This firm hired an investigator and it paid off

The standard narrative is that military experience translates well to law. Is that true?

It prepared me very well for the courtroom, but not at all for the business. As a JAG, you handle a high volume of contested cases earlier in your career than almost any civilian lawyer ever will. You learn to try cases under pressure, draft on a deadline, work with difficult clients and stand in front of a judge and a panel without a senior partner holding your hand. 

Two tours in Afghanistan—where I was advising on lethal strikes in real time, and working on the Chelsea Manning appeal—both taught me how to make defensible decisions with imperfect information, which is most of what criminal defense actually is. 

It did not prepare me for becoming a small-business owner. In the JAG Corps, you wake up every day, and your only job is the law. Somebody else handles the building, the payroll, the technology, and the support staff. In private practice, you are running a business that happens to deliver legal services. 

What’s one mistake you made early in your practice that ended up being a valuable lesson?

When I first came out of the JAG Corps and hung my shingle, I was hungry. Phone rings, I am taking the case. Walk-in, I am taking the case. Friend of a friend with a "quick" matter, I am taking the case. Like a lot of new lawyers, I priced almost everything wrong on the way in.

The one I still think about was a felony robbery case I quoted as a flat fee early on. The client came in already indicted, family scraping together the retainer, and at intake, it looked like a case that was going to plead. The People had a strong identification, the client had stated an interest in resolving it, and the early conversations with the ADA suggested a workable number on the back end.

I quoted a flat fee that felt fair for a negotiated disposition and a sentencing, took the retainer, and got to work. Then the discovery came in, and the identification had problems. Then the client, reasonably, decided he wanted to fight. Then we were litigating a Wade hearing. Then a Huntley hearing. Then we were picking a jury. By the time it resolved, I had put in five times the hours I had quoted for, but I had agreed to a flat fee, so that was on me. I delivered a real result for the client and lost real money doing it.

The lesson was not really about that one case. It was that setting a legal fee is one of the hardest things about running a private practice, and almost nobody teaches you how to do it. You are balancing what the work is actually worth, what the client can pay, what the market in your area will bear, what your reputation justifies, and what kind of fee structure protects you when the case grows beyond the four corners of the intake meeting. 

I like that you brought this up because fee setting is something that’s hard to get right without talking to other attorneys in your area. 

I tell newer attorneys that the fee conversation is part of the practice of law, not separate from it. Scope the matter carefully before you price it. Build in the contingencies. Stage the fee, pre-indictment, indictment, through pretrial motions, hearings and trial, so the client and the lawyer are aligned at every phase instead of fighting over scope creep mid-case. I wish someone had told me that the first year.

Now that we’ve covered a topic every firm deals with, I’d like to find out a bit more about something CDH Law does that I’ve never noticed another firm doing. You list investigators as staff members on your website. Do you really use them that often that you need them on staff? 

Yes, and I would argue every serious criminal defense firm should. Most just do not, because it is expensive to maintain that capacity in-house. The reality is that the prosecution has the entire police force as its investigative arm. The defense has whoever you can scrape together at the last minute. 

Having investigators we work with regularly, people who know our files, know our standards and know how we want witnesses approached, levels the playing field in a way that ad hoc retention cannot. They run down witnesses, locate and serve subpoenas, conduct background investigations on prosecution witnesses, document scenes and handle a hundred other things that make the difference between a guilty plea and an acquittal.

Can you talk about a case you worked on where having investigators in-house paid off?

The Anthony Broadwater wrongful conviction case is the most prominent example. Tony spent 16 years in prison and another 24 on the New York sex offender registry for a 1981 rape he did not commit. The trial that ruined his life took two days. The transcript was 214 pages.  

He was only exonerated because Dan Myers, a retired Onondaga County sheriff's investigator working with our firm, ran down a 40-year-old file that nobody else had looked at. Without an investigator embedded in the practice, that exoneration does not happen.

We worked the case alongside a phenomenal attorney named Melissa Swartz-Bragg, and on November 22, 2021, the District Attorney himself stood up in court and said, "This should never have happened." 

Watching Tony walk out of that courthouse a free man, finally believed after 40 years, is why I do this work.

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