Category Archives: Selecting a Lawyer
If you are arrested, you would want the best possible representation regardless of the cost right? While most people would say yes, too many people say no. I always know that this isn’t going to work out when the first question out of the prospective client’s mouth is “how much do your charge for….”. Anyone that focused on money is probably not a good fit for our firm. We are by now means the most expensive firm out there; not even close. However, we are also not the cheapest; not even close either. I think our total fees are average and provide a good value for what you get.
In criminal cases, fees can either be flat or hourly. A flat fee is attractive to many clients because they have certainty in what they will be paying. However, what they don’t realize is that someone is going to get the short end of the stick here. Either the client will wind up paying for time they didn’t get if the case ends quickly or the attorney will wind up doing more work than anticipated. It is impossible to predict every single twist and turn that a case may take no matter how many cases you do. Its what makes this job fun and exciting. Every single day is 100% different than the last. Do you honestly think your attorney is going to put the time into your case when the case takes an unexpected turn that requires more work than originally thought? I highly doubt it. In fact, most people that call me looking to fire their old lawyers often pay their lawyers on a flat fee and often, not enough. As the old saying goes, you get what you pay for.
The only thing lawyers have to sell is time and there is only so much of it to sell. Thus, if your lawyer expected your case to take a total of 30 hours and it take 100, that lawyer is losing a lot of money! Thus, its not wonder that he/she is not preparing for trial, doing research, returning your phone calls, etc. They would go out of business if they kept doing all of that. Thus, there is a big rush to plea everyone out and move on to the next case. Likewise, if the attorney set a fee based upon an expected 30 hours worth of work but only puts in 10, that’s a huge profit margin! As you can see, a flat fee encourages your attorney to put in the least amount of time possible. Is that what you want for your case?
The alternative to a flat fee is hourly billing. With an hourly cases, the client pays a retainer. The retainer is a credit that you have with the firm and is often not an estimate of any kind. The lawyers in the firm and the office staff will keep track of their time including phone calls, letters, court time, research, etc. Some firms charge travel time but my firm never does. Your case could cost more or less than the retainer but it will often cost more, especially if the case goes to trial. Since there is no cap on how much your legal bills may be, some clients get worried that the sky is the limit. In general, this is a valid concern. However, there are three things that wind up capping or controlling the final cost: the ability to pay, the firm’s reputation and periodic invoices.
If your funds are very limited, you have to let your attorney know what type of budget that you are working with. There is a perception that the rich get off and the poor go to prison. Why do you think that is true? I often say that many people are in prison because they couldn’t afford to stay out. For better or for worse, many people sitting in prison would not be there if they had the right attorney helping them. Unfortunately, its hard for some people to really understand how different one lawyer is from another. Of course, just because a lawyer is expensive doesn’t mean they are good. Expensive lawyers lose cases too.
As I said before, you get what you pay for and you should get what you pay for. You should not get ripped off. If the attorney starts to rip you off, you can fire that firm and they will have a bad reputation with you. As I always say, no matter how much your case winds up costing, it will not be worth sacrificing my firm’s reputation. You can track you attorney’s billing practices by requesting an itemized invoice. They should be sent to you on a periodic basis anyway. You should keep in mind that your first invoice may not be indicative of how the rest of the case will go. Criminal defense cases are often like a roller coaster where there is a lot of work to do in the beginning, follow by a lull, followed by more work, another lull, etc. Thus, its not the amount of the first invoice that should be your concern but what you are actually being billed for.
I make it a point that all of our billing is 100% accurate. We also bill be tenths of an hour which is lower than the accepted practice of billing by quarter hours. The difference: a 3 minute phone call will cost you $20 vs. $50 based upon a $200 hourly rate. See how expensive that case can get in a hurry with a quarter hour billing standard?
One way that a lawyer can demonstrate their knowledge and experience is to have a written work published to be read by other lawyers. I don’t consider an article written for public consumption being published as you have to water the topic down to make it understandable that it is not often useful for other lawyers. As a result, it is a rather basic article that just about any lawyer can write. Publishing material for the legal community is a whole different story. You have to back up what you say with other authorities because others will rely on what you have to say.
Most lawyers that seek to get published in a weekly newspaper that is distributed to lawyers, judges and other people in the legal community. Sometimes, these newspapers distribute special sections or magazines that focus on a special topic. While newspapers get thrown out, these special sections or magazines become part of many lawyer’s library for years to come as they can be an essential reference.
In February of 2013, New Jersey Lawyer magazine published a special white collar crime edition that was full of great articles from some of the top criminal defense lawyers in New Jersey. I was honored to not only be published in that magazine but I was the only lawyer to have written article that focused on defending child pornography. After it was published, I received a number of calls, emails and letters from other lawyers telling me that it was a well-written piece. When you write something like, you wonder if anyone will read it and if it will be helpful. It was nice to hear that it was!
Another publication for more complex articles is a law journal and/or law review. Every law school has one and some have even more than one. Most of the time, law reviews or law journals are written by law school students or professors. However, some lawyers will submit articles or be asked to co-author an article. In 2004, I was honored to be asked to co-author an article with Professor Susan Brenner. She is one the world’s leading authorities on cyber crime issues. Along with Brian Carrier, the three of us focused this article on “the Trojan Horse Defense in Cybercrime Cases”. It was real cutting-edge stuff at the time and it kind of still is. There have been cases where people have used the Trojan horse defense to successfully defeat a charge. This article details all of the possible issues with the defense and it was published in the Santa Clara Law & Technology Journal. Ironically enough, I have talked to prosecutors that have used that article to shut down this defense when it was raised by fellow defense attorneys. Had my colleagues read the article as well, they may have focused on a better defense at the beginning of the case instead of wasting their time on this one.
Of course, just because a lawyer is published, does not mean that he or she is a great trial lawyer. However, it does help to demonstrate the experience and knowledge of the lawyer. It also helps to establish the lawyer as an authority on that subject.
Most criminal cases end in a guilty plea. Its just the way the world works. Most people who get arrested are in fact guilty of something and the State will have some evidence against them. The question then becomes: how will the jury consider that evidence? Unfortunately, too many lawyers are in “plea them out mode” instead of trial mode. There are a number of reasons for this I guess including but not limited to: fear of losing at trial, fear of a trial in general, inexperience, inability to spot defenses and the inability to see how the trial will play out.
When your lawyer doesn’t fully understand the issues at play in your case, most of those reasons for not taking your case to trial may be present. Imagine how fearful a trial would be for a lawyer that does not understand the complex issues in your case. Child pornography cases can be very complex and if your lawyer does not understand the issues, their confidence in trial may be severely lacking. Furthermore, if they don’t understand the complex legal issues in your case, how will they be able to spot the defenses! These cases can be won and yet, they rarely go to trial.
I know of very few not guilty verdicts for distribution of child pornography trials. In New Jersey, I know of only one other lawyer that has one a child pornography distribution case at trial. I am always looking for more but I have yet to find any. Thus, when selecting a lawyer, you should ask them, how many of these cases have you taken to trial and how many have you won? Do you want to be your lawyer’s first?
One of the most frustrating things about this profession is that some lawyers will take a case when they know nothing about the specific issues that they must deal with and they have no interest in learning them. I suppose the general public is trained to trust that a professional will not attempt to help them if they don’t know how. If you go to a podiatrist for heart surgery, he’ll tell you that you are in the wrong place! If you go to your local tax accountant for forensic accounting related to complex business litigation, they will send you to a firm that specializes in that field. Unfortunately, with some lawyers, they will take your child pornography case even though they know nothing about that area of law!
I titled this post “can your lawyer turn on a computer” because I know lawyers that will take these cases even though they can’t even turn on a computer. I realize that sounds crazy in this day and age but you have to understand that older lawyers spent the bulk of their career with books, pens and paper. As the old saying goes, its hard to teach and old dog new tricks. Clearly, not everyone born before 1980 is incapable of learning technology, its just that lawyers especially seem to get stuck in their outdated ways. I’m often amazed how many lawyers still keep a hand written calendar or a Rolodex.
This one firm I know in central jersey is widely regarded as a very capable firm. My mother happened to be talking to the senior partner about me and my computer experience. He remarked “I can’t even turn on a computer”. Wouldn’t you know it that the next day, I happened across a letter where they entered their appearance on a child pornography case! How he could possibly understand the complex technical issues in the case is beyond me. My understanding is that the defendant plead out. Years later, you would think that they would have learned a few things right? Well one case actually went to trial and another lawyer in the firm actually told the jury that there were a lot of technical things that he didn’t understand! Of course, the defendant was convicted. Why should the jury listen to someone that doesn’t know what they are talking about? The lawyer missed a lot of key points that he could have used to make a better presentation. Its not just this firm however, I have read transcripts in other cases where older lawyers missed a lot of key issues and as a result, the defendant was convicted.
So, when searching for a lawyer for a child pornography case, ask the tough questions: What is your comfort level with technology? Do you understand computer forensics? Have you written articles on this topic? Have you given presentations on this subject?
My answers to these questions are as follows: I have been building computers for over two decades; been using computers for almost three; have done coding for over 15 years; have taught a class session in law school on computer forensics, have lectured on computer forensics, have been published on child pornography defenses and related issues. Does that mean I am the best lawyer for your case? That is for you to decide but the important thing is that you have the information necessary to make the proper decision.
Whenever I hear this question for any type of case, the answer almost 100% of the time is yes. I make it a point to emphasize that I am not attempting to convince the person that they need to hire this firm (our reputation and experience speaks for itself) but that they need to hire someone. Clearly, if you have been arrested and charged with a child pornography offense, you will have to get a lawyer as you cannot try the case yourself. Waiting to hire a lawyer will solve nothing. There are key moves your lawyer can make at the beginning of your case that can help you to achieve great results such as getting the case dismissed. If you wait too long, those options may disappear forever.
Unlike “street crimes” where the person is arrested as soon as the crime is discovered, that is not always the case with a child pornography offense. Sometimes the computer is seized and searched at a later date. Unless there is a suspicion that a child may be harmed, there is generally no real emergency requiring an immediate arrest. Furthermore, without a confession, the police may not have enough evidence to arrest anyone. Thus, when there is a delay between an accusation and an arrest, it is extremely important that any and all possible suspects hire a lawyer right away. Unfortunately, not everyone does this. For some reason, people think that “lawyering up” may make them look guilty. Trust me, if you are a suspect, the police probably already think you are guilty. The issue is if they have the evidence to back it up. A lawyer can do a lot to prevent you from getting arrested. I know this because I have done it and not just once. Time and time again our pre-arrest strategies have been in child pornography cases and many other types of crimes. Waiting to see which way the wind blows is not a strategy.
The most important thing to remember is that hiring a lawyer before you are arrested is not expensive! Thus, there is no real reason not to hire a lawyer before you are arrested. Call us today to discuss your case.