Constitutional Law

What Young Lawyers Can Learn From Watching “Making A Murderer 2”

As my law school semester winds down, I usually like to send a message to my outgoing students who are all 3Ls who will be graduating this May. This semester, there has been a lot of buzz about Netflix’s true crime documentary “Making a Murderer 2” and I can see that it has inspired many of my students as they prepare for their law careers to do exoneration work. So I thought it appropriate to summarize a few takeaways that I think young lawyers should get from the series.
1.”Yes there are two paths you can go by but in the long run there’s still time to change the road your on”
OK, so that’s something they can learn from listening to Stairway to Heaven as well but here it applies to law careers. While the series focused heavily on Kathleen Zellner, Steven Avery’s latest lawyer, it didn’t much explain that she did not begin her career doing exoneration work. She initially had a practice working on routine personal injury cases and representing hospitals and insurance companies in accident and malpractice cases. So don’t get discouraged if your first job does not allow you to do the work that you dream of doing as a lawyer. I did not take on my first exoneration case until I was already practicing nearly 20 years. The steady and mature nature of my practice afforded me the time and experience to allow me to do pro bono work and spend time on investigating old cases. So wherever you are practicing, learn the trade (see the next item) and never give up on what you really want to do with your law degree if you don’t get the opportunity at the outset. A law career is a marathon not a sprint.
2. Learn to litigate Sure transactional legal work can be lucrative and interesting (I guess) but if you learn how to litigate and litigate well the doors are wide open for yo to do whatever kind of law you want. I was very much influenced in this area by my very first law school professor David Rice who taught Civil Practice. He always championed trial lawyers and the importance of their work. And he always stressed that a lawyer who can litigate can practice in any field or fields they wish. On the first day of class he asked us “Q: What’s an anti-trust lawyer? A” A litigator with an anti-trust client. Q: What’s an entertainment lawyer? A litigator with an entertainment client.” Thirty years later, the message resonates with me as it has certainly be proven out in my practice. Learning how to prove and disprove issues in court is a skill applicable to all areas of law. It allows you the freedom to take on different types of cases and frankly, nothing makes you “feel like a lawyer” more than trying a case before a jury. Zellner transferred the litigation skills she learned in the early years in her practice into this field. You can’t “fake it till you make it” in litigation. You represent a client who has only their one shot to get the result they need. Therefore see point 3
3. Consider starting in government or other lower-paying jobs that will give you experience It can be hard to pass up the big paycheck that Big Law provides. Large firms in NY are currently paying their first-year associates over $160,000 annually. With lots of debt, it can be a nice way to get back into the black again and live a comfortable life. But you won’t see the inside of a courtroom for about five years and you won’t get to handle a matter on your own for about 10 years. You won’t ever be able to generate business as you cannot attract the kind of clients that can pay their lawyers $750-$1,500 per hour. If exoneration work is really what you want to do, you have to consider trading off money for experience. Government and clinic work allows you to gain valuable experience immediately. Sure you will earn about $100,000 less annually and many people cannot afford to to forgo that kind of cash. I get it. If that’s the case, then your second option is to ask to get involved in the pro bono work your firm does and see if they do exoneration cases; if not, suggest to the pro bono committee (after you have some years under your belt of course)that they try to take those on by working with either an innocence project or a law school with an exoneration clinic. Big Law has been instrumental in the field of exoneration and has been behind the reversal of dozens and dozens of wrongful convictions. As I said in Point 1, there are many paths you can go down to doing this work.

MAM2 gave young lawyers great role models to emulate

4. Thoroughness and preparation are key No matter what field of litigation you go into, being thorough and being prepared are the two most important aspects of the trade. When I taught trial advocacy I used to advise those in class to remember the “Five P’s of Trial Practice” – Prepare, preparing, preparation, preparedness and prep-work.” Cases that go to trial are not usually the slam dunk cases – those get settled or resolved by motions. Its the ones in the gray area that can go either way that get fully litigated. I have found that the most-prepared lawyer in those types of cases usually wins. In MAM2, we see stellar advocate and law professor Laura Nirider tirelessly practicing and preparing her arguments on behalf of Brendan Dassey. She knows the facts and the case law but nevertheless goes over them again and again. We see Zellner going over each document again and again and not putting her motion in until every corner of the document has been examined, re-examined and deemed ready to file. Take the time to go to the scene, repeatedly if necessary. Learn the critical documents and testimony better than your adversary so that you can catch them when they misstate something or leave something out. You also see the value of the collaborative process. Yes trial work is generally a lonely, lone wolf kind of deal. That’s one of the things I like most about it. But I am always bringing in others to listen to my case and hear out where I want to go with it and take in their input. For all her experience in this area of law, we see Zellner going into her law partner’s office repeatedly to talk the case through. Professor Nirider bounces ideas off of Steve Drizin, her fellow professor at Northwestern University and her co-counsel on the Brendan Dassey matter, and listens to his advice about arguments that will work and which he thinks will not or could be framed differently.
5. There is no easy road If there is one thing MAM2 shows law students and young lawyers, its that there is no substitute for hard work. Trust me I have tried to find one in all my years of practice. MAM2 also shows you that despite hard work, preparation, diligence, passion, belief in your cause, the righteousness of the cause, you can still LOSE. Even though Dassey’s excellent lawyers one several victories along the way, in the end, the system won. Finality was more important than evidence and common sense. Despite Zellner’s work and efforts, her last motion was denied. For all the media buzz, press attention, skilled lawyering and effective advocacy Brendan Dassey and Steve Avery remain incarcerated. That should send a strong message to law students and young lawyers about the nature of leg work particularly in exoneration cases. Not enough people cared or paid attention when Bill Clinton and Congress gutted the Great Writ of Habeas Corpus with AEDPA. MAM2 does an effective job explaining how AEDPA damaged our Constitutional system and habeas relief and lawyers young and old alike should do all they can to reverse its harshest impacts and implications. But if there is one takeaway young lawyers should pay attention to from MAM2 its that this is frustrating work that more often than not results in losses. It takes a lot to overturn an old conviction that has been appealed and upheld. For all the attention on wrongful convictions over the past decade or so, courts are still likely to make you fight tooth and nail to not tip over the apple cart. To take these matters on, you need to be in a place where (a) you have the necessary skills to do so (b) you have the necessary time to do so; and (c) you have the necessary fortitude to do so – when there are no cameras or filmmakers following you around – and when failure can come more often than success.
Conclusion MAM2 provided great insight into the legal field in general and innocence work in particular. It exposed law students and lawyers to lawyers to emulate – Steve Drizin, Laura Nirider and Kathleen Zellner, and lawyers not to emulate, Ken Kratz (the lead prosecutor) and Len Kachinsky, Dassey’s original lawyer, for example. It also showed how long litigation can take and how frustrating each step can be. It showed how you should take nothing at face value and question each and every piece of evidence and fact on your client’s behalf. Finally, it hopefully inspires newly minted lawyers to be dedicated to learning their craft and to putting in the time and effort to learn it right and to practice always at the highest level possible.

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