Sometime in the recent past I wrote a post about Joseph Rakofsky, the DC (?) New York (?) New Jersey (?) lawyer who took on a murder case in a DC Court, got in over his head and had a mistrial declared. Oh, and then he went on facebook and bragged about it.  As I said in my previous post, I’m loathe to give him any more ink since well, I don’t think he deserves too much of my time.  However, Mr. Rakofsky has felt that I am, indeed, worthy of his time for he has named me, along with 78 other folks, as defendants in a lawsuit for the posts we have written about his foibles.

I feel some measure of sadness for him because I think Mr. Rakofsky is without the benefit of caring and compassionate counsel, a father or mother, brother or friend – someone to tell him “Dear friend, you are but a young warrior. Give yourself time to rebuild your reputation.  Human memory is short, but we hope life is long. Continue on and learn from this.  I promise it will get better over time.”  But he did not.  He decided to resuscitate this sordid story in hopes that.  That. I don’t know what he hopes, really.

So this post is not about him.  It is, as usual, about me. Because this is my blog and I write about what I think.  There has been some criticism of those of us who wrote posts about Mr. Rakofsky that perhaps we didn’t do it the right way, perhaps we should have used the parable of this young man, taking on a murder case as his very first trial as a teaching moment.  We should not have heaped criticism on him for saying he was an experienced trial lawyer on his website, and then saying, in open court that it was his first trial. No, we should not have done that. According to our critics, the lesson we should teach is don’t take on a murder case as your very first trial.

So, um there.  Don’t make your first full-on-first-chair-jury trial a murder trial.  Are we clear on that?

I am shocked and awed that I would actually have to say that. Do you young lawyers really not know that fresh out of law school, with a year of practice under your belt that your very first trial should not be one where one person is accused of killing another?  If that is so, then I despair even more for the state of my beloved profession.  That cannot possibly be what needs to be taught here – even at the tender age of 26 (which, by the way, is only a tender age in these United States where we have such an extended adolescence) I would hope that the idea of not getting in over your head should be one learned long before you hang out a shingle. But, alas, dear reader, it turns out I was wrong.  Young lawyers don’t know that they should not take on cases which they are not able to handle. It seems, I don’t know, like a truism, you know – don’t do things you can’t do. Eh, what do I know?

I had a conversation with a good friend yesterday about competence and how we define it. He declares that there is a scenario that he can imagine in which a person just out of law school with no prior trial experience would be competent to try a murder case as his very first trial.  I told him he had a better imagination than me.  If you have never stood in the well of a courtroom, if you have never asked a judge if you can approach the bench or a witness if you’ve never moved an exhibit into evidence “I would now like what’s been previously marked as defense exhibit A for identification into evidence as Exhibit A” how could you think you could do it in a case where your client is looking at the rest of his life in prison if you screw up.   How would you allow yourself to do it? There is no amount of mock trial experience that will get you there right out of the box. 

So there, I’ve taught you that.  But really, the lesson I still think you should take from this is that your reputation should be earned – the internet has made it easy for people to create themselves out of whole cloth.  We can write what we will about ourselves and create entire careers for ourselves.  The hard work doesn’t need to happen. If you write ‘experienced trial lawyer’ well, then, you must be one.  Who is to say you aren’t? Well, in this case, a whole bunch of people said he wasn’t.  See, the internet works both ways, doesn’t it? 

FYI – here is a “compendium of blog posts” on Mark Bennett’s blog if you’d like to read more about this.