What I’ve Read, Heard, And Am Pondering This Week: March 7
What I’ve Read
I recently finished In the Weeds: Around the World and Behind the Scenes with Anthony Bourdain by Tom Vitale.
Vitale was a producer and director for No Reservations and Parts Unknown, for the Travel Channel and CNN respectively.
Vitale wrote the book in the aftermath of Bourdain’s death, which details the hard, difficult, and dangerous work that went into producing the shows and the highs and lows of working with someone as brilliant and as trouble as Bourdain.
Vtiale writes, “Tony was a big believer in failing gloriously in an attempt to do something interesting, rather than succeeding at being mediocre. ‘If it’s not interesting, we may as well be working a lunch counter,’ Tony would say.”
I recommend the book because it is fun and interesting — if heartbreaking at times. It is also packed full of lessons about managing a successful team and working with creative and difficult people. Trial lawyers and chefs are a lot alike that way.
I happened to see this book at Story on the Square, a little independent bookstore near my office. I highly recommend that you buy this book from a little bookstore.
Tyler Cowen has a fantastic interview of writer and pop culture critic, Chuck Klosterman, on his podcast, Conversations with Tyler.
There is a good segment in the episode about writing. Klosterman said, “I think you don’t become a writer until you no longer want to be like other writers. That’s sort of the key. The key is getting beyond the idea that there is some idea of what you think writing is that you can somehow match or find or replicate.”
Klosterman echoes a theme that has emerged in the Appellate Practice and Procedure class I teach with Judge Dillard at Mercer Law School.
Earlier in the semester, Justice Peterson recommended the students to the work of P.G. Wodehouse, the writer who created Jeeves. More generally, he recommended that future litigators read more novels.
More recently we had Keith Blackwell and Judge Andrew Pinson in class. While both agreed with the idea that lawyers should be well read, they echoed Klosterman, advising that we can’t become great at the job if we are at the lectern trying to be someone else.
Perhaps we are most ourselves when we are most engaged in dialogue with as many people as possible – on the page, in person, and through recordings. But fundamentally, we are more qualified to be ourselves than to be another lawyer we admire.
From my recent conversation with Tom Withers, on The Advocate’s Key Podcast, I’m pondering the way I prepare for court.
Tom Withers describes how he writes out the questions he will ask witnesses in court. I get the sense he drafts and revises those questions the way I do a legal brief.
Contrast that to my method, which is to draft a very meticulous set of bullet points to cover with a witness. And, in terms of execution, I tend to do something between using that outline and being totally spontaneous.
Back in my divinity school days, I recall a homiletics professor who said that the prepared preachers write out a complete manuscript of each sermon. But the most well-prepared preachers are those who can abandon the manuscript at the pulpit.
So, maybe the answer for me lies in writing out more verbatim questions but not actually using them when I get into court.
For an example of someone doing this well, check out Keith Blackwell in the GM case at the Georgia Supreme Court.
That’s what I’ve read, heard, and am pondering this week. How about you?
Scott
David Lefkowitz: Avoiding Common Legal Missteps
Episode Synopsis: As a legal malpractice attorney, David Lefkowitz knows all the common pitfalls and administrative errors that lawyers need to avoid. In this episode, Lefkowitz breaks down how a casual conversation with a friend to a failure to meet a deadline could potentially place an attorney in hot water. He’ll also explain how communication and documentation can be your antidote to legal missteps.
Podcast Transcript: The following is a transcript of Episode 18 of The Advocate’s Key podcast hosted by attorney Scott Key. Other episodes can be found at Apple Podcasts, Google Podcast, and Spotify.
David: We talk about a problem in our law school class, where somebody goes and consults with a lawyer about a potential claim, and it’s totally outside the lawyer’s practice area, and the lawyer says, “You don’t have a claim. The defendant has immunity, and you can’t win that claim.” And the clients go home, forget about it, and then a year later, they read that how other people similarly situated recovered a lot of money for the same exact claim that they consulted that lawyer about. You know, the question that the students have to evaluate is, is there a claim against the lawyer? And the answer is yeah because the lawyer provided certain legal services even though he didn’t see himself as being in an attorney-client relationship.
Scott: David Lefkowitz is one of the nicest people you’ll ever meet, and I sat down with him in the podcast, not because of that, but because I wanted to learn ways not to meet David Lefkowitz in a professional capacity. And in this golden moment… Let me back up for a second and tell you that David Lefkowitz specializes in malpractice, plaintiff’s work against attorneys. And in this clip that you just heard, David talks about the ways that we can sort of let our vanity get in the way, or how we can sometimes have a tendency to stray outside of our lane in the proverbial cocktail party or family reunion situation where we end up advising on things we don’t completely know about, and we give incorrect advice in how…in spite of money not having changed hands, how in the span of a phone call or a conversation we can enter into an attorney-client relationship with disastrous consequences.
That’s a monumental moment in the podcast that you just heard, and you’ll also hear in here the six words that are most important to attorney-client relationships and malpractice avoidance and ethics complaint avoidance, the six words that are most important. So, listen in and I hope you learn from David Lefkowitz as I have. David Lefkowitz, thanks so much for joining me on the podcast. I really appreciate it.
David: It’s a pleasure, Scott. Thanks for having me.
Scott: Well, thanks for coming on. One of the things I always do with guests is I have them introduce themselves and I ask a question that could be very factual or it could be deeply philosophical depending on how you take it. But who is David Lefkowitz?
David: That’s a good question, who am I? I am my wife’s husband, I am my two boys’ dad, I am my mom and dad’s son, they’re both alive, which is great, and I’m a lawyer with offices in Athens and Atlanta. I am an adjunct professor at UGA Law School, and I am recently in my seventh decade. I turned 60 on December 18th.
Scott: Oh, my gosh, you know, you look a lot younger than that.
David: I would like to say I feel younger, and usually, I do. Thank you.
Scott: So tell me a little bit… I always ask people, what made you decide to become a lawyer, and was that something you always wanted to do as a kid, was that something that developed in college, or tell me a little bit about your decision to be a lawyer?
David: I don’t really have a clear answer to that. I mean, I’ve always known I wanted to be a lawyer, at least I think I have always known. My grandfather was a lawyer, although he was not a litigator. A funny anecdote, many years ago when I was a little kid, I was at the city pool with my family, and I said something that I shouldn’t have said. I had a bit of a salty mouth back then. And my father grabbed me by the wrist and dragged me, what probably was 100 yards to the men’s restroom where he said he was gonna wash my mouth out with soap. And I don’t remember the incident, but apparently, they talked him out of it while we were walking there, and he said from that point on he knew I was gonna be a lawyer or a salesperson.
Scott: They need to avoid having your mouth washed out with soap. So, where did you go to undergrad, and where did you end up going to law school?
David: I did my first two years of undergrad at the State University of New York, the Oneonta Branch, and then I transferred to Columbia University in Manhattan. And then when I graduated from Columbia, I came down to Atlanta to go to Emory Law School. My expectation was that I would return to New York because, when you live in Manhattan, you don’t think there’s any place else worthy of living. But after I spent a couple years in Atlanta, I realized I’d rather live in Atlanta and rather practice law in Atlanta.
Scott: Did you start off as a litigator?
David: I did. I started out doing your typical insurance defense work at a firm that doesn’t exist anymore, but it was named Carter & Ansley. And we did third-party defense work, car crashes, slip and falls, and then some first-party coverage work as well.
Scott: Were you doing professional malpractice defense back in your defense days?
David: No, not at all. I fell into that when I switched to the plaintiff’s side after a couple of years of being at my first firm.
Scott: And what was it about litigation? Why did you become a litigator versus transactional versus something else?
David: I think it just goes back to the story about the pool. I’m an advocate and I like being persuasive, and I think litigation is the perfect arena for that.
Scott: And I think you mentioned, did you go and practice in New York for a little while before you came back to Atlanta, or did I read that wrong?
David: No, I stayed in Atlanta.
Scott: Okay. And then, when did you make the jump to private practice?
David: So I was in private practice doing defense work for my first two years, and then I switched. I was recruited to join a plaintiff’s firm after a couple of years, and I was with that firm for eight years and then started my own firm. And I’ve been on my own since then.
Scott: What was the switch like? You know, I know a lot of lawyers who switch from…in the criminal arena who switched from being DAs to defense counsel in criminal cases, and I’ve known quite a few people that have, you know, hung out their shingle and done that for a while, and they’ve become district attorneys. What was it like to switch from the defense side to the plaintiff’s side?
David: I always knew I wanted to do plaintiff’s work. I would prefer to do plaintiff’s work. That’s just where my heart is. I’d rather represent victims rather than insurers. So, it was really just…I just fell into it. I was working at the firm, it was Carter & Ansley. There was a lawyer there. His name was Michael. He was married to a woman at the time named Rebecca, and Rebecca worked at this plaintiff’s firm that at the time was Jones Brown & Brennan. And we were out drinking one night or having dinner one night and she said, hey, somebody at her firm’s leaving. Would you be interested in doing plaintiff’s work? And she said, “By the way, don’t tell Michael I’m asking you.” I said, “Actually, I’ve always wanted to do plaintiff’s work. So I’ll come in and talk to you and, you know, see if I like it.” And I did, I interviewed, and I thought everybody was nice. And part of their practice was legal malpractice, not a lot of it at the time, but a part of it was legal malpractice. And then once I joined, I kind of fell into doing more and more legal malpractice, and then after several years, I was like, you know, “I could do this on my own.” So, that’s really the way it played out.
In terms of what was it like switching, you know, we still kept track of our hours, generally speaking. However, we weren’t getting paid by the hour, we were on a contingency fee, so the money was coming in haphazardly and his lawyer will understand. But it was fine. I liked it. My heart was right that I belong on the plaintiff’s side of the ledger.
Scott: Now, is that unusual for plaintiff’s attorneys to track their hours? You know, I know a lot of… So, you know, obviously, for those that don’t know, most plaintiff’s lawyers and I suppose just about all plaintiff’s lawyers are getting paid on a contingency, meaning, you get a percentage of whatever you recover, whether that be through a settlement, or a verdict, or something like that. And then, you know, criminal defense attorneys tend to charge a flat fee and don’t bill by the hour. Though I know some criminal defense attorneys who track their time as if they bill by the hour. I don’t think I’ve spoken to a plaintiff’s lawyer who’s…I mean, there may be more than I know, but that track their hours that way as if they’re billing by the hour. Say a little bit why that’s a good practice and why it was that your firm did that.
David: We did it for first…for two reasons, the first one being to just make sure we were being efficient with our time and that we could account for the time that we were at the office, you know, whether it was 8 hours or 10 hours. And secondly, there are cases where you make a demand for attorney’s fees. And back when I first started practicing on the plaintiff’s side, if you wanted to recover for attorney’s fees, you almost always had to show your hours, your actual hours that you had in the case.
Now, there’s some recent case law that allows you to present to the jury or the judge that you’re on a contingency fee and ask to be awarded your contingency fee. So it’s less significant, but I still keep track of my hours to make sure I’m being efficient to kind of get an idea of how much time these cases take.
And also there’s a provision under Georgia common law that says that if a client discharges you, you can have a contractual provision either by the hour for the time you have in it or your contingency fee, whatever that amount is. So let’s just say you’ve been offered 100 grand and your contingency fee is a third, and you’re discharged by the client after the $100,000 offer has been made, you’re entitled to your 30 contingency fee, a lien on the case for that amount or your hourly fee, you know, whichever is greater, assuming you put that in your fee contract.
Scott: Just generally, in your experience, how do the two-track this? And I’m just speaking the abstract. I’m not trying to get into your personal stuff. But generally, are you ever surprised that the hourly actually tracks us more time than the potential contingency fee in those situations?
David: You know, you never know when going into the case. So if a case resolves relatively quickly, definitely, the contingency fee is going to be larger than what the hourly fee would have been had you been charging or had I’ve been charging on an hourly basis. If a case goes on for a really long time and then the recovery is less than you expected before, then it may turn out that your contingency fee is less or considerably less than what the hourly fee would have been had you been charging that way. But that’s just the nature of a contingency fee and that’s why it’s widely accepted, even it would be perceived as a windfall because of the understanding that you may have 10 cases that aren’t windfalls and then one case where you do have a windfall, meaning you settle and get a nice fee…a large fee that’s not necessarily commensurate with the amount of time you put into the case.
Scott: This is a more of a technical or technological question. What are you using or how do you track your time on a daily basis?
David: So I don’t have that many files like I did when I was doing insurance defense, and if I have a phone call or if I spend time researching documents, reviewing documents, researching cases, I just jot it down on a piece of notepaper and put it in a folder within the file so that I always have it.
Scott: So paper files. This is just a ledger, just an inside of the paper file.
David: Yeah. I mean, if I know… I do have some files that I bill by the hour, ethics defending bar complaints or I think expert witness issues where I do keep up with the billing on a daily basis on my computer.
Scott: Okay. So I think what I heard you saying just now is that you…it’s generally paper-based and you’re not tracking it with software.
David: I’m never tracking it with software. It’s generally paper-based, and every now and then, I just right into a Word document. I just literally would type in what I’ve done and the amount of time, so if I know I’m sending a formal invoice rather than just keeping track of the time for my interest.
Scott: Right. And let me ask you this. Are you almost exclusively? Are you exclusively professional on malpractice now?
David: On the plaintiff’s side, yes. For probably 10 or 15 years, I was handling medical malpractice as well, but I don’t do that anymore. On the plaintiff’s side, yes, I’m only handling legal malpractice cases. I’m also handling some other matters, ethics issues, law firm [inaudible 00:12:46], fee disputes, occasionally, I take on engagement as an expert witness so that that would not be formally plaintiff’s legal malpractice work.
Scott: It sounds like most of what you’re doing though involves lawyers and the practice of law.
David: Most everything, yes.
Scott: Okay. And how did you develop that interest?
David: So that takes me back to the second firm that I was with. It was called Jones, Brown, & Brennan, and then by the time I left, it was Jones, Copeland, Lefkowitz, & Greer. But that firm handled an assortment of complex plaintiff’s litigation, legal malpractice, medical malpractice, business litigation, some personal injury but only if it was catastrophic in nature. And Taylor Jones was really one of the very first lawyers to handle legal malpractice on a regular basis. If you look in the Georgia Reporter and look him up, he was involved in a lot of the seminal cases involving legal malpractice law. So we had a fair amount of those cases and I did not mind them. In fact, I tended to enjoy them where some people don’t wanna touch those types of claims. So, I just started handling more and more of them, and as I had success with that type of claim more and more, the claims were sent to me within the firm, and then more and more of those claims [inaudible 00:14:00] to me while I was still at the firm.
Scott: You know, you mentioned a minute ago or just a second ago in your answer that, you know, a lot of people don’t wanna touch those. What’s it like with your brethren in the legal profession when you go to bar functions and things like that and they find out what it is that you do?
David: Have any issues? I would say that…and most people would agree, I think that doctors tend to circle the wagon around other doctors who have committed malpractice, and that’s less true with lawyers. I haven’t really had any significant issues where lawyers are saying, you know, “Screw you, I don’t wanna talk to you or have a drink with you because you sue lawyers.” As long as I’m not suing them, I think they’re fine with it.
Scott: And how many years have you been doing on the plaintiff’s side legal malpractice work?
David: Since 1990, so 31 years plus a little, so a very long time.
Scott: A very long time. And in the time that you’ve done that, you know, for listeners and I’m gonna assume that most of my listeners are attorneys, are there common things that you see or lessons that you’ve learned or things that…? If you could speak to, let’s just say new lawyers or lawyers that are just building their practice or lawyers who maybe are leaving a DA’s office and hanging out their shingle or maybe leaving a firm and kind of going out on their own or maybe even just people who’ve just passed the bar, what are some of the lessons that you’ve learned or things that you’ve seen that are just common trends in the malpractice cases that you brought over the years?
David: So I will say that…and this may be a little counterintuitive or perhaps people will recognize it as obvious, I’m not quite sure, but most legal malpractice claims arise out of administrative type errors, not docketing a file correctly, not recognizing when applications started, and therefore not knowing when it runs, not taking note of ante litem notice requirements, not conducting title searches properly, not getting service on a defendant in a timely fashion, you know, most people realize or know that in a personal injury case, your statutory limitations is two years, and most people think that means get the suit filed within two years, and it does mean that. You also need to get the defendant or defendants served promptly. And if you file the suit right at the very end of the statute, you get a little bit of wiggle room in terms of how much more time you get to serve the defendants. Regardless of when you file suit, you have to promptly get the defendant served, and if you were to read all of the cases that come out of the appeals courts here in Georgia dealing with statute of limitations, I’d say that half of them deal with the failure to get the defendant served on time because, technically, if you file suit on time but you don’t get service on time, that is still a statute of limitations defense that’s filed by the defendant. So, the technical aspect of getting the defendant served, filing in the correct court, naming the correct defendants, not waiting until the last minute.
Procrastination is a really big problem, and if you get a case with a two-year status and you get it two months after the incident that gives rise to the claim and you sit on the case for 16 months or 20 months or wait until…otherwise wait until the last minute, you’re putting yourself in great danger because, what if you named the wrong defendant? Sometimes it’s John Smith Sr., who caused a crash, but you just named John Smith, then you get the son served by mistake. You don’t realize that you have to [inaudible 00:17:55] and the dad’s not around, and you could have had the dad served without any problem whatsoever. If I served him, he’s served with a process. For those of you who don’t handle personal injury law, you could have had the dad served very easily had you had the time. But when you filed the last minute, you don’t give yourself the luxury of time, and it’s very easy for mistakes to happen.
So I would say most of the cases that I have arise out of those types of administrative. And then you’ve got claims that arise out of conflicts of interest. I resolved one recently that’s…I can’t get into it but I’ll just tell you someone who’s representing both sides in a matter. You can’t do that. You can’t represent the husband and the wife…
Scott: You’re not talking about co-defendants, you’re talking about adverse parties.
David: I’m talking about…yes, parties that became adverse, and they became adverse because the lawyer helped one person with the client that the lawyer already had attorney-client relationship with. So, you know, knowing your conflicts, knowing who you represent, knowing who you can’t represent, keeping things confidential, all those can give rise to claims. But I would still stand by my original response, which is that administrative-type mistakes, deadlines, filing, title searches, things of that nature are more likely or most likely to give rise to claims.
Scott: And this may sound like a really obvious question. Do you think it’s just…it’s human to procrastinate? It’s just that lawyers tend to do that or do you think there’s some administrative problem in the way offices are organized?
David: I would say 90% of it is procrastination. You know, most lawyers are very busy, and the things that have tight deadlines are put in the front burner and things that have deadlines that are far out tend to be put on the back burner unless the client is pushing you to move on it, and as a result, when you might have eight months to get something done, and suddenly, you have four, and then suddenly, you have one, and one month puts you in a pretty significant rush situation. That can certainly be an issue, just general procrastination. I don’t know if lawyers procrastinate more than your typical [inaudible 00:20:12] but lawyers definitely procrastinate, no doubt.
Scott: Is some of that from, you know, in the personal injury case, in the personal injury arena that clients…I mean, that lawyers are letting the client get treated by physicians and they’re letting the medical bills run, and that’s what’s causing people to get to the two-year mark or whatever the year mark is. Is that kind of what’s going on, or do you think it’s just pure procrastination?
David: No. There’s very good reasons not to file suit immediately when the claim comes in. You certainly want to see, you know, what the resolution is of a client’s injuries, you don’t wanna settle too soon because, if it turns out their injuries are permanent, then you’re depriving them of the opportunity to be fully compensated. But there comes a time where waiting and waiting and waiting and waiting is not providing any benefit to your client and is causing, you know, your client to suffer harm, not only the risk that the claim isn’t handled properly, but the delay in receiving the funds that they’re entitled to and need to live.
Scott: And speak a little bit about the ante litem notices because, you know, that…having done a little bit, that part strikes fear in my heart, and very often you can look at these ante litem statutes and the cases that go with them and walk away from those statutes and still not feel a level of certainty that you’re completely grasping it.
David: Look, the law with regard to ante litem notices can be challenging and they’re changing…they change from time to time. An ante litem notices is a formal notice that you must provide to governmental entities to put them on notice of the claim, give them an opportunity to resolve it. And whereas let’s say a cop [inaudible 00:22:09] somebody on the street, the personal injury claim will have a two-year statute of limitations, but the ante litem notice, the deadline to put the cop or the administrative agency on notice will be shorter, either six months or a year depending on whether it’s a city, a municipality, or the state. And then what you must put into the ante litem notice is important because many cases are being dismissed right now…many personal injury suits are being dismissed right now because lawyers failed to put the information in the ante litem notice that’s required, including what the injuries are, what the claims…what the value of the claim is or how much you seek to recover. And you may not know but you still have to put a number in there. So, I’m seeing lots of cases dismissed and unsuccessfully appealed for botching ante litem notices is definitely an issue. But as administrative, it’s not just purely an understanding of the law, it’s knowing the date by which it has to be filed and knowing what needs to go in it. It can be a form letter. Somebody who’s been with the firm for a month can handle it as long as they know what needs to be in it.
Scott: You know, in terms of the ante litem notice, sometimes it…you know, you can have your forms and maybe the statute changes more frequently in your office and your form does, and it can be important to periodically go back before you file ante litem notice or send ante litem notice to double check to make sure that the law hasn’t changed on you.
David: Well, technically, the statute may not change, but the interpretation of the statute may change. If the Supreme Court issues an opinion dealing with a deadline or to whom the ante litem notice must be sent or who must receive it or what must be in the ante litem notice itself, you need to be aware of it, right, because, if you’re not aware of it, you use the same form that you’ve been using all along [inaudible 00:24:00] in peril of making a catastrophic mistake.
Scott: So say a little bit. I know that you teach at Georgia, and what subjects do you teach as an adjunct in Georgia?
David: I teach in the spring semester only. My wife says I can’t teach in this fall semester because football takes priority. I teach legal malpractice law, that’s what it’s called. And basically, we cover the fundamentals of legal matter law, risk management, ethics, how to avoid getting in trouble. If you want to become a plaintiff’s legal malpractice lawyer or defense lawyer, you’ll be well prepared after taking my class, and you certainly get an overview of the critical ethical rules that affect your risk and your client’s well-being.
Scott: What are some things that you tell students? I mean, so it sounds like there’s a big focus on how to practice legal malpractice law, but is there a component within the class of things to do to organize your practice to avoid being a legal malpractice defendant?
David: Well, one thing I tell my students and I’ll tell any lawyer who will listen is pick your cases carefully, do the due diligence necessary to determine if [inaudible 00:25:20] that you wanna handle, if it’s a case that you can win. If this is really an individual or a company that you wanna work with for months or years, are you gonna get angry every time the phone rings and you see their name and their caller ID?
You know, most lawyers can decide what cases to take. There are some lawyers that have cases appointed to them. Public defenders, DAs, insurance defense lawyers ensure they don’t have the luxury of picking and choosing their clients or in [inaudible 00:25:50] their cases. But one thing I learned early on that I think is really important is don’t take a case if you think there’s an issue. You don’t wanna be trapped in a case a year or two later, wishing you just decided not to take it. And no matter how much you need the attorney’s fees, don’t take it. Spend the time cleaning up your office, spend the time writing a paper that can be published and help you professionally join an organization. And one of the really important things is being very careful about what cases you take.
Scott: And you say be careful about what cases you take. But it sounds like really you’re saying two things, be careful what cases you take and be careful which clients that you take.
David: Well, first of all, right, you don’t wanna take a case that doesn’t have merit. You don’t wanna terribly close call on a contingency fee unless you really understand the risk and you’re willing to take it. And then as it pertains to the client, you wanna make sure, “Can the client pay my bill? Does the client have a felony conviction in his or her background that could be used against him in a case?” I mean, there’s a multitude of issues that any lawyer would probably recognize if they did some soul searching about what are the risks [inaudible 00:27:07]. Do they want revenge? Do they want a result that you realistically know you cannot get for them? Do they come in with expectations that you should know that you cannot meet?
Scott: Why do you think that lawyers…or do you think is that the issue is that lawyers don’t see the red flags, or do you think it’s that lawyers ignore the red flags?
David: I think sometimes they don’t see them, but I think the other is also true is that the lawyer sees a fee, right? “This client’s gonna hire me. This lawyer is gonna pay me. I really need to bring in some money so I’ll take the matter on.” I think both of them play a role, and they’re both legit… You know, you’re in business to make money, I totally get that. I don’t want you to say…I don’t want to imply that you shouldn’t get paid. I’m very careful. Is this particular engagement worth it given what could happen down the road?
Scott: For the lawyer that, you know, maybe just starting out in practice or when you’re talking to students who, you know, are very idealistic… I teach at Georgia Appellate Practice with a mutual friend, Judge Dillard, and, you know, the law students that we see at Mercer seem to be very idealistic. And I don’t think that’s gone away for law students. When you’re talking to law students who have not dealt with actual clients, and you’re trying to get this concept across and you’re trying to explain what the red flags are or how to spot them and then what to do maybe if you don’t see them until you’ve already taken the engagement, what are some of the red flags? What are some of the things? And you’ve mentioned revenge a minute ago or maybe bad motives. What are the things that we should be on the lookout for as lawyers?
David: Well, really those are them. I mean, make sure that the client can pay you. You know, the problem is, especially in litigation is once you’re in and once you file suit, it can be very difficult to get out of the case. If the client is willing to let you withdraw or wants to hire a new lawyer, that’s one thing, but if the client is knee-deep in attorney’s fees, and they paid you some, they owe you a lot more, you wanna get out of the case because of whatever reason they can’t afford to pay you, their claim is no longer legitimate, whatever it may be. If the client won’t let you out, you have to file a motion to withdraw. And some judges are very reticent to grant those. Some are fine with it because they see that the case has been going on for two years, it’s getting ready for trial, their docket is exceptionally crowded, and they don’t want cases to be on the docket for another year or two, which can happen if new council gets involved. So, you wanna avoid the situation of needing to withdraw or desperately wanting to withdraw but not being able to.
So, how do you avoid that? You avoid it by making good decisions upfront. A lot of times the lawyer can choose the client. Now, if you’re very well established and you’re successful and you’re getting tons of referrals, you have more of that luxury, you have more ability to pick and choose which clients and which cases you get involved in. If you’re newer and younger, you may not, but you still do some analysis. Even if you know there’s other lawyers that might get the case if you don’t take it immediately, do the analysis, “Is it a case I wanna be involved in?” Another option is to sign the client up but have a very clear paragraph within your engagement agreement that you have the right to withdraw if you don’t think the case has merit or if there’s a legitimate basis to withdraw. You just need to do that way in advance. You can’t sign the client up under that provision in months after a crash and then decide to withdraw in month 20 because you’ve done your client a terrible disservice, not only in the delay, but another lawyer may not wanna get involved that late in the game. So, just do it in a proper fashion without delay.
I always say, when you’re [inaudible 00:31:28] and how they feel about matters, and they’re annoying you, they’re not the type of person you really wanna deal with, I always imagine somebody who goes to a doctor’s office or a dermatologist’s office or surgeon’s office and has something removed from their skin, a growth, and the doctor says call me tomorrow, and I’ll let you know what the lab report is. And the next day, the client calls the lawyer’s office…I mean, the doctor’s office, and the doctor doesn’t get on the phone, they say the doctor will call back, right? And how long should you wait? How long should that doctor wait to return the call of the patient?
And everybody agrees, if you’re in a big room talking to students or CLE, everybody agrees that that return phone call should be prompt. And what I tell folks is just remember your client thinks that their legal matter is just as important, every bit is important as that patient thinks their medical issue is. So, don’t blow off the client. Treat them with respect. Treat the claim with respect. And that circles back. Don’t take the claim, don’t take the client if you can’t treat them that way. If you don’t trust them, if you don’t like them, if they’re not gonna pay you, if they’re a convicted felon… Now, again, if you do criminal defense work, that’s your pool of clients, and that may be your best pool of clients. But for those of us who do other civil litigation, we need to consider the fact that a conviction for a felony moral turpitude can have a very negative effect on the litigation. So, consider that before you decide to take the case. Then you won’t be upset that you took the case and you won’t be stuck in it.
Scott: So what does proper vetting look like? I mean, it sounds like… I mean, so there’s the level of the clients in front of you and you’re talking to the client and, you know, there’s just something you don’t like or they seem unrealistic, but in terms of proper vetting of a case, what does that process look like? When you have a client that reaches out to you about a potential matter, what does your due diligence process look like?
David: You know, we’ve been talking about the due diligence with regard to the client him or herself which is important but really, typically more important is the evaluation of the claim. So, I never accept a case or a client based on a phone call or an email. I will always do a lot of due diligence to determine whether or not there’s a valid winnable claim under Georgia law. In the legal malpractice arena, I’ve gotta prove a lot. I have to prove that the lawyer made a mistake. I need to prove…and not just a mistake but a mistake that no other reasonable lawyer would have made. I have to prove that the mistake caused damages that otherwise would not have occurred, what the measure of those damages are. I should say I have to be able to prove that.
And I’m not going to take a plaintiff’s legal malpractice claim on a contingency fee without having a pretty good comfort level that I can prove that. Plus, I’m not going to sue a lawyer if I don’t think that it’s a valid claim. I try to handle my practice honorably. I’m not about getting publicity. I’m not about talking to the press. I’m about trying to resolve a claim as fairly and honorably as possible. And part of that is not calling a lawyer up and saying, “Hey, I’ve been retained to bring a claim against you without first confirming that there’s a darn good claim there.”
Now, there are times where the client will give me some information and it is not complete information and I call the lawyer, and I always give a lawyer an opportunity to give me their side of the story. On several occasions, I have received information from a lawyer that has made me change my mind and not handle a case that I otherwise would have handled.
Scott: So, on the front end, it’s… So, for instance, like if someone blew a statute of limitations, you have to not only prove that, you know, the statute of limitations that there was a mistake. That seems like a fairly inexcusable act by the lawyer. So, that seems like, you know, you have the mistake, you have the breach of the duty, but then, do you also have to prove that had the complaint been filed in a timely manner that the litigation would have been successful?
David: Yes, absolutely. And that is almost always the hardest part of the case. I mean, a little unknown truth about my area of practice, generally speaking, the breach is the easy part of the case, the breach of the standard of care, the missed deadline, the bad title search, things of that nature, not always, but usually. The hard part of the case is proving that the result would have been, not might have been or could have been, but would have been different but for the mistake.
So, I always used to like to use personal injury or car crash cases as examples because everybody gets them, even, you know, a sixth-grader who’s…has no idea how the law works, they understand the concept of a car crash. So, if a lawyer agrees to represent a plaintiff and the plaintiff was in a car crash and plaintiff was T-boned at an intersection and the plaintiff claims or the client, whatever you wanna call her, claims that they had the green light. And then the lawyer misses the statute of limitations, and then the client calls me and says, “Hey, my case is permanently lost. I wanna sue my lawyer for malpractice.” I will investigate that car crash just like the personal injury lawyer should have because, in fact, that plaintiff, that client had the red light and the car crash was her fault, then it doesn’t matter that the deadline to file was missed. It didn’t cause any damage because the claim would have been lost, there would have been no recovery. So, proving causation is always the challenging part of the case and where most of my work comes into play.
Scott: In the legal malpractice arena, do you end up, you know, with those that go to trial or, you know, those that get litigated, you know, pretty well into discovery, or do you end up having a mini-trial within the trial on the case itself…on the initial matter that the lawyer, you know, messed up on potentially?
David: Exactly. It’s called a trial within a trial, and you literally bring the eyewitnesses, the underlying defendant, the doctor or doctors who treated the defendant, and everybody else that would have been called at the underlying trial had it gone forward to persuade the jury that there would have been a recovery but for the missed deadline. So, yeah, you just have to explain it to the jury so they know what’s coming.
Scott: And then with your students, if you’re kind of telling them sort of the basics of legal malpractice, what are some of the important lessons that you teach over the course, you know, of the semester of that class?
David: Well, we start with a thorough analysis of a legal malpractice claim, which is simply duty, breach, causation, damages, and then we move on to fiduciary duties and other issues. We do spend a class… I teach once a week for a couple of hours. We spend a class dealing with claims that could be brought by non-clients.
So, just to take you through it, first, we talk about duty. What is the duty? To whom do you owe a duty? Once you determine that there is a duty, which generally but not always arises from the attorney-client relationship, then you have to define the duty. The duty is to provide legal services within the standard of care. What’s the standard of care? That level of skill normally exercised and possessed by lawyers representing clients under the same or similar circumstances, skill care and diligence, actually. Once you can establish causation but for that breach where the damages have occurred, if you can get past that threshold, then you have to determine what the measure of damages are. So literally, in a car crash case, what would a jury have awarded in the underlying case? Then once we’ve established those…once we figured out, you know, make sure everybody’s clear that we’ve got a breach of fiduciary duty, which I think every lawyer gets. I mean, it’s loyalty, confidentiality, candor, your interest beneath those of your client, not equal to, but beneath.
We talk about how to stay out of trouble by avoiding letting somebody think you’re their lawyer when you’re not. You know, somebody may ask you a question at a cocktail party and then think, “Oh, they’re gonna take my case.” We talk about engagement letters and just as importantly, non-engagement letters or disengagement letters. A non-engagement letter is when somebody consults with you briefly but not to represent them. You wanna put in writing, “I am not your lawyer. I will not be representing you.” Similarly, if you have been representing them and you can withdraw without going through the court process, you disengage, you send a disengagement letter. It’s the same concept. Send a letter, “I’m no longer your lawyer.” If there’s any impending deadlines, you let them know what those deadlines are. You don’t wanna have a situation where a client consults with you about a claim, but they think you are handling it. They don’t hire anybody else. Then the deadline to file suit expires, and they sue you. And you say, “Hell, no, I was not your lawyer. You couldn’t possibly have thought that I was your lawyer.” And the client says, “Well, you never told me that you weren’t representing me, and I never consulted with anybody else because I was relying on you.”
Scott: Well, let’s talk a little bit more about that because a lot of people…you know, I mean, particularly non-lawyers but maybe some lawyers even. What are the sorts of casual or what we may see as casual things that can result in an attorney-client relationship that’s maybe not necessarily intuitive that an attorney-client relationship would have arisen?
David: You know, there’s really not… I mean, I think that’s an overblown issue. I mean, it is something that you need to be careful about, giving advice at a cocktail party, and then it was bad advice. It’s not common but you can inadvertently create an attorney-client relationship, but it’s usually in the context that I just described where you don’t want to represent the client, but you have not adequately told the client that. And on the other hand, the client has a reasonable basis to believe that you are protecting their interests. That’s how it comes into play.
You know, the basic rule is that you are all of the duties that every lawyer they owe to a client, and you owe fewer duties to a prospective client, but you still owe certain duties. If anybody consults with you or asks you questions, you have a choice, don’t answer, and just say, “I don’t provide off-the-cuff answers” or have them come into your office for a formal meeting. But if you provide legal services, the general rule is with a prospective client, if you do provide legal services, give a deadline [inaudible 00:42:38]. If someone says, “Hey, do I have a case?” And you say no when it turns out they did and they rely on that, then you have that inadvertent attorney-client relationship that we’re chatting about, and that can put you at risk of being sued.
We talk about a problem in our law school class where somebody goes and consults with a lawyer about a potential claim and it’s totally outside the lawyer’s practice area and the lawyer says, “You don’t have a claim. The defendant has immunity and you can’t win that claim.” And the clients go home and forget about it. And then a year later, they read that how other people similarly situated recovered a lot of money for the same exact claim that they consulted that lawyer about. And, you know, the question that the students have to evaluate is, is there a claim against the lawyer? And the answer is yeah because the lawyer provided certain legal services even though he didn’t see himself as being in an attorney-client relationship. But to the extent, you provide legal services, even to a prospective client, then be held liable if you make a mistake.
Scott: That can be really tough because, you know, we don’t… I think all lawyers have the experience of they’re at the family reunion or they’re at the picnic or, you know, somebody from little…like another parent in little league has something come up and, you know, people don’t understand that lawyers have specialties. And a lot of times, I think where we tend to get in trouble is we don’t wanna come off like we’re a jerk. We don’t wanna act like we’re not willing to help. And so sometimes it’s just not wanting to appear rude that maybe puts us in these situations where we’re maybe potentially at risk.
David: Well, I would say it’s twofold, not wanting to appear rude, and not wanting to appear unknowledgeable, right? I mean, no matter…
Scott: Vanity.
David: Yeah. Whether you’re a lawyer or a doctor or an accountant or whatever, you wanna act like you know things, you know what you’re talking about. So there is an inclination to answer questions. Maybe it’s because I’ve been doing it for a while. Maybe it’s because I have a super narrow niche practice, but I have absolutely no problem whatsoever with telling somebody, “That is outside my practice area. I sue lawyers for malpractice, and the last thing I wanna do is give you bad advice.” And you know that I offer to put them in touch with someone who can help them, but I will not be tempted to give advice on something that I have absolutely [inaudible 00:45:01] or even enough knowledge to get me in trouble. I’m just going to avoid it. And I would definitely recommend every lawyer avoid that, whether they’re doing it to appear smart or they’re doing it because they wanna be helpful and not rude, whatever the reason is, avoid that because, like I said, if you give the wrong answer, you can be on the hook.
Scott: And if I heard you… just kind of changing gears a little bit. And it sounds like you said you do a little bit of ethics, so, people that have a bar complaint. You represent lawyers in defending bar complaints. Did I hear you? Did I say that right?
David: I do that extremely rarely. I will do it for friends who ask me to do it. It’s not something I hope myself out as doing. It’s not something that I’m an expert in by any means. There are other lawyers who have a focus on that. Generally speaking, I’m not defending lawyers. I’m bringing claims against lawyers.
Scott: In the times that you have done it, are there trends there? I mean, so you’ve said that a lot of the issues with malpractice is administrative. Like you didn’t calendar something correctly, or you didn’t send a form out in time, or you missed something in a title search. In the bar discipline cases that you’ve…and I know that they’re rare. Do you see trends in…? I guess there’s gradations of this. So, if you do any criminal defense, you know, if you do any significant criminal defense, you’re going to get bar complaints just because of the customer base you’re dealing with and because a lot of times, it’s easier to blame the lawyer than it is to blame other factors for the way things are going. But you know, the bar complaints that have teeth where they kind of go deep into the process, do you see trends in the way lawyers are living or the way they’re managing their practice?
David: Well, there’s two different answers to that. Most bar complaints come out of a failure to communicate, just blowing off clients, not having what I would consider to be a good bedside manner. Whatever the equivalent is for lawyers of a good bedside manner, the easiest way to get a bar complaint filed against you is to be that guy or that lady. It goes back to the how would you wanna be treated if you had a medical issue or how would you want your family member to be treated if they were waiting to hear back from the pathology lab. It’s important to them. And similarly, you need to treat the matter as important with your client. And if you don’t return phone calls, if you blow them off, if you’re really nice to them when they’re signing up with you as opposed to signing up with someone else, right, you being the salesperson, and then you put it on the back burner and you don’t return the phone calls, you’re not diligent, you may get a great result for them, but they may think that you just weren’t emotionally intellectually invested in their case, they weren’t important to you. And so they’re more likely to file a bar complaint.
Conflicts of interest give rise to bar complaints, even if they’re not genuinely conflicts but somebody has a perception that the lawyer’s allegiance is misaligned, that could give rise to bar complaints. Lawyers make decisions on behalf of clients that they don’t have authority to make is a big basis for bar complaints. Settling claims without permission is a big beef rightfully. So, you’ve got a duty as a lawyer to communicate with your client and get informed consent for any decisions that they make, so that means communicating, explaining the risks, explaining the rewards, and then letting the client decide. Not just calling the client up and saying, “Hey, we can follow your path B. I think A is better. Are you okay with that?” That’s not getting informed consent. It may be consent, it may be authorization, but it’s not gonna get you off the hook if the decision was a bad one and they truly didn’t give you informed consent.
Stealing from a client. I think that’s pretty self-evident, but there are issues with trust funds. People bounce checks from the trust funds more than you’d like sometimes because they accidentally wrote a check, and I do mean that genuinely. Some people are totally misusing their trust account but other people just write a check on one account when they meant to write it on another and they may have a deficient balance. Things can happen by mistake, and the bar will listen to you. But you are going to be in trouble obviously if you misappropriate clients’ funds.
Scott: You know, kind of going back to your…at the beginning of that answer, that the level of communication and client management and bedside manner as you put it may be as important as your skills as a practitioner.
David: Well, there’s no doubt. With regard to avoiding legal malpractice claims or avoiding bar complaints, that’s critically important. I say jokingly that the six most important words in keeping clients happy, avoiding [inaudible 00:50:14] complaints and avoiding lawsuits are these, document, document, document, communicate, communicate, communicate. Communicate with your client, not only because rule 1.4 requires it, but because they’re entitled to it.
Document the file means keep them informed, and when they make important decisions in the case, to document that in an email. And that seems self-evident, but I’ll tell you something interesting about legal malpractice cases. The statute of limitations for legal malpractice cases four years from the date of the error. So let’s just say you make a decision in a case to, I don’t know, path A instead of path B, it doesn’t matter what the decision is, and you talk to your client about it but not the way that I just said you should. So instead you just say, “I’ve been thinking about it, and we can follow pathway A or pathway B. Let’s follow path A.” And the client says okay. Let’s say that happened January 1st of 2020. And then let’s just say that decision turns out to be terribly wrong. Well, the client can sue you within four years, so January of 2024.
In January of 2025 or ’26, your deposition is being taken, and you’re saying, “I had already [inaudible 00:51:29] to do this.” And the client [inaudible 00:51:32] 2027 or 2028, eight years later, and your client says, “Here’s how the conversation happened.” And you say, “No, that’s not how it happened. Here’s how it happened. We have your classic case as she said.” Who’s gonna win at trial? If it’s a classic case as she said, the client’s gonna win that. But if you’ve documented the file, if you’ve communicated well and documented the file, you’d not be sued in the first place.
Scott: So there’s document, document, document, communicate, communicate, communicate. It sounds like if there’s a question of fact, in other words, the lawyer says A, the client says B, and you end up at trial, it sounds like what you’re saying is that juries tend to go with the client.
David: Yeah. I mean, I think that’s unquestionable. You might hear some defense lawyers deny that when you, meaning I am arguing with them that they’re gonna lose that credibility question. But think about it. I saw a poll recently where it was ranking different jobs, not professions, but jobs, and lawyers were second to the bottom. The only job that was below lawyers was used car salesmen. New car salesmen were above. So, we’re not held in high regard, unfortunately.
I’ll tell you this, if you had the same exact scenario in a medical malpractice case where the doctor’s accused of misprescribing a medicine and the patient says, “You told me to take the medicine like this,” and the doctor says, “No, I told you to take the medicine like that,” the doctor is going to get the benefit of the doubt and that he said she said. Medical malpractice lawyers will tell you that that’s true. So, doctor get the benefit of the doubt, lawyers don’t. So how do you protect yourself from that inequity? You document the file. You be prepared to show the proof that the communication did, in fact, take place, and you’re doing that, number one, because the client deserves it. The client deserves good communication. But you’re doing it also because it’s the best way to protect yourself, document the file.
Scott: Maybe it’s the spirit in which you do it, but it sounds like that if you really… I mean, if someone were to take this advice and misconstrue it, it seems like you would start doing things that would maybe be…would erode the trust, the client would begin to look at the lawyer, “Well, you’re just protecting yourself.” Does the documentation if done incorrectly or done in the wrong spirit erode the attorney-client relationship? So, in other words, what’s the best way to do this in a way that seems like we’re doing it in good faith and with goodwill?
David: Well, I don’t care if a client has some inkling that I’m sending a communication to them that’s a CYA as long as I really…am doing it in good faith. So, for instance, I had a case recently where there was a lawyer at a firm that had committed a pretty bad error, and an associate at the firm had [inaudible 00:54:35] And I was going to sue the lawyer and the firm and the associate. And the lawyer for the firms asked me just as a matter of professionalism, whatever, not to name the associate. They said, “This is gonna really harm her career, harm her reputation. She was just taking instruction. Can you not name her as a defendant?” And it didn’t really change the case, but of course, I would never unilaterally make that decision.So I called the client, we talked about it. I advised the client that I did think that it was fine. And then I sent a confirmation email just kind of discussing the substance of the conversation and confirming it.
Now, did the client maybe think that Lefkowitz was covering his ass by sending that email? Maybe but I didn’t send it with that as the number one goal. I certainly was cognizant in, you know, my area of malpractice and risk management. I was certainly cognitive that could be a very important email a few years down the line if things don’t turn out well or if the client gets angry at me down the line. But it was more a matter of confirming that conversation, ensuring that the client understood the risks and the benefits of making that decision, and then confirming the decision. So, I see what you’re saying is you can come across as really sending a communication for your benefit instead of the client’s, but I think that’s okay as long as you are fulfilling your legal and fiduciary obligations.
Scott: Now, I wanna go back to the medical analogy. We all know what it’s like to be…well, most of us, if it’s not us, it’s a loved one to be waiting for a pathology result to come back and…or, you know, we get that pathology result and…because now you have like my chart, and you a lot of times, you get those results back before your medical provider does. We all want doctors to have a good bedside manner. I’m assuming doctor’s offices must have these patients that are neurotic, high maintenance, you know, they’re just gonna call constantly, and if the doctor dealt with them, they really wouldn’t have the time that they needed to devote to patients. I think I see this a lot in the criminal defense arena where you have…you know, maybe not necessarily the client. This may be good to those are the question of who is your client. Sometimes it’s the brother or the spouse or, you know, the son or the boyfriend or the girlfriend. When you have clients that want too much communication or, you know, you can…sometimes lawyers, we find ourselves spending more time talking about files than dealing with the files. And maybe your answer to this is you should have screened them better to begin with. But how do you deal with, you know, the need for communication where the client is maybe over-communicating or has unrealistic expectations?
David: Well, I’ll say first, that if you’re handling the matter by the hour, it’s less painful. If you’re handling it on a contingency fee or a flat fee, then you’re wondering where the efficiency is being affected, your law practice efficiency. If you knew that the client was gonna be like that coming in and you didn’t budget for it, then I would say you have yourself to blame and you have to hope that you have one or two clients in the future that take up less of your time than you expected. If the client surprises you, you can have a firm…there’s nothing wrong with having a conversation with the client just saying, “Look, I get that you want information. I’m good about sending you or providing you information when we get it. We do speak whenever something’s going on. If you need an update more frequently than I’m giving it to you, please let me know, but it’s not fair to my other clients for me to give you 20% of my time when you’re 1 out of 50 clients.” I think you can honestly have that conversation as long as you do it in a polite manner.
Scott: So beyond document and communicate, what other things do you see lawyers getting in trouble for both in the ethics realm or in the malpractice realm? And then I think we’ve spoken up, of course, on the administrative side. But in terms of what you tell your students, what are some other things that you try to impart to them?
David: Set forth the scope of the representation very carefully. Make sure that the client understands what you are doing and what you’re not doing. The classic example, again, is in the car crash case where a lawyer has a contingency fee contract that’s usually a form contract that says, “I’ll represent you for all claims arising out of the crash that took place on January 7, 2022.” Well, what does that mean?
To you the lawyer, it may mean that you’re handling the personal injury claim and that’s it, but what if the client also has a workers’ compensation claim? What if the client also is disabled and has a Social Security claim? What if there’s just a property damage claim? What are these criminal charges filed in association with the car crash? If you’re not handling those matters, you better document that in the attorney-client agreement. Otherwise, the expectation is going to be that you are handling it, particularly if you use some vague language like, “I’m representing you in all claims arising out of the crash,” which is common language, unfortunately, because it’s setting the lawyer up for risk.
So I would say, number one is define the duty, define the scope that’s distinctly within your power is to make sure the client understands what the engagement is and what the scope of the engagement is, right? You can’t get sued for something that you contractually have not agreed to do, but if you’ve left it vague and the client’s reasonable and thinking you’re going to do it, then you’re gonna be on the hook for not doing it. I would say that’s really important.
Scott: Defining the scope of the agreement in a written fee agreement. You spoke about it just when we were talking about your practice. Something that you said early in this discussion was that your caseload is a little lower than it was when you were doing insurance defense. And I’m gonna assume that that’s by design. Say a little bit more about caseload and how your caseload can enter into all of this.
David: Well, there are times when I’m working on a case, and I will not take a new case on. And there’s times where I have a big case that I think may resolve that will open up some significant time. Then I’ll tell a prospective client that, you know, “I told you I had a mediation last week in a claim that did resolve and I had told somebody else the week before. I’ll represent you if this claim settles, but if it doesn’t, I’m gonna be extraordinarily busy over the next few months, and to be fair, I’m not going to have the time to help you out on your case. It’s a very document-intensive complex case that I knew that I would not be able to invest my time in because I wouldn’t have it.” That’s really important for practice management.
And like I said, you can turn cases down. Right now I’m spending most of the day every Tuesday teaching, so I have less time. I’m not gonna overwhelm myself. If you are a younger practitioner, or even if you’re an experienced practitioner, set aside some time to write, to research, spend time with your kids, whatever, make sure that you’re living a full life. And, of course, they’re gonna be times where you’re slammed where there’s deadlines, you’re being overwhelmed by three defendants in one case, they’re all filing motions at the same time, and it almost seems like they’re working together to overwhelm you, that’s gonna happen. And you’re going to have nights and weekends where you have to work.
In fact, my wife already knows that I’m gonna be working late tonight because I’ve got something I’ve gotta get taken care of. So, yeah, handle what you have to handle. Don’t get in trouble. But don’t fill your plate up with more than you could eat. Don’t take on matters that you know or reasonably should know you cannot handle. Practice management and you do learn more about that as you go on as you have more experience. You start to realize what you can do, what you can’t do. When you have a vacation plan, which means not just five days away, but probably nine if you include the weekends on both ends of a week, are you gonna come back to a total mess and not be able to handle other matters? It becomes easier and easier to budget your time as you have more experience.
Scott: Well, David, I really appreciate you coming onto the podcast and talking to me. Is there any other, you know, big thing you’d like to tell the listeners?
David: No, not really. Just be careful and always put your client’s interest first, and the odds of you getting in trouble are very slim.
Scott: And where can people find you that are interested in your practice or, you know, if they were to have something in the legal malpractice arena? I know you have a pretty active Twitter account, although I think it sounds like you’re talking about cryptocurrency a lot, and I don’t really understand a lot of your tweets. Where can people find you?
David: So my main office is in Athens, Georgia, on South Milledge Avenue. I have a website, lefkowitzfirm.com. If you literally google David Lefkowitz, you’ll find me. I do have the site, legalmow.com [SP]. So if you don’t wanna type in my name, just go to legalmow.com. I do have a Twitter feed, DavidNLefkowitz. I never talk about crypto. That’s not my thing. I do occasionally talk about SPAC, which is an investment vehicle that some people have heard of and are getting involved in. I should talk more about legal ethics and less about SPACs and stocks on there, but stocks are kind of my thing when I’m not practicing law.
Scott: If I see symbols in your Twitter account with a dollar sign in the middle, I just know that I’m not gonna understand what you’re tweeting.
David: So any stocks on Twitter, any stock symbol gets a dollar sign in front of it, and that’s how people search out posts regarding Apple or Amazon or whatever the case may be.
Scott: Gotcha. Well, see, that’s an important lesson I learned right there.
David: Excellent.
Scott: Okay. Well, thanks so much, and take it easy. I really appreciate it.
David: Thank you very much for inviting me to be on here. I really enjoyed it.
Scott: Thanks for listening to “The Advocate’s Key.” For more information and content like this, including a transcript of this episode, be sure to visit scottkeylaw.com. And please rate, review, and follow this show wherever you get your audio content.
William Maselli: Embracing the Fundamentals of Law
Episode Synopsis: An opera aficionado and legal history fanatic, William Maselli goes into each trial with the same care and passion as an artist. In this episode, the Maine-based criminal defense attorney breaks down broad legal principles and how these fundamentals can help shape the work you do in the courtroom. He also dives into the importance of collaboration and what his work as a composer has taught him about the practice of law.
Podcast Transcript: The following is a transcript of Episode 17 of The Advocate’s Key podcast hosted by attorney Scott Key. Other episodes can be found at Apple Podcasts, Google Podcast, and Spotify.
William: You know, I’d constantly got good deals because they knew I was gonna go to trial. And not only am I going to go to trial, but if I don’t win, I’m going to have laid down a lot of good legal issues, if there’s any to be had, they’re going to be preserved. And then I’m going to fight the case on appeal, and then you get some of those back. And when people know that they’re going to be working on this case for the next two or three years, it definitely helps to resolve the case.
Scott: William Maselli, an absolute character out of a really good legal thriller. I really enjoyed sitting down and talking to William Maselli. The first guest I’ve had from the State of Maine, the first composer guest I’ve had, the first guest I’ve had with a background in opera, and the first guest to discuss Gustaf Mahler. And in the clip, you just heard, when Maselli talks about how to get really good deals, to resolve cases as well as can be in pleas, you have to be prepared to go to trial, you have to work the case as if it is going to trial, even if it’s not.
William Maselli is the second guest that has told me that that is the key to good trial preparation. And I think it’s a lesson not only for the criminal practitioner but for the civil practitioner as well. You’ll learn that I didn’t really know William Maselli that well before sitting down to interview him for this podcast. I saw his office while on vacation in Maine last September and I just had to know more. So I give you, without further ado, the very cool William Maselli. William Maselli, thank you so much for joining me on the podcast.
William: It’s a pleasure to be here, Scott. Thank you so much for inviting me.
Scott: Okay, so I’m going to tell the listeners how I have Mr. Maselli as a guest, as I’ll tell you as well, though, I think you know. I was on vacation in Maine in September. And I was eating at a place I think it was called Jay’s Oyster on the pier in Portland, Maine. And I look up from my beer and oysters and I see the coolest law office I’ve ever seen. And that’s William Maselli’s law office. Kind of, it’s out on a pier in Portland, Maine, right next to the water, right next to a bunch of boats and yachts. And I just did a little dive into Google and found out that he was a criminal defense attorney doing a lot of Federal practice. And I immediately tweeted, and we started up a conversation and now I have you on the podcast. So I really appreciate you doing this.
William: Well, Scott, it’s a pleasure. And thanks for noticing my office. It’s a great spot. It’s really like a boat because even though it’s on the pier, you’re feeling all of the movement of the ocean. So when you’re in there, you’re kind of rocking around a little bit, which makes it challenging to hang paintings as well as to keep the rug in one place because everything is shifting around. But yeah, I can see Jay’s Oyster Bar right outside by my windows. And it’s always calling me over there thinking about having some lobster scampi and some good Maine draft beers.
Scott: I was drinking a Maine draft beer at the time. I jokingly tweeted, and of course, this is still my audition to try to start your appellate division there in your law office in Portland.
William: That’s pretty funny. But no, that’s an interesting idea. I don’t actually remember the details of what you mentioned, but it seemed like it was a little bit challenging to pull it off. But who knows?
Scott: It involved me only practicing in Maine between the months of May and October.
William: I see. Coming up and doing appellate work. Well, you know, that’s something that we can discuss, for sure.
Scott: Absolutely.
William: I’ve got a gentleman, Attorney Stuart Tisdale [SP], sitting in the back office there with a beautiful view who’s really just doing research and appellate work. So you have an interesting calling [crosstalk 00:04:26].
Scott: He can be my mentor. I can come and apprentice with him then.
William: Well, he’s also a musician. So you’d have a lot to talk about. And maybe we’ll give you an impromptu concert here.
Scott: Well, so tell me a little bit about your practice. And where…in fact, you’re not in Portland today. We talked a minute ago. Tell the listeners where you are today and a little bit about the weather around you as we talk.
William: Yes, I’m way up in God’s country as I was just describing it. And it’s on the road to Moosehead Lake in Maine and Mount Katahdin, where you were visiting last fall. And that’s beautiful territory up here. But unfortunately, it was 25 degrees below zero last night. And it’s been well below zero for a couple of weeks, since Christmas Eve. So we’ve been…I mean, it’s been up a few times. But so we’ve been dealing with that reality, which is a little bit different than Portland. But, you know, I’ve been down in Portland. I come down a couple of days a week and see what’s going on there on the pier. And, you know, the weather is not quite as extreme, but Maine is a different life than Atlanta, Georgia, Scott.
Scott: Oh, absolutely. So, tell me a little bit about your practice. I know you do criminal defense. And I see from looking at your LinkedIn…and we’ll talk about the composing and the musician piece in a little bit. And from your website, it looks like you do a good bit of Federal practice in Maine.
William: Yeah, I’ve been practicing criminal and constitutional law since 1988. So I’m going on, what, 32 years, 33 years or so. And I’ve been specializing in criminal defense the entire time. I worked for the various DA’s offices while I was in law school and did three jury trials and a couple of arguments at the Maine Supreme Court while I was still a student. So I hit the ground running as a solo practitioner and I’ve been trying cases ever since. Until this great slowdown of 2020, when things kind of came to a grinding halt. And we’ve had so kind of reimagine the practice of law up here quite a bit.
Scott: How have lawyers in Maine been dealing with the slowdown and the halt?
William: Well, it was very challenging at first until people got into the swing of, you know, keeping the system moving. But everything has moved to video and telephone. So, you know, 90% video. We’ve had a few months where we had quite a bit of in-court work, which, you know, I like both of those types of situations, the Zoom and in-person. I prefer in-person, but Zoom certainly does revolutionize the practice of law, where you can pop in and out of various proceedings in various locations. And, you know, it’s really revolutionary. And I think a lot of this Zoom practice is going to keep on going even after the pandemic.
Scott: Well, I really like it for routine calendars, entries of pleas, announcements. When you get into hearings that require any sort of…you know, I think the more evidentiary intensive court becomes, the more in-person…I think if I’m going to cross-examine a witness, I want that to be in-person, for the most part.
William: Oh, absolutely. Yeah, well, we’re talking about routine proceedings. And I’ve got a challenging situation right now, where the state has just filed a motion to force people to wear masks the entire trial, which is scheduled for two weeks from now. And it’s a quite a serious case where a woman is facing quite a bit of prison time if she were convicted, and who would testify in her trial. And so wearing a mask for her the whole time, as well as myself, I believe is a fundamental violation of constitutional rights. And so we’re going to be challenging that. But, you know, first, we’re going to be moving to just continue the case. And that may be what happens. So it may be a crisis that doesn’t need to occur. You know, so I’m totally in touch with you there. When you’re cross-examining a witness in a critical situation, you want to be live and in-person not on Zoom.
Scott: And it probably has a serious confrontation clause in implications to be in that situation at a trial.
William: Absolutely. But, you know, also, just two years ago, the only people who saw wearing masks were criminals. So somebody, you know, if they had a hat and mask, you knew they were robbing a store, robbing a bank, or doing something nefarious. So, you know, even though people are somewhat conditioned now to see people in masks, still, if it’s a jury sitting over there, even though they’re wearing masks they’re looking at that poor defendant sitting there at the table, and the lawyer and the defendant are both masked up, that’s a chilling scene, really.
Scott: Yeah. I mean, it makes…it sort of paints your client as an outlaw.
William: Yeah, absolutely. So, and, you know, in order for people to gauge credibility, you have to be able to see the expressions on the face and you’ve got to be able to clearly hear the voice. It can’t be this situation of being masked up.
Scott: Right. Well, so tell me a little bit more about your practice. I’ve seen your wonderful office in Portland. Do you…and I know that you’re pretty…you’re more north in Maine today as we’re talking. Do you just have a house there? Do you have offices throughout Maine?
William: Yeah, I’ve moved up here with my family and we’re right across actually from the courthouse in Dover-Foxcroft. So that’s the seat of Piscataquis County. A very beautiful area. And so I’ve got an office here. I’m contemplating opening an office in a northern city called Bangor, which is where I’m getting quite a bit of work right now. It’s 40, 50 minutes away. And but my practice is really statewide and it’s still in Portland, largely, and in the Federal Court in both Bangor and Portland.
I’m specializing in any type of criminal matter from, you know, operating under the influence and domestic assaults, up into major drug conspiracies, and manslaughter, murder cases, and drug trafficking and sex offenses. So you name it. I’ve been doing it.
Scott: And I think you said a minute ago but tell me again, how long have you been practicing law?
William: Almost 34 years now, I guess it is. Thirty-four years in October.
Scott: So having read up on you a little bit, I know that you’re a musician and a composer. Is that something that you still do? And is that something that you studied before you went to law school?
William: Well, I’m largely self-taught as a musician and a composer. But I did study at the Berklee School of Music for two and a half years after undergraduate and before I went to law school. So that was in between. But I always had the plan to go to law school at 30. And that’s what I wound up doing. But I’ve continued to pursue musical projects and have recorded two operas and an oratorio, John F. Kennedy Requiem, dozens of songs, classical songs, and produced concerts in Carnegie Hall in New York City. And at Merkin Hall as well. So I’ve been pretty active in the music business, but it comes and goes. It depends on, you know, what I’m feeling at the moment.
And right now, the music business has really taken a dark turn. And so there’s so much politics in the opera business right now, in the classical music business. It’s all of this inclusion and wokeness and vaccine mandates and mask-wearing and it’s about everything except the music and the drama. So, you know, the whole industry is generating unnecessary dramas in all directions, and it’s taking away from the integrity of the art.
Scott: And are you speaking of various COVID-related mandates that are making it difficult for live performances? Or is there more to it than that even?
William: Oh, yeah, much more to it than that. It’s the politicization of the entire industry where it’s just a lot of racial and gender and other types of considerations that have nothing to do with music but are embroiling the entire industry. But, you know, with the COVID thing, never knowing whether or not performances are going to happen and so many cancellations and the vaccine mandates to be an audience member plus wearing masks, you want to have an art that is embracing people to come in, not driving people away. And that’s what’s happening right now.
Scott: I think it’s hard enough to keep and maintain an audience in classical music and opera anyway, except for, you know, the rare aficionados at this point. So I would imagine mask mandates and things like that, and politicization would make it even tougher.
William: Yeah, it makes it tougher. I mean, granted, a lot of the people that are interested in opera in the first place, classical music are going to be leading towards support of vaccine mandates and mask mandates. But still, when you’re struggling for an audience if you take off 10% to 15% of that just off the top… I mean, in the average society, it’s 50% or more. But let’s say in that business, it’s 10% or 15%, it’s still significant, but it’s also just the lack of human feeling. Because you go into art to make that human connection, to make that spiritual connection. And these are just all barriers that are in the place of that.
Scott: Were you interested in music growing up? Were you a musician before you went to high school? When did you develop an interest in music?
William: Yeah, I became like millions of other people, a fanatic of The Beatles when I was eight years old in 1964. And so that carried me. And I became, you know, a rock and roll guitar player from the age of 11. Or I even started I think at 10. So but I was playing in rock bands at the age of 11. And that was my life. I didn’t have any classical music background at all until after university and when I went to Berklee School of Music, which was exclusively a jazz school at that time. But I branched out into the classical community and became a devotee of opera. And, you know, Wagner, Mahler, Beethoven.
Scott: Just as an aside since you mentioned the Beatles, have you seen the Peter Jackson documentary yet?
William: Absolutely. Every minute of it.
Scott: What did you think?
William: Oh, fantastic. It was like a dream come true to be able to see all that.
Scott: I couldn’t believe the quality of the video.
William: Exactly. Exactly.
Scott: So did you grow up in Maine or do you…
William: No. Well, I was born in the Greater New York City area. And my mother was born and raised in New York City, and both of her parents were. And my family lived there until I was six years old when we moved to Chelmsford, Massachusetts, which is a suburb of Boston. And that’s where I happily grew up until 17 when I took and moved to El Paso, Texas for my first year of university. And then moved to New York City and went to the New School of Social Research. And then moved to Boston, where I stayed five or six years finishing up my undergraduate degree at Northeastern University.
And then, after a year of kind of just hanging out, started school at Berklee. That was the big time when I was deciding between law school and a music career. And I actually chose to pursue music at that time and put law on the backburner. But I knew I’d most likely get there eventually.
Scott: Okay, so I have to ask you. So an interest in law and an interest in music or particularly opera, that doesn’t seem to go together. Tell me a little bit more about your interest in those two fields.
William: I guess what I was attracted to what the law besides, you know, the great Constitutional principles that have been argued about, well, for the last many centuries if you include the English law, but for the last two centuries-plus in American law, the real draw for me in terms of having a career in it was the dramatic element of the courtroom. And “Judd for the Defense” was my favorite show growing up and there was other legal shows that I got into. So it was, you know, the dramatic part.
That’s been a big part of what attracted me in terms of the musical career and opera, it’s the drama aspect. So, but I mean, that only covers a part of it, because, you know, music as an art is very spiritual. And I think there’s actually spiritual elements in the law as well. So I mean, and especially when you’re trying to connect with people, connect with juries, connect with the jurists in your writing, there’s a spiritual element there as well. And certainly, a creative element.
Scott: And what do you mean by a spiritual element?
William: Just where you’re rising above the facts of a certain case and you’re connecting to more embracing principles, more all-embracing principles. And that’s, you know…and in dealing with juries, you’re making, you can call it an emotional, you can call it spiritual, it’s been many things. I mean, I had a great deal of success in my early career with juries. And it was often a very spiritual connection that you could feel that resulted in getting certain verdicts going your way.
Scott: For new lawyers that don’t understand that, you know, if you were going to speak to someone who was just starting a career as a trial attorney and you wanted to sort of impart some wisdom about how to connect better with juries, or how, I suppose, to sort of develop the ability to connect with juries at that level, what would you tell them and what does that entail?
William: Well, really, you’ve got to master the fundamentals, initially. Because, you know, going in with the emotional aspect without being fully prepared isn’t going to work. So you’ve got to have your fundamentals of cross-examination down, you’ve got to be able to really understand what the issues are in the case and how to get in the evidence that you want to get in and how to keep out the evidence that you want out. You’ve got to be a master of the procedural at first. But, you know, and then you can have success just at that, just to be a master of the procedural aspects.
Scott: Because so few people are, really.
William: Well, that’s right. And less than less, because even before the pandemic, there was so many fewer trials. And so this has just exacerbated that entire situation. Who knows where it’s leading to? But, you know, I think that reaching toward the kind of subjects you were just asking me about, it’s, do you care? Really, do you have any emotion that you care? Do you care about that client? Do you care about the process? Do you have an emotional connection with your work? So that’s going to bring you 90% of the way.
And then the last 10% is just something where, you know, it’s called creating magic, I would say, and, you know, that comes when it comes, but if you’re open to it. You know, because people’s lives are at stake in some very, very fascinating circumstances sometimes. And, you know, jurors are relating. Sometimes you’ve got, you know, some middle-aged man in the jury relating to a young woman that they can see as their own daughter and thinking of the abuses that they’ve gone through and the circumstances that have brought them to the situation. And for them to make that connection, that compassion, that emotional connection, that does raise to the level of spiritual connection at times.
And as well as when you’re addressing the jury. You know, that’s what separates a great artist in the field from someone who’s going through the motions.
Scott: You know, and that’s interesting, too. And I think that’s something that we naturally think about when we talk about connecting with the jury. But, you know, you mentioned that also in terms of how you connect with judges and how you write legal briefs. Could you say a little bit more about that and what it is you do in that area?
William: Yeah, and that’s, of course, gonna be a lot less on the emotional. You know, the great jurist is, you know, so highly intellectual, and trained in such a way, such so extensively to really reach conclusions based upon legal principles and established facts and putting those together. But, you know, when you’re moving from the facts or the specific facts of your case, into broader legal principles that the judges can recognize that, yeah, it doesn’t really matter so much about this case, this is a small case or it might seem clear at some levels, but there’s a broader principle here, you know, that affects all of our freedom, all of our liberties, all of our Constitutional rights.
And then to see it in that context, not just to say it, but somehow get it across that you’re really dealing with vital and critical issues, fundamental principles. And that’s, I guess, more of what I meant in terms of connecting at a higher level with judges.
Scott: And when you are at Berklee School of Music, is that in Boston?
William: That’s in Boston, yes.
Scott: And so what were your studies like there? Were you training on a particular instrument? Or were you more into the composing piece when you were at Berklee?
William: Yeah, I was much more to the composing piece. So you had to have an instrument. So mine was voice because I’m someone who likes to sing and I’ve done a lot of recordings actually singing. But as a classical artist, no. Although it would have been nice but didn’t really have that level of talent to go into the classical field as a classical singer. So but I was a few years older than most of the students coming in were 17 to 18 and I was 22 because I just graduated from…I might have even been 23, actually. So I was a bit older than the students and it was a little bit of an unusual situation.
And then I was into, you know, swing jazz, like, you know, Judy Garland and Frank Sinatra and, you know, Louie Armstrong. And so I wasn’t really into the modern jazz that was happening. And then I got into the classical music, which, you know, I became a fanatic. I was going to Tanglewood. I was going to the Met Opera in New York. I was going to the Boston Symphony every week. I was hearing student performances. I was really soaking it up. I was somebody like if you know anything about Wagner and his last offer Parsifal, it means the pure fool. The person that basically is a blank slate, he doesn’t know anything. And that that was me in the classical world. And actually, I remained that way for many years even after I was traveling the globe hearing opera performances and became friends with a lot of the top opera performers in the world. I was still this Parsifal figure because I didn’t grow up in that. Yeah, and so I was constantly learning and just kind of riding the wave.
Scott: Is that similar to sort of the Zen concept of the beginner’s mind? Just to know you’re an absolute beginner, it opens that whole world of possibilities.
William: I would say that’s similar, yes, yes.
Scott: And did that also cross it into law? I mean, the notion of, did you soak that all up as well? Or was opera something different?
William: Yeah, opera was totally different. Because on the legal side, I was paying attention early on. And, you know, and then I studied Constitutional law even in undergraduate college. And I was always totally into politics when I was in high school and in college. So I was, you know, reading the “New York Times” every day and paying very close attention to what was going on. So to me, that’s all connected with the law. Politics and the law is one area. And I was very connected with that.
The only similarity I had of what we were just talking about is that I didn’t go to law school until I was 30. So I wasn’t a lawyer until I was 33. And so here I was just kind of figuring out my place in the courtroom, and, you know, very young in the law but I was in lawyers’ middle-age. So that was a little bit of a similarity.
Scott: Were you a full-time musician for those years between Berklee School of Music and law school?
William: No, I was doing a lot of recording. But I was funding that by being a teacher. I met a woman while I was in Berklee, and we connected up and we wound up getting married a little bit down the road. But she was a teacher, and I wound up getting into that field a bit. And actually, taught at some private schools, taught at a Catholic school. Did a bunch of teaching work before I went to law school.
Scott: And were you teaching music or something else?
William: No, in the private school, I was teaching English and philosophy, was teaching all the grades in fifth grade at a Catholic school, because, you know, in the fifth grade, the teacher teaches all subjects. So it was interesting. And then I did some work with disturbed children and took…my last job was in a group home with troubled adolescents. And that wasn’t exactly teaching, but I had a teaching job on the side at the same time. So I had a lot of different teaching types of experiences.
Scott: And what led…I know you spoke a minute ago about enjoying the drama of the law. But what was it that led you to go to law school at the age of 30?
William: Well, I was really agonizing when I was 21 as to go right to law school. I mean, I had the applications for some schools in Virginia, the University of Virginia, and Washington and Lee. And those were the two that I was kind of focused on. But I was really deciding whether to go. To me, it was a life-altering decision, I thought at the time. Because at that time, if you wanted to go into politics, you couldn’t have anything to do with the arts. There was just…and you couldn’t have anything to do with a loose living lifestyle. So you were gonna go one way or another.
Now, that all changed with Ronald Reagan, who became, you know, the first divorced president. Before that, that was unthinkable. And then, and, you know, that he had been divorced much earlier than that. And he was an actor. So that changed things. And then Bill Clinton came along playing the saxophone and everything started changing. And, you know, the mold was broken. So it didn’t turn out to be as momentous a decision as I thought it was. But I made the choice for music. But in the back of my mind was, if it doesn’t really bring the type of material success that I was expecting, frankly, then I would go to law school at 30 and it wouldn’t be much of a change of enthusiasm. Because I really was torn between law and music from the beginning. So it was something I went into. You know, I judged my life. I thought I judged it relatively cautiously and just decided to go into this other field that I loved also.
Scott: And if I’m hearing you right and I may be wrong, but it sounds like you saw the law as a jumping-off point to politics and not maybe as an end in itself.
William: Both, both.
Scott: Okay.
William: But it was definitely a jumping-off point for politics. And then I had another one of these moments, you know, five years later when I knew I needed to run for district attorney if I was going to adequately progress on this political path. And I just decided that still, it was too much of a lifestyle thing. I mean, I wasn’t…in the law, it was easy just to toe the line and kind of keep to the straight and narrow. But on the artistic side, I had just started really getting back into the artistic side thanks to reading the autobiography of Richard Wagner. I just knew I didn’t want to just live by all the rules of society. And again, things have loosened up since even that time. But…
Scott: Well, what was it about Wagner that drew you back in? I know very little about Wagner. What was it about his life?
William: Well, you know, he’s a commanding genius. He’s possibly the greatest genius the human race has ever produced. And, you know, the poetry, the stories, and the music and putting it all together, it just creates an art form that is unique unto itself. I don’t know. You know, I think certain things grab you. But for me, it’s always been I’ve been attracted to the best in any direction. So when I was a kid growing up, and I was into pop music and a rock and roller, The Beatles were my y thing. And later, it was Beethoven and Mahler and ultimately, Wagner that really captured me.
But it’s hard to really say. And again, it’s a very spiritual thing. I’m a spiritual person as an artist, and a lot of things in life are very spiritual. Who talks to you, you know, what resonates in your soul and your blood and your genes? And that’s what drew me to Wagner.
Scott: Well, who are some of the greats in law? You know, you said that you’re drawn to the best and Wagner is the greatest. So I would really have kind of two questions to jump off from that. Who are the, if there is…this may be a little trite to say. But who are the Wagners of the law? Who do you think are the best? And what do you think, is there anything about Wagner that would…you know, that sort of informs and sort of shapes how you practice law?
William: Well, the second answer, the second question more quickly, no. I would say there’s no relation of Wagner and the law. Definitely, Wagner is taking you one way. And practicing law is taking you to another. And even the principles of law, there’s… I mean, I might want to think about that for, you know, a couple of weeks and see if I could come up with some connections, because, you know, I’m sure that you could. But I’m not aware of any.
But, you know, Marshall is the great genius of the law, John Marshall, and I’ve got his biography of George Washington, which I’ve read quite a bit of. And embarrassed to say I haven’t finished it and I think I read the Virginia Debates of the Constitution. I think Marshall was in that. But I’ve got some biographies of his. And of course, I’ve read all of his decisions. And, you know, it’s not just Marshall, because you’ve got you got Madison and Jefferson. You’ve got such towering intellects in the legal field.
I mean, Jefferson is writing legal documents that have never been surpassed. And, you know, he’s one of my ultimate heroes is Jefferson. And then Marshall. And you’ve got Oliver Wendell Holmes I was always drawn to. And of the modern people, I don’t know, I guess I should say something about Justice Breyer, who’s just announced his plan to retire yesterday. I’m actually very sorry to see him go. And I think it’s a shame that he’s being kind of driven out. Because, you know, I’m not saying I agree with all of his decisions. He’s much more of someone who’s in the position of, well, if the Congress says that’s what we’re doing, then that’s fine.
You know, I’m more into maybe a little bit of a different philosophy. But I always believed in the integrity of Justice Breyer. I had an oral argument with him at the First Circuit Court of Appeals before he was nominated even for the first time and that resulted in a partial victory. I had the case sent back for resentencing. It helped out the client quite a bit. But so that was my first experience with Justice Breyer. And I’ve honestly followed his career very carefully. And he’s a…I would call him a great spirit in the law. So that would be a modern example that I would bring up.
Scott: Well, and you’ve put some Southerners in that list. So that’s really [inaudible 00:35:14] to hear as well.
William: Well, absolutely. I mean, Madison, Jefferson, and Marshall, I mean, that’s… And of course, Jefferson and Marshall were butting heads. They weren’t politically the same, but they were Titans. And that’s what this country needs right now is some Titans. Men or women, black or white, or any color, any persuasion, just people that rise above the pettiness of the moment and can understand the principles that are critical in this world and have enough practicality to be able to communicate with the population.
Scott: Well, I don’t know what the trend is in Maine. But I know certainly in Georgia, there are fewer and fewer legislators here who are lawyers or with a legal background. And I think it certainly is hurting things a bit. Is that a trend also in Maine?
William: I’m sorry that I never paid any attention to that particular subject. No, I haven’t. I don’t really know the answer to that in Maine.
Scott: So going back, so when you came out of law school, did I hear you right that you started off as a prosecutor?
William: No, only while I was in law school. There really wasn’t a position available for me anywhere. I wanted to be a prosecutor. That’s what’s kind of ironic because once I realized there wasn’t going to be a job for me upon graduation, and I had to start contemplating what I was going to do, as I got my head into the defense aspect, it would have been very, very difficult to have changed that. I mean, really.
Scott: And did you go to law school in Maine?
William: I did, the University of Maine. Yeah, it was a great school. And I was very inspired by the professors, some of whom have passed on, unfortunately. But one of them, my property professor, I think he knew what struggles I was going through when I was getting ready to open my office. And he took me into his office, and he said, “You know, Thomas Jefferson, when he started out as a lawyer, he was riding the circuit, you know, all on his own.” And that actually gave me quite a bit of a boost of enthusiasm or confidence, which I appreciated.
Scott: Now, knowing the little bit that I know about the layout of Maine, I mean, did it feel like you were riding the circuit as a sole practitioner out there out of law school?
William: I was absolutely riding the circuit. I had a little red car and I was going from a place in the middle of nowhere, which is Andover, Maine, which is where I lived in the mountains. I was in a cabin without electricity. I did have a generator that worked sometimes and without really nice indoor plumbing, and just really living a basic back-to-nature life. And I had a little office in my town and I just got on the court-appointed list for serious criminal cases all around the state.
But I was driving, you know, an hour and a half to Augusta. I was driving an hour to Farmington. I was driving two hours to Portland. I was driving an hour and a half to Auburn, Lewiston, Auburn. I was going to South Paris. I was going to Rumford. I had Federal cases in Bangor and in Portland. So I was just traveling across. I was on the circuit. And it took me a while to focus in on a few towns. But really, for many years, I just was going from court to court to court. And it was a wonderful experience. I knew all the judges. I knew all the prosecutors. I knew all the defense lawyers.
And it was a social time. So this is what has happened to the practice of law. There’s no social time anymore. I mean, even leaving COVID out. I mean COVID, it’s hopefully something that’s gonna pass but it had already changed because of security because of 9/11. And because of God knows, you know, paranoia, and just closing humanity, a closing sense of humanity. I mean, I used to go back, and just drift into the judges’ offices and talk to them, you know, back in chambers. And all of a sudden, everything was locked off, you know, and you couldn’t even get to the areas of the building where you used to go. It’s like, “What do you want?” You know, it’s like, “Okay, so this is how it is now.” I feel sorry for the young lawyers who never even knew what it was like to just be able to have human relationships with judges and, you know, even the famous judges.
Scott: It sounds there was a lot of time to contemplate things in those drives from court.
William: Yeah, well, you know, for better or worse, I became a master of dictation on my little machine. And, you know, I had quite a nice office humming back then. And I had my full tape. I dropped it off on my secretary’s desk as I grabbed my files for the 8:30 court. And, you know, when I came back, I had four or five fairly comprehensive letters heading out, motions or letters. So I don’t do that anymore.
Scott: So that’s interesting. So you were…okay. So managing a law office in that setting, you’re in the car like going from, you know, place to place. It sounds like you’re doing a lot…and I’m guessing. I’m trying to situate the time. I know you said, you’ve been practicing for 35 years. I’m assuming this is…
William: Yes, we’re talking 1989.
Scott: So this is, like, cellphones are starting up.
William: No cellphones, yeah.
Scott: No cellphones.
William: I didn’t have any for quite some time.
Scott: And so you’ve got a little Dictaphone, and you have files, and you’re spending that time, just you’re dictating letters and briefs and memos and things like that?
William: Right, more standard motions and letters. And, yeah. But I was writing letters all the time, you know. There was always critical cases that clients needed to decide what to do. And you really have to have all that in writing for them to look at it. Plus, to create a history if these things were discussed. So there was always things that needed to be dealt with. But so I was… Yeah, I forgot the exact question.
Scott: I think I was talking about the time for contemplation and work.
William: Oh, right. And I did have a lot of time for contemplation. But I would also say that I drove myself to exhaustion back then. And I often, even in very cold weather, in Maine, freezing weather, driving home in the dark at 4:00 or 5:00. I had to pull over to the side of the road and sleep for 10 minutes because I was just so tired. So, you know, the end of the day was different. And I knew that most of those nights, I had to work. I mean, I worked every night almost. I was a fanatic into law. I wanted to be the best at what I was doing. And I was willing to pay the price.
Scott: So you get out on the road. You drop your Dictaphone, your tape from yesterday with your secretary, and you’re out on the road going to calendars. And then at night, you’re back in your office working?
William: Well after the first year of my office in the small town, I was kind of describing what it was like later because I centered my office in Auburn, which is an hour and a half drive. So on my morning drive to the office, that’s when I did a lot of dictation. And then I reached the central office. And usually, my court cases were there. But if they were somewhere else, I dropped off the tape later on. I would just drive directly to those courts from my home in Andover.
Scott: And when did you end up opening this beautiful office in Portland that I like so much?
William: Yeah, that was four years ago in October or November. I was there kind of in the middle of October. So it’s been four years. It was…interestingly enough. And so it’s good that you keep bringing up this office. And that’s how we met because this office is a classic. It’s not for everybody, you know. It’s only got a little bit of space inside. You can’t have a really big operation going and you get flooded out. This is something that you didn’t get to experience. You get flooded out once or twice a month by the high tides. You cannot get in or out. So if you’re already in, you can’t get out. And if you’re not in, you can’t get in. So that’s really an idiosyncrasy of the place.
But it was, for the last 10 or 20 years, I don’t know what date he moved in, but the preeminent criminal trial lawyer in the state of Maine, Dan Lilley, had that office. And he was a character like out of, you know, you could write novels about Dan Lilley. And you can talk to some of his friends about him. He’s something else. But I admired him as a defense lawyer. I watched a number of his trials when I was young and learned quite a bit. And, you know, he was someone that I emulated.
So to wind…and he died five years ago. And I was in a different office situation. And I just happened to be looking on the internet one day to see what was around and I saw his office for lease. I thought, oh, my God, that would be something else. And like everything else…well like many things that happen when they’re destined for you, things just fall into place. That’s exactly what happened with this house up here in Dover-Foxcroft. I have a home office and that’s exactly what happened with Dan Lilley’s office. Things just fell into place. It was no problem, just do it. And so I moved in there and I’ve been very, very happy ever since.
Scott: And what’s your practice mainly consists of? Are you mainly in Federal Court now? Or are you a mix?
William: No, it’s a mix. Just because, you know, for certain times, I’ve had, you know, 80% of my work that I have to do is all Federal. Because it’s just so time-intensive, some of these cases, and the briefing. And I did two trials in the Federal Court jury trials, one of them quite lengthy, just before corona hit. So those were quite lucrative for me actually, to be able to bill those afterward, when everything else was also shut down. Thanks to the Federal Courts for being so generous in saying, “Hey, you can bill these cases even though they’re not finished.” That was something that was driven to help attorneys. It didn’t help anybody more than me, because the timing was just perfect.
But anyway, right now, I’m just getting a lot of cases in State Court because I was going to take a few here in this small town, Dover-Foxcroft, and I was talking to the Superior Court judge. I only had one case, really, at that time. It was just a couple of months ago. And he said, you know, “They’re in a crisis in Bangor. They don’t have enough lawyers. Nobody knows what to do. And you know, you should think about getting on the list.” So I thought about it, and I did it. And suddenly, I’m being deluged with cases, quite serious ones, many people in jail on quite serious charges. And it’s really been like a kickstart to getting me going, again, because I was in quite a kind of a placid routine of managing my smaller caseload and just dealing with, you know, more lucrative retained cases.
I wasn’t even on an appointed list other than in the Federal Court. So it’s quite a change right now. And I’m kind of trying to deal with this new reality at the moment. And hopefully, it gets me into court. Because as I was saying, there’s not enough trials.
Scott: There aren’t, no.
William: Yeah. And when you take some of these guys that, you know, may have been around the block a few times, and they’re angry about being charged with what they’re charged with. and they say, “I’m going to trial. I don’t care if I’m going to lose.” You know, most of the cases, more that you wind up in trial, not the ones that that…
Scott: That should be tried.
William: Yeah, exactly. Because they get a deal on those and a deal too good to pass up. You do deal with some prosecutors that don’t give that deal and you wind up trying those cases, but that’s good because you win those. But, you know, to win these cases that are, you know, 95% against you to start out, it’s quite a challenge. And you’ve got to be prepared to lose those. But the only way you can win is to get in there. And then, you know, the win might be an appeal.
Scott: Right. As often they are, right.
William: Yeah. And I still love doing appellate work. I don’t do it as much as I used to. I was never one of these appellate lawyers that really kind of laid everything out with, you know, 50, 60, 70 cases, and, you know, just pages after pages of analyzing other cases, I just kind of tried to get to the basic principle, the issue. And then I put two or three cases out there, without even analyzing those cases too much, and saying, “These cases follow this principle.” And, you know, that works pretty well for me. Although I think a lot of the appellate judges would prefer to have this big exposition of the law but everybody knows the law.
You know, appellate work is a lot of repeating what everybody knows, you know, and it’s like, okay, you can go through that because people want it.
Scott: Why is there a shortage or why is there an issue where there are more cases than lawyers in Bangor? What’s…are people not wanting to do criminal defense anymore?
William: Yeah, well, Maine is very unique in the fact that it doesn’t have a public defender. So from what I know, it’s the only state that doesn’t have a public defender. And I’m all in favor of that because that’s how I got started. And I think that that’s great because it gives young lawyers the opportunity to get right in there. And I tried cases, everybody else that started when I did, basically had to try cases or get out of that field. But now, it’s quite a bit different. And there’s been a lot of negativity around the whole court-appointed process because certain people have been fighting for the public defender system to be instituted and other people are fighting against it.
And then they made this commission 10 or 12 years ago, to kind of oversee it all and that was running quite well, in my own opinion. I wasn’t even on the list for most of those years. So I didn’t have much to judge it by. But the times I was on it, it worked really well. And it was just set up well. But then also this kind of negativity started then on that, and the director was kind of forced out. And new people coming in and a lot of kind of enforcement of things that are kind of bureaucratic rules. Because, you know, other people are saying, well, they’re not getting adequate defense because these people are not qualified.
I don’t know. There’s a lot of negativity. So it’s caused a lot of people to drop out of the system. And Bangor is just a place where I guess, I don’t want to speak without adequate factual basis, but it seems that there’s a lot of crime up here for somewhere that’s a pretty remote city. I know in Lewiston, that’s where I was based in Lewiston and Auburn, Lewiston, I don’t know, it’s a similar-sized city to Bangor. And it’s got a ton of crime. And I think that’s what I’m seeing up here. There’s a lot of crime. There’s a lot of people in jail. There’s a lot of kind of hard-headed types up here that are not going to change their ways.
And so they need a pretty large defense bar. And I think the defense bar has been getting burned out. Because there’s not enough attorneys. So and then, you know, more and more are dropping. So I don’t know how many young people are coming up and really want to start fighting in the courtroom. And right now, there is no fighting in the courtroom. Everybody’s on a computer. And so there’s a real unreality to the whole situation going on.
And I’m just hoping that this pandemic that we’re under becomes much more manageable in the next month so that people can stop really organizing their whole lives around it. Because it’s taken away a lot in a lot of directions. And I know why that is. But I’m just hoping that things settle down enough that we can move beyond it.
Scott: When was your last jury trial? Have you had one since 2020?
William: No, no. I had one in October of ’19. Oh, I have one in 2020. I had it in February of 2020.
Scott: Right before it all started.
William: Yeah, exactly. Exactly. Yeah. So I was just starting to feel warmed up, you know, because when you go a year without a trial, I mean, it’s hard to call yourself a trial lawyer. And they’re doing a few trials around here. And I’ve seen a few good victories by some of my colleagues recently. So that’s always nice to see. But there’s just so few trials that it’s disheartening. And there’s a whole generation of lawyers growing up without trial skills. And so what does that mean? What’s that gonna do?
Scott: Well, I think it creates a situation where the prosecutors are going to run the show. And, you know, I think there’s no greater leverage for a criminal defense attorney than for you to have the reputation as someone who will try a case and will do well in that trial.
William: Absolutely. I mean, and I don’t even know that I have that reputation anymore because most of the people I know, you know, the judges have been retiring. And the young lawyers from different towns, I don’t know how many people know about me or the prosecutors. But, you know, when you’re not in trial all the time, you lose that edge, you lose that factor. And, you know, I constantly got good deals, because they knew I was gonna go to trial. And not only am I going to go to trial, but if I don’t win, I’m going to have laid down a lot of good legal issues. If there’s any to be had, they’re going to be preserved. And then I’m going to fight the case on appeal, or I’m going to get somebody else to.
But normally, I was fighting all of my courtroom defeats on appeal. And then you get some of those back. You know, when people know that they’re going to be working on this case for the next two or three years, it definitely helps to resolve the case. But again, I said that there were certain hardheaded prosecutors, even back then, that they just had a line in the sand. They weren’t going from a felony to a misdemeanor, or they weren’t gonna go no-jail. And that was the client’s bottom line. And so it’s trial.
Scott: And in the height of it, what do you…how did you prepare for trial? You know, if you’re opening a file that you know is going to trial, what are some things that you have just learned to do over the years?
William: Well, the first thing to do is get a PI and I go a lot of cases without getting a PI because I don’t believe they’re going to trial and they don’t, because there’s always time to do it. But if it’s a case that you know is going, then you get a PI. You get witness statements, and you get some different perspectives on the case. And you have good heart-to-heart conversations with your client, make sure you know what they want to do and what their parameters are. And then there’s cases that are going to have sticky legal issues, which most don’t, but a lot of them do.
I mean, there’s always a lot of prejudicial information out the either for or against, and you’re thinking about how you’re going to get it in, or how the state should not be able to get it in. So you’re strategizing out on the evidentiary issues. And of course, then there’s the Constitutional issues on search and seizure and confessions that you’ve gotta always be ready to tackle and those…you know, you win cases on suppression that never see trial. And that’s the end of them.
Scott: So I think you’re the first person I’ve talked to that has said this, and I think it’s such a good and valuable point, the role of a private investigator. Because I think a lot of us attorneys think that we can kind of do it all, that we can do the witness interviews, or, you know, we can do the witness interviews with our paralegal present. And that sort of substitutes for a private investigator. Why do you think a private investigator is valuable for a case?
William: Well, the first thing is, as I alluded to toward the end of what I was saying, was that you get some feedback on how they see the case. You know, it’s like, “Wow, this is a tough witness. Or, you know, that’s not going to go well. You know, or what about kind of this type of strategy?” So just strategizing, it’s important. I mean, if you’ve got a couple of associates working with you that you can assign to the case and have conversations, that might be helpful. But the PI, if you’ve got an experienced PI, he’s probably gonna have a lot more knowledge than a young associate in terms of how the trials actually play out.
It’s also important to note, just one other thing that to go back about preparing is, after you’ve done a lot of trials, you know how it plays out in terms of what evidence can come in and what can’t. And a lot of cases that look really bad on paper, because there’s a lot of kind of background information and a lot of stuff that they know about this guy or gal, as the case may be, it’s never gonna come to the jury. And even though it’s so obvious that the person may be guilty when you’re looking at the paper, you gotta project out, what are they going to get in? How is it going to come in? And what they do get in, is it going to come in as strong as it comes in on this, you know, two sentences from the state trooper’s report? Or is there going to be a lot of weaknesses in there?
So, the PI is invaluable in all of that. And then, I just don’t have time, right? I maybe have the last couple years, but I didn’t have time before to go out looking for witnesses and finding people and talking them into talking to me. A lot of the witnesses are quasi hostile. So, you know, those are not witnesses that you can deal with. I mean, I’ve met lawyers, some very successful lawyers that like to go out and confront those witnesses anyway just so they can say, “Yeah, you refused to talk to me, didn’t you?” And, you know, that’s worth something. But you’d rather get them to say something that might be helpful.
So the PI has some skills, you know, if they’re good, that allows them to kind of connect with people and to make them feel that they can talk to them. And so that’s valuable. And then, you know, the PI is going to be a good witness if you have your paralegal in there. I don’t know about calling a paralegal. I mean, you don’t usually have to call somebody to just straighten it out.
Scott: Right, just for impeachment purposes or something like that, right.
William: Yeah, yeah. I mean, because you ask them, “Didn’t you such and such?” And they usually say, “Yeah, but…” So I mean, you don’t need to call in the person. But if they flatly deny it, “I never said that,” then…you know, I don’t know that I’ve ever really had that happen.
Scott: And do you bring…when you have a private investigator working on a bigger case, is that person seated with you at the counsel table during the trial?
William: Often. In the bigger Federal trials, I used to do that all the time, then I kind of got away from that. Now, that was one of the…I used to enjoy that when I was younger, having an associate at the table, and someone that was really able to help. And then, the PI maybe also. So then I get into a little bit more just doing everything on my own because, you know, your most talented associates often move on and doing other things. And so, it’s not worth it just to have a body sitting there. You want somebody that the jury is going to like and that are going to be helpful to the defense and8 the case at some level.
I mean, I’ve even had an associate whisper something in my ear, you know, just before closing argument or just…yeah, the closing argument in a Federal trial which we won, which it was just the most important thing to make a logical connection to the jury as to why something didn’t make sense, you know? And so that wouldn’t have been said, and would we have won otherwise? Maybe not. So there’s all these little things that go into try and cases. But having support, I mean, that’s the thing. Having a PI, you have some support. And it’s important to have support because you’re out there on your own. The judge is against you 90% of the time or more, the prosecutor obviously is against you 100%, the cops hate you.
Scott: Sometimes your client doesn’t like you so much by the time you get there too.
William: That’s right. And frankly, something I’ve been learning to my regret over the last 10 or 15 years is, you know, the conservative Federal juries, just, they’re in love with the FBI. They love the DEA. They love the U.S. Attorney’s Office. They hate you, you know. And you’re up against such a hurdle, you know. And what I’ve been learning in the last two years is why a lot of my arguments about individual liberty and freedom and Constitutional rights had been falling on deaf ears over the last years, because the people don’t believe in them, as we see with the COVID. They are willing to be told what to do.
People are acting like sheep. People are wandering around out here, there’s three cases a day in the entire county, and no deaths out here in this county. And everybody’s walking around in masks at sporting events. Kids are wearing masks playing basketball, like, you know, or even outdoor sports. But it’s like, people are not willing to stand up for themselves. And so when you’re asking the jury member to stand up for this alleged criminal sitting over there that’s maybe done some horrific things, they’re not interested in the least of standing up. They want to just fall in with the prosecution.
Scott: So you think there may be a long-term link between a future jurors’ willingness to convict our clients and sort of this notion that people are willing or have been conditioned to wear this mask? You think there might be some…that there might be a greater willingness to…well, a less of a willingness to stand up to the government?
William: Absolutely. And it’s not just the mask, it’s everything about what’s been going on with the vaccinations and people being…it’s not just that the government tells you to do it. I mean, okay, that’s one debate. But it’s how the people have responded that are either for or against. I mean, the against this is the rebellious side of things that this country was founded on, and the for is just, like, “Okay, the government’s told us to do it, we’re going to do it. And if you don’t do it, you deserve to die, or you deserve to get sick, or you should be locked into your house.”
I mean, I even had an old friend of mine make a post that people should be in prison. So this was before there was even a debate, it was, like, when the vaccines were first coming out. If you don’t take the vaccine, you should be put in prison until you agree to take it. And there’s so many people that agree with this type of thing. And it’s like, wow, this is like living in Communist China. This is like living under Stalin. It’s like, what’s going on? You know, I don’t even recognize my own fellow citizens any more.
So I’m learning, no wonder why they weren’t responding to me. Because this isn’t just because of COVID. This is something that’s been going on for quite some time. It’s all about the free speech arguments on campus and in the media. If you don’t give the correct answers of what certain people want to hear, you’re excluded, you’re ostracized. And frankly, it’s got me troubled, but, you know, young people, they’re the ones that are gonna inherit this world, and they’re gonna have to figure this out.
Scott: Well, as we go back into…I mean, eventually, we’re gonna have to have jury trials again. I mean, we’re gonna have to have them probably at a greater frequency than we ever have at some point. What do you think we should do as people defending the accused? I mean, in terms of how…you know, we spoke at the beginning of this recording about connecting with jurors, even at a potential spiritual level. What do you think our job is? How do you think we get that done to, you know, connect with jurors in the reality in which we find ourselves?
William: Yeah, no, I don’t think there’s an answer to that. I think that you’ve just got to keep on plugging. You’ve got to keep going. You know, it always was, no matter when you were trying cases, you either got a good jury, you got a beat them jury, you got a bad jury. You know, you could get a bad jury no matter when and where. That’s just the luck of the draw. So you’re still going to get some good juries here and there that might be able to respond to your arguments.
But I guess more fundamentally, is it worth making those types of arguments when people’s minds and emotional connections have moved on from those principles where people don’t care about free speech, people don’t care about search and seizure law, or, you know, police misconduct. People don’t care about the Bill of Rights and the presumption of innocence. You know, I mean, often people didn’t care about some of these things. But you could play on, you know, the deep-seated beliefs and the American principles.
But now, those are eroding, those are going away. So it doesn’t make sense to keep going that way. Maybe you touch on them, but maybe a lot less. Maybe it’s got to be much more the facts of the case.
Scott: It seems like people do care about police misconduct, but not in the right way. And I don’t know if I’m articulating that quite right. But, you know, I’ve, in my practice and currently in my practice, have represented law enforcement officers who have been accused of doing various things in the line of duty. And, you know, my take on that is when a law enforcement officer becomes the accused, then we extend the rights of the accused to that defendant. It doesn’t matter, you know, if he was a law enforcement officer. It seems like there’s a willingness to erode some basic trial rights and some greater interest.
William: Political interest.
Scott: Yeah, it seems like people do care about it, but they don’t care about it quite…in a very nuanced or informed way.
William: Exactly. Well, it goes back to the old adage about, you know, chopping down one tree at a time. You know, you go after this, you go after that. And pretty soon, there’s nothing to protect you. And you’ve got no protections and you’ve got no freedoms at all. And that’s what we’re going through right now. But, you know, ever since I was in college, 20 and 21 years old, I knew that society was going to evolve into this authoritarian sweep of loss of individual rights. And I hadn’t envisioned even the, you know, 10%, 20% of the technology that was going to evolve.
I mean, this is all part of one great organic process, and no one knows where it’s going. Because this whole technological enslavement of humanity, and, you know, COVID is just playing right into it. But, you know, what else could happen? There could be warfare, you know. You’ve got people on cable news right now and people in the Congress screaming to confront Russia, you know, for God knows what reason. But yeah, let’s confront Russia. You know, we’ve got this massive enemy in China that’s basically spreading their influence around the world. And they may be successful, maybe they won’t, maybe we have to fight them. Maybe we don’t.
But right now, they’re trying to engineer a war with Russia. It’s like, a war can happen at any time that just throws all of this into complete chaos because a real war is going to have massive consequence. And people forget. I guess this is just the curse of humanity. You go through these major wars like World War II, and people say, “We’re gonna remember it.” I mean, they even said it after World War I, “We’re gonna remember it, it’s the war to end all wars.” And in 20 years, they’re in war again.
But after World War II, some things shifted, and it felt like, maybe humanity has learned. It’s just like people forget what war is. People forget that you lose everything, that you lose your family, you lose your home, you lose your life. It’s not just the game. You don’t just shoot some missiles into the desert in Afghanistan and kill some people. You know, you’re actually at risk, your whole way of life is at risk. So I don’t think anybody can really predict where all this technology is gonna go because we live on a razor’s edge.
And it’s frightening to see how people don’t believe in Constitutional principles that this country was founded on anymore. And it’s frightening to see how people haven’t learned the lessons and they never have. So why would we believe that they have now? But you hope that they have because it’s just something that you just kind of tried to believe it. And there’s a lot of people that have been in this position, trying to believe that there can be peace and somehow that will contribute to it make it happen. But it’s just…
Scott: I guess we just have to fight a lot harder out here in the trenches.
William: Yeah, I think so. I think so.
Scott: Yeah. Well, listen, I’ve really appreciated you spending this time with me and coming on the podcast. I know we’ve tried to put this together for quite some time and I’m really glad we did it.
William: Well, I’m looking forward to your next visit to Maine because we’re going to have to go to Jay’s or I’ll take you to some other local places that are quite interesting. And also, I think the best place in Portland is on my deck. On my deck with a glass of whiskey and a glass of wine and sun beating on you and watching the boats coming in and out and watching the people walk to the restaurants and a little music in the background, talking maybe some law, maybe some politics, maybe some music. And, you know, I’ve been enjoying that. And frankly, even though I’ve moved, that’s why I kept my office for at least another year because I don’t want to give up that socializing aspect.
Scott: Well, we will definitely. You know, we were on the fence. I think we’re definitely going to come to Maine now when it gets a little warmer.
William: All right, Scott. Well, listen, thank you for having me. It’s a pleasure to talk about things. You don’t really get an opportunity too often to really think about your views and to give them. And, you know, hopefully, at least a few people have listened to this and found it interesting.
Scott: Well, thank you so much, and stay warm up there.
William: Thank you, Scott. All the best.
Scott: All right, bye-bye.
William: Bye-bye.
Scott: Thanks for listening to The Advocate’s Key. For more information and content like this, including a transcript of this episode, be sure to visit scottkeylaw.com, and please rate, review and follow this show wherever you get your audio content.
Embracing the Legal Fundamentals
with William Maselli
Criminal defense attorney William Maselli explains how lawyers can center basic legal principles to achieve success in the courtroom.
William Maselli knows tradition. Both an experienced criminal defense lawyer and trained composer, he understands how important it is to first master the fundamentals before you can achieve greatness. In both law and music, you have to appeal to higher principles.
“There’s a spiritual element to opera. But, I think there’s a spiritual element to law as well,” Maselli said. “You’re rising above the facts of the case and you’re connecting to more all-embracing principles.”
In this episode, the Maine-based lawyer guides us through his personal journey from composer to lawyer – and what he’s learned in his over 30 years of trying cases. Scott and Maselli discuss the importance of collaborating with experts and the value of a dogged approach to law.
Connecting On A Higher Level
When trying a case, it can be easy to become so focused on the details of the case that you forget the reason you’re in the courtroom. Maselli believes it’s important for each attorney to go into a case with a good understanding of the bigger ‘why’.
At its core, law is about being able to make a human connection across the courtroom.
“In dealing with juries, it’s making an emotional connection,” he said. “It’s often a very spiritual connection that you can feel that results in verdicts going your way.”
Before you can expect to reach jurors at a higher level, you have to master your fundamentals. The more of an expert you are in courtroom procedures and tactics, the more room you have to make for the emotional component of a trial.
“Going in with the emotional aspect without being fully prepared isn’t going to work,” Maselli explained. “You’ve got to have your fundamentals of cross-examination down. You’ve got to be able to understand what the issues are in the case and how to get in the evidence you want to get in.”
By mastering the fundamentals of trial, you’re already a step ahead of many lawyers. Then, Maselli recommends asking yourself a simple question: ‘Why do you care?’ Your answer will help to ensure you are approaching the case with compassion
Jurors can identify with that emotional attention to the case. Maselli believes that a lawyer should be able to help two people from completely different walks of life and experiences to understand and empathize with one another.
“People’s lives are at stake in some very fascinating circumstances sometimes,” he said. “When you’re addressing the jury, that’s what separates a great artist in the field from someone who is just going through the motions.”
It’s also important to make an effort to connect with judges. The more you understand how your individual case connects to broader legal principles, the better equipped you’ll be to express its importance to a judge.
“There’s a broader principle here that affects all of our freedom, all our liberty, all of our constitutional rights,” he said. “To see it in that context and to get it across that you’re dealing with vital and critical issues – the fundamental principles.”
Getting An Outside Perspective
No matter how well-versed you are in the basic legal principles, you can’t be an expert at everything. That’s why Maselli recommends enlisting outside perspectives whenever possible.
When approaching a trial, Maselli usually uses a private investigator in order to get witness statements. It usually helps him to understand how a trial may play out.
“You get some feedback on how they see the case,” he said. “Just for strategizing, it’s important.”
The private investigator can help you see the case beyond its documents. Even when it may seem obvious on paper of a person’s guilt or innocence, not all the evidence may be submitted to the case.
“There’s a lot that may never come to the jury,” he said. “You have to project out what they’re going to get in, how is it going to get in and, if it does get in, is it going to come across as strong as it does in these two sentences from the state troopers report. Or, are there a lot of weaknesses there?”
Employing a private investigator is also a time-saver. It takes effort to track down each witness, and even when you do find them, there’s no guarantee that they won’t be reluctant or hostile to the idea of talking with you.
A good private investigator has the tools to deal with those kinds of witnesses and the patience it takes to get results.
“You want to get them to say something that might be helpful,” Maselli said. “A PI has some skills that allow them to connect with people and to make them feel they can talk.”
In general, Maselli advises looking for talented people to stand by you. As a criminal defense attorney, it can often feel like it’s you versus the world.
“There’s all these little things that go into trying cases, but having support is important. Or else you’re out there on your own.”
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with William Maselli