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Cut and Paste "Warriors"

Scott Greenfield writes in “On Sale, Motion to Suppress,” about how even criminal defense is not immune from the tsunami of “unbundled” services that have hit other areas of law. He’s not happy about it.

Scott and I don’t always see eye-to-eye — in fact, if I understand things correctly, I’ve been “kicked off the island” of his blogroll for refusing to stop talking to the wrong kids on the Internet playground. One man’s silliness, though, isn’t going to stop me from recognizing when he’s got a point on some other issue. And if there’s one thing Scott does tend to get right, it concerns the danger of embracing technology and innovation in the law without thinking.

Folks repeatedly tell Scott that “the marketplace is changing,” with the implication being that he needs to change with it.

There may be a few things I’d change about Scott Greenfield: grousing about an unthinking embrace of technology and innovation how legal services are provided is not one of them.

Perhaps part of the problem is this tendency to view the practice of law as the provision of a service. Admittedly, in the sense that a particular lawyer is, at a particular time and in a particular case, doing something that needs to be done, it’s probably nitpicking for me to complain about saying that lawyers provide services. But that’s not really what we do.

At least, not criminal defense lawyers.

Saying that criminal defense lawyers provide a service makes as much sense to me as saying that theknights of the Middle Ages in Europe were in the service industry.

The guy who takes your money and hands you up a greasy — well, maybe not so much greasy these days — cheeseburger at McDonald’s is in the service industry.

Criminal defense attorneys are warriors. They fight for you. And not just for “your rights,” but, often, for your very freedom.

Despite the technological advance of weaponry in our time, war is not a simple cut-and-paste operation. Doing battle requires, among other things, not just courage and fortitude, but also the ability to adapt. In a heartbeat. Some areas of law are more settled than other areas. Maybe it makes sense to have something close to a cut-and-paste Will for many people. The same is not true — no matter how similar each battle is — for a criminal defense attorney. The facts for each case are unique. The parties don’t just change names, but characteristics. In some situations — California’s medical marijuana laws are a perfect example — the law itself changes from one case to another.

Cutting and pasting is not an option. Understanding is required for easy adaptability to the potentially ever-and-quickly changing circumstances. This is something the typical pro se lawyer in a criminal defense situation will never achieve.

A perfect example came to me the other day in an email. I’m not going to give details, because it involves an ongoing case, but my client — an otherwise intelligent man — was upset at me because he’s been doing his own research on his case and is increasingly disturbed that I don’t always respond the way he wants me to when he makes a suggestion. With regards to the particular case about which he emailed, I’m not 100% sure why he liked it so much. What I do know is that his lack of overall background in criminal defense procedure made it impossible for him to understand what the case was actually about. The details don’t matter too much, but it involved the bizarre interaction of rules relating to dismissal of charges after a (second) preliminary hearing and whether or not there was a right to challenge the review done by another judge within the same court and dismiss under a different code section. At least three judges, plus the intermediate appellate court, got it wrong before the California Supreme Court straightened it out.

This isn’t the sort of thing that can be cut and pasted. Without a generalized understanding of criminal procedure to provide context, you can’t begin to puzzle out how this case does, or does not, assist in your defense.

“Yeah,” the cut-and-pasters say, “but that’s just one aspect of the case. The other parts — perhaps the search and seizure motion — don’t vary that much. Those could be ‘unbundled’ and someone could more cheaply handle them.”

Bull. In my experience, the “parts” of a criminal case are intimately related one to the other. This is one reason I hate having to take over a felony case after another attorney has already handled the initial investigation and, particularly, the preliminary examination. It’s one reason I like to try to get to my client as early in the case as possible — preferably while the police are still trying to detain, arrest, and/or question the client. I’d prefer not to deal with somebody else’s mess, or oversight. (I’m not saying I won’t; I’m just saying I don’t like it.)

Maybe surgeons can swap surgical team members in and out, with one removing a kidney and the others clamping off bleeders, debriding a wound, and closing up. But before I became a criminal defense lawyer, I worked in an office where a team divided up parts of the work. Even that was sometimes problematic, if the attorney who was ultimately responsible for the case didn’t keep a close enough eye on what each team member was doing. I’d hate to think how that would work out if “services” were “unbundled.”

In my opinion, cutting and pasting of anything except pure, settled, “black letter” law — which for most motions I’ve been involved with will be only a part of the moving papers, if it’s there at all — is a recipe for disaster. What’s the point of writing such a motion, anyway? What judge would bother reading “boilerplate,” which is what you’ll end up with? And how does “boilerplate” persuade?

When it comes to your life, liberty, and happiness, you want a warrior: fully-trained, adaptable, and ready for battle.

Only a fool goes off to fight a war with nothing but a word processor.

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