White Collar Crime and the Solo/Small Firm Practioner: Why Going "Small Law" Makes Sense

If history is to be believed, Dreier and Madoff is the tip of the iceberg in the prosecution of White Collar crimes. If the Junk bond debacle is any indicator of what is to come, a lot of people are about to be investigated and indicted. Many of these folks will be in New York, but there will be cases in many smaller legal venues as well. Many of those who are arrested will make the move to hire big law firms and big legal names. This time however, that may be the biggest mistake they will have made.
Wall Streeters and other white collar clients, who seek out big firms are usually thinking that :

1. Only big law firms will have the resources to handle the kind of paper and evidence that accompany the big white collar crime cases.
2. They want lawyers who are familiar with the "way things work" on the street.
3. They also want lawyers who have worked on the "other side" of the law. In other words, they want lawyers who have been Former Assistant US Attorneys.
4. Finally some believe You get what you pay for. The more you pay, the better the lawyer.

While each of these myths have some validity, the truth is that in today's white collar cases, all those instincts may wind up guaranteeing a conviction.

First of all, there is the myth of that the solo small practice cannot handle the paper. While that may have been an issue 20 years ago, modern technology has more than helped the solo and small firm criminal defense attorney keep up with the paper in these cases. Moreover, thanks to the invention of intranets, many small firm practices make use of the same off shore attorneys used by the big firms for cataloging and sorting the myriad of reports, e-mails, documents, and other evidentiary items that make up the thousands of pages and tens of boxes of evidence in most modern White Collar cases.

Second, I think that knowing how things "work" on the street is a hindrance to helping to win in court. Main street and the people who live around Main street are going to be your jury. These people have a fundamental issue with the way things work on "the street." In fact most think that "the street" is geared to hurt them and it is the Wall Street mentality that "greed is good" that put the defendants in the soup to begin with. This is further complicated by their own anger that Wall street and Wall street lawyers took down the little guy with everyone else.

A lawyer who regularly works on regular criminal cases, can bring an air of truth and appreciation for what a local feels and may be in better position to explain that a Wall Street executive's behavior was at the worst not meant to harm a little guy (like the juror) but to protect all the little guys that were in the market. It may be nothing more than an idea that just failed. Further it may be hard for a Big firm lawyer whose starting salary is three times the national average salary (not the national starting salary) to convey to people who will never earn that much money in a decade, how the white collar criminal is no different than they are, and how they and he are just, after all, neighbors.

Thirdly, there are lawyers who worked for the Government who did not go the Wall Street route. Now I am not enamoured of former prosecutors. I think they often fail to see the defects in the prosecution's case because they never saw them as prosecutors. Many are so sure of the governments superiority, that they are afraid to take them on in court. Some fear it will hurt their relationship with their former mates in the office whom they rely on to get good plea bargains.

On the other hand, there are some that are very good once they make the switch. Either way, whether you need a former prosecutor or not, they work on "Main Street" too.


Finally there is this idea that you get what you pay for. I guess some of that is true. The question I have with most Biglaw firms is, Do I need what I am paying for? Do I need a lawyer at Four Hundred Dollars an hour reviewing files and notes? Do I need him to summarize documents? Do I even want to pay someone on the hour to do this? Is an hourly rate the best way of paying a legal fee for me and my family?

These are questions that most Main Streeters ask before they start thinking about fees. It doesn't help you much if you win the case but lose your home in the process.

Finally a big advantage to a Main street lawyer, is the opportunity to be his biggest client. You are the priority case, there is always someone working on your file and only the most senior lawyers are assigned to the file. There is a benefit to being able to speak to your lawyer quickly and to know, he knows, everything there is to know about your case.

In all, the White Collar Criminal Defense Client has a lot to gain, and nothing to lose by coming with his case to a local Main Street lawyer. Now if they only read this before they lose all their money to Biglaw.

Lawyers Help. How to Answer the Question: What Do You Do For a Living?

Laser speech; elevator talk; hooks. These are all concepts that Public Relation experts have introduced into the lexicon of the lawyer. We are told at countless "Marketing Seminars" that we have to develop a way to tell people what we do in a short, attention grabbing way. I found this a little challenging at first. I am not a man of few words.

I am a story teller. I like to tell them and I like to hear good stories told. If you think about it. Story telling is what I do. I mean I do it in part. I tell the client's story as well as I can to a judge, a jury, an adversary. I tell it to a claims adjuster and to investigators and police. Sometimes I tell it to the clients family too.

But I do more than that do I not? After all, I am a Doctor of Laws. I am a "Man of Letters." I have been "hooded." I guess if asked what I do, I could say I write letters.

In fact of course I am a trial attorney. I handle criminal cases and civil cases. I am a Matrimonial lawyer. I handle crisis. I do so many things in the course of a day, I am unable to really find a way to tell people what I do in a short pithy manner.

The best way for me to explain my dilemma is to tell you a story:

Last week, a I received a phone call from a distraught mom. Her child was arrested for shoplifting. The child, a college senior has always been a great kid and gifted student. She has dreams of grad school and some kind of a professional license. Although time was tight, I decided to see her the same day. She and her parents came in. As they walked in, I could see what had happened and why. When they entered, Dad was on one side of her mom on the other. Mom was a wreak and the young girl, though apologetic was the calmest one in the group. She was huddled in a heavy coat and while it was cold outside, it was temperate in my office. The coat was a giveaway as to what was to come.

After a few pleasantries I asked the mom and dad to leave the office. I noticed that when they left, the client sat back a bit in her chair. She was still bundled in a heavy coat but it was not that cold in my office. It was almost as if she were hiding from me behind her coat. I asked if she was cold but she said no. I then asked her about what had happened the day before. I tried to ask her questions in a non-cognitive way. That is to say, I took things out of order and mixed in questions that had nothing to do with the previous question or even the facts, so as to keep the client from feeling too comfortable and developing a "rhythm".

The kid readily admitted she stole the item from the store. She had almost no emotion in telling me this. She seemed to have no insight as to why she even took the item as she was more than capable of paying for it. I used this as an opening. I asked her if she was ever overweight. She acknowledged she had been and felt she was presently a little "fat(ter)" than she wanted to be. Personally I thought she was beautiful. As a result I felt the next question would be a gateway to determining what had happened here. I asked her if she used binging and purging as a way to control her weight. She thought for a second about admitting this but then she acknowledged she had for a while, had stopped and then had begun again about a month ago. This would soon become significant.

After her admission on the binge/purge phenomenon I asked her point blank when she had been assaulted. She immediately denied ever being assaulted or abused. I waited a moment and looked her in the eyes. She hesitated, and the tears filled her eyes. She then admitted she had been attacked by two strangers outside of her dorm a few weeks into her freshman year. She had been drinking. She said she was not raped because a boy she knew happened onto the scene and broke it up. She had told no one about it. She told her new boyfriend about it just before winter break, a month ago...

Now in full sobs, she didn't want her parents to know. They are old and would be upset and she didn't want to upset them. She was afraid they wouldn't let her return to school. That they would be angry at her because she "let" herself be put into a situation she lost control over.

Of course I knew that they would be upset because she had been hurt and that if they found out they would readily understand what had happened and why the petty theft had occured. I knew they weren't going to pull her from school and that she needed to tell them. I also new they weren't going to fall apart. They weren't that "old". In fact they were MY AGE!!!! It never fails to amaze me how our children think their parents feeble when they turn eighteen...

Anyway, upon the parents return, she and I spoke to them. They were confused until she gave me permission to tell them what had happened. Then the waterworks started, and she got the love and support she needed. Her mom hugged her and cried. Dad was obviously concerned and upset but he handled it just right. I knew they were going to handle it well, they had produced a brave, smart, wonderful child and that didn't happen because they were judgemental, unsupportive or feeble. While it was tough to do, and not easy to handle, healing was beginning before my eyes.

I referred the parents to a Psycotherapist that handled sex crimes and victims so that they could process their feelings and then I referred the client to her Mental health facility at school. I am now going to seek dismissal of the case with the District Attorney and this kid will go on to achieve her dreams and fufill the promise she displayed. She is again her parents "golden child."

I am not a shrink, nor do I play one on TV, but I am a gatekeeper. I am a person who has some streetsmarts and life experience. I am a student and a teacher. I am a parent and a spouse which was the main reasons I handled that situation as well as I did. (It helps that my sons are the same age as my client above.)

I came home and was telling the story of what happened to my family. Both of my sons work with me in the office, and my wife still helps out with "managment issues" when I need her to (she was the best secretary I ever had). My youngest son, Frank, looked at me and said " Hey dad, I have a new laser speech for you." "I'm a lawyer and I help." I had to smile. In six words he encapculated exactly what I do, and what I aim to do. He says he wants to be a lawyer too, but he may have a career in public relations.

I have a new answer for the question "What do I do for a living?"

"I'm a lawyer, and I help."

Vior Dire Of Scientific Opinion At Trial: Attacking The Expert Witness, Before He's Declared An Expert. Part One

Expert witnesses in criminal trials are often members of police forces and Medical Examiner's offices. The County or State spends a lot of money to train these folks and they go to classes and they attend seminars. They have been on the job (especially in the police detective's case) for many years and often personally know the judges they appear before. They also have been found to be experts in dozens of other cases before the one you're trying so that their being named an expert now is a forgone conclusion. I have watched as they routinely are offered up as experts with nary a sound toward their preclusion as an expert. Why are we defense lawyers giving these people a free ride?

I thought about this and decided that, there are a few reasons for the lack of attack on prosecution experts:

1. They almost always get named as experts so we don't bother to try to keep their testimony out.
2. We often expect their testimony, and so we build it into our case.
3. We do not have the tools available to us to get the background and to do a proper Voir Dire.

As noted scientist, author, and attorney Gil Safir writes, we (defense lawyers) don't have the necessary scientific background to argue the admissibility of the expert's testimony and opinion. This short series of posts aims to begin changing that. Today I am presenting part one of this two post presentation. Please feel free to add whatever you can in the comments.

I. Preparing the attack.

A. Frye or Daubert?

The first thing we have to understand is the difference between the tests used to judge the relevance of the experts testimony.
Here in NY, 2 different tests are used to qualify expert testimony. In State court we still use the Frye test(Frye v. United States, 293 Fed. 1013 (Ct. App. D.C. 1923)). In Federal court we use the Daubert test(Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)).

Now Frye is a more conservative test. It requires that there be proof that the community of scientists involved generally accepts the theory or process that is the subject of the testimony.

Daubert on the other hand considers that with the fast breaking developments in science these days, the process or theory may be fundementally sound but that their has been no consensus by the general scientific community about the "soundness" of the procedure involved. A lot more junk science gets in under Daubert. Daubert has been modified by two other cases that now make up the Daubert Trilogy they are General Electric v. Joiner, 522 U.S. 136, 118 S.Ct. 512 (1997)and
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1174 (1999).

Understanding which test your jurisdiction is using and what the standards are to get an witness declared an expert, is your first course of preparation.

B. What kind of expert do we need? Consultants v. Testimonial experts.

This may seem like an easy question. If it is a Murder case, then you need a coroner right? Maybe if there is a gun shot we need an expert in gun shot residue or if drugs then toxicology. Well, that is only partially correct.

First thing I want is a consultant. I am looking for a person who has run not just scientific investigations but also taken them apart. I also want a person who knows something about the other guy's experts.

Why not let him testify?

Because as Safir points out in his article, the notes I get from him, and the notes I take, are NOT subject to discovery under either Rosario or in Federal court Jenks. These documents and notes are part of the Attorney's work product. Hence I can use my consultant to inform me, and help prep my testimonial expert! (A caveat: If your testimonial expert uses materials from your consultant, those materials he relies on are discoverable.)

I usually look for a consultant with a knowledge of the field, a good track record at trial, and someone who the prosecution knows well, and who knows them just as well.
Why? Because he or she will have inside dirt I can toss at the other side's expert.

In a recent trial, I learned that one of the medical experts was not a member of any forensic expert society and was not board certified. Another so called expert was only a provisional member of the Society that oversaw his area of expertise. I was able to use both of these pieces of information to attack the experts. I demolished the first guy on summation and kept the second from even being allowed to give an opinion. I doubt I would have gotten that information from some nationally known expert who knows his stuff about the science but not about the labs with which I am dealing.

In seeking a testimonial expert, I am seeking a person who is scholarly and intelligent. I want a person who is recognized in the field as the best of the best. Not always easy on an assigned counsel basis but possible.
Remember, to get this witness qualified you are going to need:
1. Educational/academic degrees
2. a present position in the field, or recognition within the field.
3. Board Certification
4. Publication
5. Peer review of research
6. A lengthy career
7. Teaching/Lecturing within the field to other experts or at least to beginners.
8. Professional Associations and time within them.
9. Positions held in these associations.
10. Awards and honors achieved within the field and with in any sub-specialty.
11. Available and testifies for all sides not just one or the other. (This is to be able to make the argument that he is not some hired gun but that his testimony is consistent and he will help whoever is right, as opposed to the Prosecutor's "paid parakeet who will repeat anything the Prosecutor says like his livelihood depends on it... because it does..." (You get the idea.)

Assuming that the expert has some, if not all of these qualifications and more, I then look to the intangible aspects that make for a good witness.
Testimonial experts are best if they can relate information to a jury without "speaking down" to them. Juror's know the expert is smart, at least smart about something. Hence the expert should not speak to jurors as if they were freshmen in an advanced organic chemistry class, nor should he speak so "high falutantly" that no one but a Nobel Prize Laureate understands him.

If a witness is a smart guy who also is a regular "Joe", all the better. One of my favorite witnesses was a short older German or Austrian Jewish woman who spoke with a heavy accent. She was named Dr. Ruth Finch. Now she was a wonderful character. As easily the Medical Doctor as she was your aunt Sadie. It took no time for the court officers and then the jurors to start speaking of her as Dr. Ruth (after another popular Shrink/sexologist Dr. Ruth Westhiemer who was the rage back then.) She educated the jurors, charmed them and completely frustrated the prosecutor. (Need I say it was a defendant's verdict.)

Now that we have figured out what standard we are going to use to determine if the testimony is going to come in, and we have determined what we need as far as an expert goes, and who (more or less by credentials) the witness will be, we are ready to try to keep the other side's witness off the witness chair, or if they do get up there, make them seem incompetent enough, that no self respecting person would send even an enemy to see them.

And that will be in Part II.

Tomorrow I Begin Posting Here Again.

After closing this blog for over a year, I have decided to start posting on a weekly basis with updates as are necessary or as I feel like it.
Every weekend I will endeavor to get up a post on some area of criminal trial law that informs or even educates. I am also open to guest bloggers who have something to say but do not want to open their own blog.
So later tomorrow night. I will be bringing you Part I of what I think will be a two part posting on "Attacking the Credentials of an Expert.

Let me know what you all think.

Over-confident Witness Can Turn Off A Jury

Jury prep is a difficult "science." There is a tendency on both the part of the witness and the lawyer to want to come away as competent and all knowing. I have always worried about presenting witnesses who were too well trained. To that end, I have also worried about the witness who over equivocates. "I think"; "it seems as though"; " I believe"; "maybe" are all answers that to the attorney appear to be weak and not "selling" the theory of the case, well enough.

Now there is a new study out that verifies my suspicions. According to a new study at Cal Berkely an over confident witness who makes mistake on the stand is far more likely to anger a jury than one who seems unsure of himself.
The article is here.

Hattip: CrimProf Blog part of the Law Professor Blog Network.

Unemployment Insurance Fraud Seminar at Nassau County Bar Association Tonight

I will be speaking at a seminar for the Nassau COunty Bar Association on Worker's Comp Fraud and Disability Insurance Fraud at Domus. It begins at 5:30 and snacks are served. The bar will grant 3 hours of CLE credit for the program. I will be speaking on defending these cases. There will be a speaker from the Nassau District Attorney's office and Victor Fusco from Fusco Brandenstien and Rada a top Disability and Worker's compensation attorney. The program should be fun and informative. If you are representing a defendant in one of these cases you should give this seminar a shot. Cost is $100.00.

Ripped From The Headlines

A few issues “Ripped From The Headlines.”

I. Credit Card Fraud.
From May It Please The Court.
we learn that cash register receipts may no longer display your entire credit card number. These receipts may only show THE LAST FOUR(4)DIGITS of the credit card number. They also may not include your card's expiration date. If they show more than that it is a violation of the Fair Faith and Credit Transaction Act and they can be in BIG TROUBLE!!

Why you may be asking? Because "penalties range up to $1,000 per incident, and the suits can be filed as class actions, multiplying the penalties dramatically."In other words vendors who are not in compliance as of January 2007 are at risk of lawsuits. Are you in compliance? Have you been a "victim" of a violation? Time to check out those receipts.

II. Dallas Tx. District Attorney Seems To Care About Innocents Being Convicted..

Now here is what appears to be a prosecutor with both an interest in justice and a brain. Rather than waste money from his budget trying to keep evidence secret and protect possibly faulty convictions, he is willing to open his files to the Texas Tech Law School Innocence Project. Now people who claim that the have been convicted of crimes wrongfully will have the chance to have their claims investigated by a private organization which can bring their findings to the DA’s office or to court. In the long run it will save his county money and do a service to the community (and to the wrongfully accused if any exist there.) Story here
HatTip: Crim Prof Blog.

III. Pace University Law School institutes a Return to Practice Program With The Westchester Women's Bar Association..

Interesting new program over at Pace Law School. It is designed to help Lawyer-Parents who are returning to the workforce to brush up on what they may have missed while performing familial duties. It will also be open to attorneys who have found other alternate career opportunities. I can foresee a day where a smart law school will open a program like this for disbarred and suspended attorney’s and it will be required as part of their application to be restored to practice. The course could have a heavy ethics concentration as well as small business skills building. The program is described as follows:
“’New Directions,’ set for a May 21 launch, is a two-semester certificate program of study and externship for attorneys who have temporarily left practice and now want to return. “ Click here to find a form to get more information.

IV. Politics and Prosecutors..
Over the last 2 months Eight (8) Federal prosecutors have been fired by the Bush Administration. Some suspected politics at work. In this articleit appears Senator Pete Dominici had it in for a guy he formerly supported because he wasn't indicting democrats fast enough. What ever the reason, Federal prosecutors, (US Attorneys) serve at the President's discretion. President Bush has a right to fire whomever he wants. What he does not have, however, is the right to fill the positions that open up with out the advice and consent of the Senate. Right now, he fills the spots with interim people who never get to a vote up or down in the Senate. That is both a dereliction of the Constitution and a petty way to run government. Worse than that, it appears that the senator and the President were trying to rig prosecutions for political reasons. This type of behavior calls into question the fairness of the prosecutor's function. It further indicts the entire criminal justice system. Congress should be looking into that as well as the clear violation of the spirit and possible the words of the Constitution.

V. How do Courts Work. .
Here is a quick piece on how courts are set up within the states and federal government. It explains jurisdiction and how to tell which court hears what type of case. It is a good teaching tool.

VI. A Little TOO Friendly Skies: Airline Employee Fondles Sleeping Passenger on Flight.

Seems a maintenance man working for Northwest airlines boarded a plane from Tacoma to Minneapolis. He then allegedly waited for a female passenger to fall asleep and while the passenger slept, he lifted her shirt in an attempt to fondle her. When she awoke from feeling the material of the shirt move, he got up from the seat next to her and went elsewhere in the plane. The passenger alerted an attendant and the FBI met the flight in Minneapolis. He is being held. Article here.

Ok that's it for now.