Criminal Pleas, Fees, and Justice

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From LawHub, this is I Am The Law, a podcast where we talk with lawyers about their jobs to shed light on how they fit into the larger legal ecosystem. In this episode, Aaron Taylor interviews a criminal defense lawyer who discusses the business side of running a small law firm.

Aaron Taylor:

So we're joined today by Jessica Burke, a criminal defense attorney who graduated from Washington and Lee's School of Law in 2009. Today she runs a small law firm in Burlington, Vermont, but it took her a few years to go into private practice. So Jessica, give us a sense of your post-graduation experiences.

Jessica Burke:

I graduated law school in 2009 and after graduation I was a little bit unsure of what I wanted to do. I had initially been offered a position at a construction litigation firm after being a summer associate, but I was quite sure that that wasn't the direction I wanted to go, but I wasn't completely sure what direction I did want to go. So I worked for a small criminal defense firm in Virginia Beach, Anderson and Associates, where I tried some speeding tickets and just basically broke my way into courtroom practice and decided that I wanted to pursue public defense so I could get into some media cases and really try my hand at everyday trial practice.

So I was a public defender for about a year in Chesapeake, Virginia and tried a myriad of cases, anything from disorderly conduct to first degree murder. From there I realized that while criminal defense was exactly where I wanted to be, I wanted to be closer to my family. I moved back home and found myself in Burlington where I started my own criminal defense private practice and that was in 2011.

Aaron Taylor:

So what was starting your own practice like? What was that process like?

Jessica Burke:

The process was unique. I had other jobs during that time to get it off the ground. It required me to learn a lot about internet advertising, internet marketing, and how to practice law in Vermont.

Aaron Taylor:

So you talk about, I guess the professional aspects of it, learning how to practice law in Vermont, but you also talk about the business side of it. Give us some more insight into the business side of having your own practice.

Jessica Burke:

Yeah, I think that was the thing that you don't learn about in law school, particularly law schools that have a large percentage of their population going into big law. You really don't have any classes or any focus on how to run a small business, which is critical to having a successful solo or small practice. Criminal defense is not generally practiced on its own as a primary practice area of a small firm. And so I think in a lot of ways figuring out how to make that work in a small state like Vermont was sort of uncharted territory and it took a lot of trial and error to nail down the business side of it.

Aaron Taylor:

How did your firm grow from just you to now two attorneys and an intern?

Jessica Burke:

We started advertising online. That was the first step. We had a very homemade website to begin with. And from there we were able to build a client base that essentially found us on the internet and we were in a small office space and just by word of mouth and referrals and continuing to build a positive reputation with the local defense bar, we were able to grow into a much larger space and support a second attorney and we have an intern and we're hoping to hire another attorney in the next few months.

Aaron Taylor:

What portion of your clients come in via word of mouth versus advertising versus other forms?

Jessica Burke:

I would say probably even at this point, four years in, about 80% of our clients come in through advertising.

Aaron Taylor:

Now, what is the business relationship between you and the other two attorneys? How do you all divide work? How do you all interact in that setting?

Jessica Burke:

We have some contracts with the state of Vermont that provide for conflict criminal defense. So when the public defender's office can't represent co-defendants for example, they'll ask private attorneys to represent one of their other co-defendants or whoever they have a conflict with. So right now we divide it pretty strictly down the middle between David and myself, the other attorney here, that he takes those cases that come through the conflict contract as it's called, and I handle the majority of the private cases that come through the door. Although we do have some crossover.

Aaron Taylor:

And what is the breakdown of your cases in terms of case type?

Jessica Burke:

We have a wide array of case type. Anything from disorderly conduct or DUI, right up through aggravated child sex assault and serious felonies. The majority of our private clients are misdemeanor clients, although we have some felonies and the majority of our conflict public defense cases are felony level offenses.

Aaron Taylor:

Do you all handle any civil cases at all?

Jessica Burke:

Very, very minimally. We do accept them if they come in through a preexisting client, but generally we refer those out.

Aaron Taylor:

So do most of your clients come from the Burlington area or do they come from outside specifically because you're barred in different states?

Jessica Burke:

We get a lot of clients from a variety of areas. We're actually looking to open a second office in Hanover, New Hampshire. We do practice in New Hampshire and throughout Vermont. We made the decision early on to really focus in on criminal defense, a lot of our private practices in the realm of DUI defense, and we wanted to broaden our practice geographically rather than broaden our practice areas. It was a conscious decision we made just based on what we enjoyed practicing and what we felt we could really do well and do well by our clients on. Through that, we really have focused to create a wider net of places doing criminal defense rather than bringing in civil or family law or another type of law.

Aaron Taylor:

So how do you determine your fees?

Jessica Burke:

Our fees are generally based on either an hourly rate where someone comes in and gives you a retainer, a standard practice in law, or in some cases where we have a fairly good idea of how much work, travel and time a case is going to take will do what's called a flat rate fee to put the client more at ease, that they know that they're not going to have a complicated case and feel taken for a ride. They know what they're going to pay upfront from the beginning, and if we deviate from that and we end up having to spend 15 hours on a motion, which has happened, that cost isn't passed on to them. That's really how it should be, I think. I really enjoy what I do and if I see an issue that I really want to get into, I don't know that my client who's facing a misdemeanor level charge should really be incurring a $10,000 bill for me to explore an issue intellectually that may help them out or ultimately may not.

Aaron Taylor:

So the hourly fee of course has been the staple of the legal profession, but it's been coming under fire for many of the reasons that you assert. So I guess what type of split is there for you between the hourly fee arrangement and the flat fee arrangement?

Jessica Burke:

We try to approach it with each client individually, whatever they're more comfortable with, because certainly there are circumstances where someone says, "Hey, I have a speeding ticket and I don't want to pay an hourly fee. I don't want to pay you for your travel. I think that you'll be in court only 10 minutes." And so we'll be willing to say, "Okay. That's going to be a flat rate fee. Or we know about how much work most DUIs take." But there are people that just really feel strongly that the way that law is practiced is on an hourly basis and they would like to know what we're doing to the 10th of an hour for their fees. And we're very flexible and accommodating to either style. That really depends on the client. And we spend a lot of time with each client, up to an hour and a half in an initial free consult, really identifying what they need and by the time that they leave most of them, they're sure that they want to hire us and are comfortable with our fees.

Aaron Taylor:

Going back to the advertising for a moment, did you all consult with, I guess advertising professionals or did you come up with your campaigns on your own?

Jessica Burke:

We did a lot of reading and a lot of research. That's a bit of a vulture infested area unfortunately. We've seen a lot of people advertising their availability to come in and help us as this middleman between us and Google, but we actually reached out to Google directly and they were so receptive and we've really found a great relationship in working with their headquarters on their AdWords and how we can also get our search up organically. And by working with them directly, we've been able to do it all ourselves.

Aaron Taylor:

So what have you found to be the most important relationships to cultivate within the courthouse?

Jessica Burke:

There are very many relationships to cultivate and generally having a friendly face and being in a upbeat mood sets you apart from a lot of the other attorneys, quite frankly.

Aaron Taylor:

Yes, I could imagine.

Jessica Burke:

I really enjoy what I do and I think that comes across. And the clerks are great people who are really trying for you and your clients, and they are stuck in the middle of sometimes difficult situations, meeting the judge's needs, the attorney's needs and the client needs. So the clerks are your best friend. They are just so willing to help you out if you're willing to be accommodating to their needs and make sure that filing fees are paid on time, motions are filed properly. The judges all have their own personalities. Being respectful of their time is really helpful, I think, in making relationships go smoothly because the court is short on time and they have a lot of cases. Obviously, anyone else involved, the prosecutors. It's important that they understand that you're going to bring issues to them that should be raised and you feel confident and comfortable raising them. While you may really go toe to toe in the courtroom, outside, we're all people, we're all professionals, and we can have a positive relationship and have a drink at the end of the day.

Aaron Taylor:

That's an important point because we try to teach law students that civility is very much an integral part to their obligations as lawyers. And so it's great to hear that you agree with that and it benefits your work.

I teach legal ethics here in St. Louis and one of the naughtiest questions that we deal with during the semester is how does a lawyer defend someone who is factually guilty? And so how do you resolve that dilemma in your work?

Jessica Burke:

In my work, and I don't mean this to sound crass, whether or not someone's guilty or innocent is frankly not my place. My place is to ensure that they have a defense with integrity and a defense that is fair to everyone who might be a defendant. For me to pass judgment on whether or not someone did or did not do the thing that they are accused of doing is a question for the jury or in a bench trial situation, a question for the judge. If we put that determination in the attorney's hands, we have a very slippery slope moving what is to be a jury or a judge question into a realm of advocates. That is simply not how our system is built to work. It would ruin the integrity of the system for everyone involved if we started providing a different quality or caliber of defense for those that we as advocates felt personally like they were guilty or not guilty.

Aaron Taylor:

So sometimes guilty people recognize their guilt and decide that taking a plea would be a better option than going to trial. So how does the plea process work?

Jessica Burke:

The plea process is different in every state. Here in Vermont we have an arraignment, and at the arraignment you get the initial offer. Every state has an arraignment, but you might not get an offer to settle at that arraignment. Here in Vermont, that's where our clients get their initial offer from the state of how to plea out or settle their case. And that's sort of the jumping off point for those negotiations. And that's where we start building our case.

So if a client is perceived to have acted really recklessly or negligently in their decision making process by getting into, say a fight at a bar or getting behind the wheel, under the influence. Those bad decisions in and of themselves certainly create a pejorative picture of this individual while that may only be representative of one fraction of their life. Perhaps he or she had a bad breakup or lost their job, lost his or her job. We really try to build who the individual is as an entire person to give the prosecutors a better idea of why this person's resolution should be unique to him or her, and also to meet the goals of sentencing. So whether or not they should receive a rehabilitative sentence or a punitive sentence, or we're really trying to get a message out to the community about this behavior being unacceptable.

All of those factors come into play and we work with our clients to build an idea of how they want to project themselves. And that goes into getting reference letters from jobs, family, friends, etcetera.

Aaron Taylor:

So how frequently do you go to trial and under what circumstances will you opt for a trial as opposed to taking a plea?

Jessica Burke:

Ultimately, the decision of whether or not to go to trial is in the province of the client. I will never tell a client whether or not we're going to trial. A plea is a very personal decision and it's absolutely unique to the individual and their case. My job is to put before them the pieces they need to make that decision in an informed and voluntary way. Many times the cases are truly litigated prior to trial in suppression hearings, and that is where the plea really starts to come together. For instance, in a DUI, if you had an invalid stop or constitutionally invalid stop, a cop says, "I don't like redheaded women. And I saw her drive by and she was a redheaded woman, so I stopped her." I would obviously file a motion to suppress and dismiss before the court and say, "This isn't a constitutionally valid reason to stop someone that weren't committing a motor vehicle violation. And there's no reasonable suspicion that redheaded women commit more crimes. So let's dispense with this and move on." And when the judge says, "Yes, that's an invalid reason." The suppression would work to suppress all evidence stemming from the stop, which in the case of a DUI would be everything, and then the case would be dismissed.

So in that regard, many of our cases are tried during the suppression hearing because it determines what evidence will be coming in or won't be coming in at a trial. If all of the evidence is coming in, it may be overwhelming evidence of guilt. And in that case, we'd really be looking towards a plea.

Aaron Taylor:

So you have discussed the importance of pretrial practice, which is something that I don't think we focus enough on in our general discourse of the practice of law. How did you get experience in that? Were there any law school experiences that you had that helped you in this realm?

Jessica Burke:

Judy Clark, she did a criminal law practicum my third year of law school, and she's very well known as a federal public defender. And she brought in some real cases. And much of our semester was spent on pretrial practice and very little of our semester truly was spent on actual trial practice. And I think it was very representative of how criminal practice truly is. You can't control a jury and you don't ultimately know what they're going to think, but what you can, if not control, at least have a better idea about the outcome of is what evidence is going to come in and what evidence isn't going to come in and control that by solid research, appropriate legal writing, and a very good personal presence to convey that to a judge in a succinct manner.

Aaron Taylor:

So Jessica, you clearly love your job a lot. Are there any negative aspects of it?

Jessica Burke:

I think that one of the struggles is educating people who aren't criminal defendants about how quickly a regular person becomes a criminal defendant, that they are regular people just like you and me, and were circumstances different perhaps I could have ended up in that chair, or you could have ended up in that chair based on decisions we might have made when we were younger or a lapse in judgment. And I think that that's a difficulty that we experience is just educating the public that you don't cross this realm into being a criminal defendant through nefarious ideas or actions. Sometimes it's addiction. Sometimes it's just a lapse in judgment. And if we could all have a better understanding of criminal defendants are people to, I think that that would go a long way.

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