Monday, March 30, 2009

Blogging, Branding, and Blah Blah Blah

I started this blog back in August of 2008 shortly after I "hung out my shingle" as a criminal defense attorney. I love doing this. And to any person reading the Saratoga Lawyer Blog, I say to you "Thank you!" I also have to thank fellow blogger, fellow lawyer, former boss, and current friend Warren Redlich for encouraging me and inspiring me to blog about my practice.

I don't really know exactly what motivates me to write this stuff and I have been thinking about it a great deal lately because it takes time to write, and my time is precious. You see, I have the kind of job where you never feel like you are working hard enough. My head is perpetually engaged in thinking about work. So if I'm going to kick down two hours to muse or rant about something, there should probably be some collateral benefit to me or my clients. Right? Frankly, my aspirations for this blog are patently selfish. My hope is that the blog will generate business for my practice because it will promote my "brand" of legal service.

Ah ha! Now I am getting somewhere. I always hear marketing people talking about developing a "brand", but I've never really been able to connect that theory up with lawyer marketing. But now I understand. And the Saratoga Lawyer Blog has helped me sort it out because it gives me a venue to think, reflect, write, learn, and grow in.

My brand is not a fiction. It is a reflection of my attitude and beliefs. I became a criminal defense attorney because I believe someone needs to stand up to the government and fight for justice. I went to law school to empower myself and empower other people. I could never, ever, be a prosecutor. I respect my colleagues and their job is necessary, but there are so many bad laws that I could never enforce in good conscience. And coming from very humble beginning gives me a soft spot for the little guy.

So how do I define and describe my brand? Well I'm different of course! How am I different? I have almost eliminated overhead from the practice of law which enables me to deliver high quality legal services at a discount. I have a virtual office. My desk moves with me from courthouse to courthouse, and law library to Starbucks. When my computer is out of reach, my iphone takes over. With email, I don't need a secretary. I use a $350.00 fax/printer that has printed thousands of pages of motions, briefs, letters, and faxed hundreds of documents without failure. I have no employees. I don't have to pay rent. I don't have to deal with office drama. My business plan has "Keep It Simple" stamped on it. And the plan is working.

I have a niche practice. I know exactly who my clients are and why they want me. Nearly all of my clients are from the same demographic. One very important thing about that demographic is that they can afford my fees. I'm not cheap and I never will be. I learned early on that to deliver high quality legal services, you must make the money you feel like you deserve to be happy and productive.

I want to make this blog better. I want it to have a direction. I want it to be popular. And I want it to make me money. So I don't think I want to change too much about it other than tweaking design and organizing the posts in to categories to make it more search friendly.

I'm looking for feedback here so don't be shy about commenting. Thanks!

Wednesday, March 18, 2009

Misleading Lawyer Advertising

As a lawyer who relies heavily on the internet to generate revenue, I often spend my time perusing the web, checking out the competition and my colleagues. Today on a whim I Googled "Buffalo DWI Lawyer". Ranking at number four in the list was the website of Friedman and Ranzenhofer. The layout was a typical wordpress style blog looking page. A picture of Bob Friedman looms aside a body of text. I started reading. The text contained the typical scary sounding crap that criminal defense attorneys like to put in their ads. You know-"a first time DWI offender can lose his or her license and go to jail for a year" and of course the obligatory expression of sympathy like "I understand you are very scared right now and that's normal."

Then I came upon this gem of a statement:

Our firm has been successfully defending Buffalo area residents that have been arrested, or charged with a crime, for over five decades. Additionally, I was a prosecutor for twenty-three years. In fact, I was named 2003 Western New York Prosecutor of the Year.

What that means to the indivudual that's been arrested is this - We've established a good working relationship with law enforcement and the local court systems. And that gives us a unique advantage when defending a client in court.


So Mr. Friedman was a prosecutor for twenty three years. And he knows all the cops and all the judges. And he can get you a better deal because he has "juice" in the Court and police station. Is that what is meant by the expression "unique advantage"?

Where do I start?

First of all Mr. Friedman, you spelled individual wrong, but I'm not taking off for spelling. Plus, I understand that whatever web software you are using probably does not have spell check.

Second of all, I'm pretty sure that advertising that your legal services are unique because you were a former prosecutor is disingenuous at best, and a lie at worst.

Finally, if you want to convince potential clients to call you based on your web presence, I suggest putting some information that is useful on your page in addition to bloating your services and potential results. Or maybe its working for you.

As someone who is very dedicated to the legal profession as a criminal defense attorney, I have a hard time trusting former prosecutors as defense attorneys. I'm not talking about the guy or girl who does a couple years in the DA's office out of school. But the person who spends two decades working for the State? Call me crazy.

Monday, March 16, 2009

Angry Cop

One of the really fun things I get to do as a criminal defense attorney is question witnesses under oath. I especially enjoy cross examinations because it is an artform. As a criminal defense attorney, cross examining the police is a big part of my job. Most of the time, the results are dissapointing because a large portion of police, especially State Police, are smart and honest. A smart honest cop who arrested your client is generally not good for the defense's case.

What I'm really hoping for when I meet the cop who arrested my client for the first time is the cop who is mad. He huffs and puffs into the Courtroom. He's pissed. Maybe he was subpoenaed two hours ago and now he has to work late. Maybe he blames me for cutting in to his drinking time. I don't know and I frankly don't care.

Why any cop thinks their time is more valuable than that of the accused, the judge, the defense attorney, the stenographer, the witnesses, or the Constitution, etc. is disconcerting. A cop is a public servant. The word servant means you serve. How about serving with some freaking dignity?

I love questioning the mad cop. The calmer I stay and the closer I listen, the more I learn. The mad cop is very impatient. Especially when you ask him a really stupid question like, "You agree that alcohol by itself is an odorless substance right?" They really hate that question. I use it to feed the anger fire.

The best part about mad cops on the stand is that they forget why they are present in the Courtoom. They think they are in a pissing match with the defense attorney but they are there to tell the truth! But, they want and need to "win". So they lie and I call them on it. Now whose side do you think the jury is gonna be on? The calm polite defense attorney's side, or the angry lying cop's side?

Thursday, March 12, 2009

Accused Murderer Smoked Weed

A headline in today's Times Union newspaper reads:

Troy Murder Defendant Tests Positive For Pot

As a lawyer who defends marijuana defendants I may be a little sensitive, but is the Times Union trying to tie marijuana to violent behavior? Law enforcement and the media in general have been trying to sell the myth that marijuana causes violent behavior in users for years now. Anyone that claims marijuana causes violent behavior in humans has obviously never been to a jazz concert or music festival, much less ever smoked themselves. Another myth is that the marijuana drug trade results in street violence. I live in the suburbs. As many people in the burbs smoke weed as in the inner city and no one is fighting in the streets around my house. Inner city violence is generally the result of gang activity. Any one living in downtown Albany will attest to that fact.

Abolish The Prompt Suspension Law: A Pringle Hearing Lament

The prompt suspension law in New York gives a judge the power to immediately suspend the license of a person charged with Driving While Intoxicated (DWI). It is this writer's hope that one day, this terrible law will be repealed and replaced with a policy that makes sense. The legislature believed that the prompt suspension law would save lives by removing dangerous drivers from the road. This notion is disingenuous at best, and simply absurd at most. Because almost every person charged with DWI can keep driving by simply showing up to court and pleading guilty. Thus, an admission of guilt is rewarded with the keys to the car.

As an attorney who concentrates some of my criminal practice on DWI defense, I have to counsel people charged with DWI about making some very difficult decisions. I have a case now where my client's alleged BAC is .08% which is the statutory minimum in New York. It is my opinion, and I bet many prosecutors would agree, a .08% case will never make it to a jury trial because breath testing devices are unreliable and will not overcome the reasonable doubt standard at such low BAC readings (among other problems). The fact of the matter is, a breath testing device is half machine with moving parts and half computer with secret software. They are prone to interference from all kinds of chemicals and interference from radio waves. A breath testing device assumes every person's chemical and physical attributes are the same. I could go on and on but I think you get the picture. Machines make mistakes. People make mistakes. When the BAC reading is .16% or over, it may not matter that there is strong possibility the reading is off a percentage or two (which most BAC measurements generally are). However, when the BAC is .08% there exists a strong probability the defendant is innocent which becomes a reasonable doubt. In my experience, it makes sense to fight a .08% case because the worst case scenario would be a bench trial on the lesser included DWI offense, Driving While Ability impaired (DWAI). The standard plea bargain in a low BAC DWI case is generally an offer to reduce the charge to DWAI. By rejecting the offer and preparing for trial, a prosecutor may be encouraged to reduce the charge to a DWAI which does not get tried in front of a jury, but rather a single Judge which is a far simpler matter to handle for a prosecutor than a jury trial. In other words, you have nothing to lose by fighting other than you have to pay a lawyer like me.

So my client decided to contest the charges and the Judge is suspending his license after a hearing next week (assuming we lose, which we will). This hearing is called a Pringle Hearing. Judges' hate these hearings and I don't blame them. Criminal defense attorneys love them because it gives them an opportunity to question the police and generally prosecutors do not participate. I've heard stories about a legendary NY DWI lawyer who has kept Town Justices on the bench for five hours late into night while conducting a Pringle Hearing.

The purpose of the Pringle Hearing is to give a DWI defendant the opportunity to rebut the court's finding that a valid chemical test result was obtained and that there was reasonable cause to arrest the defendant for DWI. After the court makes these findings, the defendant is given the opportunity to present evidence to rebut the findings of the court. Well how do you rebut the finding that the chemical test was valid? You subpoena the chemical test operator to court for the hearing. You have him bring maintenance records, calibration records, test logs, etc. You question the operator about his experience and make sure he or she knows what they are doing. How do you rebut the finding by the court that there was reasonable cause for the arrest? You put the arresting officer on the stand. He arrested your client because he allegedly observed indicia of intoxication such as glassy eyes, impaired motor coordination, slurred speech, etc. Then he made your client perform the so called Field Sobriety Tests (which are designed to produce failing results for sober people). Interestingly, the Field Sobriety test were designed to be accurate something like 80% of the time to detect BAC's in excess of .10%. In the case I have been discussing here, my client who blew a .08% allegedly failed the Field Sobriety Tests. This fact suggests there was something wrong with either the breath test machine, or the Field Sobriety Tests themselves.

So you can see why Judges generally find Pringle Hearings to be a major pain in the ass. The defense attorney is going to try to get as much testimony from the State's witnesses as possible. Pringle Hearings are simply another bump in the very long and winding road of DWI litigation. Well Judge Richard P. Tarantino of the City Court of the City of Glens Falls decided he had enough of the Pringle Hearing charade and put a stop to it by preventing a very prominent DWI lawyer by the name of Eric Sills from questioning a cop about any of the issues I went over in the above paragraph, which all bear directly on evidence that has the tendency to rebut the findings of the court. Eric Sills filed for declaratory relief and the Appellate Division upheld Judge Tarantino's ruling that severely limits the scope of the Pringle Hearing. You can read the decision here:

http://decisions.courts.state.ny.us/ad3/Decisions/2009/504307.pdf

For those of you practicing in the 3rd Department or for those of you arrested for DWI around here, the Pringle game is changing:

"We are not persuaded by petitioner's contention that his
due process rights were violated by respondent's rulings. While
issues pertaining to the lawfulness of the police stop, probable
cause for arrest, and whether the breath test device was working
properly at the time of the test are relevant to the
admissibility of breath test results at a criminal trial (see
People v Freeland, 68 NY2d 699, 700 [1986]), and may ultimately
bear on the determination of criminal culpability, they are
beyond the scope of a Pringle hearing."


Vanderminden v. Tarantino

I've got a Pringle Hearing on my calendar for next week. I was in court last night for the arraignment on my case and the Judge informed me he is aware of the above case and advised me to keep it in mind. The court is trying to foreclose the ability of a defendant to rebut the findings of the court by eliminating the only source of evidence. I can't help but feeling my client's Constitutional rights are in jeopardy.

The New York prompt suspension law that spawned the Pringle Hearing and its legacy of confusion and bad case law should be repealed as soon as possible. In this day and age, when government is digging deeper and deeper in to the taxpayers' pockets, idiotic policy like the prompt suspension law should be repealed. A conspiracy theorist might suggest the prompt suspension law and DWI laws in general were inspired by the criminal defense bar. Even though I make a living doing the work resulting from the prompt suspension law, I want it to end. This law causes true despair in the hearts and minds of ordinary people who didn't hurt anyone or anything. And most importantly, the Prompt Suspension law does not work at all. Its supposed to keep dangerous drivers off the road, if only until they plead guilty or win their case.

If you do not agree with me I will conclude with this fact: After all this trouble, the hearings, the subpoenas, the stenographers, the lawsuits, the deprivation of liberty, the assault on due process rights, etc., guess what? Almost every driver can be driving immediately after the Judge suspends their license by asking the court for what is called a "hardship" license. It's a restricted license, but the defendant can drive and he or she is right back on the road.

For another great discussion of this problem check out Warren Redlich's post here: http://albany-lawyer.blogspot.com/2008/12/pringle-hearing-and-dwi-prompt.html

Monday, March 9, 2009

I'm Your Lawyer When You Pay Me

I got a call from a potential client today. He found me online, probably through a google search for a New York traffic ticket lawyer. His first words to me were "I'm shopping around for a lawyer." Oh boy I thought, I know where this is going. Nowhere. He gets my time for free because even though I know this lead is a loser, I have to be polite and courteous. I'm a professional after all, at least most of the time.

So the "consultation" begins- "Yes, I handle lots of speeding tickets in Wilton Town Court. This is what I can do for you blah, blah. My fee to handle your case is $300. etc." This guy then asks me if I would base my fee on the outcome of the case. I beg the reader to please, please, please, never ask a criminal defense lawyer that question. To suggest that I would do any better or worse of a job because of money is frankly insulting. I know I'm young and naive but I believe that there is still some sanctity left in the legal profession. I can hear the old farts laughing.

It may be possible that I have joined a profession that the public holds in such high disregard that they have no qualms about telling us up front they are "shopping around for a lawyer" like they are shopping around for a TV or a used car. Furthermore, would you ever ask your orthopedic surgeon if he would give you a 20% discount if the the range of motion in your new knee wasn't as good as promised? I'm not saying we're as important as surgeons but a lawyer is at a minimum, a trained professional.

I believe that anyone considering hiring an attorney, whether it's a DWI or a Worker's Comp case, should talk to more than one attorney to find the right fit. However, it's one thing to test a lawyer for his knowledge and skill versus testing a lawyer to find the lowest price.

And to the point I wanted to make- A criminal defense lawyer must be vigilant about being paid up front. If I did not get paid up front, I would be out of business immediately. If I lowered my fee because the client does not have the money, then I would have no money and I would not be a lawyer. When I get paid, I am retained. To anyone who is thinking about hiring a criminal defense lawyer, think about coming up with some cash quickly, then call me. Don't waste my time. It cost me 100k and seven and a half years of school to discuss your legal situation with you for an initial free consultation.