Friday, September 15, 2023

I didn't realize it would be like this! (Or, Why I stopped drinking and am learning to be kinder )

I'm still learning this criminal defense stuff.

People often ask me how I like the switch, how it's going, and what I usually tell them is that I've been surprised by the many things I didn't know, or put more positively the many things I'm learning. In the early days, I meant by that the practical and procedural aspects of the job -- how to get someone out of jail, what motions to file and when, that kind of thing.

But these days I mean more that that, I'm talking about the biggest thing that I didn't know coming into this defense role: The emotional stress that the job entails.

When I was a felony prosecutor, people said all the time, "Wow, that must be stressful!" Sometimes it was, usually when I prepared for and tried a big case, or when I was dealing with a victim or their family who were not (in my view) exhibiting reasonable expectations. But most of the time it really wasn't. Once you know how to try a case, once you learn how to navigate the system as a prosecutor, the job is fairly straight-forward. Yeah, I know, sorry to burst that mystical balloon...!

But one thing's for sure, looking back, I can safely say that being a prosecutor was way less stressful for me than being a defense lawyer. Here are the main the reasons why:

(1) The lack of control:

As a prosecutor, the degree of discretion you're able to exercise is startlingly wide. A prosecutor has latitude to choose the path a case takes, from taking it to trial and seeking prison to dismissing it entirely, and everything in between.

A defense lawyer doesn't have any power. Well, the power of persuasion but if you're talking to someone who's not listening, that's no power at all. So if I have a case where it's clear the client is innocent, I have to rely on someone else (prosecutor or jury) to do the right thing. After 15 years being the one to wield that power and discretion, it's very stressful having to rely on others to do the right thing.

(2) The responsibility:

If a prosecutor screws up a case, everyone goes home to their own bed that night. If a defense lawyer screws up, someone can go to jail, prison, or otherwise have their life ruined by a criminal conviction. Every one of my 40+ clients looks to me to restore the natural order of their lives. Almost every single one of them has never had any trouble with the law before, and is facing a life-altering outcome unless I do good work. 

And that responsibility doesn't disappear after 5pm. People call in the evenings and weekends wanting help, wanting answers, wanting reassurance. So I can't turn off the stress button come sundown, and almost every morning there's an email or voicemail from someone who needs me, stat.

(3) The things I'm not trained for:

It will be no surprise to anyone that some of our clients have mental health challenges. MH care in this country is hopeless and all too often acts born of mental illness dump a person into the criminal justice system. Some jurisdictions are getting better at recognizing that and providing a path for cases to be dismissed, which is great.

But others aren't, which means we're left dealing with individuals who have clear mental health problems and who are also facing the added albatross of a criminal conviction.

And guess who can be less than easy to deal with? Yep, someone with a mental health condition looking at a criminal conviction. Completely and utterly understandable. And very common. But I'm not trained in counseling or any facet of MH treatment so talking to, and sometimes just listening to, some folks in this situation is hard.

Recently a client sat in my office and talked for almost 90 minutes, haranguing me for not addressing their every need, some case related and some not. Raising their voice in anger at the lack of communication, when I've called and emailed and they've not checked voicemail or read their emails. I don't know how to deal with that, and so it's stressful and exhausting. I was lucky that my colleague Liz Duggan was in the room with me, her calming and kind responses to the client saved me from... I don't know what. Walking out? Melting down? Shouting back? Probably none of those because none of those are in my nature, but I suppose that's my point - I didn't know what or how to respond.

I had some wins this week, though. Some felony cases dismissed and some very happy clients as a result. I wish those moments would last a little longer, the victories, but the reality is (another stressor) that my win for one client doesn't help the next one, even a little bit. And so the battle continues.

And yes, I've stopped drinking altogether. I'm not making a big deal of it (except here!?) but the stress of the job has had a somewhat ironic result: I'm now 100 percent sober and just joined a gym. Maybe that's me reasserting power over the things I can control, proactively taking on the stress that comes with this job. 

But it's not just my liver sand my muscles I'm tuning up, it's my empathy. I'm trying to be kinder, to understand the stress that my clients are under, and relieve that the best I can. Maybe by improving my body I can improve my mind and, Jupiter willing, provide a little more comfort to the people who are even more stressed than I am: my clients.


  1. And mirroring your colleague’s actions until they become muscle memory could be a big win. Oh, and put a mirror inconspicuously on your desk and check your facial expressions as you client rails.

  2. Thanks for this, Mark. I hope it will serve as an eye opener to prosecutors and judges who do not have to deal with what we do on a daily basis.

  3. Very well stated Mark


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