The Danger of Loud and Wrong: a Public Service Announcement

    “Loud and wrong” is an expression of which I’m rather fond.  It applies when someone is equal parts incorrect and adamant that they are right.  Another way to describe this state of being is confident and uninformed or my personal favorite, “Strong with no money.”  Though I harbor a certain, peculiar admiration for the kind of person who is so completely without shame, self reflection, or concern that they could be making an utter fool of themselves, this behavior presents a genuine danger to clients and attorneys.

       Caveat– I am a post conviction and appellate criminal defense attorney.  So I spend a good portion of my time pouring over transcripts and looking for mistakes made by the court (in the case of appeals) or by trial counsel.  Identifying these mistakes and successfully arguing that a conviction should be reversed based on those mistakes is how I make my living.  In some respects, I am a professional “Monday Morning Quarterback.”  So, these mistakes help keep me in business.  Nonetheless, the point of this post is to help defendants and attorneys avoid the mistake of “Strong with no Money,” which can have disastrous consequences to a client’s life and to a lawyer’s reputation.

       Recently, a potential client called me to inquire about my services.  In the course of discussing his case, he explained that his family had just spent a large sum of money on a young attorney who convinced them that the lawyer had a “slam dunk winner” of an argument on a motion to correct illegal sentence.  **Red flag number 1– when it comes to collateral review, NOTHING and  I mean NOTHING is a slam dunk winner.  A legal argument may be completely correct, but that does not mean that you will prevail in court, at least not in the first go round.  Judges make mistakes.

         I was familiar with this particular lawyer.  I had met this lawyer before and knew that the lawyer was just a few years out of school and was not well versed on collateral review despite how the attorney presented.  One thing this lawyer had going for himself was confidence.  I mean, A LOT of confidence. If I didn’t know better, I might be taken in by this lawyer’s confidence and the manner in which he discussed legal propositions about which he was completely wrong.  In other words, this lawyer was loud and wrong.

        This inmate on the other end of the phone then told me the argument that this lawyer convinced him and his family to spend their hard-earned money on and my blood started to boil.  The argument was wrong.  It was objectively without support in the law and was the opposite of a slam dunk winner, it was a loser, and an obvious one at that.  Not surprisingly, the Motion was denied without a hearing.  Then he told me how much they spent and I was incensed.

       Make no mistake about it, the prison population is a vulnerable population, not unlike the elderly, though generally viewed as far less sympathetic.  People who have been incarcerated for decades are looking for hope and for a savior.  Occasionally, an unscrupulous attorney preys upon the hopes and dreams of that population and makes promises that he can’t keep.  More often, it is far less machiavellian. Sometimes a lawyer just doesn’t know what he doesn’t know.  Hubris takes the wheel and the lawyer is simply confident, but uninformed, loud and wrong, strong with no money.  The harm may be unintended, but it is no less harmful, particularly with post conviction.  A defendant gets ONE post conviction, just one.  It is a defendant’s LAST GUARANTEED OPPORTUNITY TO APPEAR BEFORE A JUDGE IN HIS CRIMINAL CASE AND CHALLENGE HIS CONVICTION.

       Don’t get me wrong, I don’t knock anyone’s hustle.  Well, I don’t knock most people’s hustles.  We all need to pay our bills.  But when you take advantage of someone out of greed or ignorance- I take issue with that.  Our duty to represent our clients is a sacred, noble, and weighty obligation.  Everyone was inexperienced once.  But, as an attorney, if you don’t know what you are doing, you have a professional and ethical obligation to educate yourself and associate yourself with attorneys who do know.  By and large, the Maryland criminal defense bar is filled with intelligent, generous, patient attorneys who are more than happy to share their knowledge.  Take advantage.

   Takeaways for defendants and their families when considering hiring a lawyer:

  1.  Experience Counts. Ask questions about a lawyer’s experience.  Particularly when it comes to appeals and collateral review, there is no substitute for experience.  Do you want to be operated on by the surgeon who is performing this surgery for the first time or the 100th time?
  2. You get what you pay for, sometimes. . .  Generally speaking, you can always find someone willing to represent you for less than the next guy.  A lawyer’s fee is not necessarily representative of the quality of that lawyer’s representation, but if they are charging “bargain basement” prices, then they’re going to have to do high volume to keep the lights on.  It is sometimes difficult to maintain quality standards and keep up with a high volume practice.
  3. You have a right to understand what’s going on in your case.  Lawyers are busy and they can’t necessarily take every call, but, generally speaking, your lawyer should be willing to talk to you, answer your questions, and help you understand what is going on in your case.
  4. Promises ≠ Success. If a lawyer guarantees you success, run the other way.  NO ONE CAN GUARANTEE SUCCESS and if a lawyer says he can, that lawyer is dishonest or stupid.  Either way, RUN FOREST RUN!
  5. Honesty Matters. Your lawyer should be honest with you, even if it’s not what you want to hear.  The lawyer who cosigns your argument is not necessarily the lawyer you should hire.  If your argument is wrong and your lawyer is just telling you what you want to hear, that lawyer is doing you a disservice.  I spend A LOT of time telling clients that a particular argument about which they feel passionate and believe is the key to their freedom, is not going to fly.  It doesn’t always make me friends, but a client’s goal and mine are the same, to get him or her closer to or out the door of prison.  Making a client feel good about a losing argument is not in line with that goal.
  6. Looks can be deceiving. It is easy to be taken in by Loud and Wrong, but the loudest person in the room isn’t necessarily the smartest and the person who is selling you the hardest, is not always the most trustworthy.

 

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