From the Mailbag

I received this email:

Your Google link says, “We Have Never Prosecuted.” I immediately thought, they’re pandering to the lunatic defendant–those persons who believe that all former prosecutors must secretly hope the defendant is locked away. If there are many defendants out there who think like that, then your link heading might be helpful. I’m guessing you haven’t gotten a single client because of it.

Don’t you agree that the majority of criminal defendants understand that it’s better to have someone who knows well the mind of the enemy, all the better to defeat them?

I would respectfully suggest that unless you know that this tag line is effective because a new client told you it factored into their decision to choose you, then you should change it.

I hope this help.

Thank you for your kind thoughts, but you are guessing wrong, and this not help much. Here’s a (former) trade secret: my Google ads touting my lack of prosecutoriality get as many clicks as my other ads.

Lawyer advertising touting “former prosecutor” is a meme, and an authoritarian meme at that. Prosecutors leave the DA’s office and advertise “former prosecutor” because others have done it. So the meme replicates. Clients see the “former prosecutor” ads and think that it must be a good thing since it’s advertised, and so the meme replicates.

But we can easily disrupt the meme. If some clients think that former prosecutors are better, it is only because they don’t see lawyers otherwise. If every lawyer who had never tried to take away someone’s freedom advertised that fact, it would occur to the clients that there might be benefit in having a lawyer who had never prosecuted.

I don’t have to represent everybody, and I would just as soon not represent anyone who subscribes to the ridiculous authoritarian idea that former prosecutors make better defenders. In truth, many non-lunatic defendants are already aware that prosecutorial experience is not necessarily a benefit to a criminal-defense lawyer, and may be a detriment. Defendants who don’t have that knowledge are likely to hire me only after I show them the truth.

Those who know that there are a thousand more important factors than prosecutorial experience are a much simpler sell. Crucially, it is clients in that group who are likely to find me through my ads repudiating prosecutorial experience.

0 responses to “From the Mailbag”

  1. I’ve taken out many yellow pages ads and am struck by the number of crim defense lawyers who put “former prosecutor” in bold letters on their ad, as if to say, “I’m friends with the people who are accusing you.”

    I’ve thought but never acted on the desire to put “Never been a prosecutor” not as a taunt (well, maybe a little bit) but as a way of standing out and pointing out that not only were there lawyers out there who weren’t ex prosecutors, there were some who were proud of this fact.

    I wasn’t intending to appeal to “lunatic defendants,” only those who believed that you didn’t have to have prosecuted to “know well the mind of the enemy.”

    I have also noticed a correlation between people who proclaim “former prosecutor” and those who rarely push a case to trial. In fact, I was sickened the other day by a “criminal defense” attorney who told me he was arguing a motion to suppress. I was surprised by this, but when I asked him what the issue was, he told me he “just filed it as a favor to the prosecutor who was about to run out of speedy trial time.” I almost puked in my coffee.

    There are obvious exceptions to the correlation I described, but I’ve found this generally true as if “knowing the mind of the enemy” equates to rarely pushing your enemy to prove his or her case to the jury. In fact, the person who did his enemy a favor with a motion to suppress has an ad proudly screaming “former prosecutor.”

    I’m not saying there aren’t ex prosecutors who are great criminal defense lawyers, only paraphrasing the Clash who once said something along the lines of “he who [kisses] nuns will later join the church.”

  2. I too believe there is a difference between a “former prosecutor” and a “criminal defense lawyer.” My former prosecutor friends don’t like to hear that, and it doesn’t apply to everyone.

    Many, not all “former prosecutors” are “practicing criminal law” not because they believe in the defense of the criminally accused, but because they want to stay in criminal law and make more money than at the DA’s office. That’s just the truth.

    I think that potential clients should ask “former prosecutors” why they left the office. I bet most dont ask that question.

  3. What I would like to see is advertising that says “I am a Warrior and I really do fight for my clients.” Something like I am a “Warrior” and not just a Plead-em Guilty Lawyer.” This to might be mis-leading because sometimes it is best to plead guilty. Too often — I think people plead guilty because they don’t know enough to go to trial.

    I have had similiar feelings — sometimes thinking maybe I should state “I am not a former prosecutor” in my yellow page ad. However, I think it is largely irrelevant. You can be a good defense lawyer whether you are a former prosecutor or not — but why would you want to advertise something that is largely irrelevant? What difference does it make.

  4. Great comments.

    Scott, it’s a metaphor; ask Shawn to explain it to you.

    anon, I advertised “never a prosecutor” in my yellow pages ads for years. Now I’ve started leading with it. I think your “friends with the people who are accusing you” analogy is right on. It’s ultimately an authoritarian argument: “Trust me because I used to be with the government.”

    Brian, I think another good question for clients to ask a “former prosecutor” is why he became a prosecutor in the first place. The answers to those two questions — yours and mine — would tell a great deal about the lawyer.

    Many former prosecutors make great defense lawyers. Think of the best five defenders in your city, and I’ll bet one or two of them prosecuted. But prosecutorial experience is not what makes them great. Arguably, they’ve overcome their prosecutorial experience.

    Still, Glen, it’s not irrelevant. I tell clients that I never prosecuted because it’s part of who I am. I want clients to know who they’re dealing with before they decide whom to hire.

    Even if it were irrelevant, I would advocate advertising that we never prosecuted just to disrupt the “former prosecutor” meme.

    It’s more than a slogan; it’s a movement.

  5. Mr. Bennett

    My question is, former prosecutor or not….how do you have time for all your Blogging and Google Ad’s and other stuff?

    How much time do you spend on your cases, preparing for trial, and gathering information? It seems all you do is post blog posts, google-ads, and tell yourself Happy Birthday.

    I don’t see Rusty Hardin or Tony Canales, running blogs. You never prosecuted? Fine. They did. They never ran blogs or Google-Ads or other nonsense.

    Remind me of that when I need a defense attorney.

    Let us know when you get a MySpace page, with embedded Britney Spears music.

  6. how do you have time for all your Blogging and Google Ad’s and other stuff?

    There’s an old adage, Ricky. If you want something done, ask a busy person.

    I’m going to bet that you won’t get it, because you asked the question in the first place. The idea is that some people just manage to be effective, accomplish tasks and do whatever needs to get done, because they are willing to put in whatever time and effort is necessary to do so.

    There are many people who chose not to blog. They also chose not to join a Mexican Hat Dance Ensemble. But if they decided that was what they wanted to do, they would find the time to do it and would do it well. That’s just how some people are. You have now met such a person, Mark Bennett.

  7. Dear Rick,

    You don’t know how I spend my days, other than the hour or so that I spend blogging. You don’t know if I play golf, mentor new lawyers, run marathons, play with my kids, surf, read the law, drink, or dream up and execute new ways to win my clients’ cases.

    In light of that,

    It seems all you do is post blog posts, google-ads, and tell yourself Happy Birthday.

    doesn’t seem like a dickish thing to anonymously write?

    Tell me about this chip you have on your shoulder. Are you a prosecutor who thinks that makes you another Rusty Hardin? (It doesn’t — Rusty would be a hell of a lawyer whether he had prosecuted or not.) Are you a former prosecutor whose prosecutorial experience hasn’t had the clients rolling in the door? (Tough. Go make a name for yourself instead of spitting your anonymous hate on the web.) Why, in other words, do you give a damn what I do with my time?


    p.s. In case you’re curious, and not just here to troll for flames, it’s no-yes-no-yes-no-yes-no-yes.

  8. Try this test: Pick a crime, pick a set of facts. Ask five criminal defense lawyers who have never prosecuted what they believe to be a “reasonable” plea bargain. Average the result. Then ask five criminal defense lawyers who used to be prosecutors what they believe to be a reasonable plea bargain. Average the result. I guarantee you that the average of the non-prosecutors will be lower than that of the former prosecutors. The lens through which we view the reasonableness of offers impacts our advice to clients who are trying to decide whether to accept a plea or go to trial.

    Don’t think that clients don’t know this, or at least, intuit this.

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