How do I select a good criminal defense attorney?
February 2013 will mark the start of my fourteenth year as a criminal defense attorney. I spent the first four and a half years, after graduating from Cornell Law School, working as a state prosecutor, both in Philadelphia, Pennsylvania and Atlanta, Georgia. The last eleven years, I have defended individuals accused of all types of crimes. During those fifteen years, I worked an average of seventy hours a week, and saw my fair share of justice and lunacy.
If you have been arrested and/or charged with a criminal offense, you are about to enter the arcane world of criminal law. My first piece of advice in selecting a good criminal defense attorney is similar to the advice offered in selecting a good attorney: Have a trusted family attorney, or family friend that practices law, refer you to a criminal defense attorney. If you do not have such a resource, then you need to take heed of the following advice.
Criminal defense is a cash business. All good criminal defense attorneys get paid up front. Why? The answer is simple. First, if the client is in jail, and cannot make bond, a payment plan will rarely work. Second, on the more serious cases, if the client pleads guilty to jail time, or losses after trial, he will be incarcerated, and will either be unable, or unwilling, to pay his attorney. Because it is a cash business, criminal defense is fraught with what I refer to as the pretenders, the prevaricators and the pusillanimous.
The pretenders are those real estate attorneys, employment lawyers and other civil lawyers that are beguiled by the five thousand dollars in cash, three days before their payroll taxes are due, into believing that they can handle an aggravated battery case, or any other criminal case. The client with cash in hand is hard to refuse, even for the lawyer who has never handled a criminal case in his life. In the last eleven years I have represented somewhere in the neighborhood of twenty-five hundred (2500) criminal clients, on everything from DUI and misdemeanor shoplifting to homicide. I have had at least two hundred (200) felony criminal jury trials, and an additional fifty (50) misdemeanor criminal jury trials. In addition, I have had at least two dozen criminal cases, where I came into the case a few weeks before trial, after the private attorney (i.e. pretender) did nothing on the case for more than seven or eight months. The retainer fee had been spent, and the attorney/pretender was beginning to realize that he was in over his head. In my experience, these attorneys are retained because they quote the cheapest fee. They quote the cheapest fee because they have no idea what the case will entail. Although they appear to be the best value, they end up being the worst, because the client has to retain a second criminal defense attorney to actually resolve the case.
However, I certainly do not want to leave the reader with the impression that these pretenders are swindlers or charlatans. While a good number of these attorneys were beguiled solely by the cash, even more were beguiled by the criminal client that convinced them the case was simple. It is "only" a misunderstanding; or it is "just" a family squabble. The family law attorney has not learned how to listen to the criminal client. He has not learned how to ask the pertinent questions, in order to discern the real problem. The real estate attorney believes the client`s perception of events, and possible outcomes. Her legal fee is constructed based on the client`s analysis of the situation. By the time the attorney learns the state`s version of the facts, and the evidence against the client, the case is in a trial posture, and the relationship between the attorney and client is disintegrating.
Different from the pretender, who falsely believes that he is capable of handling the criminal case, is the prevaricator, who will outright lie and promise results he will never be able to deliver. His goal is simple: Promise the client whatever he/she wants, in order to procure the retainer. Outright lying is permitted. The drug addicted client, who is facing prison, will convince his mother to spend any amount of money for an attorney, if the client can be "guaranteed" that the case will be dismissed.
Therefore, the prevaricator promises, even to the point of lying to the client, that he will get the charges dismissed. In the past fifteen years, I have probably seen three prevaricators, for every one pretender. When you overhear their conversations with their clients outside of the courtroom, it always goes something like this:
(client) But you promised me that I wouldn`t have to...
(attorney) I know, but this judge (jury) (prosecutor) is being a jerk about...
(client) I don`t understand why you cannot...
(attorney) There is nothing more I can do. You should...
(client) I can`t do that. That is why I paid you to...
(attorney) You really don`t have any choice; I`ve done all I can do...
The aforementioned conversation is a familiar one. I have heard it at least twice a month for the last fifteen years. Who is the prevaricator? He or she is typically a young, slick attorney, who has been practicing criminal defense for about three or four years. Although he has less than six jury trials to his credit, he has unabashedly promoted his ability to do the impossible, which beguiles the client into retaining him. It is important to note that when the prevaricator does resolve his client`s case, the client often petitions the court to undo what was done. Not surprisingly, after the case is resolved the first time, the prevaricator is gone.
Again, I don`t want to leave the reader with the impression that the prevaricator is all bad. There have been many potential criminal clients, with whom I have had a consultation, only to refuse to represent them. Why? They wanted guarantees. They wanted to avoid all punishment, even though there were three eyewitnesses, a videotape of the incident and a full confession. I have learned that that client does not want representation. They want miracles. They have no realistic expectations. They will deny that they have a drug problem, even as they fail their fourth drug tests at probation. Those types of clients create prevaricators. Those types of clients will only retain the attorney that promises them the world. So, the prevaricator does just that.
The third group of attorneys posing as criminal defense attorneys are the pusillanimous. As difficult as it may be to believe, I promise you there are attorneys that make more than one hundred thousand dollars every year as criminal defense attorneys, and haven`t tried a criminal case in the last ten years. Lest you think they are great negotiators, so they don`t need to try any cases, let me assure you that no one possesses that level of negotiating skill. The pusillanimous are the butt of many trial attorneys` jokes at the courthouse. They would offer to plead a client guilty to a murder indictment, even if the victim of the murder was willing to serve as a character witness at the client`s trial.
There are a number of reasons the pusillanimous thrive:
(1) Their clients have misplaced their trust in the attorney, either because both the client and attorney speak Spanish/Hungarian/German, or the attorney charged an exorbitant fee, so the client assumed he must be good;
(2) The clients that have been misrepresented are currently serving time in prison, so they cannot warn the new potential clients; and
(3) The clients are convinced the plea is the correct way to go, because the clients have run out of money, on the payment plan initiated by the attorney.
Now that you know what to avoid, what should you be looking for in a criminal defense attorney. Part of that answer depends on the type of person you are. Are you brutally honest with yourself? Do you examine and analyze your life and your choices, in a way that is empowering, or victimizing? Do you assume responsibility for everything that happens around you, or are you often the victim of circumstance? Do you need to speak to your attorney every day? Do you want your attorney to resolve your case, or give you a crash course in criminal law, criminal procedure, constitutional law, and/or evidence? Will your attorney have to speak to your girlfriend, mother and maternal aunt, because no one can be the point person in the family? Only you know the answers to those questions. Generally, you should be looking for the following characteristics in a criminal defense attorney:
(1) EXPERIENCE
(2) KNOWLEDGE OF THE LAW
(3) GOOD BEDSIDE MANNER
(4) ENERGY
Experience is mandatory. Any criminal defense attorney you select should be familiar with the jurisdiction where you have been arrested. The attorney should know most, if not all, of the judges, prosecutors and idiosyncrasies of the court in the county where your trial will take place. The attorney should have recently tried criminal jury trials in that county, which means that he is familiar with the demographics of the jury panel. For example, a typical Gwinnett County jury is predominantly white, Christian, conservative, Republican, with a penchant towards respecting police officers and prosecutors. Because of the natural growth, decline and changes in every county population, any jury panel that appears in a courtroom today may look nothing like a jury panel that appeared in that same county courthouse ten years ago, or ten years from now. Therefore, your criminal defense attorney should have recent jury trial experience.
In addition, any criminal defense attorney you select should have experience trying your particular type of case. A defense attorney with five DUI jury trials may be of little use to you if you have an aggravated assault trial. So, you need to question your prospective defense attorney about his specific trial experience. I can assure you the more trial experience he/she has with a particular type of case, the better he/she can negotiate a deal for you.
While it may be obvious that an attorney should know the law, many attorneys cannot truthfully say they have read the most recent decision - i.e. last six months - that have come out of the Georgia appellate courts. The law is constantly changing; and it is an attorney`s obligation to stay abreast of the law. However, for most criminal defense attorneys reading case law falls somewhere behind returning phone calls. And you know how attorneys are about returning phone calls.
In addition to reading and understanding recent appellate decisions, your criminal defense attorney should have a library of cases that he can produce, in order to establish any legal point that he makes to you. Almost every criminal legal question has an answer. If the answer cannot be found in the criminal statutes, the answer can be found in case law. The more questions your attorney is able to answer at your initial consultation, the more confidence you should have in that attorney. But what is the difference between the confident attorney with the answers, the pretender and the prevaricator? Neither of the latter two attorneys can produce case law to support their positions.
For me the term good bedside manner is a catch-all, which refers to making a client feel comfortable by returning phone calls, and generally keeping him informed about what is going on in his criminal case. I have learned that it does not matter if I am the greatest attorney, achieving the greatest results, if my clients are worrying about their case, because I haven`t returned their phone calls, and apprised them of the status of the case. Sometimes current information today is more important that great result tomorrow.
With that advice, I wish you the best in your search for the right criminal defense attorney. You should feel free to contact my office, and schedule a consultation to discuss your criminal case. However, be advised that I do charge a consultation fee.
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Lawrence Lewis, P.C. is a criminal defense law firm focused on educating clients and their families on the criminal justice process, as well as working towards favorable resolution of criminal charges.
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