The Coverage Dilemma
I do my best to personally attend every single hearing for every single client I represent. Every lawyer I respect does the same. Despite my best intentions, however, I admit I’ve had to ask for coverage. I’m sure I’ll have to do it again. Trials sometimes go longer than planned, and judges sometimes set things over my objection. Every judge thinks his or her orders are the most important. When a non-lawyer justice of the peace sets a misdemeanor pretrial opposite a felony jury trial that’s been docketed for five months, you can bet I’ll be sending another lawyer to do that pretrial. I’ll send someone I trust, but it won’t be me. Yesterday morning, the tables were turned when another lawyer asked me … Read entire article »
Filed under: lawyers, Practice in General
Losing at Trial
Last week, a jury found my client guilty of three counts of dangerous crimes against children. I sat next to him in court as the clerk read the verdict, and he broke down before the clerk made it through the second count. He knew he would spend the rest of his life in prison. This isn’t the first trial I’ve lost. It pains me to say it, but it’s also unlikely to be the last. No matter how hard I try, I’ll probably again have to experience the feeling of knowing someone trusted me with their life and made a gamble that didn’t pay off. It’s a twisting, sinking, hopeless malaise that consumes you. You’re in a nightmare. You know you can wake up, … Read entire article »
Filed under: Clients, Practice in General, Trial
Preparing for Trial
I spent a good bit of my weekend preparing for trial. It’s a draining experience, though not nearly as draining as trial itself. This particular trial has very high stakes. My client’s earliest release date will be more than seventy years from now if he’s convicted. Being able to speak in public, knowing the facts of the case, and understanding the rules of evidence are rarely enough to effectively try a case. There are countless variables in almost any trial, and anything can happen. Every trial I’ve done has taught me that one of the most important skills a trial lawyer can have is the ability to predict problems that might arise and prepare accordingly. My background is in music. In music, you do your best … Read entire article »
Filed under: Practice in General, Trial
Back to Blogging
In case you haven’t noticed, I have not put up a post in weeks. First there were trials. One made it to verdict, one ended in a mistrial, and one got continued over my objection. After the trials came motions. I think I wrote about a dozen big ones in a week or two. Eighty-hour weeks felt like the norm, and the idea of writing anything, even a blog post, seemed an awful lot like work. As soon as the smoke of trials and legal writing cleared, I left on a motorcycle trip. Adrian and I had been planning to ride to Cabo San Lucas and back for quite some time. We’d carefully set up coverage months in advance, notified all our clients, and … Read entire article »
Filed under: Uncategorized
Trial Reflections
I spent last week in trial. My client was charged with one count of aggravated assault. If he had been convicted and the state proved his priors and its allegation that he was on probation, he faced ten to fifteen years. The theory of the state’s case was that my client kicked his live-in girlfriend in the face five or six times, causing her “temporary but substantial disfigurement.” The jury acquitted my client after a four-day trial and an hour of deliberation. Like any trial, it was an interesting experience. A few things stood out though. I only had the case for about ninety days, and I was the client’s fifth or sixth lawyer, depending on whether you count his third (and last) public defender. … Read entire article »
Filed under: Clients, lawyers, public defenders, Trial
"This Is Real"
I recently left the country to attend my sister’s wedding. That’s why I didn’t put up a post last week. It was actually the longest I’ve gone without putting in a full day of work since Adrian and I started the firm, and yesterday was my first full day back. Yesterday morning, I had what I consider to be an extremely important hearing. Although I wasn’t away from work for a particularly long time, it was long enough to make some of the feelings I get before big hearings or trials seem slightly foreign. The hour-long commute to court gave me plenty of time to think about what I was feeling. The thrill of going into court and making an argument you believe in on behalf of a … Read entire article »
Filed under: Practice in General
The Factual Basis
Hang around most Arizona courts for a little while, and you’re likely to see a plea fall through for lack of a factual basis. For those readers who don’t know what I’m talking about, Arizona’s rules of criminal procedure require that a court determine whether a factual basis exists for each element of the crime to which a defendant is pleading before it can enter judgment on a guilty plea. Evidence constituting the factual basis can come from any part of the record or from a defendant’s statements. There’s no reasonable doubt standard for a guilty plea. Instead, the court just has to find strong evidence of guilt. In a few courts, the plea will simply have a provision that says, “factual basis taken from police report … Read entire article »
Filed under: Courts, Practice in General
Trusting Prosecutors
In Arizona, victims can choose whether or not to be interviewed by a defendant or his attorney. In pretty much every case, I send the prosecutor a letter asking whether the victim would be willing to submit to an interview. Victims almost never want to speak with me, so I’m forced to trust that the prosecutor actually asked them about consenting to an interview. I’m not a very trusting person, and I’m especially suspicious when there’s no way to verify what someone tells me. That’s the case with victim interviews. I bet a lot of prosecutors never bother asking victims, but in most instances, I have no way of proving it. I can’t later seek out the victim and find out. That would be a … Read entire article »
Filed under: Professionalism, Prosecutors, Trial, Victim's Rights
Lawyer Stage Fright
I’ve seen plenty of attorneys let their nerves get the better of them in the courtroom, but I rarely hear attorneys discuss stage fright. Why don’t we talk about it? It negatively impacts the quality of representation for many defense attorneys, and I’ve seen prosecutors spend whole trials looking like deer in headlights. I know a fair number of prosecutors and defense attorneys who desperately plead out their cases because they fear trial. I don’t remember anyone discussing ways to deal with stage fright in law school, and I don’t think most public defender or prosecutor training covers it in any real depth either. The advice seems to just be “keep doing it until you aren’t nervous anymore,” but for some people, just doing it over and … Read entire article »
Filed under: Practice in General, Trial
Gotcha!
May 27th, 2010 | 3 Comments
When I was in law school, I was fortunate to attend many hours of public defender training. I can still clearly remember the cross-examination teacher describing his technique for impeaching a witness. He recommended something called “the 3 Cs.” The 3 Cs stood for “commit,” “credit,” and “confront.” I don’t know if it’s his thing or something widely known to trial lawyers, but it’s a pretty solid, general approach to impeachment. Let’s say you have an officer who’s saying something highly incriminating, something that he didn’t put in his police report. You want to impeach him with that omission. Using the 3 Cs technique the teacher recommended, you’d first commit the officer to his current statement. Make sure the judge or jury understands exactly … Read entire article »
Filed under: lawyers, Trial