Here's something I noticed almost immediately as a prosecutor: public defense attorneys don't file frivolous motions. Paid private defense attorneys do.
I mean specific motions — not aggressive lawyering, not creative arguments, not long-shot theories that at least have a plausible legal basis. I mean motions that are dead on arrival. A motion to exclude hearsay at a preliminary hearing, when the governing statute explicitly permits hearsay at that stage, dressed up instead as a motion to exclude "testimony from a witness without personal knowledge" — a relabeling so transparent that it fools no one, least of all the judge who's read the statute a thousand times. A motion to suppress evidence from a search that was, on the face of the report, obviously reasonable — the kind of motion where you can predict the ruling before you've finished reading the caption.
Public defense attorneys, who are excellent attorneys carrying enormous caseloads, essentially never file these. Private attorneys, representing clients who are paying by the hour or by the motion, file them regularly.
It isn't about skill or effort. I've been consistently impressed by the public defense attorneys I go up against — I won't claim to know whether they're "sharper" than the private bar, that's not a comparison I'm equipped to make fairly, but competence was never the explanation I landed on for this pattern. The difference is about who the lawyer is answering to when they decide whether a motion is worth filing.
A public defense attorney's incentive is to represent the client well. That's it. There's no additional revenue from filing a motion that will fail, and there is a real cost — time that could go to the ninety other cases on the docket, or to the one motion in this case that might actually move the needle. My guess is that when a public defense attorney tells a client a given motion isn't worth filing, the client is generally hearing that from someone with no competing motive. The advice and the incentive point the same direction.
A private attorney's incentive includes something else: getting paid for the work. And a motion that's certain to be denied is, from a billing perspective, indistinguishable from one that has a real chance — it takes the same hours to draft, it generates the same invoice.
I want to be clear that everything past this point about what actually gets said in that room is speculation on my part. I've never been a public defense attorney or a private defense attorney, and I have no personal knowledge of how either one talks to a client behind closed doors. But I'd guess the conversation goes something like: "You're facing incarceration. We should try everything we can." Which sounds, and is probably meant to sound, like zealous advocacy. The client is scared, is not a lawyer, and has no way to independently evaluate "we should try everything" against "this specific thing has essentially no chance." So my guess is they say yes — and that most wouldn't say yes if the pitch were accurate instead: for three hundred dollars, I can file a motion I expect the judge to deny, because the statute directly addresses this and the search was plainly reasonable. Framed that way, I'd expect most clients to say no. Framed as advocacy, they may be saying yes to something else entirely — reassurance, not legal work.
I don't think the attorneys filing these motions think of themselves as running a con — and I want to be clear that's a genuinely charitable read, not a grudging one. My experience of private attorneys generally, not just those in criminal defense, is that they're good people and good at their jobs. I'd guess that most of them sincerely believe they're doing the best thing available for their client when they file a motion like this. That's the part that actually interests me more than the billing mechanics.
The document that said "daughter"
Years ago, before I became a prosecutor, I spent years in private practice doing complex estate planning. One day I was waiting in a partner's office — she was one of my favorite people there, sharp and, more than that, just a genuinely good person — and she came in flustered, saying something about never having enough time, that drafting took forever.
I'd noticed something by then about how documents got drafted at that firm. They worked from templates, which is normal and sensible. But if a client's only children were daughters, the firm's practice was to go through the document and manually replace every instance of "child" with "daughter." Every trust, every will, every fiduciary reference. It took real time. It also did nothing. It had no legal effect — a will that says "children" already covers daughters; changing the word doesn't add a protection or close a loophole. If anything it created a small risk: if the client later had a son, or already had one from a prior relationship no one mentioned, the document was now wrong in a way it wouldn't have been if it had just said "children."
So I asked her, as genuinely and non-confrontationally as I could manage: did she think drafting time would go down if they stopped doing that swap?
"I think the clients like the customization," she said.
I asked a follow-up. If the retainer letter said, plainly, we will change the word "child" to "daughter" throughout your documents for an additional two hundred dollars — did she think clients would pay for that?
"I don't think clients want to know the cost of everything," she said.
I've thought about that exchange for years, longer than I've thought about almost anything else from that job. She wasn't lying to me, and she wasn't running a scam. She believed what she said. But notice what happened in that second answer: the question was about whether clients valued something. The answer was about whether clients should be allowed to see the price. Those aren't the same question, and the swap between them wasn't a dodge — I think it was invisible to her. The incentive to keep billable work flowing had quietly redirected her reasoning without her ever having to consciously decide to overbill anyone.
The actual pattern
That's the throughline between a will that says "daughter" instead of "child" and a suppression motion that any judge will deny in ninety seconds: in both cases, the professional isn't consciously deceiving anyone. They've arrived, sincerely, at a belief that happens to align with what pays them. "Clients like the customization." "We should try everything we can." Neither sentence is exactly false. Both are the kind of half-true thing a person settles into when the alternative — I am recommending this because it benefits me, not you — is one they'd never consciously choose to believe about themselves.
I don't think this is unique to law, and I don't think it makes the people doing it unusually dishonest. It's closer to a structural hazard than a character flaw — a version of it is available to anyone whose judgment and compensation point in different directions on any given day, which is most people, most professions, most of the time. The estate planning partner was one of the better people I worked with. That's what makes the story worth telling instead of a story about a bad actor: the failure mode isn't "hire more honest lawyers." It's narrower and harder than that. It's noticing when your own reasoning has quietly started serving your interests instead of the truth, and asking the follow-up question anyway — even when, maybe especially when, you're pretty sure you already know an answer you'd rather not hear.
I've told this as a story about two corners of the legal profession, because that's where I happened to see it. But I'd bet it isn't confined to law, or even to work. Anywhere a person's incentives and their honest judgment can quietly drift apart — a doctor, a contractor, a manager, a parent, any of us in some ordinary decision this week — the same failure mode is available. Worth asking, every so often, whether it's already happened somewhere in your own life without your noticing.