times my grandmother’s formal education. It may even turn out that the secret to being a good lawyer–at least being a good small town lawyer–is to cultivate those qualities that make you a good person.

But I digress. If you intend to read this blog much, you should get used to it.

So, first impressions are important. This principle applies whether you’re meeting a new client, going on a first date, or introducing yourself to the jury. I figure that first impressions are just as important, then, when it comes to the first post of a new blog. I hope to make a good one.

This blog is about the road less taken–at least in terms of mainstream “blawgs,” if not legal careers. It’s about the trials and tribulations of the small town lawyer. That is, if you consider a town of around 100,000 people to be a “small town.” Some places where I practice I’m actually considered to be from the “big city.” These are towns where the jail, all county offices, the sheriff, and often just a single courtroom, are all housed in the same sober building located in the middle of a grass park found at the center of a six- or seven-block square of houses. This blog will be about the struggles, challenges and triumphs of practicing law in a community where I was raised and went to high school; where I often seen people I went to school with walk into my office or show up with opposing counsel; where I routinely run into my clients at the grocery store or end up sitting next to an opposing party at a restaurant; where I may cross-examine a police officer one year in a criminal case, only to end up representing him in his divorce the next.

This blog will try to focus on the issues that solo lawyers or small firms confront in suburban and rural settings. Some of those issues are the same issues that BigLaw worries about, but many of the issues are very different. BigLaw worries about how many associates to hire this year; SmallLaw worries about whether to hire an associate–period. Both are concerned with how to practice law ethically, get good results for their clients, and make some money at the end of the day. But the obstacles that have to be overcome and the paths that have to be carefully trod are often very different for a partner in a big city law firm and a solo practioner in small town.

So it is to the small town lawyer–whether he or she practices in a small town or just has that “small town” mentality–that I dedicate this blog. To all those lawyers who were inspired, as I was, to become lawyers by the example of Harper Lee’s immortal character and paragon of lawyering, Atticus Finch–Welcome!