Using a Private Criminal Defense Lawyer: Part Two

Part two of using a private criminal defense lawyer: Choosing the right lawyer for your case.

Continued from Part One

How do I know if a particular lawyer is right for me?

No matter what the source of a lawyer referral, defendants should always personally interview a lawyer before hiring one. Noncustodial defendants should consider “comparison shopping” by speaking with at least two lawyers before hiring one. A private defense attorney will often consult with a potential client at no charge, and a personal interview increases the likelihood that the defendant will be satisfied with the attorney’s services.

A personal interview is desirable because a successful attorney-client relationship depends on more than just an attorney’s background and legal skills. A good relationship is a true partnership, with both partners actively involved in making decisions. Because there’s no guarantee that a lawyer who works well with one client will work equally well with another, even a strong recommendation from a trusted friend is not a substitute for a personal consultation.

A defendant should try to hire an attorney with experience in the courthouse where the defendant’s case is pending. Though the same laws may be in effect throughout a state, procedures vary from one courthouse to another. For example, the D.A. in one county may have a noplea- bargaining policy with respect to a certain offense, while the D.A. in a neighboring county may have no such policy. Defendants should prefer attorneys who have experience with local procedures and personnel.

A defendant should also try to find an attorney who has represented defendants charged with the same or very similar offenses. Modern criminal law is so complex that many lawyers specialize in particular types of offenses. For example, one may specialize in drunk driving, another in drug offenses, and another in white-collar crimes (generally referring to nonviolent, money-related crimes, such as tax fraud or embezzlement).

It is perfectly appropriate for a defendant to inquire during the initial consultation about the attorney’s experience. A defendant should not hire a lawyer who refuses to specifically discuss her experience or gives vague, unrevealing answers.

Because most private lawyers have years of criminal law experience either as a prosecutor or as a P.D. before going into private practice, defendants should not have to sacrifice quality to find attorneys who have local experience with their types of cases.

A defendant’s lawyer speaks for the defendant. No matter how highly recommended a lawyer may be, it is also important that the lawyer be someone with whom the defendant is personally comfortable. The best attorney-client relationships are those in which clients are full partners in the decision-making process, and defendants should try to hire lawyers who see them as partners, not as case files.

Thus, defendants should ask themselves questions such as these when considering whether to hire a particular lawyer:

  • "Does this attorney seem to be someone I can work with and talk openly to?"
  • "Does this attorney explain things in a way that I can easily understand?"
  • "Does this lawyer show personal concern and a genuine desire to want to help me?"
  • "Do this lawyer’s concerns extend to my overall personal situation, rather than just the crime with which I’m charged?"
  • "Does this lawyer appear to be a person who will engender trust in prosecutors, judges, and, if necessary, jurors?"

Should I expect a lawyer to guarantee a good result?

No. Toasters come with guarantees; attorneys don’t. Defendants should be wary of lawyers who guarantee satisfactory outcomes. Too much of what may happen is beyond a defense lawyer’s control for a hard guarantee to make sense. A lawyer who guarantees an outcome may simply be trying a hard-sell tactic to induce the defendant to hire him. On the other hand, it may make perfect sense for a lawyer to express strong confidence about the outcome, as long as he doesn’t express this confidence in absolute terms.

I’m happy with the lawyer I hired, but she’s part of a law firm. Can I reasonably insist that only the lawyer I select work on my case?

Defendants generally assume that the lawyer they hire will personally attend to all aspects of their cases, from legal research to trial. Lawyers (especially those who are members of a law firm), however, often delegate work to others. For example, a lawyer may hire a law student (often called a law clerk) to do legal research, ask an associate lawyer in her firm to appear with the client at a pretrial conference with the D.A., and ask a paralegal to meet with and prepare the client for trial. These are common lawyer practices, and they help lawyers hold down legal fees. (Clients who pay by the hour ordinarily pay less for an hour of a paralegal’s time than for an attorney’s time.) However, these practices are appropriate only if the client knows about them in advance and agrees. Therefore, before retaining a lawyer a defendant should take the following steps:

  • Find out whether the lawyer is currently involved in any unusually complex cases. If the lawyer is in the middle of a month-long jury trial, the lawyer is more likely to assign work to an associate.
  • Ask whether the lawyer’s practice is to assign work to an associate.

Check the written retainer agreement that the lawyer asks you to sign (retainers are explained below). If it provides for work done by people other than the lawyer, consider specifying what duties the lawyer can’t delegate to others. (For instance, "Unless otherwise agreed to in advance, Lawyer will be personally present at all court appearances.")

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

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