Every time I watch an episode of HBO’s The Night Of, I find myself cringing at least once. For those who do not know, the show centers on a Muslim college student accused of murdering a young woman in an one-night stand gone awfully awry. It is a difficult show to watch, as you realize just how helpless individuals can be in the face of the criminal justice apparatus. It is doubly difficult to watch as a lawyer, because even a rudimentary knowledge of criminal procedure causes one to squirm when you see the accused defendant make naive mistakes when dealing with law enforcement and the court system.
Even worse is the light the show shines on lawyers and the court system itself. As a litigator, albeit one who has not been more than a casual observer to criminal matters in my entire career, there are at least one or two spots in every episode that cause me to recoil. Whether it is watching the casual banter between the regulars in the criminal justice system and how those interactions seemingly trivialize the importance of the individual defendant facing incarceration, or even the way the prosecution lawyers assume they will have the power to shape the story to get a conviction, there is very little nobility on display. At the same time, it is just a television show, and it is at least accurate in depicting reality in the sense that in every ecosystem there are predators and prey, and those who are selfish where others are selfless.
Every so often, there is a scene involving one of the lawyers on the show that forces one to sit up and take notice. In fact, sometimes there are scenes that can teach practicing lawyers something, even if they are not criminal lawyers, or more particularly a grubby, bottom-feeding criminal defense lawyer like John Stone (played by John Turturro). Usually those scenes are ones that have something to say to lawyers of all stripes, whether they ply their trade in fancy offices for corporate clients or make their living hanging around municipal courthouses looking to pick up traffic cases.
Free Attorney Time Tracking Template For Smarter Billing
Tired of messy time logs? This free attorney time tracking template helps you bill with confidence and accuracy. Learn more in the full article.
One such scene was simply painful to watch, but at the same time very eye-opening. After the first two episodes we know that Stone sees the chance to act as lead defense counsel for the suspect in a high-profile murder case as a potential career-changer. In fact, many of the other legal professionals he encounters, from the sitting judge on down, congratulate him on landing the opportunity to represent the accused. At the same time, he can’t afford to do the case pro bono, and needs to sit down with the suspect’s parents to try and get engaged with his fees paid.
As with many such conversations lawyers of all stripes find themselves in, the tension is palpable. We know that Stone wants to land the client, and also sees the potential fees as a pathway to some financial stability for his immediate future. The discussion starts well, as it is clear that Stone truly believes he is the right lawyer to offer competent counsel to the family. Then he gets down to discussion about money and everything unravels.
As we all may sometimes find ourselves doing, he begins to negotiate against himself regarding his fees — especially when it becomes clear that the amount of money he is hoping for will never materialize due to the financial condition of the potential clients in front of him. Lawyers watching the show would likely cringe at this scene, especially because it forces us to confront just how awful it looks for a lawyer to lose their belief in their own value. The horror of the scene is enough to cause one to affirm never to negotiate on fees, and simply offer the potential client a take it or leave it price. While that might seem a simple solution, we also know that it is not very practical in our competitive industry. At a minimum, however, understanding how bad negotiating against yourself can look will give a lawyer pause before senselessly engaging in such activity out of desperation to land a client. Needless to say, Stone does not walk away with a signed engagement letter from that initial encounter.
Pricing one’s services, of course, is a notoriously difficult problem, especially since many clients are reluctant to open up the discussion by providing a target fee for the lawyer to match or beat. Accordingly, many lawyers find themselves negotiating in a vacuum, fighting both the client’s desire for the cheapest possible fee and the vast, yet (usually) unseen, hordes of other lawyers eager to snatch the representation away. What The Night Of teaches us is that if we want to maintain some dignity and increase our likelihood of successful fee negotiations with clients, then we at least need to have as much confidence in our ability to provide value at our stated price as we do in our ability to provide competent legal counsel. Because there are as few things as ugly as selling yourself short.
Please feel free to send comments or questions to me at [email protected] or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.
Earlier: Standard Of Review: The Night Before The Week Starts, Watch HBO Miniseries ‘The Night Of’
Standard Of Review: Evaluating The Attorneys Of ‘The Night Of’
Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at [email protected] or follow him on Twitter: @gkroub.