Not all attorneys are created equal. Well, yes, you probably know that. It’s not like OJ Simpson proved his innocence 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 like 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-
Criminal/Civil. No, this isn’t the distinction between nice attorneys and attorneys that steal from you. Criminal attorneys, well, think 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 essence, criminal law attorneys are either the government (the prosecutors), or the government (public defenders) and 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. 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.
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 former go into transaction, the latter 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).
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 has embraced heteronormativity. In some cases, it’s required (the prosecutor can’t defend the accused). In others, it’s custom and specialization. Look at the advertisement, above. 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 for 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 will be discussed in another post.