A good defense attorney: six things to expect
(After using this list to find a good defense attorney, may you be as ecstatic as these happy golfers.)
As a prosecutor, I’d often receive phone calls that would go something like this:
“Solicitor’s Office, Charley speaking...”
“Yessir, hi, my name is Destiny and I was arrested for prostitution six months ago. My attorney, Fred Doolittle, won’t return any of my phone calls or see me when I go to his office even though I know he’s there. Can you tell me what’s going on with my case?”
“Sorry, m’am, but unfortunately I’m not allowed to speak to you since you have an attorney. I wish I could help. Sorry.”
Not being able to get in touch with their attorneys was a real problem for defendants, and yet this was just the tip of the iceberg.
Behind the scenes where clients couldn’t see, some attorneys were putting forth almost no effort at all to help their clients. No phone calls. No emails. Nothing.
And as if that wasn’t enough, on multiple occasions I saw attorneys simply let good plea offers expire without ever speaking to the prosecutor about the case! Defendants would then be left facing a much higher criminal charge and/or prison sentence to no fault of their own, and without any real good way to remedy the situation short of paying another attorney a lot of money to try and fix the situation.
The fact of the matter is a bad defense attorney can wreak havoc on your case and, as a result, your life.
The astute observer might ask, “But how can you be sure the defendants weren’t the real problem? Aren’t some of these people just hard to deal with? I mean, they are the real troublemakers here, right?”
Yes and no. Sure, sometimes the defendant could be a pain to deal with. After a few years on the job, prosecutors figured out real quickly how to identify the troublemakers and con artists. (You’d be shocked at some of the stories people try to get you to believe.) On the other hand, there were many defendants who really just wanted to do the right thing and take responsibility for their actions, while hoping their attorneys would get them the best plea deal so they could try and start again without being too deep in the hole.
And just like problematic defendants, bad attorneys became easy for prosecutors to identify as well. Essentially they were doing everything contrary to what I’ve listed here.
How can you avoid this happening to you? One of the best ways is to hire an attorney who can guarantee you the basic processes and considerations I’ve listed here. And if you’ve already hired an attorney, this list can still help you to hold your attorney accountable, and assure they are doing everything in your best interest.
So here are six things you should expect (at the minimum) from a good defense attorney:
AN HONEST EVALUATION OF YOUR CASE:
If, at an initial or early consultation, a defense attorney tells you, “No problem, don’t worry, I’ll make this charge go away”, leave immediately - ESPECIALLY if they haven’t even seen the evidence. This is at best reckless optimism and at worst a bold-faced lie to get your money.
Without an in-depth investigation of the case, an attorney can’t begin to have an idea of what may happen with your case, but even more importantly - a defense attorney simply does not have the authority to make your charge go away. Only the prosecutor, police officer or judge in your case has that authority. Of course, it’s your attorney’s job to try and convince them that the charge(s) should be reduced or dismissed but the honest truth is that they can only know what will happen to your case if and when they’ve worked out a resolution with the State (and sometimes not even then if the judge disagrees).
Promising to make your case go away, especially in the beginning, is a deceptive hook some attorneys use to earn your confidence and your money - only, though, to later break the news to you that there’s been a “hangup” and that you need to consider pleading guilty. Beware of these kinds of promises. Find an attorney who will work hard on your case but also one that is honest and transparent with you from the beginning.
2. A THOROUGH CASE REVIEW WITH YOU, THE CLIENT:
On numerous occasions while preparing a case for trial as a prosecutor, I would uncover important facts in a case only after talking hours and hours with witnesses. There is almost always some sort of information in a police report that is wrong, misconstrued or simply not there. The only way for an attorney to find this out is by thoroughly reviewing the evidence both independently AND with you. From the police report to witness statements and more, your input on every piece of evidence must be considered in order to get to the whole truth.
Of course, there is always the possibility that nothing new is uncovered. Some cases are simple and to the point. But failing to sit down with the client and review this evidence is a huge lost opportunity and should be a red flag for all defendants.
If your defense attorney doesn’t have time to meet with you to discuss the details of your case (or simply doesn’t care to), you are not receiving adequate representation. And if they don’t have time for you, the client, the one that’s paying them, how sure can you be that they’ll have the time to talk to the prosecutor or police officer? Which brings us to our next point.
3. SUFFICIENT COMMUNICATION WITH THE PROSECUTOR/POLICE OFFICER:
Once all the evidence has been reviewed, a defense attorney should then be extensively communicating with the prosecutor or police officer on the case for several important reasons. For one, they should be framing the case in the best light of the defendant by highlighting all evidence favorable to his client and relaying any missing or incorrect information uncovered during the attorney’s own investigation. To the extent possible, the attorney should also be painting their client as a sympathetic human being and not just some law-breaking thug described in the police report.
Attorneys should also be attempting to uncover any points of concern held by the prosecutor or officer. Like most human beings, the viewpoints of prosecutors and officers can vary significantly, and the only way to know exactly what their viewpoints actually are is to have an in-depth conversation with them, usually more than once. As a former prosecutor, I was always shocked at how infrequently this happened.
But not all communications are created equal. One client told me about a ploy his former attorney would use. During a rare meeting at his office, the attorney would call and aggressively negotiate with the prosecutor for a few minutes just to impress his client. This, my friends, is just a dog-and-pony show - a circus act. Don’t fall for it. It’s also bad negotiating.
Don’t be afraid to ask your attorney for copies of communication with the prosecutor or officer. If their communications weren’t in writing, the attorney should be willing to give you a synopsis either verbally or in writing (e.g. email) of how the conversation went.
4. COMPLETE FREEDOM TO CHOOSE WHAT TO DO WITH YOUR CASE:
It’s your life and you have to live with the consequences. Your attorney should not strong-arm you into making a decision one way or the other. That’s not their job. They should instead advise you as to the strengths and weaknesses of your case and your chances of winning or losing at trial.
As long as your attorney is competent and trustworthy, you, of course, should pay close attention to what they tell you and you should probably heed their advice. They are the experts, not you. However, even if you trust them and plan on following their advice, don’t be afraid to ask for a full explanation as to why they recommend a certain course of action. You should feel comfortable that they have weighed all the important factors in the case and are giving you a fully-informed opinion.
If, instead, they’re telling you to plead guilty just because “they say so”, proceed with caution. Don’t allow yourself to be railroaded through the system just so your attorney can move on to the next paying client.
5. SUGGESTIONS ON WAYS TO MITIGATE YOUR CASE NOW:
Let’s be honest, sometimes the evidence ain’t in your favor and even Johnny Cochran couldn’t help your case. It’s short-sighted however to think that there aren’t other things that can be done now to potentially help to get you a better deal. Sometimes, being a bit more proactive in these seemingly “dead-end” scenarios can pay off.
For example, a defendant hit with a drug possession charge might start attending AA or NA meetings soon after arrest. Or a person charged with domestic violence could immediately enroll in anger management classes. Taking these early steps may help to address the major concerns of a prosecutor or officer and show them that you’re not only remorseful but are actively trying to address the problem. This might be just enough to get you a reduced charge, a better sentence or even possibly a dismissal.
On a side note, and even more importantly, these steps could also better your life. I think the sign of an honorable defense attorney is one, who not only seeks to get you the best legal solution to your problem, but one who also wants to see you flourish and thrive as a human being.
Ask your attorney to help you find ways to mitigate the outcome of your case. But be ready to take action and follow through. Your attorney can’t do it for you. It’ll be up to you to try and make your case (and life) better.
6. KNOWLEDGE OF ANY POTENTIAL IMMIGRATION CONSEQUENCES:
If you are not yet a United States Citizen, a criminal offense, including some relatively minor offenses, can significantly jeopardize your chances of staying in the U.S. legally. Your attorney should discuss with you all potential immigration consequences before you make a decision on the best course of action. The consequences of a criminal conviction taken into consideration with a defendant’s legal status could easily mean taking a much different route than that of a citizen. If your defense attorney tells you to discuss the matter with an immigration attorney, find another defense attorney.
Please note: this is just general advice and is not meant to apply to any specific case. All cases are different and, in a few cases, some of these points might not apply. But for the most part, and in most cases, these principles should be the foundation of all good defense work.
From months of frustration of not knowing what’s going on in your case to much more severe and adverse effects such as lost plea deals and higher sentences, there are some potentially significant dangers in hiring a bad defense attorney. Make sure to do the best you can to find an attorney who truly has your best interests in mind and who will work hard to make the best of your situation. My real hope is that this list, by better informing the public, will help get people the representation they deserve while simultaneously weeding out those attorneys who fall very short of giving their clients the proper dignity and respect they deserve.
If you need more help with your case, you can call me at 864-214-5483 or contact me at firstname.lastname@example.org.
I am an attorney based in Greenville, SC and my office address is 220 North Main Street, Suite 500, Greenville, SC 29601.