Mimesis Law
24 February 2017

How To Tell If The Article You’re Reading About Criminal Defense Attorneys Is Any Good

December 1, 2016 (Fault Lines) — The Times of San Diego recently published an op-ed entitled “Five Ways to Know Whether a Criminal Defense Attorney Is Any Good.” The author, Stephen Cooper, has some credibility, as he used to work for the DC Public Defender Service, one of the nation’s best public defender offices, and was an assistant federal defender in Alabama. Unfortunately, his advice doesn’t measure up to this resume, in that the listicle consists entirely of platitudes.

Imagine an article titled, “Five Keys To Making A Good Movie,” with the following helpful pointers:

  1. Get a good script.
  2. Cast good actors.
  3. Hire a good crew.
  4. Shoot the film on time and under budget.
  5. Edit well.

Not very helpful, is it? Cooper goes on in much the same vein. Point by point:

  1. Irrespective of payment or a client’s guilt or innocence, from the start, a good criminal defense attorney cares and takes steps to ensure the client’s constitutional rights are protected, and vindicated, and that the client is treated fairly and humanely by the criminal justice system.

Except, to the defendant, there’s no way to tell if one’s constitutional rights are being protected, let alone “vindicated.” At the client’s level of understanding, whether or not one is being treated “fairly and humanely,” it mostly consists of whether or not the judge sets a bail he can afford.

  1. Criminal defense attorneys, like judges, prosecutors, probation officers, and cops, are “repeat players” in the criminal justice system.

Now, don’t get me wrong, if a criminal defense attorney is constantly cozying up to the prosecutor and other repeat players such that it seems like he or she might actually care for them more than the client — that’s a problem — a big problem.

How is the client supposed to tell the difference between a lawyer who has a good working relationship with a prosecutor and one who is “cozying up” to them?

  1. A good defense attorney doesn’t care if their client “did it.” […] Good defense attorneys aren’t focused on whether their clients are innocent or guilty. Instead, they protect and fight for defendants of both stripes using all available energy and resources.

True, but only up to a point. Whether or not a client “did it” shouldn’t have any effect on how hard a lawyer fights for his client. That said, a good criminal defense attorney is going to approach a case where the defendant’s three alibi witnesses are a bishop, a nun, and videotape from CNN proving the he was in another time zone, differently from a case where there’s signed, properly Mirandized confession, security tapes of the defendant holding up the bank, and his fingerprints on the smoking gun.

  1. A good defense attorney doesn’t accept what is in police and prosecution reports.

Fair enough. Cooper goes on to suggest that a good attorney will hire an investigator, talk to witnesses, hire experts, issue subpoenas, and the like. Except, not every case requires every one of those things, or even any of them, to happen. Each case is different. And again, it’s generally impossible for a client to know which of them are necessary, and when.

  1. A good defense attorney will regularly remind and urge their client to exercise their Fifth Amendment right to remain silent, insisting they not talk to anyone, except the defense lawyer and investigator, about the allegations.

Again, true enough, but oftentimes the attorney is only getting involved after the police have completed their investigation. Warning clients about Miranda at that point is like advising someone to shut the barn door after the horse ran away.

It’s not that anything Cooper says is wrong. It’s that almost none of his advice can be applied by its intended audience. Except this part:

At the same time, a good defense attorney will regularly meet and talk with their client about their case whether the client is locked up or not.

That part is spot on. Expanding on that, a good indicator of a criminal defense attorney is the extent to which he explains what’s going on in your case. If, the first time you meet him, he promises the sun, the moon, and the stars (or an acquittal), you’ve probably got the wrong guy. He doesn’t have the basis yet to suggest (never promise) any outcome.

Any defense lawyer worth his salt can give you a basic idea of what you’re facing just from hearing your version of events. But a detailed strategy for defending you has to wait. And any advice he gives, he should be able to explain in terms you can understand.[1] The best outcome for both Defendant A and Defendant B might be to take a plea for five years. The one who has the better lawyer is the one who’s done the legwork to explain why, as opposed to informing his client about it in the jury box five minutes before the plea hearing begins.

There are other measures of how good a lawyer is. Criminal defense being a results-oriented field, though, the only way for a client to know for sure whether he had a good lawyer is when the jury comes back with a two-word verdict, if that’s even possible, or the judge grants probation…and even that doesn’t tell you whether a lawyer is good, only if he’s good enough. If you’re trying to figure that out ahead of time, here’s the question to ask: is your lawyer telling you what you want to hear, or what you need to know?

[1] That’s not to say you have to like it . Clients are not customers, and they are not always right.

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