The Washington City Paper is again taking votes for “Best of D.C.” in a number of categories.  Winner of the “Best D.C. Lawyer” last year, David Benowitz is again in the running for the award this year.  He has my vote.  Here is the link.

“David Benowitz is a fixture of the local courts, having spent his entire career fighting for justice . . . David exhibits a combination of passion, tenacity, and trial skills when fighting for his clients’ rights.”

Yeah, that too.  A product of the Public Defender Service, Benowitz is as good as they get.  He works with more junior lawyers. He doesn’t have an attitude.  And he and Seth Price run a first-class operation. What else is there to say?

Before beginning my practice in Virginia, I went over to traffic court in Fairfax County to observe, and was struck by the large number of DWI cases that pled. One piece of blue paper after another was passed up to the judge, with the defendants lining up to accept responsibility for their offense. These guys don’t know how to try a DWI case, I thought to myself smugly. They amass clients, charge a hefty fee, and then pocket the money.

*  *  *  *  *

A couple of days ago, I lost a DWI trial in Alexandria.

I always take the rest of the day off following a trial. My wife and I go out for a celebratory dinner after a win. After a loss, I go home to brood in my study.

If I spend the rest of the day blaming myself for a loss, I have usually found something else to blame by the following morning. In this case, two days later, I have decided to blame Virginia’s rules of discovery and the prosecutor.

*  *  *  *  *

Criminal defense lawyers in Philadelphia begin the plea bargaining process with virtually everything the government lawyer has:  police reports, accident reconstruction reports, witness statements, notes from the field sobriety and breath tests, and so on. In other words, you know what you are dealing with.

While the discovery rules in D.C. are not quite as liberal as in Pennsylvania, there is the Jencks Act, which requires the government to turn over any statements made by a witness after the witness has testified. To avoid delaying the proceedings once the trial has begun, a helpful prosecutor will occasionally give you the statement in advance.  Again, you have at least some idea of what to expect from the testimony at trial.

By contrast, the defense in Virginia is guaranteed only two pieces of discovery:  (1) the defendant’s record, and (2) information on any statements the defendant may have made. You can occasionally get a brief summary of the officer’s report from the clerk’s office. The defendant also gets a copy of the breath test certificate in DWI cases, and defense counsel can request specifics on the breath test machine from the Department of Forensic Sciences.

The result of these very limited rules of discovery is that, depending on the results of your own investigation, you are often flying blind when helping the client decide whether or not to accept the government’s plea offer.

*  *  *  *  *

Courts hate trial by ambush, and, in fact, it is in no one’s interest to have cases that should have pled go to trial. The government has to go to all the trouble of bringing in all its witnesses. In this particular case, there were three witnesses — the off-duty officer who observed the accident, the officer who was called to the scene to administer the field sobriety tests and to make the arrest, and the officer who administered the breath test – all of whom sat in court the whole day waiting for the case to be tried.  And the defendant can get slammed during sentencing for having exercised her constitutional right to contest the charges.

*  *  *  *  *

Prosecutors who want the defendant to accept a plea offer can occasionally go beyond the obligatory disclosure requirements to let you know what they have against your client. In this case, adding to my list of complaints, excuses and self-justifications, this particular prosecutor elected to remain silent.

I had no idea, for example, that an off-duty officer had actually witnessed the accident – thereby satisfying the government’s burden of proving “operation” — until he showed up in the room moments before trial, and by then it was too late to accept the plea. And there was no way of finding out this information for myself:  Since his name was not listed in any police report I had, I could not check the name tags of the officers assembled in the hallway to see if he was there.

In addition, I had no inkling of what turned out to be a very damning police report until the officer was already on the stand. Even then, the fact that I was able to read the report before the actually testimony was pure happenstance.  When the officer, already on the stand, was unable to remember certain specifics during direct, the prosecutor was required to pull out the report to refresh the officer’s recollection. The prosecutor couldn’t show the officer the report before she showed it to me. I thus had a few moments, while the entire courtroom sat in impatient silence, to read what turned out to be a very detailed report before the officer continued his testimony. Again, however, this gave me little time to do damage-control, much less factor the report into our decision on the plea offer.

It is so much easier to find someone else to blame.

*  *  *  *  *

I have had a string of successes recently at trial, and I can’t help wondering if this didn’t factor into what turned out to be my client’s ill-fated decision to take this case to trial. I always do my best Joe “Just the Facts, Ma’m” Friday imitation whenever I counsel a client on a plea offer, because the client needs to own the decision. At the same time, the client cannot help but be influenced by her lawyer’s demeanor.

At 6:00 pm today, my client will turn herself in to begin serving her jail time. I will try not to think about this. I will think instead of a client facing substantial jail-time who told me once with a resigned smile that she had been listening to a lot of Johnny Cash. In addition, the next time I see my colleagues lining up their clients to plead guilty, I think I’ll be a tad less judgmental.

H/T Appellate Record

Mark Bennett refers to them as “letter lawyers”; they are the lawyers who, with the hopes of securing new clients, send out advertising materials to the people whose names and addresses have been listed on public arrest records.

A friend of ours was charged recently with a misdemeanor traffic offense and received over 20 letters in the mail.  She shared them with me, and it was interesting to see what my competition has been up to.  She was particularly annoyed with the postcards: I don’t really want my children, neighbors, and postman to know that I have been charged with a crime, she said.

The best letters, I thought, were low-key and informative. We understand you have an upcoming court date. If you already have an attorney, please disregard this letter. Feel free to visit our website for information on the charges facing you. And feel free to call our office to talk with one of our attorneys.

The other letters – the ones that made ample use of capital letters, underlining, bold-faced type, and exclamation points – tended to fall into one of several categories.

First, there is the “emotional appeal” to scare potential clients:

Dear Friend:

Public records indicate that you may have been charged with a SERIOUS TRAFFIC/CRIMINAL OFFENSE.  If convicted you may face a possible jail sentence, substantial fine, criminal record, and suspension of your driving privileges . . . depending on the charge!

In addition, if convicted, you may be assessed “negative demerit points” against your driving record and your automobile insurance company may terminate your insurance coverage, refuse to renew it, or substantially raise your premiums. 

But, if handled properly, it is often possible to avoid some or all of these very unpleasant results . . . or at least to understand and minimize their impact upon you!

Some of the letters go after the competition:

Our firm is located in Fairfax and only Fairfax (right next to the courthouse). Our lawyers are in court in Fairfax nearly every day of the week appearing before judges and dealing with the prosecutors that will be handling your case. Hiring a lawyer from a neighboring county can put you at a disadvantage. Much like the saying that “all politics is local,” the practice of law in this area is local as well. There are 10 different judges on the Fairfax General District Court and over 20 prosecutors. Not being familiar with the players involved and the decisions they make puts your lawyer at a disadvantage. A lawyer that divides his time between multiple jurisdictions, or “moonlights” in Fairfax, may not be able to offer this to you.

Some lawyers emphasize the willingness to fight:

Do not hire an attorney whose goal is to settle a case easily, without trying to find way to obtain an acquittal. 

Others seem to be setting prospective clients up for a plea:

If you are properly represented by an attorney, there exists the chance to reach an agreement with the Commonwealth’s Attorney about an agreed recommendation of the disposition of the case before the case is heard by the judge.  This way you have a good idea of the outcome before you go before the judge.  The judge will have a few simple questions for the Commonwealth’s Attorney or the defense attorney and the proceeding just takes a few minutes (you normally do not have to say anything). 

There are the casual, folksy letters:

I would like to help you win your case. That’s it. It’s that simple. I don’t want to scare you into a plea bargain. I don’t want to tell you what you did wrong. I want to help you win. Period. So please accept this invitation to meet with me for a FREE LEGAL CONSULTATION.

There are the lawyers who seek to distinguish themselves from the competition:

We do not waste your time with gimmicks like colored paper, pretend booklets, or office appointments. 

And then, of course, there are the caring lawyers:

Because I have seen the devastating consequences that can result when people are charged with DUI, reckless driving, and other serious traffic and criminal offenses, I care about my clients.  My goal is to help them get their life back.  I walk with clients through the often complicated process of defending their case, protecting their reputation, and guarding their future . . .

My client’s concerns are my concerns and I make them a top priority,  I try to treat every client as if their case was my most important case, because I know it is their most important case. That’s why I am available 24 hours a day and return my client’s phone calls promptly!

While there are many former prosecutors in the bunch, one of the lawyers felt the need to drive home his ability to curry special favor with judges and prosecutors:

As a former Fairfax County prosecutor, I have an inside understanding of the system in Fairfax County.  I know how to defend Reckless Driving cases because I once prosecuted these same cases.  On a daily basis, I practice before the very Fairfax judges and prosecutors that will handle your case.  I have handled thousands of Reckless Driving cases – on both sides of the system.

Also iffy from an ethical standpoint is the following:

My firm is unquestionably one of the most accomplished and aggressive firms in Northern Virginia.  Not only do I practice law, I TEACH OTHER LAWYERS the skills needed to win their cases.  You see, lawyers are required to take yearly courses to maintain their knowledge and understanding of the law.  I have taught the very courses many lawyers rely on to sharpen their skills.  This advanced, in-depth knowledge of the law sets [my firm] apart from the crowd. 

I have nothing in principle against lawyers who send out letters to advertise their services. After all, as pointed out in one of the comments to Rule 7.1 on Communications Concerning a Lawyer’s Services, the “legal profession should assist lay persons to recognize legal problems because such problems may not be self revealing and often are not timely noticed”; there is “value” in “giving assistance in the lawyer selection process”; and the “attorney client relationship should result from a free and informed choice by the lay person.”

At the same time, “[a]ll such communications should be evaluated with regard to their effect on the reasonably prudent layperson. The non lawyer is best served if communications about legal problems and lawyers contain no misleading information or emotional appeals, and emphasize the necessity of an individualized evaluation of the situation before conclusions as to legal needs and probable expenses can be made.”  Moreover,“[a]dvertising through which a lawyer seeks business by use of extravagant, self laudatory statements, or appeals to fears and emotions could mislead laypersons . . . Advertisements and public communications should be formulated to convey information that is useful to a layperson in making an appropriate selection.  Self laudation should be avoided.”

Reviewing the transcript from a hearing or trial you have done can sometimes be a humbling experience. What you may have remembered as a dramatic moment at trial can come across as flat on the printed page, and a good stenographer will throw in every “er,” “um” and “okay” to remind you that you may not be quite the eloquent trial attorney you thought you were.  Sometimes you stumble over a question or miss an area for possible inquiry. And then there are the moments – however brief — in which you seem to be doing everything right.

Here is a brief excerpt from a jury trial I did recently in Virginia.  My client was charged, among other things, with being a felon in possession of a firearm. Tucked away within the 300-page transcript is this gem of a redirect to “rehabilitate” my client after the government impeached his testimony on cross-examination. As for the times during the trial in which I was less than perfect, well, I’ll allow them to remain buried within the transcript, a secret known only to the stenographer and me.

Q:            Mr. Norfleet.

A:            Yes.

Q:            Did you ever do a quick draw with the weapon in the mirror?

A:            No.

Q:            Did you ever say you did a quick draw with the weapon in the mirror?

A:            No.

Q:            And who said that you did?

A:            My previous lawyer.

Q:            At the time of previous testimony, did anyone ever ask you what you meant by toying with the weapon?

A:            No.

Q:            Now, when you sold the car, this was a person-to-person transaction?

A:            Yes.

Q:            So there was no business involved?

A:            No.

Q:            Did you keep any records of that?

A:            No, I didn’t.  I didn’t feel no need to.

Q:            When you found out that the firearm was in your car, why didn’t you turn around and drive back to Melissa’s house so that she could take the firearm out of your car?

A:            I just wasn’t about to drive around with a gun, you know.  I wasn’t even thinking about “oh, I’m a convicted felon.”  All I’m thinking a gun – a gun in my car, you know.  I wasn’t going to do it.

Q:            Why didn’t you leave the firearm in the car and call the police?

A:            I am a convicted felon.

Q:            Why didn’t you just leave it in the car for the guy you sold it to to make it his problem?

A:            That just sounds crazy.

Q:            Again, what were you thinking when you brought the firearm into your house?

A:            Take it, hurry up, put it away somewhere, need to hurry up and run down to get to the Croppers before they closed.  That was like the only thing that was really on my mind at the time.

Q:            Thank you.  I have no further questions.

I went to my first meeting yesterday in over 10 years.

Believe me, I know my way around a meeting.  During my first career in the government, I did nothing but meetings:  budget meetings, planning meetings, team meetings, agency meetings, inter-agency meetings. Half of my day was spent planning for meetings. The other half was spent sitting in them.

Before being promoted into management, I had to be trained on chairing a meeting. It’s very straight-forward: you send out an agenda in advance, you start the meeting on time, you go through the agenda, and then you end the meeting at the time you said you would.  No around the table, what’s on your mind thing for me.

My favorite meetings were the inter-agency meetings chaired by the Department of State. I’m not quite sure why they called them inter-agency meetings because for the most part you felt as if you were eavesdropping on an internal State Department meeting. A representative from one of the offices at State would begin the meeting.  The chair would then turn it over to representatives from each of the other State Department offices to say their piece.  There would be some bickering between the offices because those guys could never agree on anything.  With ten minutes left to go, the chair would then say, I’m sorry, would someone else like to say something?  Treasury?  EPA?  Department of Energy?  Commerce?

Of course, before I ever went to one of these State Department meetings, I had to call a meeting within my own agency to help decide what our position would be at the inter-agency meeting.

Needless to say, when I resigned from the government in 2002, walking out of the Ronald Reagan building with my personal belongings in a cardboard box, I knew I was not going to miss the meetings.

I stayed at home with the kids for a year and a half.  Every day for the first six-months was like a snow day.  And the best part about it was that there were no meetings.

After the whole stay-at-home thing got old, I went to law school, taking classes during the day so that I could be there when the kids got home from school.  And, again, there were no meetings.

Thankfully, in deciding to become a criminal defense lawyer, I picked a legal career in which you rarely – if ever – have to go to a meeting. Yes, you may occasionally attend a conference or training session that involves sitting down and listening to someone else talk. And you meet with clients. But there are no occasions in which you sit down around a table with a group of other people (the bigger the committee, the less important its mandate), introduce yourselves, talk about things, and then spend the last half of the meeting planning the next get-together.

My ten-year streak of no-meetings was snapped yesterday.

A couple of weeks ago I was asked to serve on a D.C. Superior Court committee.  A judge asked me, and there are two other judges on the committee, one of whom I appear before regularly.   The committee is also focused on an issue that is near and dear to me:  the treatment of lesbian, gay, bisexual, and transgender youth within the D.C. family court system.

But even then I struggled with the decision.  One of the benefits to being a solo practitioner is that you live life on your own terms.  You are accountable only to the courts and to clients.  Unlike the millions of “stakeholders” I had as a government servant, a criminal defense lawyer has a constituency of only one:  the client.  As a result, you rarely have to do anything you don’t want to do.

My wife encouraged me to accept the invitation.  It will be good for you, she said. You should do it.

So I went to the committee’s first meeting yesterday, heading back into the city during rush-hour at a time I am normally sitting down for dinner. I arrived early only to have the start of the meeting delayed for 15 minutes so that the last invitee could straggle in.  It reminded me of waiting for the door on an airplane to close.  Find your seat, the flight attendant says over the intercom, so that we can pull away from the gate.

If I didn’t immediately regret my decision to participate on the committee, two things did occur to me as we went around the room to introduce ourselves.  The first was that, despite all my wife’s encouragement, I rarely see her going to any meetings herself.  She is probably the most time-efficient person you have ever seen, a person used to juggling family with a career.

The other conclusion – and the moral of this story – is that you should only go to meetings that you have called yourself.  Otherwise, you are nothing more than a hostage to other people.

Guest Post by “Hamilton Burger”

Every trial lawyer faces that sharp chill in the middle of the night, when your mind refuses to let go of your upcoming trial — and you realize that your opponent has an expert witness who is going to crush your case.

You may be a defense lawyer who has to prepare a trial on a shoestring budget.

You may be caught by the court’s disclosure deadlines; failure to answer discovery; or other procedural snafus.

My recommendation is not to worry, just get ready.  One strategy for winning against your opponent’s expert witness is to prepare one pearl of a question, or subject matter for a series of questions, that will get the expert to agree with you in front of the jury.  Once you get that expert to agree with you on a point, thank the expert, then sit down.  You have something to argue to the jury later.  This strategy does not suggest that you do not challenge the expert based upon your unique facts and case.  Of course, the level of attack against an expert witness must rely upon what you have in your wheelhouse to pitch to the jury.

I prefer, when the case allows, to avoid direct confrontation with the expert.  I rather pick away at the weak points, then get an agreement from the expert,  and sit down. I wait to challenge the expert at a point in the case when the expert cannot answer back — or be rehabilitated by your opponent — during the closing statement. That is when I mercilessly hammer away at the expert, describing to the jury why the expert’s opinion is deficient, or failed to do his/her homework. I often use the reports or documents that the expert admittedly did not review in preparing for his/her testimony.

And I remind the jury that the expert agreed with me, “…and remember when expert X agreed with me on this point….”

To read Hamilton Burger on the “Jury Trial Tax,” please click here.

I botched the investigation.

I went to the store on Upper Wisconsin Avenue in which my client was alleged to have committed a robbery.  While there, I neglected to look for a critical piece of evidence:  whether or not there was a surveillance camera over the cash register.  As a result, my investigator Wayne Marshall had to go back to the store to do the investigation right. I miss things that to him are second nature.

Marshall and I have been working together now for less than a year, mostly on court-appointed juvenile cases.  Both of us are relatively new to the area. Marshall gave up a career as a New York police officer after being shot twice in the chest. He drove himself to the hospital.  The triage nurse, busy with some paperwork, told him to take a seat in the waiting area.  “Just a moment, sweetheart,” she told him.  “I’ll be right with you.” He still carries around two bullets in his chest.

I am jealous of the time he devotes to other lawyers’ cases and I know that I can sometimes be difficult to work with.  I fret.  I send him late night text messages and emails that increase with frequency as the trial date approaches.  Fortunately, he too is an early morning person and we have often communicated several times before sunrise. That’s okay, he told me the other day when I apologized for my micro-management.  You keep me on my toes.

Marshall is a chameleon.  He is just as at home in the suburbs of Maryland and Virginia as he is on the streets of the District.  Yet it is his entrée into the lower-income homes on the east side of the Anacostia River that I value the most.  Many of the families there don’t quite know how to deal with an uptight middle-aged man from across town who still doesn’t know how to dress down.  With life pouring out into the street from row houses, and doors always open, their world is as unfamiliar to me as the green expanse of my world is to them.

Although the families and I will come to know each other very well by the time the case concludes, the first visit to a client’s home is often uncomfortable for both parties.  I will have already met the client and family at the initial hearing at which I was appointed.  But that meeting is brief and harried, done moments before we go before the judge.  The parents are angry and upset, and the child has just spent the night in custody.  When I walk over to the cell-block to introduce myself before the hearing, I am just one more person who will prod the child with questions.

The first time I visited a client at his home, I made the mistake of going into the home before Marshall had arrived.  The son and I sat on an overstuffed couch in the living room while the mother cooked bacon and eggs in the kitchen next door, all the while trying to keep an ear out on our conversation.  Then Marshall arrived, and the mother breathed a sigh of relief.  Thank God, she said.  I didn’t realize we had a brother working with us.

Marshall and I stick out a little bit more when I accompany him to the alleged crime scene.  We usually bring the client along with us if the child is not being held in secure detention, and the ride there is a good way to get to know the client in a more relaxed setting.  We discuss football and school.  Although Marshall and I do most of the talking, you can see the first signs of the client beginning to open up.  Our relationship with the client will be very different at the next court listing.

Marshall assures me I do not cramp his style during the crime scene investigations. “Not at all, Mr. Koehler,” he says when I first bring this up.  We always address each other formally while in the presence of clients.  It is an affectation he may have gotten from me.  “You give me credibility.  Otherwise I am just a guy with a camera.”

Like the work of a criminal defense lawyer, much of what an investigator does never sees the light of day.  You work and you work and, if the client eventually takes a plea, it is as if the work was never done at all.  You mark the file closed and put it into your filing cabinet.  It is like draining a bathtub so that you can refill it with something new.

But then there are the cases in which it all comes together on the day of trial.  Last week I watched Marshall, dressed in a shirt and tie because we thought he might be testifying, coming down the court hallway with two of our witnesses, and I breathed a sigh of relief for the first time in a couple of days.  Because you never know if the witnesses will actually come.  When I saw Marshall with the witnesses, I knew we would be ready.  So did he.

I have been called to testify in a criminal case. A couple of weeks ago I represented a woman seeking a civil protection order against a former boyfriend. With the boyfriend now facing criminal charges for contempt of court, certain admissions he made to me during the course of that representation have become relevant to the criminal proceedings.

It feels strange to be working on the same team as a prosecutor I have opposed many times. Yes, yes, I tell her when she emails me. Any of those dates would work fine. Fortunately, we have a good relationship and I promise to be a cooperative witness who simply answers the questions that are put to me. Because I know from personal experience that people who are familiar with the system can sometimes make the worst witnesses.

A couple of years ago in Philadelphia, I represented a client in a case in which the complaining witness was a supervisor from the district attorney’s office.  Speaking to the supervisor before trial, I took perverse pleasure in hearing her complain about her mistreatment at the hands of police officers and the junior prosecutor who was assigned to the case. This system we have, she said, really stinks. I can’t believe they made me wait that long at the police station. I can’t believe that no one contacted me to discuss this case until the morning of trial.

When she finally made it to the witness stand, she didn’t like the questions that were put to her on direct because, after all, she knew much better.  And, despite her many years of experience as a trial lawyer, she seemed personally affronted by my cross-examination. She may have been expecting professional courtesy.  What she got instead was an education in humility.