I am a federal criminal defense trial lawyer. The "federal," "criminal," and "lawyer" parts are easy -- I represent people charged with crimes in federal court. But what is a "trial lawyer," and why do I consider myself a trial lawyer?

"Trial Lawyer" apparently means different things to different people. Some of my colleagues who I know have not tried a case to a jury in years call themselves "trial lawyers" or even "experienced trial lawyers."

Maybe they mean that they, as distinguished from appellate lawyers (lawyers who handle appeals) or transactional lawyers (lawyers who draw up contracts), practice law in trial courts.

When I describe myself as a trial lawyer, what do I mean?

PRACTICE

You can tell a trial lawyer by what he does. A trial lawyer tries cases to juries. (For a description of trial lawyers, see this quote.) Many people plead guilty and hope for a break on punishment. For the trial lawyer, a guilty plea is a last resort. A trial lawyer does not, when the FBI comes calling, walk the client down to the U.S. Attorney's office for a full confession. A trial lawyer might let a person plead guilty, but only after he knows all the facts and he and the client are sure that the government can prove its case.

KNOWLEDGE

You can also tell a trial lawyer by what he knows. Law school does not prepare a lawyer to try serious cases. Trying cases requires an encyclopedic knowledge of the rules of evidence, of the substantive law, of body language, and of human nature. This is stuff that is learned by experience and by specialized training. Places like Gerry Spence's Trial Lawyers College (TLC) are laboratories for trial lawyers, where they can develop their skills and find what works and doesn't work for them, experimenting without a client's life hanging in the balance. But all the training in the world would be worthless without continued use. A trial lawyer's tools -- his mind, his wits, his listening skills -- get rusty with lack of use, and sharpened with use.

In law school I took all the trial advocacy classes I could. Since starting my practice, I have kept my training up by attending and teaching at the continuing legal education (CLE) programs of the local, state, and federal criminal lawyers' associations, gathering several times the mandated amount of CLE credit each year. In 1999 I graduated from the 5-week program at TLC. In the summer of 2002 I returned to Gerry Spence's ranch for the TLC graduate course. At TLC, lawyers are developing the cutting edge in trial advocacy. The cases I try keep those tools sharp.

PHILOSOPHY

At least as important to a trial lawyer as what he does and what he knows is what he believes.

Hundreds of times I have seen lawyers -- some of them claiming to be "trial lawyers" -- persuading their clients to plead guilty rather than go to trial. I've seen them do this to clients who didn't want to plead guilty; I've seen them do it to clients who didn't think they were guilty; I've even seen them do it to clients who weren't guilty. My analysis of this situation is this: these lawyers don't care. They aren't fighting for their clients because they don't believe in the fight. They don't believe in their clients' innocence, they don't believe in the presumption of innocence, and they don't believe in fighting the government.

A criminal trial is war. You can hire mercenaries to fight your wars for you, but the people who will fight the best are those who believe in your cause.

What do trial lawyers believe? If they are practicing criminal law, they believe in the presumption of innocence. They trust the jury. They believe very strongly in fighting the government.

I believe that somebody has to stand between the government and the people. Someone has to make things harder on the government. I believe that it is my duty, as a criminal defense lawyer, to do that.

--
Mark.