Making The Transition (Part I)

Moving tables is a bigger deal than you think.

"I'm going to the defense side!"

“I’m going to the defense side!”

Hello, ATL! As my partner Matt Kaiser mentioned last week, I will be taking over the column this fall while he focuses on things like teaching professional responsibility at Georgetown, running triathlons, and doing actual legal work, all of which sounds exhausting to me.

My hope is to continue what Matt started way back in 2013 — to give readers a sense of what white-collar practice is like and talk about white-collar issues in the news. Because I also do a lot of campus disciplinary defense, which is vaguely white-collar for reasons I will explain another time, I will probably talk about that occasionally, too. I’m also toying with a Q&A column, so if you have any questions about white-collar practice, please feel free to email me. I may answer your question in a future column, and I promise not to name you.

But first, I want to talk about The Transition.

The Transition is what happens when former prosecutors decide they’ve finally gotten tired of putting people in jail — no, really, that does get old — or that they want to make more money, or both, and light out for the territory of defense work.

And it’s not always easy — for the lawyer or the client. That’s something I had to learn the hard way.

You see, before I joined KaiserDillon (née The Kaiser Law Firm) in 2014, I spent 5½ years as an AUSA in DC, which was a fantastically exciting job. If you’re interested in learning how to be a trial lawyer and want to learn that from the prosecution side, no U.S. Attorney’s Office in the country will better prepare you. (Only the Manhattan DA’s office, which also produces excellent trial lawyers like MoloLamken’s Justin Shur and Jones Day’s Eric Snyder, rivals it for training.)

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It was deeply meaningful work, and I enjoyed almost every minute of it — even on the bad days.

But as great an experience as being a prosecutor is, it doesn’t prepare you for the main thing that you’ll be doing when you leave for private practice — talking to clients who are accused of having done bad things.

The challenge here isn’t immediately apparent. At least it wasn’t to me. I knew, from talking to juries, how to explain complex legal concepts to people in plain English.

And I thought, when I started at the firm, that because I’d been a pretty reasonable prosecutor, and because I’d talked to hundreds of witnesses — and even many defendants — during my time in the Office, I’d be well-equipped to explain the ins and outs of the criminal justice system.

I thought that my experience talking to defendants would be particularly helpful. Several times when I was a prosecutor, I had a virtually air-tight case that made no sense for someone to take to trial. But for some reason, the defendant didn’t want to accept the generous plea I was offering. That wasn’t good for me (I wanted to spend time on the harder cases that should go to trial), and it wasn’t good for him (because he would almost certainly pay the “trial penalty”).

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So on a few occasions, when I had a good relationship with the defense attorney, I’d offer to sit down and present my case to the defendant and his attorney — to do what’s known in the business as a “reverse proffer.” I would walk through my evidence, explain why I was confident I would win, and then explain why it would be much better to accept my often-generous plea offer than go to trial.

This usually worked — doubtless because I am unbelievably charming, and not at all because I had very good evidence that would prove the defendant’s guilt beyond a reasonable doubt.

I was good at talking to people charged with crimes. I was good at explaining to people charged with crimes why the government’s evidence was really, really strong.

Isn’t that what defense lawyers have to do all the time? How different could that conversation possibly be from the other side?

Much different, as it turns out. More on that next week.


Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is jdillon@kaiserdillon.com.