The Matlock Blog

Random Musings

Sometimes, I just don't have a lot to talk about from a legal standpoint.  It happens.  But don't think I don't have anything to write about.  No such luck for you.  So, I offer you my random musings.  Although, I'm sure they won't be as good as Liberally Lean.  Of course his has pictures of attractive women.  

If I was a trial court judge, and an attorney appeared for court and wasn't properly dressed, (i.e. at least a coat and tie), I'm reasonably certain I would throw them in jail for the weekend.

It's a dead giveaway that someone just found an attorney in the phone book when, at the end of the telephone conversation, the person asks what the attorney's name is.

I was thinking about not paying my mortgage next month.  Anyone want to take care of that for me?  No?

Is there a more important piece of information for a criminal defendant to have during a felony court docket appearance than their attorney's name?  Yet everyday, there is someone that answers that they don't know when asked by the judge who their attorney is.  

What the hell happened to the Georgetown Hoyas?  Ten Big East losses?  

Forty-one days until Rangers' opening day.  I'll be there.  Of course, I don't like the Rangers, nor do I know who they are playing.

How long until Tarrant County gets a new courthouse?  Talk about a poorly-designed building.

Speaking of Tarrant County, I understand the District  Clerk is in the process of unveiling a new county computer system.  It's supposedly more like Denton County's, in that it is internet based.  Perhaps more importantly, it doesn't look or act like a computer from the movie War Games like the current system does.

Why do men wearing a jacket and tie outside in the wind refuse to button their jacket?  You can't really enjoy having all that crap flapping around, can you?

How can a movie that almost went straight to DVD win Best Picture?

Why do television networks air a new show, only to sporadically take it off the air for other existing shows?  I love Lie To Me, but seriously.  Does Fox have to take it off the air every other week so we can watch the stupid American Idol?

I think its possible for me to do 85% of my day-to-day legal work on my iPhone.  Which means I don't have to be in my office.  Thus, I could possibly be writing this at the.....

Who would you rather defend? The Sharon Keller Edition

Almost a year and a half ago I posted a relatively simple question here:  Who would you rather defend?  In the post, I relayed a question posed to me by a college friend of mine.  

Essentially, the question was, of the following, who would you rather defend:

1.) al Qaeda Islamic Terroristic held at Gitmo (That's Guantanamo Bay. I knew that one!)
2.) Nazi War Criminal 
3.) Repeated Child Sex Offender 
4.) Presidential Assassin 
5.) Movie Star/ O.J.-type situation (of course I assumed v.1, but v.2 probably also works) 
6.) American Politician accused of "War Crimes" 
7.) Satan

In the last few days, the legal world is buzzing about the possible impeachment of Texas Court of Criminal Appeal Presiding Judge Sharon Keller.  Additionally, it appears the Texas Commission of Judicial Conduct will hold a hearing to seek to publicly sanction the judge.  This is getting interesting.

But without discussing the specifics of the conduct by the judge, I pose only this.  

If I add Judge Sharon Keller to the above list, will anyone pick her?  

Judging the judge

All jokes aside, sometimes judges do things that require them to be judged.  To be held to a higher standard.  To be called upon to act at a higher level than the general public.  Some, if not many, might call those times elections.  But that is another discussion for another day.  

In the interim, when it's not time to potentially throw out a judge at an election, there is another means to accomplish this goal; impeachment.

Impeachment is exactly what State Representative Lon Burnam of Fort Worth is trying to do to Court of Criminal Appeals Presiding Judge Sharon Keller.  You might recall Judge Keller refused to keep the courthouse open after 5 p.m. when it was clear the attorneys for convicted murderer Michael Wayne Richard would be seeking a last minute appeal in light of SCOTUS' decision to hear arguments in the Baze v. Rees case.  The Baze case involved the constitutionality of lethal injection, the same manner of execution Richard would suffer.

Burnam's bill, found here, calls for a "Special Committee on Impeachment to consider the impeachment of Judge Sharon Keller of the Court of Criminal Appeals for gross neglect of duty and conducting her official duties with willful disregard for human life."

As with most impeachments, should the Texas House calls for impeachment, the Texas State Senate would hold the trial. 

I hope Judge Keller's lawyers know when the clerk's office closes.

I'm so board

Is being board certified by the Texas Board of Legal Specialization any different than saying you are a former prosecutor?  Does it make you a better attorney?  Is it any more than just a marketing ploy?

I’ve tried enough cases, and pled out enough cases, and written enough briefs, and practiced long enough that I can consider applying for the opportunity to become board certified in criminal law.  But do I really want to?  Should I?

It used to be mandated by the State Bar that you indicated if you were board certified, but if you were not, you also had to indicate that by saying something like “Not certified by the Texas Board of Legal Specialization.”  I never really liked that.  Perhaps that is why I convinced myself I should eventually become board certified.

Or maybe it was the company I could keep.  Many of the best defense attorneys, prosecutors and judges are board certified in criminal law.  Yet at the same time, many are not.  And of course the opposite is true.  There are some that are board certified that I am surprised they were able to achieve the distinction.  

The ultimate question is what benefit does becoming board certified provide?  Does it make me a better lawyer?  Certainly not.  It’s all about perception, mainly by potential clients.  

The average potential client doesn’t know what it takes to become board certified.  She doesn’t know that you have to have tried so many cases, practiced so many years and have passed yet another exam to be deemed worthy of board certification.  But it looks flashy.  Just like “Former Prosecutor.”

I have no problem with an advertisement that reads “Former Prosecutor” or any derivation thereof.  It clearly helps to obtain clients who either don’t know any better, or worse yet, somehow equate being a former prosecutor with being a better defense attorney.

It’s been thoroughly discussed around the blogosphere.  Does being a former prosecutor make you a better defense attorney?  Not at all.  However, for some reason, many potential clients read that and assume either the attorney is somehow better-skilled at the completely opposite job, or worse yet, “knows” the right people in the courthouse and can somehow get a better result because of it.

Whether that is true or should be is an issue for another day.  The real issue is whether board certification is the next generation of “Former Prosecutor” branding.  Several years ago, I would have said absolutely not.  Being board certified is a worthy distinction only credited to the select few of top-tier criminal lawyers in the state.  

But now, I’m not so sure.

Don’t get me wrong.  There are a lot of board certified attorneys that are some of the best in the business, whether as defense attorneys, prosecutors or even judges.  But there are many that are not.

Becoming Board Certified is very similar to simply being added to the court-appointment list.  You have to have tried so many cases, and pled so many cases, and written so many appellate briefs.  Never there is any mention of doing those things well.

Is the attorney that has unsuccessfully tried 50 cases in the last seven years, and pled out 400 cases to no better plea deal than anyone else necessarily better than the attorney that has successfully defended 11?   Seems the “quality-versus-quantity argument” can be made here.

The question for the potential client should be “Who is the best attorney for me?”  However, there are too many marketing ploys out there.  

“Can your case be dismissed?  Call me now to find out!”

“Former Prosecutor”

“Former IRS Agent”

Does “Board Certified” belong in the same category as these marketing ploy, or is it a perfectly-valid statement of skill and qualification?

I tend to think it represents some of the best in the field.  But there are exceptions to every rule.

But what the hell do I know?

I'm just not that in to you

There seems to be a perception that clients (or perhaps more appropriately, potential clients) possess all of the bargaining power when choosing an attorney.  I think this is based on the idea that the client needs an attorney and the attorney needs clients, and sense the attorney can't go get clients, he needs the clients that come to him.  Personally, that's crap.

Make no mistake.  I want clients.  I like clients.  Practically speaking, I need clients to keep the doors open.  But that doesn't mean I agree to represent everyone that walks through the front door.  Unfortunately, there are too many attorneys that do just that.  And that leads to problems.

I have worked in firms where the primary goal was "signing up clients."  There was no regard for whether the firm was best-suited, or even well-suited, to represent the particular client.  Aside from the basic practice area differentiation (this is a family law case, and all I do is criminal defense, for example), it seems little consideration is paid to whether the attorney and client can work well together, if at all.

Lawyers should be choosier, if that's a word.  This is not so much about marketing or peace of mind or quality of life, as it is quality of representation.  Of course this presupposes the attorney tries to provide the best representation he can, rather than make money.  If the attorney is only concerned about making money, he will never turn down a client.  He will outbid, make promises and do everything else he can to get that potential client to hire him.  

However, for the attorney that truly cares about providing the best representation possible, sometimes you have to turn clients away.  It's hard.  It's extremely difficult to tell someone you're not able or willing to represent them when they are willing to throw a lot of money at you.  But they say money can't buy happiness, and sometimes certain clients don't make you happy at all.

The single most important attribute for a successful attorney-client relationship is trust.  It's not skill, resources, or knowledge.  It's trust.  And it goes both ways.  Not only must the client trust what the attorney is telling her, but the attorney must trust the client.  Anything else will cause problems.  How many problems and to what extent vary, but if there is no trust, there will rarely be much success.  Or happiness.  

Since I opened my own office, I decided I would only take the cases that I thought I was well-suited to defend.  As a general rule, there is no "type" of criminal case I won't handle.  However, there have been a number of individual potential clients that I have refused to represent.  

First, I have no problem with attorneys that refuse to defend certain "types" of criminal cases.  I know some that refuse to handle child sexual assault cases or capital murder cases or injury to the elderly cases.  It seems obvious to me that the reason is the attorney knows they wouldn't be able to effectively represent the person, and attempting to would hurt the client.  I actually think that's admirable.

Personally, I have not run across the type of factual scenario in a case that I would be unwilling to defend.  But, as some like to point out, I don't have the life experience others have.  

But why don't attorneys use the same selection process when it comes to individual clients?  I see the results all the time.  An attorney complaining about their client because of whatever reason.  Obviously there are circumstances to which I am unaware, but there is an easy way to avoid the headaches.

There have been a number of potential clients whom I have refused to represent, for whatever reason.  Sometimes it was because I could tell mom/ dad/ husband/ girlfriend was really calling the shots.  Sometimes it was because the client had completely unrealistic expectations.  Sometimes, quite frankly, it was because I didn't think I could trust them.  

If I can't trust my client, how can I effectively represent them?  This is not the age old question of how can I defend someone that told me they did it.  This has nothing to do with trusting whether the person is innocent.  If I only defended factually innocent people, I probably wouldn't have many clients. 

Instead this type of trust deals with me knowing that if my client tells me she will do something, that I know it will be done.  When there is no trust, there can be no success.  I firmly believe this.

Yet day in and day out, attorneys agree to represent clients they don't trust.  If attorneys paid more attention to whether there could be a successful attorney-client relationship that is built on trust, there would be fewer problems.  

So, if you come to see me, don't assume I will want to represent you.  Sometimes I don't trust a word some potential clients tell me.  Sometimes, I'm just not that in to you.

But what the hell do I know?  

Anxiety is the difference between "now" and "then"

Strange things happen when you study psychology in college and then go on to become a trial lawyer.  You start trying to figure out the psychology of your jury.  You start evaluating your case from the psychological perspective of your jury.  And of course, you keep reading psychology books, only now they deal with jurors and trials.

One such book is Practical Jury Dynamics 2 by Dr. SunWolf.  The good doctor has written a pretty good book that deals with, oddly enough, the practical side of the the juror's psychology.  

A great section is what is referred to as Evidence-Anxiety for Jurors.  Dr. SunWolf created a simple list of 10 sources of Evidence-Anxiety for Jurors.  This is useful when preparing your trial so as to present your evidence in a way the jury can understand effectively.

1.  They do not understand the information.

2.  They suspect they are alone in not understanding the information.

3.  Information is presented too quickly.

4.  Information is presented through only one communication channel. 

5.  The amount of information is overwhelming.

6.  Multiple sources of different information are being presented simultaneously.

7.  There is too little information about the information.

8.  They do not know whether further information about the information will be presented.

9.  The information is contradictory to old information they had before hearing the new information.

10.  The do not know whether they will need the information.

When presenting our case to a jury, all too often we have lived with the case for months, maybe years.  When that happens, we take for granted the information of the case.  It becomes routine for us.  Although we might have been overwhelmed initially by the medical evidence of the wounds to the alleged victim, or the shear volume of documents in our fraud case, or whatever, we figured it out.  But we did so likely over months of preparation.

The jury will be listening to the evidence for the first time.  The amount of information can be overwhelming to them as well.  In addition, they are confronted with the reality that they will not be able to take the file home and reread it like we did.  This is where evidence-anxiety can come to play.

By remembering that jurors are only seeing snapshots of everything we have spent months with, as well as the corresponding fear and anxiety that goes with learning new things, we can present better cases to juries, and as a result, obtain better results.

But what the hell do I know?