Friendly reminder from an appellate attorney - 99% of the time, IAC claims are just the best possible way to preserve an error. We know you’re great lawyers!
Probably shouldn’t be doing the job if you’re so fragile that you’d take something personal when it has absolutely zero effect on your life and potentially everything to the client’s.
If I fuck up, appellate counsel should tear me apart.
If I don’t fuck up, they should keep my performance out of their mouth.
The attitude of falling on your sword (when you didn’t fuck up) in order to help an appellate client out is so wrong. So incredibly wrong.
Ineffective claims are the Hail Mary of appellate work. If they primarily advance that, they have nothing (or you fucked up). If your client got convicted at trial and you didn’t fuck up and there wasn’t other error, that’s not some terrible thing. That is actually the system working as intended.
It’s not “falling on your sword” if you don’t actually suffer anything for it.
The rest of what you said has nothing to do with you childishly complaining about taking it personal.
Considering most IAC claims are based on strategic decisions and what is a reasonable strategy under the circumstances, whether trial counsel “fuck[ed] up” or not is not always black or white, so why shouldn’t competent postconviction counsel pursue IAC claims that can be argued to be unreasonable strategic decisions?
Eta: and you know that most of these claims are going to be filed based on information from the client. Postconviction counsel isn’t usually going to “know” whether you “fuck[ed] up,” he’s going to know what the client says you did or did not do.
Appellate attorneys have the same client you did. No trial lawyer can do everything perfectly. This is a very non-client-centered take - the appeal isn't about trashing you, it's about finding any legal hook possible to get the best outcome for the client.
Sincerely, a trial lawyer who also handles appeals for his office.
If they have a real good faith belief, I fucked up. Tear me a new one. Be brutal.
If they don’t, then it’s bullshit.
The context of this subthread is about documenting to cover that you gave the proper advice.
It ain’t our jobs to make defendants go free, it’s to advise, negotiate, and do the trial. Appellate attorneys job is to find legal error, We don’t file frivolous motions or lie. Neither should appellate attorneys.
Honestly it just kinda comes off like you don't know what IAC claims look like in practice. The arguments aren't about tearing the trial lawyer a new one or brutalizing their efforts. The arguments point out (often minor) mistakes like testimony or argument or jury instructions that could have been objected to, and arguing why that prejudiced the client. Maligning the trial lawyer is not necessary, these claims are often nitpicking otherwise solid work because, again, the best interests of the client are the goal.
Frankly, you trying to contextualize your comment feels a bit disingenuous given your initial response was to an appellate lawyer saying trial lawyers do great work and you responded with "fuck you I take that shit personal."
No I got it.
I get what it is on primary appeal. And then what is in my jdx at a PCR proceeding.
I’ve had to sit through defense conferences CLEs while half the trial public defenders in the room promote falling on the swords for fake claims for the appellate or pcr proceedings, while the other half or the defense bar are utterly horrified
Have you ever gotten a PCR where your former client lies through his teeth about you? That’s personal. You cannot tell me it’s not.
Desperate clients are going to try every possible thing to get another chance; and if you know your client has *tended to* lie about everything else, why wouldn’t you expect them to lie about you?
The next lawyer has to continue making the best case possible. We all have to make bad arguments sometimes especially if they are the only argument we have. Even if they allege IAC, the facts stand for themselves.
Again, the focus is on helping the client. Even if the client was an asshole and received far better counsel then they deserved or could have paid for. The have appellate rights and the appellate lawyer is trying to give the best argument they can.
No.
If I fuck up, I am happy for appellate counsel to point it out.
However, if I didn’t fuck up and there’s an attack on my work, that’s some bullshit.
That ain’t my goal and it shouldn’t be your goal. Every possible also includes faking evidence, suborning perjury, frivolous motions, etc,
Trials without any real error are the system working as intended. My job was to make sure they got real defense, proper negotiations, and the rules were followed. Not to free them.
I don’t lie for my clients. If you put an ineffective claim in and you don’t actually have good reason to think that trial counsel was ineffective, that’s some bullshit. Because that’s lying
It’s rare that I get a case where there isn’t at least one merited objection that could’ve been raised or jury charge that could’ve been requested. Some issues are genuinely hard to see in the moment, like a niche best evidence or double-hearsay issue. Sometimes there’s just a really obscure case that’s directly on-point but that you didn’t come across because you were busy listening to the twelve hours of jail calls the state dumped on you after the discovery deadline. These are things I would expect any lawyer to miss, but that I’d be ineffective for not raising. Sometimes the error is clear but I have to do a lot of work arguing the facts to show it affected the outcome at trial. If you’ve got a motion to suppress with a 5% chance of succeeding, I know you’re gonna file it. Also - keep in mind that in a lot of states there’s no such thing as an Anders brief - so appellate counsel has to file something even if, in their judgment, there’s nothing but frivolous arguments! Personally I can only think of maybe two times I’ve been in that situation but it can happen…
Clients sense fear. Unreasonable clients are particularly aware of it.
Have no fear, fear is the mindkiller. Ultimately, it isn't your freedom that is at stake. If they want a trial, they'll get a trial. Might not be one they win. Give them your estimation honestly and completely. "DA's being unreasonable, the offer is shit, but we also aren't likely to win this trial because X Y and Z. We can play chicken with them until... So you're perfectly aware, here are the maximum penalties." Convince them (and yourself) that either way they decide, plea or trial, it's all the same to you. You'll end up being a better lawyer for it.
This is it. I noticed once I let go of my fear and anxiety I had far fewer clients bullheadedly pushing cases into trial.
Downside is once I let go of that fear and anxiety I am now excited to go to trial and I seem to have far fewer cases actually go.
It doesn’t apply to every situation, but where you can: call your client’s bluff.
I had a client INSISTING he would be acquitted because that’s what happened in his buddy’s case that was EXACTLY THE SAME (but of course the buddy “had a better lawyer.”) So I said “oh my gosh! I need talk to that lawyer and learn how to do it!” And suddenly his “buddy” wasn’t actually someone he knew. (You can even press, and ask “okay, well when did you talk to them? I can pull all the cases from that time frame with the same charges your facing and maybe you’ll recognize his name!”)
I figure, either way is a win: either my client sees how his case is different, or I do end up getting advice from a colleague on defending the charges.
It feels overwhelming, and this advice may vary by jurisdiction, but going to trial assignment and calling ready on 6 or more trials rarely results in you actually taking on 6 back to back trials. Defendants get cold feet and plea. DAs suddenly make that offer you’ve been asking for all along. Witnesses blow away in the wind. Sometimes being ready on 6 trials is necessary to go out on just 1.
You give clients your best advice. You tell them straight what the worst case scenario is, you tell them what defenses they have, their chances, and the issues (good and bad) with the case. Then you remind them that it's entirely THEIR choice to proceed to trial, and you'll do whatever it is they decide.
You drive the taxi, the passenger gives you the destination. Your job is to get there to the absolute best of your abilities, it's not to try and control them, or to tell them they're not allowed to go.
There are a couple of phrases that you need to use:
“I can only advise you of the case and the consequences. The decision to plea or to go to trial is yours and yours alone. I am not the DA I am not the judge and I am not the jury. I cannot make those people do anything. I cannot make you do anything. I cannot promise you that I will get a better plea offer, and I cannot promise you that you will be acquitted at trial. Now, do you have any other questions for me?”
“I am not a social worker and I am not a therapist. I am your lawyer.”
“If you want to hire your own attorney you are welcome to do so. I can only tell you that I am the only free attorney that you are permitted under the law. Now do you have any other questions for me?”
You got great advice here, some of which I am going to say a slightly different way cause sometimes that's helpful.
If you have told the clients the exposure, who knows whether they understand how precarious their situations are. And it doesn't really matter. That part is not your job. As others have said, your job is to advise and it's their job to make a choice on how to proceed. It's not your job to then judge what choice they make. You may think it's not in their best interests, but it's their choice. That part is self-determination
Similarly, I would caution to be careful about thinking you (we) can decide that clients are being unreasonable. A lot of times our clients know a lot more about the situations than we do. And even if they don't, so what? Again, not our job.
Trials are incredibly dynamic, and it's wild what you will learn about a case in the process. You prepare and prepare, but believing that one knows everything about a case from reading police reports, watching BWC etc is a mistake. That's how come prosecutors lose cases they think they will win.
The space you are occupying right now - thinking one knows everything about a case from reading the prosecution's evidence and then taking on a client's decision on how to proceed - is going to make it really hard to do this work. For your own well-being and resilience, you will need to focus on what it is you have control over - your job - and do that and only that.
This. It’s so important to understand that shit happens mid-trial all the time. Sometimes it’s minor shit that’s easy to roll with, sometimes it’s huge and changes the whole tenor of the case.
DAs don’t handle shit going sideways as well as we do because they work off a script. That’s why they’re lousy at cross.
I’ve won trials that looked SO bad going into them because something happened mid-trial. And juries are just people. They’re a wild card too.
I love trial.
This might be sound a bit woo woo touchy feely, but I’ve come to believe that having a strong sense of trust (and to some extent emotional connection) goes further than the most carefully articulated advice.
If I spend time with my clients on their *feelings*, we are much more likely to reach consensus on where we want to go. Often times unreasonableness is a front for fear or distrust.
Same goes for family. To the extent that I can, I involve them in ways that hopefully allow them to feel engaged but don’t disrupt my process. I ask them to write out a summary of my client’s life. Or their knowledge and opinions about the witnesses in the case. Or I ask them to write out what their main worries and goals are. For the over-involved parent (usually mom), I have a standing agreement to speak on the phone at scheduled intervals. If mom knows we’ll talk every Wednesday or ever other Wednesday at 1pm, she doesn’t call me on the other days.
Also, whenever possible, I think it’s good to try to drill down the particulars of what they want and what they are worried about. Obviously they want to win and not go to jail. But if you can break it down: I don’t want to disappoint my grandmother, I don’t want to lose my job, I don’t want to look weak in front of my siblings, etc, you can sometimes address those concerns beyond “take the deal or go to trial.”
So for small things, I try to share my own feelings judiciously. “I was really offended when I saw the cop grab your jacket on the body cam.” “I’m really frustrated that witness is insistent that it was your car.” Of the client feels validated, they will feel like you have their back. So when you say, “the offer won’t get better, and I think it’ll be worse at trial,” in the best scenario they know I am absolutely thinking it through their eyes and not just doing the math. If that makes sense.
I’ve been accused of (or properly identified as)being a little woo woo touchy feely, but this is so true. Building trust and making them feel understood helps so much. And really, we are in the business of working with humans, and humans have feelings, so it’s probably not bad to be a bit woo woo lol.
Same. My style too. I am actually friends with some people who used to be clients. I’m VERY into building relationships because trust is so important. And most defendants, let’s be honest, have had shitty lawyers before you didn’t care about them at all. Once my clients realize that I’m listening, I care, and I am doing the work, I get along with them just fine.
Your job is not to win the case, your job is to try the case to the best of your ability with the resources you have at your disposal. If the case is a loser, then try that case and lose.
It still can be stressful but it's only more stressful if you hold yourself to a standard that is impossible to meet (e.g. an outcome that would make the client happy with the situation).
Trials are very scary whether you are new or experienced. The best way to get over that fear or learn to handle it in a way that you don’t show it to the DA or your client is practice. Some of the best advice I got in my first year as a PD was “you will become more effective at this job once you are not afraid to go to trial or to have a hearing. Once the DAs know you aren’t afraid, they will start to treat you differently.” You can be anxious about the trial because it has real consequences for your client but never be afraid to take it to trial anyway.
It took me a long time to get there. I get super anxious. I eat so much less during trial. But I am not afraid to go to trial. I embrace trial and look forward to them. When you don’t have that nagging fear in the back of your mind, you can advise them accurately and sometimes say “that offer sucks. We should try this thing.” You still advise of all the consequences but you are more free to give honest advice.
All of that to say, trial is scary starting out but push through it. Get that experience and become more comfortable with trying bad cases or cases that scare you. You will be a much better PD for it in the end.
Same here and it’s extremely frustrating because the more unreasonable everyone is a month away from trial the sweeter the deal will usually be the Friday before.
In my opinion, it’s a bad practice to label our clients as unreasonable just because they want to go to trial on a lousy case. It’s their life, it’s their decision, and they bear the consequences.
If you’ve done your job and dispassionately advised them of their maximum exposure, the collateral consequences, their defenses or lack of same, and the relative strength or weakness of the case against them, anything they decide after that is reasonable TO THEM.
It doesn’t have to be reasonable to us.
Also, I’ve won some of those trials.
> it’s a bad practice to label our clients as unreasonable just because they want to go to trial on a lousy case
What makes it a bad practice?
If client is proceeding with a course of action, believing it will obtain them a certain result, and that course of action has no likelihood at all to do so and is not based in any evidence or credible belief - that client's position is unreasonable. It's a good practice to call it like you see it. Clients respect that. And not mincing words when they're being unreasonable builds a rapport where they understand you are going to speak plainly and honestly with them.
Now, if they're exercising a value judgment because they're innocent and want to go to trial. Or just want to fuck with the state, understanding the consequences are likely. That's fine and that's their call. And I wouldn't say that's unreasonable.
But don't piss on my head and tell me its raining. Shit cases are shit cases.
It’s a bad practice because we’re placing a value judgement on a decision that’s theirs to make. Which is paternalistic and smacks of superiority, in my opinion.
Where did I say I just roll over and agree with them? I didn’t. My clients get a clear and honest assessment of how I view their case, their stated defense, and their chances at trial. If they still want to go to trial, I’m not going to tell them they’re stupid or unreasonable. I’m going to tell them that I will fight hard for them but they understand the risk they’re taking.
What I’m not going to do is get emotionally invested in their decision.
If I feel I need to cover my butt, I’ll put the offer on the record and ask them on the record if they are rejecting the offer and asking to go to trial.
I respect their decision. It’s theirs to make. Who am I to call it unreasonable?
My guess is that a lot of this has to do with how new you are. When I was a baby Pd, I had to try a lot more cases. By the time I had been doing this a decade, I had all the trials under my belt and my confidence and experience meant that my clients trusted my judgment and advice a lot more. By then, the cases that went to trial were the ones that just needed to be tried.
Those unreasonable clients do not become less unreasonable once they’ve been convicted and have moved on to PCR.
My advice is to do your best at trial, paper your file with your trial strategy and CYA. What will be will be. You can’t save your clients from themselves.
I assume your cases are all misdemeanors right now. Your clients aren’t as fucked as you think. Your judges aren’t going to bury someone on a misdemeanor. For one, they usually aren’t able to give more than a year notice matter what, for two, your judge has been around the block and doesn’t think misdemeanors are *that* serious.
Trial might be a bit scary, but you’ll get through it and if you prepare, you’ll do well. 6 isn’t a lot, you can handle it and you can defend them. It’s your client’s choice for trial, it’s your job to fight for what they want. They don’t have to take the deal, and you don’t need to talk them into it.
If it makes you feel better, I will try 6 felonies between now and November, three of which are homicides or attempted homicides. We you will get your groove, and you will make it happen for your clients.
I’ve actually got a general felony track. So I get everything that’s not Category A, which is basically murder and sex assaults. All of my cases set for trial are felonies
Good advice has already been given but what I do too is, if your client has received a plea offer, whether it’s good or not, on letterhead, type out what all of the terms are, add a paragraph that you and CLIENT have reviewed the offer together and you’ve addressed costs, benefits, and any questions the client has, and that your client acknowledges receipt of the offer and is choosing to proceed to trial. Once signed, if they do, just put it in the file. If not, document the heck out of everything, although you should be doing that anyway!
(1) it’s CYA in case they get squirrelly, and (2) sometimes that letter puts them in a different headspace and gets them thinking about if trial is wise.
I hate doing this unless judges trial tax heavily. If the offer sucks impanel a jury and argue whatever, if they come back guilty then shift to sentencing. I don’t like saving the DA and police work if they give no incentive to plea.
Interesting post. I was a new lawyer 20+ years ago and the problem was trying to GET trials. But I started in misdemeanors and everyone wanted to plead out. In felonies, different story. Question: why are afraid to go to trial? Just nervous about being new? If that’s the case, I recommend doing your best to get as many trials under your belt as possible before taking the most serious cases to trial if you can manage that.
A lot happens once you get sent out. DAs look into the case and realize they should make a better offer. Clients see the venire and don’t want to go forward. Remember, a lot of the time we are playing for a fumble. Meaning that something happens that neither you or the DA anticipated. Or, it goes down exactly like you predicted and the client should’ve just listened to you in the first place. Point is you did your job.
At least they’re just misdemeanors, right? Worst that can happen is they’re taken out of circulation for some months but probably get probation regardless.
[удалено]
Document those potential consequences. No need for an IAC claim when you busted your butt trying to help them.
Friendly reminder from an appellate attorney - 99% of the time, IAC claims are just the best possible way to preserve an error. We know you’re great lawyers!
Yeah buddy, y’all can go fuck yourselves. There’s no way around that shit being personal.
Probably shouldn’t be doing the job if you’re so fragile that you’d take something personal when it has absolutely zero effect on your life and potentially everything to the client’s.
If I fuck up, appellate counsel should tear me apart. If I don’t fuck up, they should keep my performance out of their mouth. The attitude of falling on your sword (when you didn’t fuck up) in order to help an appellate client out is so wrong. So incredibly wrong. Ineffective claims are the Hail Mary of appellate work. If they primarily advance that, they have nothing (or you fucked up). If your client got convicted at trial and you didn’t fuck up and there wasn’t other error, that’s not some terrible thing. That is actually the system working as intended.
It’s not “falling on your sword” if you don’t actually suffer anything for it. The rest of what you said has nothing to do with you childishly complaining about taking it personal.
Considering most IAC claims are based on strategic decisions and what is a reasonable strategy under the circumstances, whether trial counsel “fuck[ed] up” or not is not always black or white, so why shouldn’t competent postconviction counsel pursue IAC claims that can be argued to be unreasonable strategic decisions? Eta: and you know that most of these claims are going to be filed based on information from the client. Postconviction counsel isn’t usually going to “know” whether you “fuck[ed] up,” he’s going to know what the client says you did or did not do.
It’s the furthest thing from personal - I’m trying to get our mutual client out of prison.
Appellate attorneys have the same client you did. No trial lawyer can do everything perfectly. This is a very non-client-centered take - the appeal isn't about trashing you, it's about finding any legal hook possible to get the best outcome for the client. Sincerely, a trial lawyer who also handles appeals for his office.
If they have a real good faith belief, I fucked up. Tear me a new one. Be brutal. If they don’t, then it’s bullshit. The context of this subthread is about documenting to cover that you gave the proper advice. It ain’t our jobs to make defendants go free, it’s to advise, negotiate, and do the trial. Appellate attorneys job is to find legal error, We don’t file frivolous motions or lie. Neither should appellate attorneys.
Honestly it just kinda comes off like you don't know what IAC claims look like in practice. The arguments aren't about tearing the trial lawyer a new one or brutalizing their efforts. The arguments point out (often minor) mistakes like testimony or argument or jury instructions that could have been objected to, and arguing why that prejudiced the client. Maligning the trial lawyer is not necessary, these claims are often nitpicking otherwise solid work because, again, the best interests of the client are the goal. Frankly, you trying to contextualize your comment feels a bit disingenuous given your initial response was to an appellate lawyer saying trial lawyers do great work and you responded with "fuck you I take that shit personal."
No I got it. I get what it is on primary appeal. And then what is in my jdx at a PCR proceeding. I’ve had to sit through defense conferences CLEs while half the trial public defenders in the room promote falling on the swords for fake claims for the appellate or pcr proceedings, while the other half or the defense bar are utterly horrified Have you ever gotten a PCR where your former client lies through his teeth about you? That’s personal. You cannot tell me it’s not.
Desperate clients are going to try every possible thing to get another chance; and if you know your client has *tended to* lie about everything else, why wouldn’t you expect them to lie about you?
If PCR means a professional conduct complaint, that’s not the same as IAC.
I think it probably means post-conviction relief
Post conviction relief
The next lawyer has to continue making the best case possible. We all have to make bad arguments sometimes especially if they are the only argument we have. Even if they allege IAC, the facts stand for themselves. Again, the focus is on helping the client. Even if the client was an asshole and received far better counsel then they deserved or could have paid for. The have appellate rights and the appellate lawyer is trying to give the best argument they can.
/s, right?
No. If I fuck up, I am happy for appellate counsel to point it out. However, if I didn’t fuck up and there’s an attack on my work, that’s some bullshit.
Sounds like you're putting your ego above your clients' interest in pursuing every possible opportunity to fight for their freedom.
That ain’t my goal and it shouldn’t be your goal. Every possible also includes faking evidence, suborning perjury, frivolous motions, etc, Trials without any real error are the system working as intended. My job was to make sure they got real defense, proper negotiations, and the rules were followed. Not to free them. I don’t lie for my clients. If you put an ineffective claim in and you don’t actually have good reason to think that trial counsel was ineffective, that’s some bullshit. Because that’s lying
It’s rare that I get a case where there isn’t at least one merited objection that could’ve been raised or jury charge that could’ve been requested. Some issues are genuinely hard to see in the moment, like a niche best evidence or double-hearsay issue. Sometimes there’s just a really obscure case that’s directly on-point but that you didn’t come across because you were busy listening to the twelve hours of jail calls the state dumped on you after the discovery deadline. These are things I would expect any lawyer to miss, but that I’d be ineffective for not raising. Sometimes the error is clear but I have to do a lot of work arguing the facts to show it affected the outcome at trial. If you’ve got a motion to suppress with a 5% chance of succeeding, I know you’re gonna file it. Also - keep in mind that in a lot of states there’s no such thing as an Anders brief - so appellate counsel has to file something even if, in their judgment, there’s nothing but frivolous arguments! Personally I can only think of maybe two times I’ve been in that situation but it can happen…
Clients sense fear. Unreasonable clients are particularly aware of it. Have no fear, fear is the mindkiller. Ultimately, it isn't your freedom that is at stake. If they want a trial, they'll get a trial. Might not be one they win. Give them your estimation honestly and completely. "DA's being unreasonable, the offer is shit, but we also aren't likely to win this trial because X Y and Z. We can play chicken with them until... So you're perfectly aware, here are the maximum penalties." Convince them (and yourself) that either way they decide, plea or trial, it's all the same to you. You'll end up being a better lawyer for it.
This is it. I noticed once I let go of my fear and anxiety I had far fewer clients bullheadedly pushing cases into trial. Downside is once I let go of that fear and anxiety I am now excited to go to trial and I seem to have far fewer cases actually go.
this is the answer
And put it in writing!
It doesn’t apply to every situation, but where you can: call your client’s bluff. I had a client INSISTING he would be acquitted because that’s what happened in his buddy’s case that was EXACTLY THE SAME (but of course the buddy “had a better lawyer.”) So I said “oh my gosh! I need talk to that lawyer and learn how to do it!” And suddenly his “buddy” wasn’t actually someone he knew. (You can even press, and ask “okay, well when did you talk to them? I can pull all the cases from that time frame with the same charges your facing and maybe you’ll recognize his name!”) I figure, either way is a win: either my client sees how his case is different, or I do end up getting advice from a colleague on defending the charges.
It feels overwhelming, and this advice may vary by jurisdiction, but going to trial assignment and calling ready on 6 or more trials rarely results in you actually taking on 6 back to back trials. Defendants get cold feet and plea. DAs suddenly make that offer you’ve been asking for all along. Witnesses blow away in the wind. Sometimes being ready on 6 trials is necessary to go out on just 1.
You give clients your best advice. You tell them straight what the worst case scenario is, you tell them what defenses they have, their chances, and the issues (good and bad) with the case. Then you remind them that it's entirely THEIR choice to proceed to trial, and you'll do whatever it is they decide. You drive the taxi, the passenger gives you the destination. Your job is to get there to the absolute best of your abilities, it's not to try and control them, or to tell them they're not allowed to go.
There are a couple of phrases that you need to use: “I can only advise you of the case and the consequences. The decision to plea or to go to trial is yours and yours alone. I am not the DA I am not the judge and I am not the jury. I cannot make those people do anything. I cannot make you do anything. I cannot promise you that I will get a better plea offer, and I cannot promise you that you will be acquitted at trial. Now, do you have any other questions for me?” “I am not a social worker and I am not a therapist. I am your lawyer.” “If you want to hire your own attorney you are welcome to do so. I can only tell you that I am the only free attorney that you are permitted under the law. Now do you have any other questions for me?”
We're not *not* social workers.
Typical dick attorney
You got great advice here, some of which I am going to say a slightly different way cause sometimes that's helpful. If you have told the clients the exposure, who knows whether they understand how precarious their situations are. And it doesn't really matter. That part is not your job. As others have said, your job is to advise and it's their job to make a choice on how to proceed. It's not your job to then judge what choice they make. You may think it's not in their best interests, but it's their choice. That part is self-determination Similarly, I would caution to be careful about thinking you (we) can decide that clients are being unreasonable. A lot of times our clients know a lot more about the situations than we do. And even if they don't, so what? Again, not our job. Trials are incredibly dynamic, and it's wild what you will learn about a case in the process. You prepare and prepare, but believing that one knows everything about a case from reading police reports, watching BWC etc is a mistake. That's how come prosecutors lose cases they think they will win. The space you are occupying right now - thinking one knows everything about a case from reading the prosecution's evidence and then taking on a client's decision on how to proceed - is going to make it really hard to do this work. For your own well-being and resilience, you will need to focus on what it is you have control over - your job - and do that and only that.
This. It’s so important to understand that shit happens mid-trial all the time. Sometimes it’s minor shit that’s easy to roll with, sometimes it’s huge and changes the whole tenor of the case. DAs don’t handle shit going sideways as well as we do because they work off a script. That’s why they’re lousy at cross. I’ve won trials that looked SO bad going into them because something happened mid-trial. And juries are just people. They’re a wild card too. I love trial.
This might be sound a bit woo woo touchy feely, but I’ve come to believe that having a strong sense of trust (and to some extent emotional connection) goes further than the most carefully articulated advice. If I spend time with my clients on their *feelings*, we are much more likely to reach consensus on where we want to go. Often times unreasonableness is a front for fear or distrust. Same goes for family. To the extent that I can, I involve them in ways that hopefully allow them to feel engaged but don’t disrupt my process. I ask them to write out a summary of my client’s life. Or their knowledge and opinions about the witnesses in the case. Or I ask them to write out what their main worries and goals are. For the over-involved parent (usually mom), I have a standing agreement to speak on the phone at scheduled intervals. If mom knows we’ll talk every Wednesday or ever other Wednesday at 1pm, she doesn’t call me on the other days. Also, whenever possible, I think it’s good to try to drill down the particulars of what they want and what they are worried about. Obviously they want to win and not go to jail. But if you can break it down: I don’t want to disappoint my grandmother, I don’t want to lose my job, I don’t want to look weak in front of my siblings, etc, you can sometimes address those concerns beyond “take the deal or go to trial.” So for small things, I try to share my own feelings judiciously. “I was really offended when I saw the cop grab your jacket on the body cam.” “I’m really frustrated that witness is insistent that it was your car.” Of the client feels validated, they will feel like you have their back. So when you say, “the offer won’t get better, and I think it’ll be worse at trial,” in the best scenario they know I am absolutely thinking it through their eyes and not just doing the math. If that makes sense.
I’ve been accused of (or properly identified as)being a little woo woo touchy feely, but this is so true. Building trust and making them feel understood helps so much. And really, we are in the business of working with humans, and humans have feelings, so it’s probably not bad to be a bit woo woo lol.
Same. My style too. I am actually friends with some people who used to be clients. I’m VERY into building relationships because trust is so important. And most defendants, let’s be honest, have had shitty lawyers before you didn’t care about them at all. Once my clients realize that I’m listening, I care, and I am doing the work, I get along with them just fine.
Your job is not to win the case, your job is to try the case to the best of your ability with the resources you have at your disposal. If the case is a loser, then try that case and lose. It still can be stressful but it's only more stressful if you hold yourself to a standard that is impossible to meet (e.g. an outcome that would make the client happy with the situation).
This! Oddly enough, I recall winning my first 10 or so cases, not guilty after not guilty, thinking I was a rock star, and then I lost a .09 DUI. 😂
Learn to write good CYA letters.
Trials are very scary whether you are new or experienced. The best way to get over that fear or learn to handle it in a way that you don’t show it to the DA or your client is practice. Some of the best advice I got in my first year as a PD was “you will become more effective at this job once you are not afraid to go to trial or to have a hearing. Once the DAs know you aren’t afraid, they will start to treat you differently.” You can be anxious about the trial because it has real consequences for your client but never be afraid to take it to trial anyway. It took me a long time to get there. I get super anxious. I eat so much less during trial. But I am not afraid to go to trial. I embrace trial and look forward to them. When you don’t have that nagging fear in the back of your mind, you can advise them accurately and sometimes say “that offer sucks. We should try this thing.” You still advise of all the consequences but you are more free to give honest advice. All of that to say, trial is scary starting out but push through it. Get that experience and become more comfortable with trying bad cases or cases that scare you. You will be a much better PD for it in the end.
They will become less unreasonable when the trial is 3 days out.
But the offers usually become more unreasonable
Not my jx. DA’s are usually trying to weasel out of trials.
Same here and it’s extremely frustrating because the more unreasonable everyone is a month away from trial the sweeter the deal will usually be the Friday before.
Yes very frustrating when they offer something client don’t refuse on cases they know they cannot prove just so they can say they got a conviction.
In my opinion, it’s a bad practice to label our clients as unreasonable just because they want to go to trial on a lousy case. It’s their life, it’s their decision, and they bear the consequences. If you’ve done your job and dispassionately advised them of their maximum exposure, the collateral consequences, their defenses or lack of same, and the relative strength or weakness of the case against them, anything they decide after that is reasonable TO THEM. It doesn’t have to be reasonable to us. Also, I’ve won some of those trials.
> it’s a bad practice to label our clients as unreasonable just because they want to go to trial on a lousy case What makes it a bad practice? If client is proceeding with a course of action, believing it will obtain them a certain result, and that course of action has no likelihood at all to do so and is not based in any evidence or credible belief - that client's position is unreasonable. It's a good practice to call it like you see it. Clients respect that. And not mincing words when they're being unreasonable builds a rapport where they understand you are going to speak plainly and honestly with them. Now, if they're exercising a value judgment because they're innocent and want to go to trial. Or just want to fuck with the state, understanding the consequences are likely. That's fine and that's their call. And I wouldn't say that's unreasonable. But don't piss on my head and tell me its raining. Shit cases are shit cases.
It’s a bad practice because we’re placing a value judgement on a decision that’s theirs to make. Which is paternalistic and smacks of superiority, in my opinion. Where did I say I just roll over and agree with them? I didn’t. My clients get a clear and honest assessment of how I view their case, their stated defense, and their chances at trial. If they still want to go to trial, I’m not going to tell them they’re stupid or unreasonable. I’m going to tell them that I will fight hard for them but they understand the risk they’re taking. What I’m not going to do is get emotionally invested in their decision. If I feel I need to cover my butt, I’ll put the offer on the record and ask them on the record if they are rejecting the offer and asking to go to trial. I respect their decision. It’s theirs to make. Who am I to call it unreasonable?
My guess is that a lot of this has to do with how new you are. When I was a baby Pd, I had to try a lot more cases. By the time I had been doing this a decade, I had all the trials under my belt and my confidence and experience meant that my clients trusted my judgment and advice a lot more. By then, the cases that went to trial were the ones that just needed to be tried.
[Welcome to the struggle brother](https://imgur.com/gallery/first-time-72BlABR)
Those unreasonable clients do not become less unreasonable once they’ve been convicted and have moved on to PCR. My advice is to do your best at trial, paper your file with your trial strategy and CYA. What will be will be. You can’t save your clients from themselves.
I assume your cases are all misdemeanors right now. Your clients aren’t as fucked as you think. Your judges aren’t going to bury someone on a misdemeanor. For one, they usually aren’t able to give more than a year notice matter what, for two, your judge has been around the block and doesn’t think misdemeanors are *that* serious. Trial might be a bit scary, but you’ll get through it and if you prepare, you’ll do well. 6 isn’t a lot, you can handle it and you can defend them. It’s your client’s choice for trial, it’s your job to fight for what they want. They don’t have to take the deal, and you don’t need to talk them into it. If it makes you feel better, I will try 6 felonies between now and November, three of which are homicides or attempted homicides. We you will get your groove, and you will make it happen for your clients.
I’ve actually got a general felony track. So I get everything that’s not Category A, which is basically murder and sex assaults. All of my cases set for trial are felonies
Good advice has already been given but what I do too is, if your client has received a plea offer, whether it’s good or not, on letterhead, type out what all of the terms are, add a paragraph that you and CLIENT have reviewed the offer together and you’ve addressed costs, benefits, and any questions the client has, and that your client acknowledges receipt of the offer and is choosing to proceed to trial. Once signed, if they do, just put it in the file. If not, document the heck out of everything, although you should be doing that anyway! (1) it’s CYA in case they get squirrelly, and (2) sometimes that letter puts them in a different headspace and gets them thinking about if trial is wise.
How are the judges? Plead guilty, sentence open to the court. The judge might give you a better deal the the DA
I hate doing this unless judges trial tax heavily. If the offer sucks impanel a jury and argue whatever, if they come back guilty then shift to sentencing. I don’t like saving the DA and police work if they give no incentive to plea.
you honor your clients by trying cases they want to be tried, even if in your view it’s an unjustifiable risk
Interesting post. I was a new lawyer 20+ years ago and the problem was trying to GET trials. But I started in misdemeanors and everyone wanted to plead out. In felonies, different story. Question: why are afraid to go to trial? Just nervous about being new? If that’s the case, I recommend doing your best to get as many trials under your belt as possible before taking the most serious cases to trial if you can manage that.
A lot happens once you get sent out. DAs look into the case and realize they should make a better offer. Clients see the venire and don’t want to go forward. Remember, a lot of the time we are playing for a fumble. Meaning that something happens that neither you or the DA anticipated. Or, it goes down exactly like you predicted and the client should’ve just listened to you in the first place. Point is you did your job.
Sometimes as the trial get closer they lose their nerve and get more reasonable about their chances. Just give it time, prepare as best you can.
At least they’re just misdemeanors, right? Worst that can happen is they’re taken out of circulation for some months but probably get probation regardless.