Most lawyers advertise. I don’t begrudge them that. We all need clients to walk in the door. That being said, it’s important to realize that advertising tells you nothing about the quality of an attorney. Anybody can post a website with his scowling photo in front of the courthouse and claim to be “aggressive.” The stakes for someone charged with a criminal offense are extremely high. Your choice of attorney can potentially determine whether you are convicted, whether you are convicted of a felony, whether you go to prison, and for how long you go to prison. This is a big life decision. If you’re doing it right, you need to put serious time and effort into finding the right attorney. When you find a lawyer you’re considering, schedule a face to face meeting with him or her before hiring them. When you do meet with a prospective defense attorney, I would suggest asking some of the following questions:
1. What percentage of your practice is criminal defense? Unless the answer is close to 100%, I would look elsewhere. The lawyers who handle nothing but criminal cases are going to be the ones who know the judges, the prosecutors, and the relevant law. They’re going to know which defenses fly and which ones don’t. They’re going to know if there are alternative punishments that can keep you out of jail. You can’t afford to be represented by someone who is “moonlighting” as a criminal defense attorney.
2. Do you have experience as either a public defender or a prosecutor? For a young attorney, these are really the only two ways to become a real deal criminal attorney. These are the people who work in the criminal court trenches and know the system better than anyone else. In my experience, the best criminal defense attorneys overwhelmingly practiced as one or the other early in their career.
3. What kind of trial experience do you have? There are a shocking number of lawyers who market themselves as experienced criminal defense attorneys who have almost no serious trial experience whatsoever. You may find that hard to believe but it is absolutely true. I’ve talked to so called defense attorneys who deliberately avoid trials and motions because they consider it a poor return on investment. Their philosophy is why do the hard work required for trials and motions when they can plead a client guilty for the same fee. Believe me when I tell you that you want an attorney with significant trial experience. If an attorney lacks trial experience, he/she is operating at a tremendous disadvantage. The obvious problem is that the attorney can’t competently represent you if your case goes to trial. But the problem is just as large when your case isn’t heading toward a trial. What motivation does the prosecution have to give one inch in plea negotiations when faced with an opponent who never takes cases to trial? None. If the evidence against you is overwhelming, your only leverage is often a defense attorney who is willing and competent to take the case to trial.
4. What kind of trial experience do you have? Not all trial experience is created equal. An attorney might make bold claims that he/she has tried hundreds of cases. That sounds impressive but can be highly deceptive. I could make the claim of having tried over a hundred cases within a handful of months in the public defender’s office. Of course, almost all of those trials were for district court misdemeanors. Was it an invaluable tool for gaining experience and sharpening trial skills? Absolutely. Would it have qualified me to handle a serious felony case? No. You need an attorney with the right skill set for your situation. Ask your prospective attorney how many felony cases they’ve taken to trial? How many of those were jury trials?
5. What motions experience do you have? Do you see the possibility of filing any motions in my case? Many cases are determined at the “motions” phase of a case. For instance, a successful motion to suppress evidence can sabotage a prosecution’s entire case. Even “losing” motions can be highly effective. A motions hearing can provide the opportunity to hear the testimony of witnesses prior to trial. A motion can set the stage for a successful appeal. A motion can make the prosecutor more likely to make a favorable offer. If an attorney ever tells you something like “motions always get denied” or that “motions never work,” you should run not walk out of his or her office. I would also recommend asking prospective attorneys for samples of their written motions and legal memorandums.
6. Do you have experience using expert witnesses? A credible defense expert can be extremely effective in certain cases. I’ve worked with computer forensics experts, video enhancement experts, SANE nurse experts, firearms experts, DNA experts, fingerprint experts, forensic pathology experts, alcohol blackout experts, eyewitness identification experts, and marijuana cultivation experts among others. While certainly not relevant to every case, a good expert witness can be the difference between guilt and innocence. Has your prospective attorney worked with expert witnesses? Can they give you examples? Is an expert witness possibly relevant in your case?
7. Do you have any appellate experience? How many times have you argued before the Court of Appeals and/or Supreme Court of Virginia? Nobody wants to lose their case. However, the reality is that if you take your case to trial, it might result in a conviction. A good defense attorney is already thinking about the appeal before the trial and throughout the trial. Appellate work is incredibly complicated and there are landmines everywhere. If an attorney doesn’t have experience with appeals, he/she is not thinking about the record that needs to be established to give you the best chance to win on appeal. I would suggest asking your prospective attorney for samples of their appeals work and asking what sorts of appeal issues might be relevant if you lose your case.
8. Ask the attorney for an opportunity to see them in action. Think about it like this. Would an NFL general manager draft their future quarterback based on a website promising that "he's aggressive" and is "highly experienced?" Of course not. Should you make that decision when your freedom and future are on the line? Only if you're a moron. Ask the attorney when he/she has a big case on the docket. There is no better way to see if your prospective attorney is the real deal or just an empty suit.
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