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Criminal Defense: The Business Side of Being a Lawyer

Mar 20, 2016
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Matt Swain started his own criminal defense practice in a college town 20 miles outside of Oklahoma City immediately after graduation. In this episode, Matt describes the importance of understanding your business inside and out and the techniques he uses that ultimately make him more efficient and more likely to notice opportunities that help his clients move forward with their lives. Matt is a graduate of the University of Oklahoma College of Law.

Transcript

Host:

From LawHub, this is I Am The Law, a podcast where we talk with lawyers about their jobs to shed light on how they fit into the larger legal ecosystem. In this episode, Kimber Russell interviews a small town criminal defense lawyer who digs into the business of running your own practice.

Kimber Russell:

We're joined today by Matt Swain, who is a 2009 graduate of the University of Oklahoma College of Law. Matt runs a solo criminal defense practice, which is located about 20 miles outside of Oklahoma City in Norman. So Matt, the thing about running your own shop is that you're really a small business owner so much as you are a practitioner. So tell me about the business side of your firm. What do you do on a day-to-day basis to keep the lights on?

Matt Swain:

Going in, graduating from law school, I opened up my own shop and from the beginning was out on my own. I've had to learn the business side of things and it's been an eye-opening experience realizing that half of my time, close to half, is spent on the business side. I was handed that degree and thought that I would be out practicing law and spending most of my time doing that, but the administrative stuff does take a lot more time. There are three other attorneys in my suite and we all share office space. Two out of the three of them share a secretary with me, and I'm the one that's in charge of the office, making sure that we have all the necessary equipment and materials, paper, et cetera, managing the secretary and making sure that she has everything she needs, she knows what to do for each one of us, that she knows she has our schedules correct and the calendar up to date, and then the payroll and other things involved with managing her just outside of my own individual practice.

Kimber Russell:

Do you think that that office share situation is something that you see a lot of young attorneys and solo practitioners opting for these days?

Matt Swain:

I do. In criminal defense, especially here in Oklahoma, you see very few large firms. If you see multiple attorneys that are associated in the same firm, it's not going to be any more than three or four attorneys. So most criminal attorneys are solo practitioners. And if you can afford to do it at a law school and if you have the guts to try to pull it off, it definitely is a great thing.

Kimber Russell:

Now you mentioned that you do a lot of your own administrative work. Are you using some kind of case management software or practice management software to help you do that?

Matt Swain:

Yes, I've used Practice Master off and on. Throughout the last two years, I've switched to my own way of doing things with Excel spreadsheets and Word documents. Doing it on my own, I knew what different categories I needed to fill out for my own clients, and with Practice Master and some of these other softwares that were not specific to criminal defense, it made it harder to do that. But definitely recommend a practice management software. There's a bunch of them out there. They can be pretty costly if you're a solo person, but it's definitely worth it.

Kimber Russell:

What do you think some of the benefits are using a software program as opposed to doing it yourself, cobbling together with Word and Excel spreadsheets and maybe Google Docs?

Matt Swain:

With the practice management software like Practice Master, that's really the only one that I've used in the past. That software does a good job of having different categories and getting your mind right in terms of what categories you need to fill in. So when you're starting out, you don't really know what you want to keep track of. You don't know that on a criminal case you need to keep track of the victims in the case, and keep track of multiple case numbers in terms of the defendant's priors, and the arresting officer, for example. That software gets your mind right and gets you in a position to where you know later on, okay, these are the categories that I need to get. And then you can tailor that to yourself if you decide to do a Excel spreadsheet or Word Docs or Google Docs or just however you want to do it later on, once you've gotten the hang of things more.

Kimber Russell:

Now you say 50% of your time is really spent doing a lot of the meat and potatoes of just running the business. Marketing must be an important part of that. What kind of marketing efforts do you execute to improve your business?

Matt Swain:

Marketing is a whole big chunk of that 50%, probably 35% of it. I just got a new website probably within the last two months. It's important to get all of the social media platforms together, Facebook, LinkedIn, and Google Maps. I'm very big into analytics. I'm very big into knowing where my clients are coming from, so I try to keep track of that, and a lot of my time goes into trying to figure out what those acquisition costs are and what I need to do to make things better so that I don't have to turn around and hire somebody else to get me those answers.

Kimber Russell:

For those who might not be familiar, what do you mean when you say that you're using analytics?

Matt Swain:

Google Analytics is a program within Google that allows you to see where people come when they're going to your website, what other medium referred them to your site, where they're located, what page on your site they landed on, and then what other pages they went to, how long they spent on that page. And the main thing for me is, is the website that brought them to me, whether it's a Google search, it will tell me what the terms were that they searched, or whether they found me through a different referral website that I pay monthly for, that has my name on the top of their page as their featured attorney. Knowing where I'm getting clients allows me to redirect my advertising budget to those different mediums to try to make sure that I get the best bang for my buck.

Kimber Russell:

Where do you see a lot of your potential clients coming from?

Matt Swain:

Fine Law has been fantastic. I got a new website with them about two months ago, but I've been in talks with them for three or four months. I've been getting a lot of clients through there. Other than that, just Google marketing, a lot of pay per click advertising, which can be very expensive, but if you know what your audience is, you know what search terms they're looking for. So for example, Cleveland County, which is the county that I'm located in and mainly practice in, Cleveland County criminal attorney, Cleveland County DUI attorney. Is it necessarily the best search term? Because when people are looking for an attorney, they're not associating the county that they're charged in, they're looking for the town that county's located in. So Cleveland County DUI attorney is not the best use of my money. Norman DUI attorney or Oklahoma City DUI attorney is going to be a better avenue, and so that's one of the things that I've learned over the years by using analytics.

Kimber Russell:

You actually have taken on more of a managerial role in your office space. How did that come to be and what are some of the challenges when you are dealing with say payroll and just regular bills, and just dealing with different personalities in that office?

Matt Swain:

I'm very organized, and when it comes to the business side of things, I have a great interest in that. I have some real estate ventures on the side and other entrepreneurial things, and so that has really helped me focus on the day-to-day tasks that need to be accomplished, and setting goals into the future for things that we're going to do to improve our office. For example, we're working on redoing our conference room right now, and ordering new chairs, and a new TV, and a blackboard, and different things that we can do to set this up to where it looks more professional. Because in the future I'm going to be shooting video and adding different things to my website like that. I'm very good at the long-term picture and coming up with goals and different things that I want in the future so that I can get my practice just where I need it.

Kimber Russell:

Now, this office share arrangement that you have, it's not a actual partnership. How does that affect the relationship between the attorneys in the office?

Matt Swain:

It's incredibly important. When people come in and hire myself or hire another attorney, things need to be made perfectly clear who they're hiring in the contract phase, in the letterhead phase, everybody has to have specific letterhead that spells out who they are and the fact that there's no association between us. One of the things that's been a little bit difficult is when there's another attorney in this office that does criminal defense, and he and I are good friends, and on some of the bigger cases, a few murder cases and some sex crimes, he and I have worked on the cases together.

We've had to spell out specifically in contracts and in discussions with clients, the fact that we are not associated, the fact that he's hiring two separate criminal defense attorneys who happen to work on this case together. But for professional responsibility reasons with the bar, for malpractice insurance reasons, you have to be very, very careful to make sure that you're not associating yourself professionally with the other people that you share office space with so that there are no questions in the end that are you a firm? The two or three people that work on these cases routinely with you, are they associated with you? No, that's not the case. We're entirely separate. That way I'm not held responsible if one of those other attorneys do something that could get them in trouble later.

Kimber Russell:

Well, you did talk about the breakdown in your office, so some of the other attorneys do, maybe some of what you do, but not everything. How does your specific practice breakdown in addition to doing criminal defense, how would you say that breaks down for your clients?

Matt Swain:

Probably 95% of what I do is criminal defense. The rest is personal injury. And then of that 95%, I would say probably 35% of that is DUIs. I do about 75 of those a year. And then the rest is just miscellaneous criminal matters. Everything from marijuana possession cases to larceny to more serious rape cases, the occasional murder. It runs the gamut of all things criminal.

Kimber Russell:

How long were you out of law school before you handled a murder case?

Matt Swain:

I was about a year out of law school, and I handled it in association with that other attorney that I mentioned earlier, that I share office space with. I went through a long period of time where I didn't feel comfortable handling some of the bigger things. For malpractice reasons, I didn't want to be responsible with screwing something up. We're dealing with people whose lives are on the line. And so for a very long time, for probably four, four and a half years, I took these bigger cases but associated myself with other attorneys in the community, who had experience, who I can learn from. I volunteered, for free, for a few trials with other attorneys in the community who are very well respected and very good at their trial practice, to get to where I really felt comfortable in the courtroom and to develop a good reputation with the prosecutors in the DA's offices. But it took a good, I'd probably say, four to five years before I really felt comfortable handling a murder case or handling certain other cases that carried life in prison.

Kimber Russell:

Wow. Now, you had mentioned that about 5% of what you do is personal injury. Are you only taking select cases hoping that you might land on that golden goose?

Matt Swain:

Yes. I certainly take all personal injury calls. I have other attorneys in the area who I refer some smaller PI cases to, and then I'm just waiting on the bigger case. I usually only take probably two a year. The last one was a car accident with three or four occupants in which they each had to have surgery for various reasons. And so the bills on that were in the hundreds of thousands, and so usually the bigger things are what I'm looking for.

Kimber Russell:

Why do you think it's so difficult, as a solo practitioner, to do personal injury cases?

Matt Swain:

Well, there's a lot of costs associated with it. On criminal cases, the way attorneys, at least here, bill them, it's all flat fee, and you bill it based on how much time you think it's going to take. On personal injury cases, they're all contingent fee. So I'm not getting paid unless my client receives money from the person who caused the accident or the insurance company. So in terms of time, I can't take very many of these cases at one time because I can't spend all my time working on something that I'm probably going to get paid on, but it might be a year or two down the road before I do that. So just having a practice that only concentrates on personal injury can be very difficult because you have to pay the bills. Everybody has overhead and that overhead can be expensive. So I need to make sure that I can take care of that overhead and bring some money home and feed my family.

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Kimber Russell:

Matt, I want to talk to you now about the nitty-gritty of your criminal practice, but earlier you were able to break things down with incredible specificity. How are you able to understand, in so much detail, what your practice is?

Matt Swain:

I keep track of more numbers historically than any other attorney that I know. Whether it's how many clients I received each week. I've got a spreadsheet of the new clients that I received for the last six years or seven years. Really just trying to discover if there are any trends. Is one month better than another? For example, I've found that the two weeks around Christmas is just a horrible time. I know when we have a misdemeanor call docket, which we have once per month here in Cleveland County, I know that the week before, my numbers are going to be a lot higher. So I keep track of everything from when the new clients come in to where they're coming from, like we talked about earlier.

And then specifically on the case, on my Excel spreadsheet, I keep track of everything from when the person hired me to who the arresting officer is, which is incredibly important. What the outcome was to when they're eligible for an expungement. Because I want to be able to contact them later on two, three, four years down the road, whenever they're eligible to get the case expunged, based on the outcome that we achieved initially on their criminal case, so that they can be clients again. I want to be able to follow through on this work and have them pay in the future. You'd be surprised how many people, two or three years from now, they completely forget that they can call their attorney and get the case expunged off their record, which is incredibly helpful for them when it comes to jobs and anything that they want do in the future.

So I try to keep track of as many numbers as I can. Some of it might just make me feel better. In slow times, I can look at my spreadsheet and know that, okay, things are going to pick up, because criminal defense, just like I'm sure most other practices of law, it's like a roller coaster, you can have a bad week or a bad month, and then the next month could be the busiest that you've ever had. So it help makes me feel better keeping track of all of those numbers.

Kimber Russell:

Well, you mentioned that you did detect some certain trends based on these numbers. What was the most surprising thing that you learned from tracking these numbers over the years?

Matt Swain:

That the worst months really aren't as bad as I think. At the time, you don't get any calls for three or four days, or you get two new clients in a three-week period of time, and you take that three weeks, and in your head you're thinking, wow, I've had a horrible two months. Just because we work so hard and we're so mentally and physically involved in our business. I specifically eat, breathe, sleep, all of my business. Whenever I go home at night and spend time with my family, I find myself thinking about different clients and thinking about different things that go on. I have my cell phone on me at all times, and my clients have my cell phone number. So I routinely talk to them at home.

But that mindset can backfire on you if you're not having the best week or the best few weeks. But keeping track of the trends has really made me, whenever I start thinking that things aren't going as well as they are, that I haven't gotten the calls that I've needed, that certain specific marketing techniques that I'm doing aren't working, it's really made me go back and look at things in a different way, that things really aren't as bad as I think they are.

Kimber Russell:

And the fact that you really are so detail oriented and really understanding, it sounds like, to the last digit how your business works, what competitive advantage do you think this gives you over other attorneys in the same area as you?

Matt Swain:

Well, I know exactly how much money I've received from clients and how much money I haven't received. Many times clients, especially in criminal cases, come and they hire you and you put them on a payment plan, and then they miss their deadlines and you don't collect it all. I know that I've received 93% of all my collections because I'm so detail oriented, and I've stayed on top of everybody. I've got a Word document that has every single payment I'm supposed to receive. I go in there and mark it off whether I received it or not. I make notes to myself, okay, I talked to this person who had a payment due a month ago, and this is the hardship they have going on in their life. I make notes to myself when to check up with them. On the money side, and then really the business side, I hate talking about the money stuff, but on the business side of things, it really makes me feel more comfortable.

From being in college, I know there's nothing worse than procrastination and that feeling that something horrible's going on or that by delaying something because you don't want to think about it. Many times, especially my clients don't want to worry about something that's going bad. I talk to them about out of sight, out of mind. Just because you don't think about something and aren't pursuing something doesn't mean it's going to go away. And I think that a lot of attorneys, that I know, are so focused on the practice of law and doing things in the courtroom and taking care of their clients, that they forget about the fact that this is a business and the analytics of the business and staying on top of things has really allowed me to balance the two.

Kimber Russell:

Well, it sounds like you're really busy. About how many clients, would you say, based on your numbers, which you have, that you have per year?

Matt Swain:

I think it comes out to between 225 to 250 new clients a year.

Kimber Russell:

That's a significant number.

Matt Swain:

It is.

Kimber Russell:

That's a lot of people. How do you juggle that many cases?

Matt Swain:

Well, they're all not going to take a year. Probably the average life of a felony is about six months. The average life of a misdemeanor is probably about four months. So at any given time, I might have 75 to a hundred open files, but some of them are set two or three months in the future, some of them are closed. For example, DUIs, there's a court aspect to them here in Oklahoma, and the court side can be over with in three or four months. But there's also a civil aspect with the Department of Public Safety in which they're trying to take somebody's license. And currently when somebody gets a DUI and we tell the Department of Public Safety that we want them to not take their license, we want them to have a hearing to see whether everything was done correctly. I'm not going to have that hearing for about a year.

So many times the criminal side is over with in four months or so. And then I don't have any interactions with the client until a year later, whenever we start dealing with their driver's license. So it's not too difficult. Sometimes I find myself not really good with names. I mainly use my cell phone, so every time I get a new client, I program their number in my phone and program, in addition to their name, something about their case that will help me remember what's going on. And so it's not as bad as it's probably sounds just because every case is at different stages. That's one of the other good things about having other attorneys that you office share with.

Two out of the three that I office share with do criminal defense. So we have a calendar in our office that says where we are each day. In the morning I'm in Cleveland County, in the afternoon I'm in Oklahoma County. And we have different color coded markers for each attorney so that we could work with each other, so that we can cover different counties for each other. Sometimes I have three different counties I have to be in at one time. So having other attorneys that you can rely on and trust to carry the load of that is incredibly helpful.

Kimber Russell:

So at what stage do your clients typically come to you in most of the cases that you have?

Matt Swain:

Probably about 30% come to me before they've been arrested. So the charges have been filed and we need to surrender and get their bond as low as we can. The other 70% come to me after they've already been charged, they've already seen a judge and gotten their first court date, and they're coming to hire me so that I can be there at that first court date.

Kimber Russell:

All right. Let's say for example, you had a client that come in who's been booked on a DUI. The police are alleging that when he took the breathalyzer, he blew a 0.12 Alcohol level. He calls you, what do you do next?

Matt Swain:

Well, my DUI spiel takes about 45 minutes. I know we don't have that, but I specifically go over the criminal and civil consequences, and the fact that there are two different proceedings, one criminal and one's civil with the driver's license, and that the two are probably not going to impact each other. Most people are more worried about the driver's license than the criminal aspect, which has been fascinating to me. And then making them feel better with the fact that once I file an appeal on their license that they're going to get it back, and that if we do everything correctly, they'll never actually lose their license. They might have a breathalyzer, which nobody likes, but that's better than losing their license. And then just reassuring them, on the criminal side, that if this is their first time, they're not looking at going to jail, it's just going to cost a tremendous amount of money and they're going to have to do a lot of classes.

Kimber Russell:

Why are you surprised that people are more worried about losing their driver's licenses than being convicted for a DUI?

Matt Swain:

Man, there's a lot of different reasons. I would think that when somebody's been in jail and they've gotten released from jail, that they wouldn't want to go back. But I think that a lot of people, DUIs, it seems like they're more prevalent these days and there are more people that have gotten them. And so I think from talking to friends and family, people know that on their first DUI or really even their second, the chance of them going back to that jail cell that they were just at, is slim. And then, here in Oklahoma, when you get a DUI that the officer actually takes your physical driver's license, they take that plastic license and they give you a piece of paper, which is a temporary license, good for 30 days. And so I think the act of not having your plastic driver's license really surprises people.

And then they start researching on their own or talking to attorneys and realizing that, for example, in Oklahoma, on an aggravated DUI, if you blow 0.15 or higher, which is about twice the legal limit, your license could be impacted for up to two years. So you could have a breathalyzer for up to two years. And so many people need their license just for everything during their day, to go to the store, pick up kids, take kids to school, go to work, just to live their life. And I think the actual absence of that plastic driver's license that they've been so used to, since they were 16 years old, surprises them and makes them even more worried about it.

Kimber Russell:

I want to turn finally to some of the bigger cases. Now that you're more confident in your abilities as an attorney, you've actually defended some pretty brutal crimes, sexual assault, domestic abuse. What would you say the biggest challenge is when dealing with a case like this?

Matt Swain:

It's gotten worse or harder for me over the last few years. I've got a four-year-old and a two-year-old. It took me about a year out of law school to really not be surprised at anything. I laugh or talk with other attorneys about how criminal defense attorneys and prosecutors, we really have a jaded view of society just because of all the negative things we see. And none of that really bothered me too much until my first son was born. And then as they get older, he's four now, I've got a two-year-old, and you start seeing cases dealing with children, it's having children and having a personal connection to some of these people, some of these victims in these cases, has been incredibly difficult. My kids are younger and most of the victims that I see in these cases are older, victims of child sexual abuse.

Many times are anywhere from 10 to 16 years old. And so I'm sure it's just going to get more difficult for me, but you have to compartmentalize things. You have to realize that your work stays at work, home stays at home. You have to get yourself in a mindset that once you get out of that car in your driveway, you're there for your kids and you're spending time with them, and you're not trying to think about some of the horrible things that you've heard or seen during work, but it is increasingly difficult and I can't imagine how difficult it is for some of these prosecutors who have children and routinely deal with specifically the sex crimes with children. I really feel for them.

Kimber Russell:

Well, based on the difficulty that you're seeing in some of these cases, just emotionally dealing with them, are there some cases you just simply will not take?

Matt Swain:

Yes. My wife and I do a lot of animal rescue and animal welfare stuff, and I told myself from the beginning, I wasn't going to take any animal cruelty cases. I've only taken two in the last seven years and won both of them. So both of them were dismissed. And I took them because I did not believe that anything went on. I didn't think my client did anything wrong. So it takes a lot to convince myself to take one of those cases. And I'm sure that as my kids get older and my practice continues to grow, I will be able to be more picky. I'm sure that I will get to the point where I say no a lot more often, but when you're young, it can be increasingly difficult to do that.

Host:

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