This morning when meeting with a client I remembered one of the things that has not changed in 40 years.  Clients who come to see a criminal defense lawyer are almost always scared.  Some do not show fear, others are overwhelmed, all are in stress.  I remembered that one reason I still love my work after four decades is that I get the chance to help someone in a stressful situation.  I am not always successful, but I always try to make my clients lives just a bit better as they go through the stress of an investigation or prosecution.  Obviously, winning the case us the best stress reducer of all!

Another thing I remember today is how clients need to know they can trust their lawyer.  A different client followed my advice recently and entered a guilty plea.  I had won an earlier case for this client, so he trusted my judgment and advice already.  Today’s case turned out well, he likely will not have a criminal conviction after a couple of years because of some changes in the law, and his decision to trust my advice led to this positive result.

Finally, today I remembered my passion for this work.  I had a lengthy meeting set up for today with a client in a complex fraud case, and I was brimming with enthusiasm this morning on my way to the office.  I had spent much of yesterday working on her case, plowing through the mountain of “discovery” materials, and I wanted to share my observations with her while also getting her perspective on what happened and how we can deal with the accusation.  She commented on the obvious passion I have for my job, which was gratifying on a  number of levels.  While a lot of time has passed, I still feel just as amped up with a new case, a new issue, or a fight that needs to be fought.

The world has changed a lot since that June morning in 1982.  In many ways, it remains the same.

First (and last), experience is the key.  I’ve written and spoken to groups in the past about this, but it cannot be over-emphasized: federal criminal defense is a speciality.  Many truly excellent criminal defense lawyers are not skilled or schooled in the intricacies of handling a criminal case in federal court.   These otherwise very good attorneys are at a disadvantage when their client gets indicted by “the Feds.”  So, tip #1 is that clients and their families should make sure that the lawyer they are considering has a lot of experience in handling federal cases.

Second, does the lawyer seem to know what he or she is talking about when they describe the procedures and potential defenses? Let me be blunt: some lawyers are simply salesmen and saleswomen, they will say almost anything to make the sale (or get the case). Clients and their families need to listen carefully, to make sure that the lawyer sounds sensible and discusses the case and possible defenses.  Clients should be very concerned when a lawyer promises a certain outcome. “I can win this case easily, Mrs. Smith, you should hire me to defend your husband.”  I have a simple rule for clients: if a lawyer promises a result, walk out the door, for that lawyer is a liar.  No one, and I mean NO ONE, can promise a specific outcome of a federal criminal case.

Third, do some comparison shopping.  Call multiple lawyer who seem to have significant experience handling federal cases.  Look at their websites, ask them how many cases they have handled.  Lots of clients and their families ask a variation of “what is your winning percentage?”  It is a fair question, but the client and the family need to recognize some hard truths about “statistics and numbers.”  The Feds get to choose their cases, so they rarely take a case if they don’t feel they have lots of evidence.  The numbers change a bit from year to year, but nationwide it seems like the Feds win 93% of their cases.   However, these numbers can be very misleading.  For one thing, many of the cases that go to trial are individuals who have multiple prior offenses or face horrible mandatory penalties, and the Defendants often have no choice other than a trial, regardless of how strong the evidence might be.   As a result, the numbers get skewed in favor of conviction when the analysts include these dead-bang losers in the numbers.   Also, the conviction rate is for all federal cases.  A better question is what kind of odds are there for a conviction for this specific kind of federal criminal case under these set of facts.

Fourth, clients are justifiably concerned about the cost of legal fees.  Again, let’s be blunt.  Good lawyers cost a lot of money.  Good federal criminal defense lawyer cost even more.  And, a good federal criminal defense attorney who seems to have the experience and attitude to fight the feds can be really expensive.  I often tell prospective clients, that  even if they cannot afford the fees that I charge, they will basically throw their money away by hiring a “cheap” lawyer.  These are attorneys who will promise the moon, but who do not have the experience or temperment to do the case the right way.

Fifth, clients and their families need to look at the intangibles, and this can be the most difficult evaluation.  Does the lawyer seem like the right “fit” for the case.  Do you feel like this lawyer is the right person to stand up on that first day of trial to announce “ready for the defense, your honor”? Make sure that the lawyer is not just “selling”, but instead is truly the kind of person prepared to go into battle for your or your loved one.

Sixth, last, and first, experience is still the key.  I was a young lawyer once, I did some good work, but lawyers are really like good wine, they get better and better over time.

I hope no one reading this ever has to hire a  criminal defense lawyer to handle their federal case, but the truth is, some people will need to do so.  Consider these questions when going through this process.

I fortunately get many calls from people about their criminal cases.  Some want a little free advice, some are looking to hire an attorney for the first time, and some are dissatisfied with the way their current attorney is handling the matter.  Here and here are posts I have published on questions that clients might want to ask when first deciding on whether they should hire a particular criminal defense lawyer.  

I always try to listen as much as possible when people contact me, especially if I already know the attorney who is already working on their case.  In many ways, I almost see myself like a marriage or relationship counselor when someone calls me and is complaining about the lawyer they already hired to represent them in a criminal matter. I try to identify why the client is not happy with their current lawyer, and want to see if the client is possibly having unrealistic expectations, or whether he for she is properly concerned about the advice our performance of the lawyer they want to replace.  Remember, we are all human, we all make mistakes, and even the best lawyers sometimes just don’t get along with all of their clients.  Whether the problem in the relationship is the client, the lawyer, or both of them, I always try to be sensitive to the fact that the client might well be better served if he or she keeps working with the attorney who is already on the case.

Changing lawyers is stressful, and often increases the client’s expenses.  When someone asks me to take a case over from another attorney, I essentially need to “re-learn” everything that the earlier lawyer already knows.  This takes time, and increases costs.  Sometimes, clients contact me after a case has been going on for quite a while, and I need to decide fairly quickly whether there is enough time for me to “get up to speed.”  Some Judges are sympathetic to letting a new attorney have enough time to take over and prepare, but not all are.

I try to help people, and if someone wants me to take a case over from another lawyer, I need to make a pretty quick decision as to whether that is in the client’s best interest.  Sometimes, I feel that I could make a difference and will take over the case, but there are other times when I advise the person to remain with their current lawyer.  As always, it is the best interest of the client that is the most important thing to consider in these situations.

For starters, the first is not always the best.  Just because the first lawyer sounds good (or actually returned your call), that does not mean this is the right attorney for your case.  Also, clients need to remember that lawyers are like many doctors, we sometimes specialize.  Potential clients need to remember that just because an attorney calls him or herself a “criminal defense attorney”, that does not mean that this lawyer is the best fit for your case.  As I’ve written and spoken about on numerous occasions, there are many excellent attorneys who work in the State Court systems but who rarely take federal criminal matters.  There are many reasons for this, but potential clients facing a federal case likely are better served with someone who does federal cases as the majority of his or her work.

Now, here’s a shocker.  Sometimes, a few lawyers will stretch the truth (in other words LIE) when they are talking on the phone with a potential client.  They might tell a potential client that they’ve handled “lots” of federal cases, when in fact they’ve been to the federal building twice in their career.  Potential clients need to check up on this.  I suggest that clients ask the lawyer how many cases they have had in the past two years in federal court, that should be a good gauge of whether this attorney truly “handles” federal criminal cases.

Other questions arise from the type of federal criminal case that the potential clients is involved with.  There are specialists even among attorneys who only handle federal criminal cases.  Some lawyers only work on certain kinds of federal cases, like health care fraud.  Now, I have an opinion about these hyper-specialists.  On the one hand, they truly know the nuts-and-bolts of health care fraud, but sometimes these attorneys fall into the the “cannot see the forests for the trees” syndrome.  They are so specialized that they forget that the key is to see how the case appears to the regular person who likely will sit on a jury.  For my money, it is better to get a real crackerjack and tough federal criminal defense lawyer who handles an array of cases as opposed to a specialist.  I handle lots of different kinds of cases, and my opinion is that the best federal criminal defense lawyers regularly learn new areas of the law and fact patterns all the time.

Another question I hear from potential clients is whether I know the Judge, the prosecutor or the federal agents who are investigating the matter.  Some people think that there is an “inside” game, by which federal cases are handled behind the scenes based on personal relationships.  If that is true, it is something that people have hidden from me over the past 36 years.  My experience is that the best way to get the best result is the old fashioned tactic of hard work.   I try to keep up good relationships with prosecutors and judges, some I even call friends.  However, I have no illusion that such good relationships or friendships will have any impact on how a prosecutor or judge will do his or her job.  Instead, the best way to assure the best result is to outwork the other side.

Potential clients should also listen carefully to see if the lawyer is clear when discussing various aspects of the case.  Clear communication is the “sine qua non” (fancy Latin words meaning “the essential part of something”) of being a good criminal defense lawyer.  If the attorney is not clear when you are speaking with him or her on the phone, that is a good sign as to how he or she might do with a prosecutor, a Judge or a jury deciding the client’s fate and future.

One final thought and suggestion, and this is something I tell potential clients all the time (and is something I said to the fellow who called me this morning and who has a case in the northeastern part of the US). Clients should listen to their “gut” or whatever they call their internal dialogue.  Some people refer to this as their “instinct.”  I make it a regular practice to suggest that potential clients talk with at least one other, and perhaps more, federal criminal defense lawyers.  I tell them that after doing this, they should imagine that the lawyers with whom they spoke are arguing their case to a judge or jury.  The potential clients should then ask themselves one question: “Who is the attorney best suited to make that argument?” In other words, listen to their gut/instincts and follow that inclination.

For many people, money is the biggest consideration when deciding on which lawyer to hire.  That is such a large topic that I will come back to it in a later post.