Thursday, August 21, 2003

Public or Private, who do you choose?

"I'm going to get myself a real lawyer." That is a comment I hear just about once a week, far more frequently if I'm unlucky. This comes from even the most well-meaning of clients. Don't feel bad for me, it doesn't bother me on an individual level. It does bother me on a grander scale. This is because I know that, for the most part (at least in my jurisdiction), Public Defenders are generally the best lawyers around.

Are they all the best? No, there are clearly some very bad ones who just don't care, and are sticking around collecting undeserved pay and waiting for their pension to kick in. But, on the whole, we are generally the better lawyers in the Courthouse. Are we the best lawyers in the Courthouse? Frequently, but not always.

Consider this. We get a steady diet of cases. We have them foisted on us and we cannot just go and dump a client if we don't like them or don't want to do the work. We are not paid by the hour, or by the case, so we can devote our full resources to the case and not have to concern ourselves with running out of money for the client. More importantly, because we get so many of the really bad cases, we are forced to trial, in general, far more frequently than private lawyers.

When I did misdemeanors, I did about a trial a month, which wasn't too much, but wasn't too bad. At the end of 2 1/2 - 3 years in misdemeanors, I had done over 30 jury trials. I had friends who I went to law school with who struck out on their own right after law school who had done one trial, maybe two in the same time. They didn't know how to cross-examine witnesses (when I started, I started out doing nothing but cross-examination). They had little experience with closing arguments, they didn't really understand the art of jury instructions. Clearly they did far more written work than I did, since that was where they really worked up their cases. But, for the most part, it cost them a lot of money to have to do a trial. For me, I was getting paid regardless, and I really love doing jury trials.

Now, that being said, there are plenty of really good private lawyers, some who have done over a hundred, or even hundreds of cases. But, if you're some poor little schmoe who doesn't know the first thing about the system, doesn't know the lawyers very well, and doesn't know how to find out who's good and who isn't, how are you going to go and pick a good lawyer and discern the difference between that lawyer a public defender and a bad private lawyer. You have to understand that word of mouth in the jail is very fast, and very inaccurate. A while ago there was a very pretty private lawyer who seemed to get a large amount of cases by badmouthing the PDs and flashing leg. Eventually, the bar and courts of appeal found out about how bad a lawyer she was, but several clients subbed me, and even better lawyers, out for her. Nothing like a little flash of her legs to get us off the case. I'd just shake my head sadly and know that my (now ex) client was really screwed now, and not the way he wanted to be.

That kind of thing (clients substituting - or subbing - me out of a case for a worthless private lawyer) has happened many times to me. Some of these lawyers don't know the first thing about trying a complex case like the one they're subbing me out on. The consequences are frequently disasterous for the client. I have a case right now where the client actually asked for me back after conviction and before sentencing because he realized the monumental error that he made.

I'm not going to tell you that all private lawyers suck and all PDs are good. That would be stupid. But, if I had to put this in some kind of a numerical understanding, I would say something like this. The top tier of lawyers is probably equally PDs and private lawyers (especially private lawyers who used to be PDs). The next few tiers are mostly filled with PDs, and the lower tiers would be more dominated by private lawyers. There are, simply put, many very bad private lawyers out there who will take your money and do nothing on a case.

Now, if I had all the money in the world and I needed a criminal lawyer, I'm sure everyone assumes I'd hire a private lawyer, right? Well, sort of. If I was in that kind of trouble, the lawyers that I would want to represent me would be almost all PDs, but I would probably want to hire them out to handle my case exclusively. Why is that? Is is because PDs are, as is spoken in the popular lexicon, overworked, underpaid and uncaring? Of course not. It's because if I had that kind of money where I could get any lawyer I wanted, I would also pay them for exclusivity, so they didn't handle any other cases and could concentrate on my case.

Let me be clear about this: while us PDs may have a lot of cases to handle, we generally do not have any more than your typical private lawyer. But, while private lawyers have to be out trying to get clients, we don't, they come to us whether we like them or not. They have to run offices, pay the bills, go out networking, hold their client's hands far more than we do (with more frequent jail visits that tend not to accomplish much, but do make those paying clients much happier). They have to go to different courthouses, and this is a very big deal. I only work in one courthouse. Most of my collegues do as well. We go into one building, we don't spend all of our time on the road. We don't have to worry about selling one client short while we hurry off to another court, or county, to handle another client's case. And, most importantly, going to trial does not cost us a huge amount of money along with our effort.

Therefore, I would contend that most people are better served with PDs than they are with private lawyers. Yes, there are bad PDs, but they are fewer and further between than bad private lawyers (like I said, private lawyers, don't be pissed off at me, many of you are good. But, plenty of you are not as good as us). And ultimately, mone will not ever cloud our judgment on how your case should be handled.

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