There has been some debate over the last couple of months in the blogosphere about the extent to which a criminal defense lawyer does and should fret over losses.

Ideally, you would assess how well you did at trial at the bar of the court right after final arguments and you would stick to that assessment no matter how the verdict came back. As it is, speaking for myself anyway, the verdict tends to contaminate that assessment. No matter how you feel prior to hearing the verdict, you still feel ten-feet-tall after an acquittal, with every decision you made now confirmed as the right one. And you still can’t help feeling like a miserable lawyer after a guilty verdict, with the need to second-guess every tactical decision.

Clearly, every case is different and every lawyer is different. At the same time, to the extent that self-reflection leads to a trial lawyer’s personal growth, I can’t help thinking that a certain degree of navel-gazing should be forgiven. After all, a person unafraid of self-examination is a person unafraid of what he or she may find.

I was therefore interested to come across the perspective of a prosecutor on trial losses, in this case from my favorite prosecutor DA Confidential. A reader asked Mr. Confidential to what extent, after losing a trial, he engaged in “any sort of retrospective look at things to see what went wrong.”

Yes, Mr. Confidential responded, there is always some “what-iffing” after a lost trial. At the same time, the prosecutor has already conducted a thorough analysis of the case prior to trial, looking closely at plea bargaining issues and running certain issues by his supervisors. As a result, “there’s not much point in revisiting [these issues] after a loss.” Trials are always unpredictable. The prosecutor is usually too busy to engage in too many post-mortems. Finally, the gap between the respective expectations of the prosecution and defendant on a potential plea bargain is sometimes just too large. Trial becomes necessary when there is no overlap in the relative expectations of the two sides.

While it is difficult to say to what degree Mr. Confidential’s approach reflects the views of most prosecutors (he certainly strikes me as one of the more enlightened prosecutors and, in that event, may not be typical), any major differences between a prosecutor and a defense attorneys in dealing with a trial loss can certainly be attributed, at least in part, to the different objective each has in going into trial.

For the prosecutor, the ultimate objective in taking a case to trial is supposed to be justice. If the person is convicted after a fair trial, that is justice. If a person is acquitted after a fair trial, that too is justice. In this sense, assuming the system has worked, the overall objective is completely intertwined with the result.

The defense has a much more narrow objective going into trial; namely, to serve the interests of the client. This leads almost inevitably to a much more results-based calculus. The client may feel relieved that you did everything you possibly could on his behalf. But brilliance and hard work count for nothing when you lose: The client is still convicted. He may be going to jail. It is therefore no wonder that this emphasis on results creeps into the defense attorney’s assessment of his own performance.

Photo By David McNew/Getty Images

Most people read about Lindsay Lohan’s recent troubles with the law and think about a young woman out of control.  I read the same reports and can’t help concluding that her recent sentence of 90 days incarceration for repeated probation violations was at least partially the fault of her high-priced lawyer.

Admittedly, I have no idea what her lawyer has done in her effort to assure Lohan complied with the terms of her probation arising from a series of DWI arrests in 2007.  I realize that some people are simply incorrigible and in fact, from everything I have read, Lohan would certainly seem to fall into this category.  Finally, there is also such a thing as taking personal responsibility for your actions.

At the same time, I can’t help believing that the fault for Lohan’s repeated probation violations – failing to attend weekly alcohol education classes, for example – lies at least partially with her lawyer.  Given the hefty fees I presume the lawyer is charging Lohan, it seems to me the lawyer could have hired someone to personally pick her up and accompany her to the classes.  (Think Judd Apatow’s Get Him To the Greek.)

It is always a poor reflection on the lawyer when a client fails to fulfill the terms of probation. It suggests that the client has not been properly counseled. The client needs to be fully informed that, yes, the conditions are sometimes onerous. But the flipside, as Lohan has learned the hard way, is far worse.

It is perhaps no surprise as, Carolyn Elefant and Raising the Bar have both reported, that Lohan may be seeking to hire new counsel.  Or perhaps I am completely mistaken.  Maybe the lawyer was doing everything she possibly could and, has also been reported, simply decided to resign.  In this case, who could blame her?

“I want a lawyer who will fight for me.”  This is something a criminal defense lawyer hears a lot from both clients and potential clients, and is probably what most people have in mind when they hire a lawyer.  The client is feeling as if the entire system is geared against him.  He wants a tough advocate looking out for his interests.  This is the “zealous” and “diligent” representation required by Rule 1.3 of the D.C. Rules of Professional Conduct.

Much less appreciated is the defense lawyer’s role as counselor and advisor.  As defined by Rule 2.1 of the D.C. Rules, this is the lawyer’s obligation to “exercise independent professional judgment and render candid advice.”  The comment to the rule continues:  “A client is entitled to straightforward advice expressing the lawyer’s honest assessment.  Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront.  In presenting advice, a lawyer endeavors to sustain the client’s morale and may put advice in as acceptable a form as honesty permits.  However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.”

While the lawyer may be able to separate the two roles in his or her own mind, providing forceful and effective advocacy when dealing with outside parties and candid and straightforward advice when dealing privately with the client, this distinction is sometimes lost on a client.  The client, expecting the advocate, may be surprised when the lawyer puts on the counselor hat and delivers some bad news.  Wait a second, the client says.  Aren’t you supposed to be on my side?

The conflict between the lawyer’s dual roles is often most acute during the plea bargaining phase of the criminal process.  Plea bargaining itself is often difficult for both lawyer and client.  It becomes even more complicated when the client does not fully appreciate the lawyer’s role as counselor.

Looking at things from the client’s perspective, there are always some clients who insist that they just want to plead guilty and put the whole sorry affair behind them, even before their lawyer has had an opportunity to assess the strength of the government’s case against them. But, even in those cases, the plea bargain is usually a bitter pill to swallow:  There is the possibility of jail-time or probation.  There are often other requirements, such as restitution, community service, and/or alcohol awareness or anger management courses.

The client certainly doesn’t want to plead guilty to a crime he didn’t commit no matter how strong the government’s case may appear to be and no matter how favorable the terms of the agreement.  Even when the client agrees that there is something to the charges, the situation is almost never as one-sided as the police report will suggest.  In an assault case, for example, the client may agree that he engaged in the fight that led to the charges.  But, as we know from practical experience, life is never that simple.  Fights are rarely the result of a single person acting as an unprovoked aggressor.  The client may want to know why he is the defendant and the other guy is the complaining witness.

Plea bargaining can also be difficult for the lawyer.  The decision is clear-cut if the client insists he will not even consider a deal, if the client’s case is very strong, or if the government’s offer is very bad.  I recently took a case to trial, for example, after concluding that, based on the government’s offer and “equities” in favor of my client, I could lose the case at trial and still come away with a sentence more favorable to my client.  That took off some the pressure in advising the client.

But it is often difficult to advise the client on the best course of action.  No matter how well you are able to assess the relative strengths of both your own case and the government’s case, there are still a number of unknown variables that are difficult to factor into the equation. Sometimes, particularly if the charges are not serious, the government’s case just falls apart.  A key witness fails to appear.  Does the good deal offered by the prosecution, often right before trial, indicate some weakness in the government’s case known only to the prosecution and not covered by Brady?  Even when the government’s case appears particularly strong, it is difficult to advise the client he should give up his constitutional right to trial, his right to put the government’s case to the test.  I always hate that part of the judge’s colloquy with the client during the guilty plea in which the judge goes through all the constitutional rights the client is waiving by entering into the guilty plea:  the right to a jury in more serious cases, the right to cross-examine the government’s witnesses, the right to call witnesses for the defense.

If the process itself is painful for both the client and the lawyer, the process becomes even more difficult when the client fails to fully appreciate the distinction between the lawyer’s role as advocate and his role as counselor.  I have gotten better at explaining this to clients:  Just because I am now advising you to take this guilty plea does not mean I will advocate any less forcefully and effectively for you if you ultimately decide you want to take the case to trial.  My task is a little bit easier now that I am in private practice representing what is generally a more sophisticated group of clients.  But it can still be difficult sometimes to make sure the client understands this distinction.

A couple of years, back when I was still an assistant public defender, I sat with a client in a cinderblock interview room at the Curran-Fromhold Correctional Facility in Philadelphia. I reviewed for the client my assessment of the relative strengths of both the government’s case and our own case.  I went over the terms of the deal and the expected sentence based on the sentencing guidelines if we took the case to trial and lost.  He listened to all of this carefully, but I could see the disappointment on his face. He didn’t like what I was saying.

He also had some of his own ideas, based on his visit to the jail law library and what other inmates were telling him, on how he thought we could beat the case at trial.  I didn’t agree with him, and I told him why not.  Our conversation grew heated, and I was angry at myself afterward for allowing myself to dig in, no matter how strongly I felt that what I was advising him was the wisest course of action. The decision whether or not to accept the deal was, of course, entirely the client’s.

As for this particular client, I had succeeded in delivering “candid advice” however “unpalatable” according to the comments to Rule 2.1.  Where I had failed was in “[sustaining] the client’s morale” while putting the advice “in as acceptable a form as honesty [permitted].” The client was now faced with a completely unenviable choice:  Either he accepted a plea bargain he didn’t want or he went to trial with a lawyer he thought did not believe in his case.

The two of us looked at each other across the rickety table for a few moments before he told me he wanted another lawyer to represent him.  Since he couldn’t afford to retain a lawyer and since I was the public defender scheduled for that courtroom that day, this meant that I needed to take a continuance so that another public defender could represent him at the next listing.  The continuance would mean that the client would need to sit in custody for another four to six weeks until the next court listing.  At the same time, the client was earning time credit on the case.  The extra time he spent in custody awaiting trial would be applied to his sentence should he ultimately plead guilty or be convicted.  If he ultimately beat the case, well, the extra time he spent in custody would be a distant memory.

I wrote a note to the file so that the next public defender assigned to the case would understand the history.  (My supervisor also chewed me out for agreeing to the client’s request for a continuance: “You damn well better have had another valid reason for taking the continuance,” he told me.)

A couple of month later I followed up with the client’s next defender to find out what had happened with the case.  The defender told me that she too had been unable to talk him into the plea agreement and that, although she ended up taking the case to trial and losing, with the client getting a longer sentence than he would have had he accepted the deal, the client seemed perfectly happy after the guilty verdict and sentencing.  Sometimes clients just need their day in court.  Sometimes the most important thing for the client is the satisfaction of putting the government’s case to the test. It is the knowledge that, win or lose, the client has been heard.

Although Philadelphia is famous for the corruption within its government and police force, my wife and I were still taken aback to encounter it in person upon moving to the city in 2002.  I, for example, was surprised by the pervasive cronyism and nepotism I encountered within the city’s court system, something the people there seem to take for granted.

Most court clerks, criers, and “tipstaff” owed their jobs to some type of political or familial connection, and, as with anyone with this type of connection, many did not appear to be too afraid of losing their job. One time a court clerk – somebody we not so affectionately referred to as “Fat Danny” – was caught rigging the schedules so that the list would be shorter on the days in which he worked. As it turned out, this meant that many of our clients ended up spending a week or two more in custody than they needed to. Fat Danny was not fired, as we had expected he would be. As far as I know, he is still shouting at clients and playing spider solitaire on his computer while the rest of the room waits for court dates.

Since many courts did most of their business in the morning, adjourning in the mid-afternoon, most of the court personnel had second jobs.  This often created problems for defense attorneys interested in spending a little time on cross-examination. The attorneys had to ignore the groaning and dirty looks every time they began a new line of questioning.  The judges either weren’t aware of this behavior or, eager to get to the hair appointment or golf course themselves, decided to overlook it.

Another interesting phenomenon was the jostling among private attorneys to get their cases called early each morning so that they wouldn’t be late to other listings. This was never a concern for public defenders, who would be there the whole day anyway.  But it was interesting to watch. Most judges deferred to the court crier in deciding which cases to call.  And, with some exceptions, the criers seemed to call the cases for their friends first; namely, those lawyers who were able to curry the most favor. As a result, we all knew far more about the personal lives and interests of the court personnel than we ever wanted to.

It was therefore refreshing, upon moving back to D.C. last summer, to find that the D.C. court system seems to be run far more professionally.  Judges take the bench on time, and exert far more control over the running of the list.  And, while each courtroom may have a slightly different system, there appears to be a reason for the system.  Some judges call the trial schedule first and then the status list.  Some judges move sequentially through the list.  Others take a first-in, first-out approach for lawyers appearing before the court.  However it is done, the system appears to be both transparent and fair.  And the predictability certainly makes things easier for the attorneys.

Even after spending a year in the nation’s capital, my 15-year-old son continues to list the many reasons Philadelphia is so much better than D.C., and it occurs to me that he may not have considered this particular advantage to D.C. This may finally be the factor that tips the balance in favor of D.C.  Or not. But it sure makes his father’s job more pleasant.

JW, one of my favorite readers/commenters, has proposed a blog topic.  He says he has read a lot about what a client should look for when hiring a criminal defense lawyer. Now that JW himself is in the market for a lawyer, he would like to know what a lawyer considers when deciding whether or not to take on a client.

Speaking only for myself, I try to be open-minded about the clients and types of cases I take on. It is good to try cases in areas in which I already have a lot of experience. At the same time, I am always open to broadening my experience by taking on new kinds of cases in which more preparation will be required.

Since I consider myself fairly open to most clients and to most types of cases, I will turn JW’s question around to focus on the circumstances in which I might decline to provide the representation.  Below are four red flags that could give me pause.

1.    Inability to Pay My Fee. As someone has suggested, you should pick your pro bono clients, not have them pick you.  Dickering over the fee is often a harbinger of future problems.

2.    Scheduling Conflicts. I don’t want to be one of those lawyers who, juggling too many cases, is always arriving late to court.  It annoys the judge and damages your reputation.  It is unfair to the client.

3.    History With Other Lawyers.  If a client says he was dissatisfied with two or three previous lawyers on the same case, there is a pretty good chance the client will be dissatisfied with my work as well.  Who needs that headache?

4.    Lack of Chemistry, Candor And/Or Cooperation. I have fired only one client, and that was only after I decided that I wouldn’t be able to represent him effectively.  The client and I parted on good terms, I have talked at length with his new lawyer, and I am confident he is in very capable hands.  (It was an interesting case that was clearly going to trial so I have to admit to some second thoughts on that call.)  There are also other intangibles.  Sometimes it just doesn’t feel right.

One of the things I liked best about being a public defender was the camaraderie with other defenders. Whenever you had a question, you could run to the office next door. If the question came up while you were in court, there was always a defender standing out in the hallway or in the courtroom next door. Other defenders were also there to offer moral support; there was always someone to listen to your war stories or immediately agree with you every time you thought a prosecutor was being unreasonable.

Being a solo practitioner can be more isolating. Yes, you can always hang out with other attorneys in the cafeteria or attorneys’ lounge. And, yes, after almost a year of practice in D.C., I now know many of the attorneys roaming the halls of the Moultrie courthouse. But my office is not on 5th or D Streets, which is where many of the criminal attorneys have offices, but in Georgetown, and during the hours I spend in the office I am usually on my own.

My wife and I share the Georgetown office. More accurately, it’s my wife’s office, and I share it with her and her employees. But her firm doesn’t do any criminal work. My wife herself is often out of the office on business. And her associates look at my clients coming in with a mixture of curiosity and fear. There is, in short, no one to sit around with discussing trial strategies and theories.

Thank God for Mirriam Seddiq.

Seddiq and I recently collaborated on a case that was scheduled this morning for trial. Seddiq brought the client in but, because she has not yet been admitted to the D.C. bar, she referred the case to me. She did agree to stay in on the case in a consulting capacity, and it has been productive – and fun – to work with her on it. She has a way of getting a complaining witness to open up before trial. She also agreed to play devil’s advocate during pre-trial preparations with the client.  I tell you, this is a woman with some experience. This is a woman with some skills.

This morning Seddiq and I trooped down to the Moultrie Courthouse for trial. We were loaded for bear. We had our trial notebook, our photographs and our floor plan on poster board, and two witnesses flown in from Boston. And, for extra inspiration, we had an eyewitness for the government who made the mistake of smirking at us from across the hallway as we waited for the courtroom to open.

And then the whole case was dismissed for lack of prosecution. Five minutes in the courtroom and the case was over.

It was a good outcome for our client, and it was gratifying to see the client’s relief in the hallway afterward. But I have to admit, I also felt a tad bit let-down. Yes, the dismissal spared the client the stress of a trial and the risk of a conviction. At the same time, an outright acquittal would have spared the client the possibility, however negligible, of re-arrest and re-prosecution. From a purely personal standpoint, I felt like a warrior must feel when truce is declared.

I didn’t see the eyewitness as we left the courtroom, but Seddiq assures me that she made sure to smile at him politely on the way out.  She says she didn’t notice if he was still smirking.

I have been trying to do a blog entry on the fallibility of eyewitness testimony for months.  And then I saw this video.  I strongly urge you to watch it.  It is quick and fun. It is also far more persuasive than anything I could say.

I am watching a DVD recording of my client’s statement to the detective.  The camera must have a wide-angle lens because my client and the detective take up only a small portion of the screen.  There is also something surreal about two people huddled together in one corner of the room, the cinderblock walls a gray blur around them while I, the unseen viewer, look on from above.

The detective is very clever.  After reading my client his rights and answering a few questions, she has him tell and re-tell the story at least eight times, with each re-telling raising the possibility that he will say something different, creating inconsistencies that the prosecutor could exploit at trial.

My client tells the detective he is concerned that, up until that point, nobody asked him for his version of the incident.  The detective seizes on this.  I wasn’t there, she tells him.  So you need to tell me what happened.

She does the “I’m not quite sure what you mean, could you clarify things for me, please?” thing.  And he obliges. Eight times.  Each time he begins the story anew, I think, no, please don’t tell the story again. But I am relieved when he tells a remarkably consistent story each time. He denies everything. Credibly. He is calm and reasonable. And his version of what happened is very plausible.

After 40 minutes or so, the detective wraps up the interview.  Perhaps she has concluded that she won’t be able to shake him.  She explains the procedure – how he will be kept overnight and brought before a judge the next morning – and then she offers him a glass of water and an opportunity to visit the men’s room.  She is pleasant, respectful, and reassuring.

She leaves.  The camera continues to record. My client sits motionless at the table, his head down and his hands on the table, and I think how quiet it is in this room that holds us both, my client in front of the camera and me looking on somewhere from beyond. I think of the prosecutor, sitting at his computer, studying this same tape for admissions, signs of weakness, and suddenly there are three of us sitting in this room in silence.

My client shuffles his feet and touches his forehead with one hand, and I wonder what is going through his mind. It occurs to me that, during these moments, during the time before a police officer comes into the room to handcuff my client and lead him back to the holding cell, realization must setting in.  My client must understand how an astronaut feels, untethered in space and turning like a planet.

Self-defense is the use of force to protect oneself, one’s family or one’s property from a real or threatened attack.  It is an affirmative defense, meaning that the defendant has the initial burden of raising it. In D.C., once the defendant has been able to introduce sufficient evidence of self-defense, it then becomes the government’s burden to prove beyond a reasonable doubt that the defendant’s actions were NOT carried out in self-defense.

According to the Criminal Jury Instructions for the District of Columbia, there are a number of requirements for the use of self-defense in D.C.  The first requirement is that the amount of force used be “reasonable.”  In the case of “nondeadly force,” “reasonable” is defined as that amount of force that is necessary to protect oneself from imminent bodily harm.  This suggests that an element of proportionality.  A person may also use “deadly force” in order to protect oneself from imminent danger of death or serious bodily harm.

The second requirement is that the danger of bodily harm be “imminent.”  In other words, the threat must be of immediate harm, not harm at some time in the future.  This means that the person feeling threatened is not empowered to remove him- or herself from the situation and then to return to the scene, possibly with a weapon, to continue the altercation.  The person should try to “step back” or “walk away” if possible; once out of harm’s way, the justification for self-defense disappears.  At the same time, D.C. law does not require a person “to retreat or to consider retreating” when faced with the danger of death or serious bodily harm.

The third requirement is the threat of either “bodily harm” or “serious bodily harm.” While the jury instructions do not specify what constitutes “bodily harm,” “bodily injury” has been defined as any physical injury, however slight, to include an “offensive touching.”  “Significant bodily injury” has been defined as an injury that requires hospitalization or immediate medical attention.

The fourth requirement is that the person asserting self-defense actually believed that he or she was in danger. This is what is referred to in the law as a “subjective standard”; it is not what someone else felt or may have felt, but what this particular person felt.  The only requirement in this regard is that the belief was held honestly.

The fifth and final requirement is that the person asserting self-defense had reasonable grounds for that belief.  This is the “objective standard”; that is, it doesn’t depend on the perceptions of this particular person but on how a “reasonable person” in the defendant’s position would perceive the situation.

The Jury Instructions also point out that, in assessing the defendant’s perceptions of the situation, the proper standard is not assess retroactively how the defendant should have perceived the situation but, instead, how the defendant reasonably could and honestly did perceive the situation at the time.   The Instructions also specify that the reasonable and honest standard can apply to a person acting in the heat of passion:  “In the heat of passion, a person may actually and reasonably believe something that seems unreasonable to a calm mind.”

I was sworn into the Virginia Bar on Monday in Richmond.  I drove down with my friend and colleague Chris Guest, and also ran into Kathryn Pearlman and Tevenia Jacobs while there.  It was an impressive ceremony presided over by the entire Supreme Court of Virginia.

During the preliminary ceremony, the President of the Virginia State Bar was just announcing that over 300 new admittees would be sworn in that day when, from the back of the room, a little girl’s voice could be heard:  “Uh oh!” she cried out.  Given the relative experience of the assembled group, she may well have been expressing what the Supreme Court justices were simply thinking.