What's the most important thing in choosing a lawyer to defend you
in federal criminal court?
When Napoleon interviewed potential officers, he reportedly asked
them, "are you lucky?" To Napoleon, luck was one of the
most important predictors of success. Luck is important in a criminal
defense lawyer, as well. Someone asked me once what the difference
was between the people who lost their federal jury trials and the
people who won their federal jury trials. I named three things: the
facts, the lawyer, and luck.
If you have all three of these on your side, you're bound to win.
If you have any two of them, you have a good shot at winning. I have
won federal cases because the facts were on my client's side, and
I've won cases despite the facts because I got lucky. Of course, in
those cases I also happened to be the right lawyer for the job.
You can't measure luck, though, and you can't compare lawyer X's
luck with lawyer Y's. So what is the most important thing that you
can actually look at in choosing a lawyer to defend you in federal
court?
Look around the web. Some flashy advertisements will tell you, "Experience.
Get the most experienced lawyer you can find," or "Exclusiveness.
Get a lawyer that only handles federal criminal cases" or "Prosecutorial
experience. Get a lawyer that used to be a prosecutor" or "Price.
Get a cheap lawyer." (Does anyone but me talk about truth,
or trust, or caring? I'd like to know -- drop me
a line here
and tell me.)
Some lawyers, it seems, love to tell you what's best for you --
especially if it means you will hire them. Those folks might be right.
It's possible. But in life things are rarely as simple as that. Here,
then, is the truth as I see it.
Experience is very important. I probably wouldn't want to be the
first federal criminal defendant a lawyer represents. Some of the
best lawyers I know happen to be the most experienced. But using "experience"
as a primary criterion for choosing a lawyer could be a mistake. The
most experienced lawyer might be a bad lawyer, and might have been
for his entire career.
Take a fool and let him practice
criminal law for 30 years, and you'll have one very experienced fool.
Or the most experienced lawyer might have once been a good lawyer
but might now be way past his prime. Jury trials have been compared
to gladiatorial combat. They are gruelling experiences both physically
and mentally, requiring stamina and quick reflexes as well as knowledge
and wisdom. You probably don't want to bet your life on a gladiator
who has never been in the arena before, but you don't necessarily
want the oldest gladiator in the stable.
The people who are, in my opinion, the best federal criminal lawyers
in the country (including a few you see on TV now and then) have handled
both state and federal criminal cases. There are generally more jury
trials in state courts than federal, and jury trials are where a criminal
defense lawyer develops his skills. Also, a lawyer who cares about
people will use his talents to help them wherever he can. There are,
to be sure, a few fine lawyers who practice exclusively in the federal
courts, but there are more buffoons who do the same.
Prosecutorial experience
is one of the worst criteria to use in choosing a lawyer. Why? Because
prosecutorial experience is a negative, not a positive. A lawyer doesn't
learn anything by being a prosecutor for three years that he wouldn't
have learned by fighting against prosecutors for the same period.
(My mentor, a former prosecutor, described three years in the DA's
office as "six months experience, six times over.")
Prosecutors learn to put people in prison, not keep them out. Many
prosecutors never completely get over this mindset. By limiting your
lawyer search to former prosecutors, you would exclude most of the
people who believe that, no matter how bad the evidence against you,
you deserve an aggressive defense. This is not to say that all prosecutors
are bad defense lawyers. Many prosecutors turn into great
defense lawyers. But choosing a defender because he used to be
a prosecutor is like choosing a doctor because he used to be a torturer.
I've talked with former prosecutors about this, and they've said "That's
silly. The law is a game. I learned to play in the US Attorney's Office."
Well, that's the problem. Prosecutors learn to think of it as a game
(because there is nothing at stake for them).
Defending people accused of crimes
is not a game!
Price is a worse criterion than prosecutorial experience. If a lawyer
is competing based on price, there is probably a reason he's cheap.
(This doesn't necessarily work the other way, though -- more expensive
is not necessarily better.)
Intelligence is a good thing for a federal criminal defense lawyer
to have (I'd love for that to be the deciding factor), as is a good
personality (for dealing with juries), as is "horse-sense."
Some of the best lawyers I know, though, are not the smartest or the
most personable. The only thing they would seem to have going for
them is their love for their clients and for justice.
So what is the single most important thing to consider before putting
your freedom in the hands of a criminal defense lawyer?
I may have said this a thousand times: the most important thing to
consider is trust.
You could hire the greatest lawyer in the world.
If you don't trust him you'll be throwing your money away.
Or you could have a fresh law-school graduate --
wet behind the ears but motivated. If you trust him to fight for you
regardless, he'll do a good job for you and you'll be well cared for.
How do you decide if you trust a particular lawyer? The same way
you decide if you trust anyone.Talk with him. Look him in the eye.
Get to know him.
If you can't meet with lawyers in person, talk to them on the phone
for as long as you can stand to. If you are uncomfortable making the
decision yourself, take along someone whose opinion you respect to
help you make the decision.
Here are some questions you might ask yourself when you are interviewing
potential lawyers, followed by my own thoughts on the matter:
How easy is it to communicate with the lawyer?
I usually answer the telephone myself. Most of the time when
you dial 866.221.8111 (or, in Houston, 713.224.1747) you will reach
me immediately. I would rather talk in person than on the phone,
so I'll try to get you in to the office to sit down and chat.
When I have clients in jail, I ask each of them to pick a time
to call every week. When the collect call comes in from the jail
at that hour, I know who is calling, and am prepared to discuss
that person's case.
Lawyers who have their secretaries screening their calls think
I'm crazy for answering my own phones. "How can you avoid
people you don't want to talk to," they ask. Well, I can't.
I don't want to hide from anyone. My law practice is not about
me; it's about my clients. People whose freedom is on the line
should not have to wait for a lawyer to decide to call them back.
Does the lawyer return calls promptly,
or do I have to wait to hear back from him?
It's not possible for me to answer my own phone
all of the time -- sometimes I'm before a judge or jury,
or doing something else that can't be interrupted. If I don't, the
office pages me as soon as a phone call comes in, and I return all
calls as soon as I can -- usually within an hour.
Does the lawyer listen to my questions and
answer them?
Real listening is a skill that takes constant practice
and training to perfect. A lawyer who doesn't seem to be able to concentrate
on and absorb what you are saying and respond thoughtfully may have
the same problem in court when he is questioning witnesses.
Does the lawyer promise me a fair shot, or
pretend to promise more?
My job is to give you the best chance at winning
your case that I can. While I have friends who are prosecutors, and
friends who are judges, I would never suggest that I could get a more
favorable result in a case because of those relationships. To promise
a better result because of those relationships is unethical and dishonest.
Does the lawyer guarantee his best effort,
or does he pretend to guarantee a particular result?
Nobody can guarantee what the human beings involved
in a criminal case -- the prosecutor, the judge, and (in the end)
the jury -- will do. I never guarantee a particular result. All I
guarantee is that I will put up the best fight for you that I can.
It would be dishonest for me to guarantee more.
Who will really be handling my case?
If you hire me, I handle your case. In a pinch,
another lawyer might make an appearance in court for me, but only
if I can't be there, only rarely, and only for the administrative
details. Other lawyers might have associates -- younger lawyers who
do a lot of the work on their cases. You can see how, by foisting
some of the work and some of his clients off on less experienced or
less talented juniors, a lawyer could take more cases. My feeling
is that the client who trusts me with his life deserves nothing less
than me. That's why I have a low-volume practice.
Is the lawyer more interested in me, or in
the fee?
I admit that I like being well paid for my work.
But I love defending people. One thing I love about it is the human
stories surrounding the accusations. I love listening to these stories,
drawing them out of witnesses, and telling them to juries. Trying
a case is about telling a story. The person who tells the more persuasive
story wins. From my first meeting with a prospective client, I'm working
on how to tell his or her story to a jury. I'd rather deal with the
human being than with the fee. We have to discuss the fee, of course,
but, when practical, that discussion only comes after I have an understanding
of the story.
Will the lawyer have time to devote to my
case?
I have no more than a dozen clients in preparation
for trial at a time (cases are "in preparation for trial"
from the moment I am hired until trial, dismissal, or guilty plea).
I have found that this is the right caseload to allow me to spend
all of the time that needs to be spent on each case. If I put some
of the work in the hands of underlings, I might be able to represent
more clients (and, by the way, make more money), but when a person
has put his life in my hands I will not hand over any part of the
responsibility for that life to anyone else.
What is the lawyer's philosophy?
I believe very strongly in fighting the government.
You can read more about
my philosophy,
but I think it will be obvious to you on our first meeting. You may
not share my philosophy, but you know what it is.
A lawyer doesn't have to believe in anything to
graduate from law school. He doesn't have to have a philosophy to
get a job, or to advertise. All of those things can be motivated by
the desire for money, or by the inability to find a better option,
or by competitiveness.
Defending people accused of crimes is more an art
than a science. There is more than one way to defend a criminal case.
You don't have to hire someone who believes what I believe, but PLEASE
hire someone who believes something.
Has the lawyer told me the truth?
I see lots of things in other lawyers' advertising
that doesn't ring true. People talk about themselves in flattering
terms, puffing themselves up a bit to get the phone to ring. Question
the lawyers you talk to about the representations they've made in
their advertising. They should be able to explain every word.
If someone calls himself a "trial lawyer,"
ask him what that means to him. Ask him what his philosophy is. Ask
him about his caseload. Ask him how you will reach him if you have
an important question at eight o'clock on a Saturday evening. Ask
him how he feels about guilty pleas.
Any lawyer who tries cases loses cases sometimes.
Ask him what he considers a "loss." Ask him about the cases
he has lost. Ask him what went wrong, and how he feels about it.
Insist on straight answers. Too many of my colleagues
feel that, because they are lawyers (they call themselves "
attorneys"),
they are superior to non-lawyers. They aren't. Remember, you are the
customer, and you can take your business elsewhere if someone doesn't
shoot straight with you. After all, if someone hasn't told the truth
in his advertising, how can you trust him with your freedom?
If I had to be the slightest bit dishonest with you to get hired,
I wouldn't want the job.
Mark.
