Different Types of Attorneys Will Be Bad in Completely Different Ways

Snarf Zagyg

Notorious Liquefactionist
Supporter
Welcome back! After an initial thread, and a followup, I am back with a third thread discussing how to choose an attorney.

Not all attorneys are created equal. Well, yes, you probably know that. It’s not like OJ Simpson proved he was completely and totally innocent with Lionel Hutz! But when trying to select a not-terrible attorney, it helps to understand what, it is, exactly that different attorneys ... um ... differently do. This post will explore the Second Cousin Jake Rule (“SCJR”). What, you might ask, is the SCJR?

The SCJR is that time that you did something a little bad. Maybe you had a third glass of wine, and got popped at a DUI checkpoint. Maybe you were buying a sweet, sweet bag o’ weed in a state that hasn’t legalized it yet. Maybe you killed your ex-wife and a random waiter who happened to be at the wrong place, at the wrong time. Who knows? Life happens. But the police have you now, and you need an attorney. You call your mom (because of course you do), and she tells you that your second cousin, Jake, is an attorney. So you call Jake and spill your guts for 30 minutes. And you hear a long, long pause, and Jake says, “Man. That’s terrible. But, um, I’m a tax attorney. Can’t really help you. Good luck with that murder, and stuff!”

The SCJR is the bane of both the lay person and the practicing attorney. The lay person doesn’t understand why the attorney they’re talking to isn’t “qualified” to talk about the law! People are people, so why can’t Jake see, that he won’t take my case right now for free? And the practicing attorney is really annoyed that relatives keep calling him with their legal problems, because, man, if he wanted to be a criminal attorney, then he would have been a criminal attorney; and, really, why are all of his relative criminals anyway, and ... he really needs to get an unlisted number.

To better understand the various types of attorneys out there, remember that attorneys are a Manichean lot, looking at life as a binary conflict of evil v. eviler. So the primary binaries you will see with attorneys are as follows, in rough order of importance:

Criminal v. Civil

Transaction v. Litigation

Plaintiff v. Defense

Federal v. State


Detailing them a little more, you find the following-


1. Criminal/Civil. No, this isn’t the distinction between nice attorneys and attorneys that steal from you. Criminal attorneys are, well, think of what you've seen in Law & Order-

In the criminal justice system, the people are represented by two separate yet equally important groups: the district attorneys, who prosecute the offenders, and the defense attorneys, who negotiate the plea deals. These are their stories.

In a nutshell, criminal law attorneys are either the government (the prosecutors), or the government (public defenders) along with some private attorneys (private criminal defense lawyers). If you are charged with a crime, you are not hiring a prosecutor; or, if you are, the technical legal-y term is a bribe. You are getting a criminal attorney for your defense- either for free if you’re poor (“If you cannot afford an attorney, one will be appointed for you before any questioning if you wish.”) or at your own expense.

Civil law is everything else. Chasing ambulances ("Remember, when I ask you if your neck hurts, you say yes"). Writing wills (Screw you, Son, Fido was a good dog and he’s getting everything). Divorce (Ima get the house, and the cat, and ALL UR BASES). Contracts (But you promised me one billion dollars if I ate that cockroach). As an added level of confusion, this use of civil law is not the same as civil law used in continental Europe, which uses a civil law system. Murika uses the term civil law, in a common law system. Except Louisiana. Because reasons, and shut up.


2. Transaction/Litigation. Often, early in law school, people learn one of two things about themselves; either, “I Like Books,” or “I Like Arguing for No Reason.” The third group of people, “I Like Paste” are featured on billboards on a highway near you. The "books" people go into transaction, the "arguing" people go into litigation. But what does that mean? Transactional work is creating the paperwork that makes the world go ‘round. Drafting wills. Creating trusts. Drawing up contracts. Helping corporations with their M&As. The documents surrounding buying and selling real estate.

Litigation is when you want to DESTROY THE CAREFULLY CRAFTED WORK OF THE TRANSACTIONAL ATTORNEYS, MUAHAHAHAHAHA! Breach that contract! Contest that will! Seriously, though, litigation is what most people think of when they think of an attorney; the person in a suit, in court, making arguments in front of a judge. Of course, most litigation involves arguing through paperwork, which is about the nerdiest form of fighting there is. (Protip- all criminal law work is considered litigation, even though there can be a lot of paperwork).

3. Plaintiff/Defense. Some attorneys go both ways, and there’s nothing wrong with that. But in some areas of the law, attorneys have specialized in representing either one side, or the other- yes, the law is conservative, and still includes vestiges of heteronormativity. In some cases, it’s required (the prosecutor can’t defend the accused). In others, it’s custom and specialization. Look at this advertisement-
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The Hammer works for Plaintiffs. The Hammer is out there, looking out for the little people, smashing the (deep-pocketed business) Defendants. Do you think The Hammer is going to be defending personal injury cases? Heck no! He’s The Hammer, not The Nail! Businesses go to Big “The Nail” Law to defend their interests. And the The Nail isn’t going to be taking your piddling case on contingency.

Federal/State. Many attorneys practice in both state and federal court. But there is a difference between the two. Think of most state courts like the wild west- you show up, make some arguments, and anything can happen, up to and including the piano player getting shot. Federal court is more like the IRS- a place you send forms and money into, has incredibly strict deadlines, and every now and then, a mysterious form emerges from the system. For this reason, some attorneys have a preference for one or the other, and these preferences can become very pronounced over time.

whew So now that we’ve covered the major binaries in practice, we will drill down into the practice areas of civil attorneys. Or, as more properly put, why you shouldn’t bring an Intellectual Property Attorney to a Divorce Fight.

Law school is about providing every wanna-be Juris Douche with a wide-ranging background in theoretical law that doesn’t actually exist in any jurisdiction. The practice of law is something that is gradually learned over summer jobs, internships, and the first few years of practice. This usually allows the young attorney to begin to mold their theoretical law into the sharp, knife-edge of practical law, and also to forget about why they originally went to law school (wah wah “Public interest, help the needy, justice for all”) in favor of paying off their law school debt. More importantly, they are learning a lot about a specific area of the law. Many of the skills they are learning can be transferred; arguing in court, procedural rules for litigation, drafting contracts in general, and so on. But this attorney will also likely learn that whatever area they settle into is horribly complicated, and has wrinkles upon wrinkles upon loopholes upon enigmas.

What does this mean? The attorney will know that they won’t be very good at answering questions outside of their field. In essence, they would be defaulting to the useless information they learned in law school and to pass the Bar. For every attorney, the level of comfort and knowledge might be different; some solo practitioners might be comfortable handling a diverse class of cases (I will draft trusts, handle divorces, and litigate asbestos claims). Others attorneys might be super-specialized (I only do appeals of First Amendment issues involving the word “Humpcatting”).

But when an attorney tells you that he doesn’t take your type of case- don’t take it personally. Your mom loves you. Jake loves you. The police ... well, the police don’t love you. But when the attorney tells you that they can’t take your case because it’s outside of their practice area, it’s for a good reason. And if it’s an attorney you otherwise have a good vibe from, or was recommended, then you might consider asking for a referral ....

Which I will get around to! Promise. But probably not until next week. Cliffhanger?
 

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Alzrius

The EN World kitten
I was on another board once arguing with a fellow about the practical aspects of IP law in the United States as it applies to making compatible supplements for D&D (in essence, I was saying that doing so was allowable, albeit with certain restrictions, and the other guy was saying it wasn't allowable at all). Some of the other posters pointed out that I was arguing with a lawyer, as though that should have been the end of the conversation.

They had no response when I pointed out that he was a Polish lawyer whose area of practice was human rights issues.

(Of course, it also helped that I was citing the work of David Kenzer, an American attorney who specializes in IP law, and did in fact print not just one, but two iterations of his Kingdoms of Kalamar setting, one for AD&D 2E and one for D&D 4E, without any legal agreements with WotC.)
 

Ryujin

Legend
Being a contract law attorney was one of the two careers I was considering, when I was approaching college age. My parents divorced and I went for option 3.

For anyone with an IT background who needs to break this down a bit think of SCJR as some saying, "I have this friend who knows computers and HE says..."
 

Snarf Zagyg

Notorious Liquefactionist
Supporter
I was on another board once arguing with a fellow about the practical aspects of IP law in the United States as it applies to making compatible supplements for D&D (in essence, I was saying that doing so was allowable, albeit with certain restrictions, and the other guy was saying it wasn't allowable at all). Some of the other posters pointed out that I was arguing with a lawyer, as though that should have been the end of the conversation.

They had no response when I pointed out that he was a Polish lawyer whose area of practice was human rights issues.

One thing that I didn't really go into that people have to remember is that the law can be very different in different places. In the United States, of course, the law can and will change from state to state, and the law is different when you are talking about state or federal law. A lot of times the law is similar, but sometimes the law might be very different, or even the opposite, in adjoining states (if there is a relatively common split between states, it's usually referred to as the rule and the minority rule, aka, what the lesser number of states follow).

Once you start to cross national boundaries, all bets are off. Again, while there are similarities between common law countries (like the US, Canada, the UK, India, Ireland, etc.) the differences are pronounced. And the differences between common law and civil law countries are profound.
 

Reynard

Legend
Supporter
We just had to hire an Attorney today because my... overzealous 17 year old got tagged driving 92 in a 65 and in my state that is an automatic misdemeanor, license suspension, etc..

Parenting.
 

Ryujin

Legend
One thing that I didn't really go into that people have to remember is that the law can be very different in different places. In the United States, of course, the law can and will change from state to state, and the law is different when you are talking about state or federal law. A lot of times the law is similar, but sometimes the law might be very different, or even the opposite, in adjoining states (if there is a relatively common split between states, it's usually referred to as the rule and the minority rule, aka, what the lesser number of states follow).

Once you start to cross national boundaries, all bets are off. Again, while there are similarities between common law countries (like the US, Canada, the UK, India, Ireland, etc.) the differences are pronounced. And the differences between common law and civil law countries are profound.
I love it when Canadians talk about "taking the 5th", ie. invoking their "Fifth Amendment rights." We don't abide by the American Constitution. We do, however, have a Constitutional Right against self incrimination. You cannot be compelled to bear witness against yourself. In practice this means that you cannot be compelled to take the witness stand in a legal case against you, however, if you're dumb enough to take the stand then you must answer all questions put to you, by either Defence or The Crown, truthfully. You can't simply decide that answering questions from The Crown isn't in your best interests. That way lies criminal contempt charges.
 

Snarf Zagyg

Notorious Liquefactionist
Supporter
I love it when Canadians talk about "taking the 5th", ie. invoking their "Fifth Amendment rights." We don't abide by the American Constitution. We do, however, have a Constitutional Right against self incrimination. You cannot be compelled to bear witness against yourself. In practice this means that you cannot be compelled to take the witness stand in a legal case against you, however, if you're dumb enough to take the stand then you must answer all questions put to you, by either Defence or The Crown, truthfully. You can't simply decide that answering questions from The Crown isn't in your best interests. That way lies criminal contempt charges.

Fun fact- in Canadian law, you are allowed to refresh the recollection of the witness. But not with a document.

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Only with a Tim Hortons donut.
 




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