Trying to read the jury can be a humbling experience. Many years ago, during a DUI trial in D.C., I was encouraged by a young man in the front row who, listening intently, seemed to agree with everything I said. “This is great,” I told my client. “I think we have at least one juror in our corner.” As it …
When I say how good Emma would be at the practice of law, her mother — my little sister — points out that Emma is really an academic at heart.
Client expectations can fluctuate wildly, even within a given case. A big part of our job is to make sure these expectations are both informed and realistic.
Five tips for representing indigent criminal defendants: (1) never push a plea, (2) don’t defend the system, (3) never contradict your client, (4) a light touch often works best, and (5) a thick skin will prevent burnout.
The Zulu greeting “Sawubona” translated literally means “I see you.” Because it is important to be seen.
Although we may take the most pride in our skills in the courtroom, clients tend to care far more about how well we communicate with them over the life of the case.
I do not charge for free consultations. Nor, as a matter of practice, will I take over representation from another lawyer.
Some clients will hire the first lawyer they reach by phone. Others will take more time. They interview multiple lawyers in person. They ask questions.
The changes now being effected in response to the pandemic — specifically the trend toward on-line hearings — could pose challenges for new lawyers seeking to start criminal defense practices in D.C.
We will learn. We will adapt. But as with so many other things in our lives, there will be the pre- and the post-Covid eras. Things will never be the same.
I have taken 63 cases to trial since 2015. I have secured outright acquittals in 23 of these cases – roughly 37 % – and partial acquittals in an additional 8.
Different people require different motivations. Schuman’s approach may have worked with some people. But it didn’t work with me: I was already trying as hard as I could. I didn’t need to be shamed into working harder.
Here is what every lawyer appearing in D.C. Superior Court should know about handling an arraignment for a U.S. citation.
I sit across from a colleague in her office at the Public Defender Service in D.C. A list of names from the jail is on her desk. Some of the names have been crossed out. Others have been highlighted or checked. “Names are naked things,” my father once wrote. Lists are “an alphabet not intimate like words.” Our flesh moves …
Back in my days with the federal government, before I had my own J.D., I hated working with the lawyers. It was not just that they spoke a strange language and treated each other as if they were all members of an exclusive club. It was also that they seemed to come up with a million reasons to block everything …
Criminal defense attorneys often use flat fees; that is, we charge a set sum to cover the entire course of a representation. This includes arraignment, negotiations with the prosecutor, any legal research that needs to be conducted, preliminary hearings and status hearings, trial, and, if necessary, sentencing. As Mark Bennett has put it, the flat fee is at once the …
Three months into my court-appointed work in D.C., I now have a completely different perspective on representing indigent criminal defendants. At the time I quit my job as a public defender in Philadelphia after a three-year stint there, I was pretty burned out. I was also jaded when it came to the people we represented. Many of the people had …
There is good news and there is bad news for anyone who has ever been charged with a minor criminal offense. The good news is that the government has a ton of these cases that it needs to prosecute. This means that it will probably offer most first-time offenders some type of diversion program in which they can do community …
I have just been appointed to the D.C. Superior Court panel for adult court-appointed cases. I was one of three lawyers appointed on a “provisional” basis. (Three other lawyers were promoted from the provisional panel to the full panel.) Those of us on the provisional panel need to serve a two-year probationary period before we can start doing felonies. To …
The prosecutor is mad at me. So I send her a quick email to apologize. It is true: I am sorry. I am sorry that she has been sick. I am sorry that her daughter has been sick. And I am sorry if I embarrassed her in front of the judge. But I am not sorry for complaining to the …
We had a tremendous support network at the public defender’s office in Philadelphia. There were social workers and mental health professionals. There were administrative staff focusing on probation, parole, and the expungement of criminal records. If you had a question about a particular point of law or opinion, there was a whole group of appellate lawyers at your disposal. And …
I will not take cases away from the Public Defender Service. How can I take someone’s money when that person is already getting top-notch legal representation for free? I am trying to make a living. But I also have to live with myself. The other day, for example, I got a call from someone seeking to appeal a recent conviction. …
The judge takes the bench at 9:15 am. That she does this every day without fail is a sign of respect for herself, for the system, and for every person who appears in front of her. And it makes my job easier too: Make sure you are there no later than 9:00 o’clock, I tell clients. If we are first …
I am in Nairobi. Kenya is famous, among other things, for its malachite jewelry, and I would like to buy my wife a malachite necklace. I check at the hotel store and see that the necklaces there sell for well over $100. So I go out to a market on the street with cash. A guy there offers me a …
Unless we were working in some capacity in which we were actually dealing with clients, everything we learned in law school was theoretical. Maybe we motivated ourselves by imagining that some day we would be able to apply what we were learning. More likely, considering that many of us had no idea at the time what area of the law …
It is a foolish lawyer who offends court personnel. During my first year as a public defender in Philadelphia, one of my colleagues made the mistake of being less than respectful toward a court clerk in a preliminary hearing room. Passing the word to his colleagues, the clerk did his best to make her life as miserable as possible thereafter. …
We feel like we know our colleagues. We know who the good ones are and we know who the bad ones are. But that is based mostly on reputation. We spend a lot of time together in the courtroom waiting for our cases to be called. But we rarely see each other at trial. Trials usually begin in the late …
I just treated myself to the entire Wayne LaFave collection: 3 volumes on substantive criminal law, 6 volumes on search and seizure, and 7 volumes on criminal procedure. I had been coveting the criminal procedure set in the lawyer’s lounge of D.C. Superior Court. Now I have my own. And once I got onto the phone with the Thomson West …
If you work for the federal government, you have a boss. Depending on the structure and size of an organization, staffers normally work for a branch chief. The branch chief reports to a division director who, in turn, reports to an office director. The office director works for an undersecretary or an assistant secretary, and that person reports to the …
Back when I worked for the federal government, there were some employees who were really, really busy. You knew this because their offices were a mess. Their telephones were no longer accepting messages. They had that harried look. And they always talked about how busy they were, especially when you came in to give them more work. Despite all this, …
This whole “transitioning my practice to Baltimore” thing may be more difficult than I had been thinking. I met with my Maryland mentor last week. It is great that the Maryland Professionalism Center offers this opportunity for people who have just passed the Bar, and I was fortunate to be assigned to this particular person. My mentor practices criminal defense …
Whenever you walk into a store, it doesn’t matter how busy the staff may be, the clerk should immediately acknowledge your presence. Good afternoon, sir, the clerk should say. I will be right with you. You forgive a lot once these words have been spoken. Please, you respond graciously. Take your time. And you mean it. The same principle should …
Wayne my investigator is a worrier. I am too. Wayne is an early riser. So am I. This means I usually have company early mornings before trial. The two of us sit in our respective home offices on opposite sides of the District, texting each other hours before we need to head over to the courthouse. Alas, because there was …
I have always given out my cell phone number to clients. In almost seven years of practice, I have never once regretted doing this. I even did this as a public defender when I had far more clients than I do today. As a public defender, I looked at it this way: Despite multiple prompts, most of the people I …
When my wife and I first started going to what turned out to be our favorite local restaurant in Arlington, there was a waiter there I mistakenly assumed was also the owner. He was friendly and efficient, he always made sure we were seated and served quickly, and you just needed to look in his direction in order to get …
I passed the Maryland Out-of-State Lawyers’ Bar Exam. It was not a slam dunk. I probably over-prepared the last time I sat for a bar – that was the full, two-day Virginia bar exam I took in 2010. So confident was I of passing that exam that I walked out an hour early on the second day for both the …
Although I may not be a gamer like Ken White of Popehat, I have been playing some Hearts on the Internet recently. I love the game of Hearts. I have gotten pretty good at it over the years. And I can never get my children or anyone else to play it with me in person anymore. The games go quickly …
“I messed up again, and I have no excuses. I am ready to face the consequences of my actions.” This is what the defendant says to the court at her probation revocation hearing. Other defense attorneys and I hear this from the gallery where we are waiting for our own cases to be called. We look at each other and …
Guest Post by Kelly Spencer A few days ago, as my attorney and I approached the courthouse, 10 minutes before my divorce trial was scheduled to begin, he reached out to open the door for me. I paused, and said, very quietly, “At this moment I trust four people in the world. My mom, my dad, my kid. And you.” …
Back in the days my children were involved in organized sports, coaches liked to tell the story of how former NBA Superstar Michael Jordan was cut from his 10th grade basketball team. The story tended to come out right before cuts were made, presumably to ease the sting for those kids who weren’t going to make the team. The notion …
When I was a boy, we used to sing a German song called “Du Liegst Mir Im Herzen.” Taught to us by a German friend, we sang it so often, usually in rounds, that I knew all the words without understanding what they actually meant. I can still hear my three sisters harmonizing on the song today. Later in life …
Q: Would you describe yourself as being tough on the bench? A: Demanding. Q: You’re demanding. A: Tough, yes, in the sense that I want lawyers to be prepared. I think that being a lawyer is one of the best jobs in the whole wide world. Q: Really? A: You want to know why? Because every lawyer, no matter whom …
The last time I sat for a bar exam – in Virginia in 2010, after taking the Pennsylvania exam in 2006 – I swore to myself that I would never, ever do it again. Filling out the application for the character evaluation was bad enough. Learning umpteen new subjects in which I had no interest and then sitting for two …
Here are 15 reasons I prefer D.C. Superior Court to the Criminal Justice Center in Philadelphia: There is a cafeteria. There is a lawyer’s lounge. There is a legal library. Women in orange jackets greet you when you come into the building and direct you to where you need to go. You can get into an elevator. When you can’t …
I get a lot of strange emails and phone calls from people who find me on the Internet. A woman wrote me the other day looking for help with all sorts of different legal problems – from personal injury to child custody to criminal matters. It was unclear from the email whether she was the victim or the accused. And …
Seth Godin writes about a friend of his, a middle school teacher, who avoided the teacher’s lounge because “he couldn’t bear the badmouthing of students, the whining and the blaming”: Just about every organization, every on-line service, every product and every element of our culture now has chat rooms and forums devoted to a few people looking for something to …
Over at Tempe Criminal Defense, Matt Brown has been talking about expectations – client expectations and his own. “The angry client rant is tough,” Brown says. And the problem, he says, starts with expectations. Clients expect the system to treat them fairly. They blame their lawyers when it doesn’t: I would like to think that my threshold for having people …
When I worked as a public defender in Philadelphia, we had what I can only describe as an uneasy relationship with the private criminal defense bar. Looking at it from the standpoint of the PD’s office, there were a number of reasons for this somewhat dysfunctional relationship. For one thing, some of the private defense attorneys were just plain bad, …
“That’s as low as my office is willing to go for this type of offense.” This is what the prosecutor tells me. We are talking about the number of hours of community service my client would be required to perform under a plea bargain, and we have deadlocked. This is the only outstanding issue. The difference between us is a …
I recently served as co-counsel in two juvenile cases with Eddie Ferrer of D.C. Lawyers for Youth. Although neither case ended up going to trial, you do get a pretty good sense of your colleagues when working together to represent co-defendants. I am always happy when co-counseling with lawyers from the D.C. Public Defender Service — most recently Michael Carter, …
One of the things I miss most about working at the public defender’s office was the ability to get immediate feedback from colleagues on an issue. Do you know this judge or prosecutor? Have you faced this type of situation before and, if so, how did you handle it? And so on. A major drawback to this ability, however, is …
To my godson Ross, who has just been accepted to Villanova Law for next fall, I offer the following advice on starting law school. There are lots of books out there with handy tips on doing well at law school: how to brief cases, how to interact with your classmates, how to prepare for exams, and so on. Go out …
Nobody talks about Total Quality Management (TQM) anymore. An outdated fad from the 1980’s, and even then applied mostly within the automobile manufacturing industry, it may have questionable applicability to the practice of criminal law. But still I believe: You think ahead. You show up to meetings early. You return phone calls. You meet deadlines. You don’t make excuses. You …
I used to buy my suits at Joseph Banks. When I started to put on weight, I switched to Brooks Brothers. Now I have my suits tailor made through J Peditto Apparel. But, until just a couple of years ago, I never gave a moment of thought to the shoes I wore. Linda Mullen, the woman who used to dress …
Indigent criminal defendants often have two simultaneous and potentially irreconcilable opinions of the lawyers who are appointed to represent them. On the one hand, they have absolutely no respect for the public defender or court-appointed lawyer. You aren’t a real lawyer, they say. You are working with the government. It is easier for you if I just plead guilty. And …
A woman and her son come into the office for a consultation. At the end of the hour, the woman turns to me and tells me that they have also met with a number of other criminal defense lawyers. “Why should we hire you?” she wants to know. I have to say, I am somewhat taken aback by the question. …
When I first went out into private practice in 2009, I was tempted to take on traffic cases. After all, my wife and I may not know many habitual criminals, but we do know lots of people who get in trouble with traffic enforcement: parking tickets, speeding, failure to display proper tags, and so on. Suddenly all these people were …
Forty-three years old when I started my legal career, I loved law school and I love practicing law. The thing about the law is that there is also something new to learn.
I went to my first meeting yesterday in over 10 years. Believe me, I know my way around a meeting. During my first career in the government, I did nothing but meetings: budget meetings, planning meetings, team meetings, agency meetings, inter-agency meetings. Half of my day was spent planning for meetings. The other half was spent sitting in them. …
I will remember this. This is what the prosecutor promises you. In another context, she could be intending this as a threat. As in: I will get you back for this. In this case, she is trying to entice you into making a concession, and she is putting you on notice that she has a long memory. She …
Years ago, back when the children were little and we lived in Arlington for the first time, we decided to go to the circus. I drove over to the baseball field in Ballston earlier in the day, and bought the tickets from a young Hungarian woman working out of a trailer. It was a small, family-owned circus with one …
Judge Milton Lee of D.C. Superior Court takes the bench at 9:00 am. Promptly. Every morning. Without fail. One of my biggest complaints about the Office of the Attorney General in D.C. is that its prosecutors often waltz into court well after 9:00 am every morning, usually minutes before the judge takes the bench. This can make life difficult …
One of the things I liked best about the Philadelphia public defender’s office – in addition to the camaraderie and sense of shared mission — was the support you got from other lawyers. If you had a legal question or wanted feedback on a possible trial tactic, you could step out into the court hallway or into the office next …
A supervisor at the Philadelphia public defender’s office used to tell us all the time that we were representing people, not files. This really got on our nerves. As one colleague put it: Maybe he needs to be reminded of that fact. After all, he sits in his office all day doing nothing more than reviewing the files we …
Although Virginia juries have a reputation for being unforgiving, I have also been told that juries in Prince William County can be pretty unpredictable. Going into trial yesterday, my client was facing a mandatory 5-year sentence for being a violent felon in possession of a firearm. During execution of a search warrant at his home, police had recovered a firearm …
We are in the cafeteria of the Prince William County courthouse in Virgina, at lunch during what is expected to be a one-day jury trial. At a table behind me is a judge holding forth to a group of young people. He speaks. The young people lean forward and laugh, and I think of something a former administration official …
“We really didn’t check him out. He said he was this and could do that. We thought he was telling the truth.” — Henrietta Watson, grandmother of defendant Dontrell Deaner The blogosphere has been abuzz the past week with the story of Joseph Rakofsky, a 33-year-old lawyer two years out of law school who took on a murder case in …
Eleven months of wrangling comes to this: a two-day trial in D.C. Superior Court. The argument on pre-trial motions starts out well, and I find myself in the enviable position of sitting on the sidelines as the judge goes back and forth with the prosecutor. It is usually a good idea to stop talking when the judge is agreeing with …
Over the last year or so, there has been a lot of talk on listservs and in the blawgosphere about the glut of new lawyers coming onto the market, about the expectations of these lawyers in terms of pay and career satisfaction, and about the honesty of law schools in trying to attract new students. Much of the recent discussion …
For the most part, the Assistant U.S. Attorneys here in D.C. seem to have things right. For one thing, they return your phone calls, usually on the same day, and I have to give them credit for that. For another, they don’t seem to sweat the small stuff. They seem to understand that many people are arrested for no reason …
I have only seen one “law library” at a prison, and I have to say I was not at all impressed. A converted broom closet with a broken chair and a rickety metal bookshelf, the library consisted mostly of an outdated version of the criminal code, a dog-eared hornbook or two, and, because someone apparently decided they might lend an …
During an earlier life, I was a member of the U.S. delegations that negotiated the international ozone and climate treaties. The negotiations often lasted a couple of weeks, with the opening statements alone — from the 100 nations participating in the negotiations – taking up most of the first day. The U.N. provided interpretation in seven languages throughout the negotiations, …
When I was a public defender in Philadelphia, my office mate used to come across me reading transcripts from court hearings I had done and kid me. I thought I was being conscientious, working to make myself a better lawyer. He thought I was being vain. Testimony from every preliminary hearing we did was automatically transcribed in advance of the …
One of the advantages to being a criminal defense attorney, at least one who defends people accused of street crimes as opposed to white collar offenses, is that you get your money upfront. There is the initial negotiation. There is the payment, which usually goes into the attorney’s trust fund account. With that out of the way, the attorney can …
You are wearing one of the good suits you save for trial. Your trial notebook is at your side. You got up early to exercise, and now you are feeling rested, relaxed, and confident. You don’t go to trial as a private practitioner nearly as much as you did as a public defender or prosecutor, and you savor these moments …
Last year, while taking the first steps to launch my own law firm, I spent a lot of time on the ABA listserv for solo practitioners, Solosez. I followed the excited postings of other people who had just opened the doors of their new offices. I also took heart in the anniversary announcements of lawyers who had been on Solosez …
David P. Baugh was one of the speakers at a Virginia Trial Lawyers Association CLE I attended yesterday. Baugh is perhaps best known for defending the free speech of a Ku Klux Klan member in a trial that resulted in the U.S. Supreme Court case of Virginia v. Black, and, surprise, surprise, he turns out to be a dynamic and …
Courtesy of the solo practitioners at the ABA listserv Solosez, here are the top 15 signs that you have been working out of your home office, by yourself, for too long. You look forward to your dentist appointment. You’ve started talking to the cat. You don’t like cats. You don’t have a cat. You look in the mirror and realize …
For over 20 years, Detective Wynn conducted line-ups at the Curran-Fromhold Correctional Facility (CFCF) in Philadelphia. The line-ups were carried out in a little triangular-shaped room just beyond the main reception area. You know the way it looks from T.V.: the ante-room, the glass, and then, on the wall behind where the suspects stand, the red lines demarcating height. The …
A couple of days ago I was contacted by a colleague here in town on a criminal case she had just taken on. My colleague set up her own firm right out of law school, and this is the first criminal matter she has ever handled. My colleague is smart and went to a good law school. She has …
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 …
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 …
Self-defense is an affirmative defense to simple assault and other assault charges in D.C. 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 …
There is no good way to charge for legal services, I am persuaded. Clients come in need. They are afraid and angry. They want a hero, a savior, a warrior. You offer them what you can. Most often it is enough. But sometimes it is not. A client grows disenchanted, angry, they want what you cannot give. It is a …
Mark Bennett and Brian Tannebaum both announced last week that they have been practicing criminal law for 15 years. While I have nowhere close to this level of experience, I recently celebrated an anniversary of my own. As of this past month, it has been six months since I opened my D.C. law office and one month since I began …
I am walking with my kids at the Reading Terminal, an eatery just a couple of blocks from the courthouse in Philadelphia, when we come across a group of narcotics officers sitting in the eating area. We have been watching “The Wire” on HBO, and I point out the officers out to my kids. Look, I say. Real-life narcotics officers. …
In another lifetime, I wrote short stories. Five or six of these stories eventually found their way into obscure literary journals, with one or two still floating around somewhere on the Internet. The largest circulation of any of the journals that published me was probably two or three thousand readers at the most. With the exception of one story for …
I have written a number of posts over the last couple of months about the Donald E. Gates case. As you will recall, Gates was convicted of a crime he did not commit and initially spent 16 years in jail in large part due to the false testimony of former FBI analyst Michael P. Malone. In 1997, after the government …
A couple of months ago, Carol D. of Public Defender Revolution told the story about a judge who tried to force her to trial on a case when she wasn’t ready. This put Ms. D. into a very difficult position. She couldn’t put her client’s interests at risk by proceeding unprepared to trial. She therefore had no choice but …
There is always a lot of discussion over at the ABA listserv Solosez about client relations. People talk about the need to sometimes fire a client, which, from what people say, almost seems like a rite of passage for most lawyers. Consider me now initiated. Today I had to fire my first client. I was reluctant to do it. It …
A couple of weeks ago, I changed the message on my office voice mail. My 19-year-old daughter had done the original recording, but, after listening to it back, we both agreed that her voice sounded too girlish. So, instead, I asked my former sister-in-law if she could do it. I thought my sister-in-law’s British accent would sound classy. I also …
In talking with another lawyer during my training in Houston, the other lawyer was surprised that I could know so much about the author of D.A. Confidential without being aware that he speaks with a British accent. That’s the thing about following a blog. You can find out an awful lot about the blog’s author without ever meeting the person …
One of my favorite episodes from the old T.V. show Taxi included the scene in which the Reverend Jim Ignatowski, the character played by Christopher Lloyd, accidentally burns down the apartment of Louie DePalma, the character played by Danny DeVito. The Reverend’s father is a millionaire. When the father finds out that his son has burned down the apartment, he …
Norfolk, Va. — Before starting law school, I read a number of books on how to survive your first year. One book dealt with law school etiquette. Top among its rules was not to discuss an examination with friends afterwards. There is no point to doing this, the book said. Both sides – the side that did well and the …
Last summer, my 19-year-old daughter decided that she wanted to come see me in court. I had just given notice of my intention to resign from the Defender Association of Philadelphia effective at the end of the month, and she thought this might be the last opportunity to see me working as a public defender. I was running the list …
A couple of weeks ago, I complained about the lack of criminal law blogs done by women. I also bemoaned the fact that, with a few exceptions, there do not seem to be many public defender blogs that don’t sound preachy, sanctimonious, and put-upon. Yes, you’re a public defender. Yes, the caseload is overwhelming. Yes, the pay is pitiful. And …
A good friend of mine, a former prosecutor in Massachusetts and Virginia, has criticized my blog for its defense-centric viewpoint. The actual words he used, if I recall correctly, were “criminal apologisms.” Since I will be need to take some time off over the next couple of weeks to prepare for the Virginia Bar Examination, I have offered him the …
My wife does not read this blog. I understand. She’s busy. Friends or family will tell her they enjoyed something they read on the blog and she will smile and thank them, but she really has no clue what they are talking about. I showed her my website when it first went up last fall. Yes, dear, it looks very …
In 24 days I will be sitting down to take another bar, this time in Virginia. The idea, which seemed like a pretty good idea when I came up with it last fall, is that I will be able to extend my criminal law practice from D.C. into Virginia, which is also where I live. Strangely enough, I have only …
It is a sad but well-known fact among criminal defense lawyers in many jurisdictions that if you insist on a jury trial and lose, you will get a stiffer penalty than if you lose the same case in front of a judge. That’s right: Same facts. Same verdict. Different sentence. This is a variation of the so-called “trial tax,” which …