An Experienced Federal Defense Attorney
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Are Lawyers Fungible?

I had a conversation with a potential client this morning on the telephone and we were discussing his federal criminal matter and the issues which he wanted to address. This person was a referral to me from another lawyer who is a very good state practitioner. During the conversation, I stated that federal criminal practice was different than state criminal practice. The caller quickly agreed and noted that he realized that shortly after being indicted in federal court.

That got me to thinking about the nature of selecting a lawyer and the difficulty with such decision by the average person. Especially when the cost is not cheap. So I pose the question, “Are lawyers fungible?” First, what does fungible mean? This is a term which is used in the law quite frequently when describing items which are freely interchangeable. Such as one nail is the same as another nail just like it. Or one bucket of 5/16 by three inch bolts are the same as another bucket of 5/16 by three inch bolts. This definition presumes there is no difference in the specifics of the items described, a box of oats at the grocery is the same as the other boxes of oats at the grocery. But is the same true of legal services? Are lawyers so interchangeable? The answer is both yes and no. To explain the contrary sounding answer it is necessary to delve a little deeper into its basis.

For ease of explanation, I will forego the issue of individual degrees of expertise or ability because those obviously create a difference in the lawyers interchangeability. So let’s just look at the generic lawyer. Sam Hill has a general law practice in Everytown, Urstate, U.S.A. He does some wills and real estate, a few contract cases, along with a personal injury practice and takes the odd criminal case which comes through the front door. He is the essence of the traditional general practice lawyer. Down the street Joe Chaser has a very active personal injury practice and advertises on television about how much he has collected for his clients. Tom Nojail is the local main criminal defense lawyer. Tom has a great reputation for his state criminal defense work. Jack Asunder is the local divorce lawyer and has a thriving business.

So what do these good and successful lawyers all have in common? None of them has experience doing a federal criminal case. They do not know the Federal Rules of Criminal Procedure nor the prosecutors against whom they would be contending. So, at the state level they can be mostly interchangeable. They all graduated from a respected and accredited law school. All passed their state bar exams on a wide variety of state law issues. They are all licensed to practice law in Urstate. They all applied paid their fee and were admitted to practice in a federal court, but, that was nothing more than obtaining a wall hanging to look nice among the other wall decorations.

This raises a valid question, “What then is the difference between a state and a federal practitioner?” I tell all of my clients “that federal court is a universe unto itself.” It is different than state court in almost every way. The laws are different, the rules are different, the procedures are different and certainly the sentencing is different. For those who have had run-ins with the state criminal system, I have told, “Forget everything you think you know about how this works, because none of it applies in federal court.” The federal practitioner has an understanding of the nuances of federal practice which are not obvious to the inexperienced lawyer.

I was fortunate enough to be taught the ins and outs of federal criminal practice, as licensed intern, by an excellent criminal defense lawyer. The value of his mentoring of me was far beyond any law school class capability. As a result, my first case as a lawyer was a federal drug case which I won and the court suppressed two arrests, a confession and 8 1⁄2 ounces of cocaine for an illegal arrest and illegal search and seizure. I was then retained to defend the clients in the United States Court of Appeals for the Tenth Circuit when the government appealed the suppression order. There I was again successful and the Appeals Court affirmed the suppression order and the criminal case against my clients was dismissed.

So this is the no part of the answer. At this level of legal practice lawyers are not fungible. I was in a case which needed to be continued and the district judge observed that due to my prior efforts in that case my services were not fungible. That is another lawyer could not have done what I did in the manner in which I had done the defense. The judge decided I was not replaceable. Such is the reality of experienced federal criminal practitioners. [That case was ultimately tried to a jury and my client was found not guilty of all charges against him.] Among the entire body of licensed lawyers they are a small and select group. I am now blessed and gratified to be able to be a teacher, trainer and mentor of younger aspiring federal criminal defense lawyers in the federal Criminal Justice Act program.

Finally, one word of caution. There are lawyers who claim to be federal criminal defense lawyers or federal criminal appeal lawyers – but have no experience doing any. When selecting a lawyer for a federal criminal case that lawyer should be able to speak to you with the knowledge of a firm understanding of how the system works and be able to explain it to you off the top of his/her head without notes or looking it up. They should be able to quote federal rules of criminal procedural by rote. If they cannot, then think very carefully about placing your life, freedom or length of incarceration in their hands. As with anything in the law, the lawyer should be willing to offer proof of his experience and success. I have more than 38 years worth, so if you want mine – then pull up a chair.