Friday, April 21, 2006

SJ Mercury News on Criminal Defense Lawyers

The third part of the SJ Mercury News series deals with the failings of some criminal defense lawyers. They discuss a practice where lawyers will charge a high up-front fee and then push the client to take a plea bargain. That makes for a good effective hourly rate, but not for good lawyering. In the particular case they discuss, the lawyer allegedly told the client he would only get one year when he actually got five. If that's accurate, that's very bad.

I always tell my clients that I love trials. I have one case right now where I've promised the client I won't charge him any more no matter how far the case goes. This particular case involves certain public policy issues that are quite important to me.

For me, trial has various aspects of playing a game. Cross-examining witnesses is one aspect of being a lawyer I really enjoy. But the "game" reference I make is important. For me it is a game. I get to go home when it's over, no matter what happens. That's why my client has to know the risks involved. Unfortunately, going to trial on a criminal case involves very big risks. Right or wrong, some judges will impose a higher sentence on someone who went through a trial. I've heard judges threaten defendants with exactly that.

That's not how sentencing is supposed to work, by the way. It's not discussed in the SJ Mercury's part about judges, but it's important. Sentencing is supposed to be an evaluation of the crime, the defendant's criminal history, character, and a variety of factors. Refusing to take a deal and demanding your right to a jury trial are not factors that should be considered in sentencing. But at least some judges do consider that as a factor, and often it is a big factor.

As a defense lawyer, I have to make sure my client understands all the risks, including the risks in the plea bargain. Like if the offer is 2 1/3 to 7 (two and one-third years, up to seven years), that you're pretty likely to do seven years. It might be easier to persuade the client to take the deal by talking about the low number, but personally, I think most people end up with closer to the higher number.

The article also talks about defense lawyers not doing proper investigation, and making certain trial mistakes (like not objecting to prosecutor misconduct). The investigation one is tricky. Getting a case investigated is not part of the lawyer's fee. I offer that to my clients, but they have to pay an investigator to do that work. I recommend one or two different private investigators, and let them decide.

Trial mistakes bother me more. There's no one to put that off on. You want to make sure that your lawyer is an experienced trial lawyer, and hopefully a successful one. A trial lawyer has to understand the concept of preserving the record for appeal. If you don't state your objection in a timely manner, your client will not be able to make that argument on appeal. There is a tactical danger to this. If you object all the time to all the prosecutor's conduct, the jury may feel you're argumentative and maybe overlawyering the case, and they may hold that against your client. Part of the trial lawyer's job is to be likeable to the jury. It's not supposed to be a popularity contest, but that aspect is always there. A good trial lawyer understands all this and does their best to balance these issues.

While there are many good trial lawyers, we all have our weaknesses. Some are just not as bright as others. Some lack motivation. Some don't keep up on the latest court rulings (or even the not so recent ones). Some don't have that game-playing mentality that is so important in the courtroom. There's a whole host of issues that can be a problem.

And if you get the wrong defense lawyer, you're going to have some serious problems.
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