WHAT YOU SHOULD EXPECT FROM YOUR CRIMINAL DEFENSE LAWYER
You have a right to expect several things from any lawyer you hire with the understanding that, like many things in life, you often get what you pay for. To further complicate the matter, however, we are familiar with lawyers who charge absurdly large fees and provide no better representation than a lawyer you might hire out of a phone book. For more information on selecting a lawyer read the Broden & Mickelsen website.
At minimum you have a right to expect the following from the lawyer you hire:
- Your lawyer should thoroughly familiarize himself with your case before offering you advice on whether to accept a plea bargain or fight the case at a trial. This process should include both a legal and factual review of your case. The legal review should include, among other things, a review of the charges against you to determine if there are legal challenges that can be brought against the statute you are charged with violating, a review of the indictment against you to determine if there are deficiencies in how you were charged, and a determination of how the prosecution obtained its evidence to determine if it is subject to a motion to suppress. The factual review should include, among other things, a review of all the discovery in your case provided by the prosecution, a review of all documents that you provide and the lawyer having his investigator interview both favorable and unfavorable witnesses. BEWARE OF ANY LAWYER WHO PUSHES YOU TO ENTER A PLEA BEFORE THIS REVIEW IS COMPLETE.
- Once the review is complete, you should expect OBJECTIVE advice from your lawyer as to the strengths and weaknesses of your case as well as possible plea options. Clients sometimes get discouraged at this stage and do not believe that their lawyer is “fighting for them.” As we tell clients, you are paying a lawyer to be your advocate in front of a judge, jury or prosecutor, but, when it is the two of you talking, you are paying the lawyer to give you objective advice to help you make a decision as to how to handle your case. It would be very damaging to your case for a lawyer to sugar coat things at this stage and not tell you the weaknesses in your case. Clients are often too close to their case to evaluate it objectively. As we explained in an earlier post, we normally advise against fee agreements that pay a lawyer extra if you elect to have a trial because this creates an incentive for a lawyer not to be objective about the risks of going to trial.
- If you elect to plead guilty, you should expect your lawyer to try to negotiate the most favorable plea possible with the prosecutor while keeping in mind that a defense lawyer cannot force a prosecutor to offer a particular plea bargain. Similar to any negotiation, this sometimes means the lawyer might pretend that the case will proceed to trial in order to get the prosecutor to “blink first.” If a plea agreement is reached, you should expect a lawyer to thoroughly explain the plea bargain to you so that you understand it COMPLETELY as well as the various consequences of pleading guilty.
- If you elect to go to trial, you have a right to expect your lawyer to strongly advocate your case to a jury. Before the lawyer can do this, however, they must understand all the evidence that the prosecution will use and have all of your evidence and witnesses prepared. Many times we see defense lawyers waive making an opening statement in a trial because they don’t fully understand the prosecution’s evidence and they hope to learn about the evidence for the first time when the prosecution puts the evidence on at trial. As you can imagine, this often proves disastrous. You should expect your lawyer to spend time preparing your witnesses to testify and, if you are going to testify, you have a right to expect the lawyer to spend significant time practicing your testimony and explaining how the prosecutor will likely cross examine you.
- At any sentencing hearing, if there is no agreement as to what sentence will be imposed, you should expect your lawyer to advocate for the lowest possible sentences. Like at trial, this will require the lawyer to understand the evidence and witnesses the prosecution might use to increase your sentence and will also require the lawyer to be prepared to present evidence and witnesses on your behalf to help lower your potential sentence. After sentencing, you should expect that lawyer will explain to you any options you have regarding an appeal.
- Above all else, you have a right to expect your lawyer to be available to answer questions. One lawyer writes on his website “don’t expect him to be able to return all of your phone calls within half a day. A good lawyer will always be very busy and you should allow him 48 hours to return your calls.” We strongly disagree. Except in rare circumstances, you should expect your lawyer to call you back the same day even if this means calling you at night after he finishes in court for the day. This is the reason that we post the mobile phone numbers of all our attorneys on our website so that you can easily reach us and, if we are unavailable, leave a message that can be returned promptly and not two days later.
Always remember, your lawyer works for you and, more than likely, you are paying the lawyer a significant amount of money. No question is too foolish when your liberty is at stake. The time to ask the questions is before entering a plea because, once you have done so, it is very difficult, if not impossible, to go back. Conversely, you should make sure that, if you elect to go to trial, you understand any plea options you are giving up, because, if you are convicted at trial, it will be too late to go back and accept the plea agreement. The key is to ask questions because you have a right to expect honest and objective answers from any lawyer you hire.