Archive for the ‘Lawyer Client Relations’ Category
Feeling Your Client’s Pain
I recently read a very successful personal injury lawyer’s advice to a lawyer who was starting a personal injury practice. His advice was “make your client’s pain your own and everything else will take care of itself.”
I suspect that’s excellent advice, and not just for a personal injury practice.
It presents unique challenges for a criminal practice though. On one hand, I know that the best results I’ve achieved for clients have come when I take their case completely to heart. Cases tend to go better than I think they will when I wake up at 3 a.m. thinking about what I’ll say at a hearing, or I find myself thinking of an argument to make to a prosecutor when I should be listening to one of my kids tell me about his day. Clients deserve to have a lawyer who is thinking about their cases obsessively. I know if I, or a member of my family, need a lawyer, I’d want that lawyer to be thinking about the case often.
The model for a successful criminal defense lawyer?
On the other hand, criminal defense lawyers, particularly in the federal system, lose. And when you lose and you’ve taken your client’s pain to heart, it becomes your pain. There’s a tremendous amount of burnout among criminal defense lawyers; worse, too often defense lawyers prevent themselves from burning out by just not caring about their clients in the first place. The lawyer who yells at his client at the initial consultation, or doesn’t explain to his client what will happen if he pleads or goes to trial, or browbeats his client into a quick plea, is the worst of our profession, and may just be keeping himself from feeling how desparate his client’s situation is.
Which is not to say that this is excusable. There’s an important difference between a defense and an argument you make at sentencing.
The hard part, I find, is striking a balance between being too close and too distant to how my clients. Too close and you lose perspective and can’t function. And, while it hurts to see a guy who has robbed a bank go to prison, you’re not going to be able to prevent that from happening in most cases. Whether or not you feel the guy’s pain, he’s likely going to BOP. But if you don’t feel what he’s going through at all, I don’t know why you’d bother to do this work.
Criminal Charges and Depression
I was in court the other day waiting for a hearing, and I saw a heart breaking scene. A woman who looked to be in her late twenties was the defendant in a criminal case and she had brought her daughter to court with her. I would bet her daughter was about four.
She didn’t have anyone with her to watch her daughter, so she brought her up to counsel table for her hearing. When she got to counsel’s table, the judge asked her where her lawyer was. She said she didn’t have one. As it turned out, she had already plead guilty to felony theft. She was coming back for her sentencing hearing.
The judge asked her why she didn’t have a lawyer. From looking at the docket for her case and his notes, he told her that he could see that they had continued the trial date twice for her. Each time the judge inquired about her eligibility for a public defender, and concluded that she was eligible. Each time he told her to go to the public defender’s office. He also told her to go get a public defender after her plea hearing.
The judge was clearly frustrated. The woman rambled a little bit about how she didn’t commit the crime (!), then told the judge that she didn’t know, but she thought she might be depressed, and that she knew she was supposed to go to the public defender but she just couldn’t make herself do it.
It was an incredibly sad, and all too familiar, moment. I find that too many of my clients are overwhelmed by the charges pending against them and can’t really function to work on their case. It’s hard to watch that happen, both as a person and as a lawyer. I’ve seen it hurt people badly. The criminal justice system is not forgiving of people who don’t act in their own defense.
I find that when my rapport with my client is strong I can get through some of that depression to help the client focus on the case a little. When the rapport isn’t strong, well, it’s just a lot harder. I’d be very eager to hear from any readers about how they handle depression in their clients; it’s a problem that I don’t think gets enough attention in the criminal defense bar.
Perhaps the only solution is the one that came to the woman I saw in court that day. A lawyer in the courtroom, moved by the scene that she was watching, stood up and asked the judge if she could talk to the woman for a minute in the hallway. She didn’t know if she would get paid (she may, in fact, have known that she wouldn’t), but she was willing to help.
When Can an AUSA Lie?
There’s a fascinating case unfolding in Georgia. According to Law.com (reprinting an article from the Fulton County Daily Reporter), United States District Judge Clay Land learned that a prosecutor from the United States Attorney’s Office in the Middle District of Georgia lied to a defense attorney. The defense attorney asked if the prosecutor was recording their conversations. The prosecutor says he wasn’t. As it happened, that was a lie.
Judge Land said, “I’m shocked. . . . There’s got to be some policy about when a U.S. Attorney can lie.” I’m also a little surprised that there’s apparently no policy on when a U.S. Attorney can lie too.
Though that isn’t the problem I have with the case described in this article.
When Criminal Defense Lawyers Go Bad
Last week the Sixth Circuit decided a case with stunningly bad conduct by a defense lawyer. The case is United States v. Herrera-Zuniga. In it, Richard Stroba of Grand Rapids, Michigan turned himself into a prosecutor against his own client.
Mr. Herrer-Zuniga was charged with entering the country illegally after having been previously deported subsequent to a felony conviction. He plead guilty in federal court in Michigan.
Instead of submitting a sentencing memorandum on behalf of his client, Mr. Stroba submitted a copy of a letter he had sent to Mr. Herrera-Zuniga. The letter is simply stunning. Here are some quotes from the Court’s opinion:
My duty now is to try to write a sentencing memorandum on your behalf. I knew this day was coming and I knew it would be a difficult task, but . . . I must admit that I am completely stymied (i.e., without a place to go). There is not one thing about your situation that lends itself to a positive thought, save that you have a good work history.
Wow, that’s quite a start. But wait, it gets worse . . .
You are clearly an alcoholic with either no ability or desire to quit drinking . . . . At some point either you will stop consuming alcohol on your own, or you will develop cirrhosis of the liver and you will die a slow, painful, horrible death. And then you will be done drinking for sure.
Switching Lawyers Right Before Trial
Getting ready for a criminal trial is a stressful time. It’s particularly stressful for the relationship between the lawyer trying the case and the person who is trusting the lawyer to try the case well. The lawyer may see the case one way, and the client may have a very different, even inconsistent, view of how the case should be tried.
As a result, it is not uncommon for a person accused of a crime to try to find a new lawyer shortly before trial. The problem, however, is that often the court is uninterested in upsetting its schedule to allow a new lawyer to come into the case.
When does a court grant a motion for new trial? In the Fourth Circuit, which decides the rules for federal trial courts in Maryland, the Virginias, and the Carolinas, the case that describes how a trial court resolves a request for a new lawyer during a trial is United States v. Mullen.
The court should look at three things. Read More…
Things a criminal defense lawyer should not do during an initial consultation, part 2
Your case may be bad. It may be really bad. But your lawyer should not tell you to plead guilty before he or she looks at the evidence in your case.
Is your lawyer back there?
Maybe six cops found you with a counterfeit machine on your lap dripping with ink and newly created “currency” stacked around you. Maybe they found a video tape of you telling your broker to sell because you’ve got inside information that the company’s product causes head lice. Maybe you went door to door confessing to a crime and the story is now on youtube. Regardless, your lawyer should look at the evidence the government has against you before trying to figure out whether to make a deal with the government or go to trial.
Sure, there are times when you need to make a decision quickly. But normally that means a prosecutor should get your lawyer his evidence more quickly.
The second rule of being charged with a crime
The second rule of being charged with a crime is to not talk about being charged with a crime. Do not talk about being charged with a crime with anyone who is not your lawyer.
Duct tape is not a bad option
Your communications with your lawyer are protected. Unless you’re hatching a crime or scheming up a lie with your lawyer, the government cannot find out what you talk about with your lawyer.
Conversations with other people are not protected. The government can learn what you told your mom. It can subpoena your dad. A prosecutor can make your sister talk. Your boyfriend can be brought before a grand jury.
Jurors will find your words through the voice of your family and friends to be very persuasive and credible evidence against you. Do not create such powerful evidence.
You may think your family will lie for you. Your friends may be willing to protect you. But that’s a horrible position to put people in and it may not work. The only thing worse than going over a cliff is taking your loved ones with you.
Things a criminal defense lawyer should not do during an initial consultation, part 1
I am amazed at the things I hear that lawyers are doing when they first meet with a potential client, particularly a client who is accused of a crime. It’s a big moment in the case, and it sets the tone for the rest of the lawyer’s working relationship with the client.
In the hopes that you’ll be amazed, and, perhaps, amused, at these stories, I’m starting this series on Things A Lawyer Should Not Do During Your Initial Consultation.
The First Thing a Lawyer Should Not Do During Your Initial Consultation is . . . Lecture You.