Posted on December 26, 2008 by Walter Reaves

Choosing a lawyer - how important is experience?

I've read several posts recently on choosing a lawyer. There's also an ongoing debate on marketing for lawyers - some who think its a good thing, and some who don't. The marketing debate seems to be divided between lawyers just starting out, and those with established practices. Predictably, lawyers who are already established tend to look down on marketing Obviously that is not always the case, because there are some established lawyers who aggressively market themselves. For the most part though, the more established you are, the less you rely on marketing.

You would expect lawyers with experience to emphasize that, and for the most part they do. The question for those choosing a lawyer is just how important is experience? For good lawyers, experience is valuable. I'm just starting my 28th year, and I like to think I've learned a few things over those years. However, just because you've been doing it a long time doesn't mean you have been doing it well. The legal system doesn't demand a lot from criminal defense lawyers, and average, or below average lawyers can get by just fine. The test for effective assistance is a "reasonably effective lawyer", which basically means someone who is average. You don't to try a case perfectly, or like a great lawyer would, to be effective. That comes as a surprise to most clients, because they expect their lawyers to more than reasonably effective.

For good lawyers, experience is an asset. Not only do you have the experience of handling all types of situations, you also have built up a reputation. There is no doubt that prosecutors make decisions based on the reputation of the lawyer they are dealing with. If it's someone they know always plead their cases, there isn't much incentive to offer a good plea. On the other hand, if it's someone they know is going to make them work for everything, and isn't afraid to take a case to trial, they are going to more inclined to offer a favorable resolution.

The unfortunate fact for clients is that they don't know what a lawyer's reputation is among other lawyers. There are a few high profile lawyers, who are familiar to a lot of people. For the most part they are good lawyers, but that is not always the case - they may just be better at generating publicity. Just because a lawyer successfully handled a high profile case doesn't mean he always does that. I've seen cases where high profile lawyers performed terribly. On the other hand, I've seen cases where those same lawyers performed miracles.

One of the drawbacks of being a high profile or successful lawyer is that you have a lot of clients. Unfortunately, that often means you have less time to spend on each case. Some lawyers handle it by adding staff, or additional lawyers, while others try to limit the  number of clients. Even when you try to limit the number of clients its hard to say no to someone who you feel is getting screwed by the system. A lawyer may have the best intentions, and all the experience, but they also need the time necessary to devote to a case. I often look back longingly to when I first started. I didn't have many clients, so I could devote a lot of time to each case. I could spend hours working on the case, because I had the time to do so. Of course, a lot of that time was spent trying to figure things out. I was terrified of getting embarrassed in court because I didn't know some rule or procedure, so I tried to anticipate everything. Fortunately I no longer have to do that, which means I don't have spend as much time on each case - in other words, I don't have to re-invent the wheel each time.

In the end, experience is important, but shouldn't be the only thing you look for in choosing a lawyer. I think the intangible is how much a lawyer cares about their clients. Good lawyers view clients as more than dollar signs; they want to help the client first; that doesn't mean they will work for free, because they expect to get paid well for what they do. However, its a matter of priorities. The only way you can determine if a lawyer is truly interested in helping you is to spend some time with them; you should feel comfortable with them, and trust they have your bests interests in mind. After all, you are placing your life and future in their hands.

 

 

 

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Posted on July 29, 2008 by Walter Reaves

What's a case worth

Intoxication manslaughter cases have been in the Waco news later. Several weeks ago, a young girl was sentenced to 2 years for the death of her cousin. They had both been out drinking at a party, and had a wreck on the way. During the trial, the victim's parents pleaded with the jury to not send her to prison.

Last week, a young man was given 30 years for the death of a mother, and injuries to her children He had been passing in a no passing zone when he collided with the victim. The wreck killed the mother, and seriously injured one of the children. Obviously, the wreck devastated the mother's family. It also devastated the defendant's family. His brother had been killed several years earlier after drinking too much, and driving his truck into a ditch.

This week a defendant decided to plead guilty instead of going to trial. She had been out drinking with friends, including the victim. The victim had also been using drugs. They ultimately got into a fight, and he got out of the car, and the others left. They came back, and ran over him, killing him - he was lying in the road at the time. She agreed to 8 years instead of going to trial. When interviewed, her law stated it was not a good time to be charged with McLennan County. Obviously, the verdict the previous week influenced her expectations o what could happen.

So how come one defendant gets 2 years, and another gets 30. The easy answer is that different juries may look at cases differently. Still, that doesn't really explain the difference between those two results. Even when plea bargains are involved, there often appears to be substantial disparity between similar cases.

It's no secret that the majority of cases are resolved by plea bargain. When trying to negotiate a plea, both lawyers are trying to guess what a jury would do. The defendant does not want to agree to more time than a jury would likely assess. The prosecutor also does not want to offer substantial less than what a jury would assess. When trying to guess what a jury will do, both sides have to evaluate all aspects of case. That includes the facts of the offense, and a defendant's prior history. Although it shouldn't be a consideration, the circumstances of the victim must also be considered. (that will be left to later)

Plea bargaining has a lot of similarities to gambling, and each defendant's attitude towards risk must be taken into consideration. Some people want to know what will happen, and stay away from risk. For them, plea bargaining allows them to know beforehand what is going to happen. Others enjoy risk. For them, they may not shy away from the risk of a trial, where they might get a lower sentence, or one substantially higher than is being offered.

Another factor which cannot be controlled is the prosecutor assigned to the case. Policies vary among Counties, but almost everywhere prosecutors have some discretion when making offers. In some counties, that discretion is almost unlimited, which creates a real problem for criminal defense lawyers. One prosecutor may be more lenient than another, and the luck of the drawer determines whether a client gets a low offer, or a high  offer. That is one of the more difficult things to explain to clients when they see other people coming out substantially better than they are. It is impossible not to compare cases, and everyone does it.

Just as the prosecutor makes a difference, so does the defense lawyer. Prosecutors know some lawyers have a reputation for pleading everything out, and avoiding trials. They also know other lawyers are going to fight for their clients, and aren't afraid to go to trial if they think that is he best strategy. Without a doubt, the latter are the ones who are most effective in negotiating favorable agreements.

In the end, there is no formula or rule you can use to evaluate a case. There is no substitute for experience. That is the only way you can know how juries and prosecutors evaluate cases. Unfortunately, that leaves everyone with their own opinion, which they won't hesitate to share - all you have to do is look at the comments on most news web sites. Of course, that is also one of the things that makes this Country great.
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