Lethal Generosity in the Legal Profession

Criminal defense trial lawyering

integrates technology, telecommunications and social interaction, and the construction of words, pictures, videos and audio. This interaction, and the manner in which information is presented, depends on the varied perspectives and “building” of shared meaning among communities, as people share their stories and experiences.


I scavenged the definition from the Wikimedia page on “social media.” But the metaphor holds true — like social media, modern criminal trial law integrates various sorts of interaction (telephone, interview, email, psychodrama, voir dire, cross-examination, direct examination, argument, Power Point, video, audio, and so forth) to build shared meaning among lawyers, witnesses, and judge.

Some of the rules of social media apply equally to criminal defense trial lawyering. (Is that trite? Many of the rules of anything probably apply to anything else.)

For example, the concept of lethal generosity (from Shel Israel’s Global Neighbourhoods blog):

that the most generous members of any social media company are the most credible and influential and as such, they can devastate their competition in the marketplace.

I don’t believe I have competition among the criminal defense bar. Colleagues, yes; competition, no. We happen to be fishing in the same hole, but there are plenty of fish for all of us.

But I do believe that the most generous members of the criminal defense community are the most credible and influential. So for “competitor” read “colleague” in Shel’s summary of the rules of lethal curiosity:

In social media, the best way to beat your competition is to be more generous with anything that your customer values. In blogs, you are served best by sending people away through links. In Twitter, as Chris Brogan, one of that community’s prominent thought leaders advises people to write a dozen times about other subjects for every time a Tweeter talks about his or herself.

This is about as far away from the aging command and control philosophy as you can get. In today’s competitive environment, you need to understand that the customer is in control. If you want to win, give the customer what the customer wants. If you do this often enough and credibly enough it will be brutal to your competitors–unless the competitor rises to the occasion and tries to “out-generous” you back.

Scott Greenfield is not enthusiastic about sharing motions with other lawyers:

Certain of my motions have gained surprising popularity, where I receive calls from lawyers I’ve never heard of asking for a copy.  They have got to be kidding.   I’m not here to do their work, or give mine away so they won’t have to do their work.  I could be flattered by these requests.  I’m not.  Do your job, man. And this is the last time I’m going to tell you: get out of my yard!

(Okay, I added that last part.)

Once I’ve written a brief or motion and released it to the wild, I’m happy to share it with other criminal-defense lawyers. We are mostly on the same team, and if I can give someone. It doesn’t cost me anything to share. It doesn’t cost me anything if they don’t proofread it before filing it (unless they leave my name in the signature block). It doesn’t even cost me anything if they are using it to avoid doing work of their own.

I’m even happier to have potential clients see my work before they hire me. Some of it is bleeding-edge lawyering (what if “notice and an opportunity to be heard” really meant “notice and an opportunity to be heard”? what if “no religious test” meant what it said too?), but I write on the level of my audience, so the average client shouldn’t have any trouble understanding the arguments.

I believe that what Shel writes about lethal generosity applies to the practice of criminal defense trial law as well: those lawyers who are generous in sharing their time and talent with others in the profession, and who give the customers more of the information the customers crave, will do very well for it.

This is a close relation of one of the rules of improvisational comedy: you can look good if you make your partner look good

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0 responses to “Lethal Generosity in the Legal Profession”

  1. Arguments against sharing sometimes seem to neglect the possibility that others will do likewise. People need not become or remain incompetent just because they have not personally solved every possible problem in their craft. Everyone can in fact become more competent by focusing their efforts on new and unsolved problems, or by spending their time on more critical tasks of each case rather than writing over again motions already written better by someone else.

    Motion banks are universal features within firms or agencies, and I don’t think anyone in that context views standing on each other’s shoulders as enabling incompetence. It’s a means of avoiding work already done and using tested solutions to prevent mistakes. The repeating of work is one of the worst hazards and biggest costs of any proprietary activity — it drains resources by forcing everyone to solve the same problems over and over and over, and it causes repeaters — even competent ones — to make the same mistakes of invention over and over and over. In criminal defense that lost time and those mistakes do not just lead to lost profits — they break lives.

    In communities where sharing is the norm, the focus shifts from struggling with the same common issues over and over to solving a problem once, or iterating into the best solution, and then moving on to newer and bigger problems, rather than continually inventing the same wheel over again. When you put something out there, it gives everyone else a base to build from, and you’ll often find your creations evolving and coming back to you better and stronger than when you gave them away. Really good ones take on a life of their own, and you get back more than you ever put into them. When it works, it’s a method for real progress.

    I appreciate that as criminal defense lawyers you get paid to do specific work for your own clients. But criminal defense is a small world, is it not? It seems to make some collective sense for the local defense bar to take the same approach as a firm or agency does toward making the most of always limited time and “enabling competence” among its members.

    In the civil public interest sector where I have worked, it’s pretty common for winning motions to get around to everyone in a given practice area pretty quickly, or for people to offer or ask for others to share their best work. I admit that if you’re the only one sharing, then it sucks and can feel frustrating and pointless. But someone has to start it, or it will never happen. The only way to start is by making a habit of giving things away, then encouraging others to do the same.

  2. Scott, I think the chance of helping one person is worth enabling 99 incompetents. The bunglers aren’t going to quit practicing law if I don’t share with them. They aren’t going to research and write their own motions. They’re going to leave important stuff totally undone instead of half-ass undone.

    Thanks, Michael.

  3. I’m reminded of the ongoing conflict between the Open Source and proprietary software folks; I think that while both philosophies — “software should be free” vs. “some software should be proprietary” — are mutually contradictory, both are right. Kinda like wavicles.

  4. I’ve been listening to the same Pollyannaish points for more than 2 decades. Sounds wonderful. Not the way it happens. There are young lawyers who we mentor and help along the way, and there are bums who prey on the naive. I can appreciate Mark’s willingness to suffer the bums in order to help the deserving, but that’s not what’s happening when someone comes on a listserv and asks if anyone has an omnibus motion (the basic pre-trial motion in NY). There is no competent lawyer who needs to borrow an omnibus motion, and yet they ask. Constantly.

    By enabling these lawyers, we keep them in business and help them to destroy people’s lives. I will not help them. I will not enable them. I will not support their laziness, incometence and harm. That’s my choice.

    And as Mark will tell you (or as might be somewhat apparent from my blawg), I do quite a bit to help others. But there are lines I’ve drawn based on my time in the trenches. Perhaps some of the young lawyers will understand my reason eventually. Maybe Mark will lose some of the idealistic shine over time. It happens.

  5. It may be. It may also be what you’re sharing, the simple everyday stuff that any lawyer should be able to produce, or the truly oddball stuff that just saves an otherwise sophisticated lawyer from doing research from scratch. It matters whether the lawyer is going to take the old and remake it new and specific, or just change the names and pretend it’s his own.

    The problem for me is that once it’s out there, who knows what becomes of it, how it’s used or abused. Worse, still, whether somebody charged their client for their very hard work, that they borrowed from you. I know this doesn’t bother you. It bothers me when it happens, and it’s happened too often.

  6. I think it’s a question of big versus small view of the world. You can embrace the small view and you might be successful in the short run, but ultimately it’s the big view that will prevail.

    It’s really a question of the ultimate view. I can sell my soul and gain enormous short term gain; however, I will ultimately end up despising myself in the long run.

    Ultimately we all die and have to come to grips with the legacy we left behind. Death is the ultimate equalizer.

    I’d rather leave a legacy of positive results than a legacy that made me rich. Then again maybe I’m a pollyanna.

  7. Nice of you to attribute the goodness to yourself, Ron.

    I guess I can only dream of a legacy as rich as yours, had I been a good person.

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