In my opinion the best criminal defense lawyers have four skills. They
are: the ability to investigate, negotiate, provide a technical legal
defense, and win at trial.
The Ability to Investigate
The single most important thing a criminal defense lawyer can do is over-investigate
their case. It is the probably the biggest single difference in lawyers,
how much independent investigation they do. Criminal defense lawyers are
playing catch up from the moment they get involved in a case. Often times
the police have investigated the case for months or years. The District
Attorney has probably been briefed or begun preparation. They have police
reports that explain the police position. The judge has read the accusatory
instrument. The criminal defense lawyer is coming in late. The beginning
of the case is all about information gathering. What really happened and
how can you prove it? What did the police miss? Are there phone records,
text messages, Facebook messages, video, photos, and most importantly
WITNESSES that contradict the complaining witness or the police? They
must be found. This evidence is the difference between success and failure.
How do you find evidence? Subpoenas, private investigators, discovery…yes,
yes and yes. The best way I know – get in your car, drive there,
and start talking to people. Not many lawyers investigate. Very few go
to the scene. Only a few ever go out and find their own witnesses.
The Ability to Negotiate
Everyone knows that criminal defense lawyers must be strong negotiators.
But what does that really mean? Most criminal defense lawyers think negotiating
is some sort of belly aching whining, pleading, dang near begging, so
they don’t have to work. This is a terrible method and it doesn’t
work. There are really only two factors that should be considered in negotiation:
what does this person deserve and what is the likelihood of conviction
if the case proceeds to trial (what is the strength of the case). The
best deals should be for “good” people with a poor case against
them. Conversely, the worst deal should be for a horrible human, with
overwhelming evidence of guilt. A good criminal lawyer knows everything
there is to know about their client. They know all the good and the bad.
They must convey the good. But be careful not to lie, or even stretch
the truth, because you will lose your credibility in a blink.
More important yet, the defense lawyer must find the weaknesses in the
case. That does not mean they must be able to win the case. However, every
good prosecutor knows there is no such thing as a “sure thing”
at trial. 99% likelihood of success may be possible, but 100% is not –
see People v. OJ Simpson. The job of the defense lawyer is to highlight
doubt, in some cases create doubt, for the prosecutor. How? Find witnesses
that help point out every single inconsistency in the police report, make
a motion to dismiss, challenge the police conduct, whatever you can. Just
highlight the weakness, whatever it is.
Then, most of all, put yourself in the other person’s shoes. What
do they want? What do they need to look good? What do they need to have
a good enough result to move on? Most prosecutors want two things: consequences
for actions and justice for victims. That’s what I wanted when I
was a prosecutor. Most defendants can actually live with those two things.
That’s why a lot of deals get done. The defendant should be OK with
short-term inconvenience to protect long-term harm. The job of the criminal
defense lawyer is to protect their life, and their future, if possible.
Remember you never know what you might get, until you ask. And it is usually
good to provide some options for your client.
The Ability to Provide a Technical Legal Defense
Third, provide a technical legal defense. This is the kind of thing you
learn in law books. Read the discovery. Read the law. Reread the discovery.
Reread the law. There is usually something to argue about. Most police
officers are fairly skilled at investigating crimes. Most police officers
are much less skilled at writing police reports. Challenge the paperwork.
Challenge the initial approach of your client. Challenge the quality of
the police interaction. Challenge the procedure. Technical legal defense
usually begins at the motion stage. It can lead to the suppression of
evidence or the dismissal of the case entirely. Most of all a strong legal
defense places pressure on the prosecution. Pressure improves plea offers.
If there is a possibility that the case could be lost entirely, the prosecutor
that had offered 5 years jail a week earlier, might now offer probation
instead. A good legal defense can provide victory, or additional leverage
The Ability to Win at Trial
In my opinion, the toughest skill, is being able to win at trial. Not many
lawyers will take tough cases to trial. Trials are hard. They take a lot
of prep work to prepare appropriately. A good defense lawyer will prepare
50 hours a week for 2 – 4 weeks prior to a felony trial. Not many
people do the work. Trials are stressful. They are usually in your face,
adversarial events. Trails require you to be front and center for many
days at a time. Mistakes are aired for all to see. And in the end the
jury decides. You will win cases you should lose. And lose cases you should
win. But only a few lawyers really win serious criminal trials. I would
suspect that less than 5% of criminal lawyers have taken more than 30
criminal jury trials to verdict. I suspect that less than 5% have ever
won a violent felony jury trial. Some people can do it in front of a jury,
others can’t. A good criminal defense lawyer must be able to win
at trial because if there is no avenue to resolution that is where the
case must go. Prosecutors know who will go to trial and who won’t.
They must know you can go to trial and win.
A criminal defense lawyer needs four skills; investigation, negotiation,
legal defense, and trial defense. The investigation is the base for all
other avenues of defense. In my opinion the reason that former prosecutors
make the best defense lawyers is because they are used to the investigation
phase. Typically prosecutors do more investigation and defense lawyers
do more responding. Good defense lawyers go out and create their own defense.
Negotiation starts early and continues. There is always a point in a case
where negotiation is at its best. That is when the defendant is at his
or her highest point they will ever reach (possibly very low) and the
likelihood of conviction at trial is at its lowest (possibly very high).
It takes some time to learn the appropriate time to settle. Legal defenses
are technical in nature. They take time and patience to develop. The difference
between success and failure can be a sliver. Finally, there is a trail.
You are selling your position that either what happened was not a crime,
or if there was a crime your client didn’t do it. Those are the
only two defenses I know. A good defense lawyer can win all four ways
- investigation, negotiation, legal defense, and trial defense. The lawyer
that knows more about the case usually wins.
If you’re in need of tough criminal defense, please call my office
today at (585) 286-5124.