Actually, There Are Stupid Questions

 Posted on June 18,2010 in Uncategorized

I admit it: I was wrong.

For a decade I've been encouraging young lawyers and soon-to-be lawyers to start their criminal defense practices right out of law school. With hard work, intelligence, and humility, I thought, they could do well without hurting anyone; the question, I thought, was not whether they would provide perfect representation, but whether they would provide better representation than the other people who their clients might use instead.

I wanted to believe, because society is better served by having those who are dedicated to freedom serving that cause (rather than the State) from the start of their practices, and because here in Harris County the only way for a lawyer to serve freedom from the start of her practice is to start her own practice.

Forget all that. You can't do it. Those few who have managed to build practices from scratch right out of law school are aberrations. Take my word for it: you don't have what it takes. Not on your own.

I have come to this realization thanks to a string of inane questions posted by youngish lawyers to various criminal-defense lawyer listservs (do other professionals rely as much on listservs as criminal-defense lawyers do? I suspect that, because of our nature and that of our job, we use them more than most): If the police want to come into his house, does he have to let them? (If they want to sleep with his wife, does she have to agree?) What's a 3g offense? What's an expunction? How can I keep this case off my client's record? If the police want to question my client, does he have to talk to them?

Yech. If a lawyer has so little understanding of the rules that she needs to go online to ask other lawyers if her client really must chat with the cop who is investigating him for murder, what life-destroying mistakes has she made because she didn't realize there was even an issue? I cringe to think that anyone asking these questions might have based her decision to hang a shingle even in part on my encouragement.

But wait, there's more! The young lawyers who bother to join the associations and participate in the listservs are the diligent ones. There are more new lawyers who go about their business that they sprang fully-formed from law school knowing everything they need to know. Such lawyers have no business entrusted with people's futures and freedom.

I'm glad that some lawyers are willing to ask stupid questions publicly-better out than in-but I'm starting to come around to thinking that, by answering stupid questions and making it possible for incompetent lawyers not to go down in flames, we do more harm than good. Better a few months of gross incompetence than a lifetime of mediocrity. (Unfortunately, a lifetime of gross incompetence is also an option.)

New lawyers, it's good that you know that you don't know everything. Questions that are stupid when asked on a listserv might not be stupid when asked of a mentor who can keep an eye on you and make sure you don't screw up other cases without knowing it. I don't know if it's because you haven't sought them out or because there is a deficit of experienced lawyers willing to provide the sort of supervision that would be required to make sure you aren't screwing your clients, but, clearly, you don't have such mentors.

Lacking such, the only way for you to become a competent criminal-defense lawyer is to work under a competent criminal-defense lawyer, either privately or as an assistant PD. And, since there are few openings for either newbie criminal-defense lawyers or APDs, you're probably out of luck.

(Quit smirking, ye current and future former prosecutors. Some of the stupidest questions, betraying the greatest failure to comprehend the criminal-defense lawyer's mission, come from your brethren and sistren. Whatever you learned in the DA's Office, it wasn't how to be a criminal-defense lawyer.)