Ask Burt Likko Anything, 1.5

John Howard Griffin asks:

What is your (general/specific) advice to a person-of-color who finds themselves enmeshed in the U.S. legal system (on either/both sides), in regards to choosing counsel? Specifically, advice on choosing counsel; how do you get the best, considering your (less than perfect) circumstances.

And, a follow up:

Is your advice different, in regards to civil v. criminal? Are there any differences for different states (assuming a State case)?

Of the many good questions my solicitation brought out, this one has to be my favorite. It’s a topic that since I started looking at the bench as a career option I’ve become quite sensitive to. People who don’t look like me don’t look at the institutions in which I work the same way I do. People whose skin is darker than mine don’t trust the legal system as much as I do — they assume that it is biased against them and their experiences within the system are both seen through that lens and tend to reinforce that assumption. Which is the cause and which is the effect is a question I will leave for others to consider. For my purposes, it’s a phenomenon that exists.

The big issue for a person of color is, given the presumption that the system is biased against her, how can she find someone within that system that she can trust? So in part, I’m translating this question to something that is probably to a degree universal-izable: how do I find a lawyer I trust? But I’ll return to the particular issue of a person of color towards the end of the essay.

Now, the biggest handicap anyone, not just a person of color, will encounter in terms of retaining counsel is how to pay the bill. So the first question to ask is: “Does the client have any insurance that covers the situation?” This solves a lot of problems right away if there is, very often including identifying the lawyer as well as paying for her. This doesn’t get at the root of Mr. Griffin’s question, so I’ll return to that in a moment, but it gets us to a place where the client has a lawyer who is likely to be more than minimally competent, and more importantly, whose services are being paid for.

If you can get an insurance company to pay for a lawyer, then chances are really good that this is the lawyer for you. Insurance defense lawyers certainly put a premium on their relationships with the insurance companies who pay their bills. But they also take seriously their ethical obligations to their clients, who are (or at least tend to be) the people who pay money to the insurance companies. If you’ve got an insurance lawyer working for you, then you have reason to be confident that the system is working for you. This is why you bought insurance — so use it.

But let’s assume there’s no insurance available and the client is going to have to either come out of pocket or, in an appropriate sort of case like a personal injury claim, arrange a contingency fee with the attorney. In that situation, a reference is almost always going to be the best way to find an appropriate lawyer. That will be true for pretty much anyone of any level of economic means and pretty much regardless of one’s ethnic or cultural background.

If you’ve got no insurance, you’re on your own in terms of identifying a lawyer no matter with what ethnic group(s) you self-identify. To get to an attorney, ask friends for references to attorneys, and then be prepared to pay the attorney. Someone without economic means is going to have a more limited professional network available. But “more limited” does not mean “absent.” Divorce, criminal defense, and personal injury lawyers all have significant clientele amongst people of limited economic means so the chances are better than you think that you know somebody who knows a lawyer.

When you get a lawyer’s name, take a moment to research her. Google her name along with words like “attorney” or “lawyer” and the city in which she maintains her office. “Jane Ramirez attorney Pasadena California” for instance.

The web page will likely contain some sort of description — a laundry list, most likely — of areas in which she claims to have expertise. Bear in mind that the web page is advertising, and people say only nice things about themselves in their own advertising. So you’re getting information through a filter.

You will also get some attorney rating websites. Bear in mind that generally, people who are satisfied with services they have received do not use such websites, so there’s a different filter working here, one that lets more bad reviews through than good ones.

If you’re lucky, you’ll also get some news reports of work that attorney has done in other cases. If this lawyer isn’t the sort of lawyer whose skill set seems to match your problem, she is still likely a very good next step towards a reference to one who is. If this is the sort of lawyer who seems able to deal with your problem, call and schedule a meeting.

I’m aware that there’s a trend in certain kinds of practices to have phone consults only. I find this unacceptable for anyone. And for a client of color, one who has an issue with a legal system that is presumed to be biased against the client, establishing trust with an attorney is critical. Insist on an in-person meeting, and if the attorney resists, then that’s not the attorney for you. I’ve picked up a substantial percentage of my clients this way in the past year — because I will actually meet with them to discuss their cases, when my competition will not. Part of that is that I have the strength of character to look someone in the eye and say, “I’m sorry, I don’t think you have a case.” Not everyone can do that.

Mr. Griffin asked if there are differences from state to state. I don’t think so at the state level. There is a wrinkle I’ve seen come in to play in communities of the 100,000 to 500,000 person size. There will likely be some lawyers who are of your ethnic group and who attract clientele by virtue of that fact. For instance, in my community of 400,000 or so people, there’s a guy who is “the black lawyer” in our town: he’s networked really well in the African-American community and his clients like that he looks like them. I say, good for him for cultivating such a great client base.

The trade-off is that he has to be something of a generalist. He does family law. He does personal injury. He does criminal defense. He does real property disputes. He does business disputes. He sets up businesses. He does bankruptcies. And because he doesn’t specialize, so as to meet the broad spectrum of problems his clients bring to him, it’s not clear to me that he’s really good at any particular thing.

Here’s my point, lest you think I’m disparaging a colleague who in truth I hold in high regard: if you’re hiring a lawyer like my friend because of his ethnicity and no other significant reason, then you’re making the decision that the lawyer’s competence (above a particular threshold, an important caveat) is not as important as the color of his skin. You’re the client here, so you get to decide that if you want to, but be aware that’s the bargain you’re making. I won’t fault you for that decision: maybe your problem isn’t really all that complex, so a generalist is fine. A relatively simple divorce, for instance, probably doesn’t need a family law specialist.* A real property dispute may not need a litigator who focuses on real property disputes: the economics of the dispute may well govern its outcome. And so on.

And of course, just because someone has a similar color of skin to your own does not mean that you trust this person. Trust is what really matters in this equation, more than ethnicity. Maybe having the same ethnicity helps build trust, but it’s not the end-all, be-all of a relationship. Trust in an attorney is born out of a confluence of two things: an appreciation that the lawyer understands your legal problem, and an appreciation that the lawyer wants you to get what’s best for you. If racial affinity helps build that trust, good.

But I suggest measuring this by the “bad news dry run” test. After all, your lawyer may have to give you bad news at some point, so unfortunately, you need to ask yourself, “If this person told me something bad about my case, would I be confident that she had done what was in her power to prevent it?”

So in your first meeting with the lawyer you’ve determined is likely to have subject matter expertise, ask about ways the situation can resolve. There are four scenarios to discuss: best possible outcome, best reasonable outcome, worst reasonable outcome, worst possible outcome. You want to pay particular attention to the unpleasant scenarios, because this is where you’ll get a preview of that “bad news” situation in which your ability to trust the lawyer can be measured. How could we get to such an outcome? What can we do to avoid an outcome like that? If one of those bad things happens along the way, how can we mitigate the impact?

Of course you want your attorney to be confident in your case and to give you an honest assessment of your chances of winning and/or getting a favorable outcome. But you’re really looking for knowledge — this is where the case could go wrong, this is how we deal with that — and you’re looking for honesty — yes, there is a realistic chance of that happening, or no, if that happens, I’m confident I can deal with that by doing this other thing. And you’re going to measure a lot of intangibles with your gut reaction to discussing things. An attorney who can demonstrate a good bedside manner and knowledge about how to avoid pitfalls, then that’s likely to be an attorney you can trust. 

Beware a lawyer who seems to do nothing but assure you that you’re going to win. A lawyer who expresses confidence in getting a good outcome is fine, but a lawyer who avoids discussing bad outcomes would not be one who inspired trust with me. It may feel good and sound better to be told your case is a winner, and maybe your case is a winner. But there’s no case that’s so good that it can’t possibly go wrong. A big part of why you’re looking for a lawyer is to avoid those worst-case scenarios. If the lawyer doesn’t even know what those are to explain them to you, that may not be the lawyer worthy of your trust.

Once you’ve found a lawyer who you trust there is also the question of the rest of the legal system. Chances are, the judge isn’t going to look like you. There isn’t really a lot that can be done about that. But what you can do is find a basis to assure yourself that the judge is reasonable and fair (or reason to believe the judge is not). Court proceedings are public, after all. You can go to the court and see the judge handling other cases. It’s not often done, but you have that right in all but a few kinds of cases. If someone at the court asks you what you’re doing or what your business is before the court, you can say, “I’m just observing the proceedings. Is the hearing private? If so, I’ll come back when the court is in open session.” It’s also okay to say, “I have my own case before Judge so-and-so, and I want to get a feel for how the judge handles cases before my own case comes up.” I’ve never seen courthouse staff or even judges take umbrage at those sorts of things. This is probably more important to do in a criminal case than in a civil case, because the stakes are qualitatively different.

If you can detect a pattern that suggests to you the judge is not fair to people like you, mention it to your lawyer as soon as you can. Your lawyer may be able to do something about it, but chances are it needs to be done quickly after the case is assigned to that judge. But I suspect you’ll find that most judges work hard to try and understand the truth despite demographics, and rule accordingly.

It can be difficult to make time to do something like this, and especially if you’re in a Federal court the court may not always be open, and you may not understand all the procedures and phrases that are being used. But if you can do it, I assure you that it’ll be well worth your time and it will probably raise your confidence level in the fairness of the system, or at least of the judge who is handling your case.

If you get really lucky, you’ll get to see a jury. Take a good look at the demographic composition of that jury. Race matters, but so does sex, so does age. In my opinion, though, nothing matters more to a juror’s behavior than wealth, which roughly correlates with education and roughly correlates with economic and political biases. The way wealth is projected is primarily through clothing, but to lesser degrees though body language and posture and mannerisms of speech. Figure out if that jury is made up of people like you: not just people of your ethnic group, but people who are from roughly the same economic level in society as you.

And this is the last thing that a person of color may want to consider, because it’s relatively uncommon to see a jury in action, is what the attorney’s understanding of who sits on juries and how that plays out. Maybe your case doesn’t go to a jury, for whatever reason: your attorney should know that. But especially if it does, questions about who sits on juries and how the attorney thinks the typical juror might react to it are entirely appropriate — and will demonstrate the attorney’s sensitivity to issues of race.

Obviously, it’s best to not have a legal problem at all, but sometimes you don’t get a choice about that. When you are in that situation, you should have trust and confidence in your lawyer at minimum, and optimally in the system. Hopefully, this can help you get there. Good luck.

* What’s a “relatively simple divorce”? No kids, only asset is a house that you’re going to liquidate. But you may have more assets than you know–insurance and retirement plans, for instance, can be players. I don’t and can’t know about your situation as I write this. That’s what your own lawyer is for.