Attn: Lawyers - Would You Do It Again?

About 15 years ago, I was assigned by the court to represent an inmate, Jose Abru, who was being held in Green Haven Correctional Facility, Dutchess Co., NY. He had been on parole for armed robbery and the terms of his parole stated that he could not leave Orange County, NY, could not operate a motor vehicle, could not associate with any known criminal - including anyone who had been in prison with him, and could not be out after 10 pm. He was arrested one night, just after midnight, driving a car in Westchester County. In the car with him were two guys he had served time with, and a trunk full of stolen TV sets. They returned him to Green Haven while awaiting a parole revocation hearing. He also had a number of charges lodged against him in the town in which he had been stopped.

I reviewed the file and saw that they police had used the old "Burnt out tail light" as the reason for the initial stop. Now, the car was in the police impound lot, so I went to the lot with a PI as a witness and inspected the car and found all lights working perfectly. We moved for a suppression hearing and requested that all evidence be suppressed, based upon an illegal stop and search. The court granted the motion and ultimately suppressed the evidence.

We were able to secure a favorable ruling at the parole revocation hearing, based upon the fact that there was no evidence to support the violation petition. The parole board argued that they were not bound by the suppression ruling, but the New York Supreme Court did not share that opinion.

So, Jose was released to do whatever on the citizens of our fair State.

Now, the story might have ended there, but as luck would have it, one day about 10 years later, I was reading a story in the New York Times. Seems that a Hispanic male had robbed a young woman at knifepoint, had snatched the gold chain from around her neck and took off running. Several people nearby, in a totally un-New York City fashion, gave chase and ultimately cornered the man in an alley near where the crime had occurred. There were 8 or 10 men in the group and as they were struggling with the ALLEGED robber, someone in the crowd reach out and stabbed him. The man died there on the street as the crowd slowly walked away. The man was Jose Abru. I confirmed that it was the same man as the one I had represented 10 years earlier.

I have often wondered….. if I hadn’t done my job so well, and if Jose had gone back to prison, would he have died in that dirty alley, or would he have served his time, learned a trade and gone straight…..

Ah, well, not something to lose sleep over.

Wes

 

I'm not a lawyer but the system of justice is based on an adversarial model. Someone has to defend everyone or the system breaks down. Even the technicalities that get criminals off are meant to protect OUR rights. Take Wes's example, people should be allowed to innocently drive down the street without being stopped by the police for no good reason. If I were black I'm sure that I'd appreciate that statement even more. So even though Wes got this guy off what he was doing positively within the system was protecting OUR rights.

Thanks Wes

 

you are most welcome, sir.

Wes

 

I have been really tickled to read the comments on the perceptions of lawyers by members of the public.

Since I work in healthcare risk management doing malpractice claims defense and prevention, I work with physicians, plaintiff lawyers and defense lawyers on a daily basis. My 19 years experience of doing this leads me to make a few observations:

1. It is absolutely hilarious to see the number of plaintiff counsel, almost always inexperienced in either the law in general or malpractice in specific, who think the only way to represent their client's best interests is to be an absolute jerk. Delayed response to discovery, lack of cooperation in setting depositions, unrealistic settlement demands, the list goes on and on. Yet for most of the experienced plaintiff counsel I know, they could not be more pleasant and easy to work with while still doing a sterling job of representing their clients. Unfortunately for the clients of the jerks, the defense side has a long memory, and what goes around comes around.

2. Also of interest is the number of plaintiff counsel who like to argue that if a bad result occurred, this in and of itself means that malpractice occurred. This is the 'every bad outcome or error is a res ipsa case' argument.

After trial is over and the defense wins, I sometimes ask those counsel that since they lost, would they not agree that they clearly committed malpractice, and will they be advising their E&O carrier to set up a claim file for the legal malpractice case?

3. The medical community of the USA thinks it is absolutely hilarious to hear the legal community complain about the increasing cost of legal malpractice insurance. There is not a lot of sympathy for the lawyers in the physician's locker room at the hospital.

4. The medical community also likes to complain about the legal community and how lawyers are scum of the earth, etc. Yet let that same physician get divorced, get rear-ended at a stop light, sued for malpractice, or little Johnny gets picked up by the cops for possession, then it is spare no expense for the best legal talent available! Quite the change in attitude that happens then!

Regards,

Michael Lloyd
Mill Creek, Washington USA

 

Before going to law school I was a Hospital Adminstrator. I get a lot of requests for malpractice representation, but make it very clear that before I take any such case I will have to review the file. I don't want cases that have no possibility of settlement, not because I don't want to try the case, but because the only case that won't settle is the one that can't be won. Just last week I had a woman in who wanted to sue because her tooth broke off during the intubation procedure by the anesthesiologist. Fine, that is a reasonable case, but when I looked at the medical records, and called her dentist, it was obvious that her teeth were rotten. She had three break off in the preceeding two years, during routine brushing. Then, to make matters worse, her son (a corporate attorney in the silicon valley) advised her that it was worth a six figure settlement.

Now, if I just told her that she had no case, or that her expectations were out of line, should would have left the office and complained about me to anyone who would listen. So, I told her that malpractice cases were very hard to win and that we had to be very careful, because her costs of getting to the trial stage would be very high. That seemed to shock her and I had to inform her that while my fee was based upon a contingency agreement, she had to pay the costs of exert witnesses, depositions, filing fees, etc. When I told her that he dentist would certainly be called as a witness, the fight went out of her.

I called the hospital, discussed the matter with one of the VPs and settled the matter. They agreed to pay for her dental care as it relates to the one broken tooth, including an implant if necessary, and we agreed to the exchange of general releases. She saved the cost of her dental bill and the hospital saved the cost of defending the case.

Now, lets see if she pays my $300 bill. Under the circumstances, I didn't look for a contingency, but did expect her to pay for my time in reviewing the file, negotiating the settlement, and drafting the agreement and releases. I didn't bill her enough, obviously, but it will pay for dinner and a show with my wife in NYC.

Wes

 

Wes, I have handled more broken tooth cases (either during intubation or biting down in post-anesthesia recovery) than you can shake a stick at. And the way you handled the case is exactly the way I resolve those cases, except I almost always deal directly with the patient. For the reasons you cited, not many people seek or find representation.

Clearly, Wes, great minds think alike.

Cordially,

Michael Lloyd
Mill Creek, Washington USA

 

Clearly!

Wes

 

Oh, I agree completely in the necessity of criminal defense attorneys. I just couldn't help wondering how common it is for regret or second-guessing to bother the attorney afterward.

And thanks for your explanation, Wes.

Lynette Brege

 

There is a situation in which a defense attorney may find himself, that is most uncomfortable. While this is not really my area of expertise, I will try and explain.

Many years ago, I had occasion to speak with a professor who was a retired criminal defense attorney. In speaking with him over several class periods, he began to dissect his most famous case. It seems that he was defending a man accused of murdering an elderly couple, by bludgeoning them with a claw hammer. The evidence was circumstantial, but there was a lot of it, there was motive, opportunity and some evidence that seemed to indicate that he was the guilty party. The defense attorney spoke to his client and received a strong denial and took the man at his word. He put together his defense and presented it. He chose not to put his client on the stand, for fear that the prosecution could confuse him and get him to make statements that would imply his guilt, even if that was not the case. The jury returned a verdict of guilty. The man was sentenced to life imprisonment.

The attorney appealed and ultimately the appeal reached the United States Supreme Court, where the conviction was overturned and the matter remanded for a new trial.

Again, the attorney put forth his best defense and again it appeared that his client would be found guilty. At the last minute, fearing the worst, he announced that he would call his client as his final witness. It being late in the day, the matter was continued to the following day. The attorney prepared his client as best he could, all the while worried that the client would become confused and say the wrong thing. Having announced that his client would take the stand the following morning, however, he was unable to do anything else.

During the late afternoon, the attorney met with the prosecution to discuss plea deals, etc. During that meeting, the prosecutor announced that they had found the man's shoes and that they were splattered with the blood of his victims and that they would present that to the jury as soon as possible. The attorney was taken off guard and felt compelled to press for a plea that would limit the amount of time his client would spend in prison. A deal was offered and accepted, subject to approval of the client.

The attorney met with his client and told him of the new evidence and suggested that the plea arrangement was a fair one under the circumstances. At that moment, the client stated that the prosecutor was lying and that he couldn't have any such evidence. When asked why, the defendant stated that he had burned his shoes. The Defendant refused the deal and demanded to take the stand the following day.

As is often the case when speaking to a law school professor, they get you right to the brink and then leave you hanging. He wouldn't tell us what he did, saying that we would have to determine that for ourselves. The quandary, of course, is that if he failed to call his client as a witness, it would appear that he was guilty and the jury would most certainly convict him again. If he did call his client, the client would perjure himself and the attorney would be suborning that perjury.

I have, fortunately, never been put in that position, but if presented with that dilemma, I think I would fake a heart attack and ask the court to declare a mistrial and let the client get another attorney. It is truly a no-win situation. The ABA says that while you must defend your client, you may not allow him to commit a crime and may not suborn perjury. Simple enough, but when the client’s life is on the line that is a very hard course to follow.

Wes

 

Replies to the two questions I've been asked:

1) If you want to learn to "think like a lawyer" you pretty well need to practice law for a few years. I am a supervisor now and my newer lawyers are plenty competent but not COMFORTABLE in the Courtroom just yet. That takes time. Short of that, go get the University of London LLB!

2) No, I never am troubled by represnting a person I "know" is guilty. The state has to PROVE his guilt and that's to protect YOU and ME from the likes of John Ashcroft. Remember, too, that ultimately it is up to a jury made up of ordinary citizens to decide guilt or innocence. Justice IS too important to be left to lawyers!

I agree that it is NEVER necessary to be a jerk in or out of the Courtroom. Judges don't like it, juries don't like it, counsel don't like it, and it accomplishes nothing.

Nosborne, JD

 

Poor John Ashcroft. He has become the bogey man.

North

 

Personally, I'm a lot more worried about the Ted Bundy's, the Otis Toole's, the Henry Lee Lucas', and the Charles Jaynes of the world than I am of the Attorney General, unless the AG happens to be Janet Reno, who had the annoying habit of burning down buildings that contained women and children.


Bruce

 

I believe that it is very positive that crime is a bigger concern to me and you than is individual rights needing protection against government officials. Of course an important reason for this is that when the supreme court makes a ruling, the law abiding citizens in civil service will try to follow the law.