Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Advice to a young lawyer

I got an email a couple weeks back from a young woman who had just come back to the Cleveland area and was getting back into the practice after taking care of the kids.  She'd wanted to get into the criminal practice, and she wondered if CCDLA -- the Cuyahoga County Defense Lawyers Association -- had a mentoring program.

We sorta do and sorta don't -- more on that in a few weeks -- but it got me to thinking what I would try to teach my mentee if I had one.  Sounds better than writing one of the briefs that are staring me in the face, so here are some of the things I've picked up along the way.

1.  Figure out what reputation you want, because that's the reputation you'll get.  Criminal law practice is incestuous; everybody eventually knows everybody, to some degree, and word gets around.  You can get a reputation for being a smart guy, for being a tough guy, for being a great trial lawyer, for being a crappy lawyer, for being a guy who's afraid to take a case to trial, or for being an asshole.  Be conscious of that.

2.  They don't call it a profession for nothing.   Act like it's one.  That can only help you.  You'll run into the prosecutor who drank the Kool-Aid or the unfair judge, and you can't lose your cool.

3.  This is a people business.  The most important, and challenging, aspect of practicing criminal law is dealing with people.  The judges think you're clogging their dockets if you can't get your guy to plead, the prosecutors think you're representing a scumbag, and your client figures if you're getting paid by the State, you're probably working for them.  Whenever you have a case, find out as much as you can about the prosecutor and the judge.  That'll help you in dealing with them, and it will help you develop your people skills.  Keep in mind that what goes around comes around.  There's going to be a time when you need that continuance or some other favor.

4.  Don't throw your client under the bus.  It's easy to do.  Like I said, everybody will assume he's a scumbag.  You have nothing in common with him, and it's easy to start badmouthing him.  Don't.  Treat him with respect.  Always ask for his permission to call him by his first name.  And don't even mention the word "plea" the first time you meet him.  Building up his confidence in you is job one, and making it clear that you're willing to fight for him is essential.  This might sound contradictory to what I just said, but the hardest part of criminal practice is nudging a client toward a deal you know he absolutely has to take.  The key is not letting him realize that you're nudging him, and if you hasn't developed some confidence in you, that's not going to happen. 

5.  Work every case like it's the only one you've got.  Because at the outset, that's pretty close to the truth.  You can provide the Cadillac defense, simply because there are few other matters impinging on your time.  Go out to the crime scene, visit witnesses and talk to them, research the law.  Trust me, you won't always be able to do this.  And getting a reputation as a lawyer who's thoroughly prepared is a very good reputation to have.

6.  Learn everything you can.  A lot of lawyers don't talk to juries after trials.  Do it, because sometimes you'll learn something.  Talk to the judge, too; most of them are willing to give you some pointers.  To a certain extent, you have to have a baseball closers' mentality:  if you lose a trial, put it in the back of your mind; don't let it make you afraid of the next one.  But that doesn't mean forget about it right away.  Think it through, as to what you did and didn't do, what you could've done, and what you shouldn't have done.  You'll find that you actually learn more by losing than by winning.

7.  Ride the peaks and valleys.  There will be times when you'll lie awake at night wondering if you'll ever get another client.  There will be times -- not right away, for sure -- when you'll wonder what you're going to do with all the money that's coming in.  There will be times when you'll think you're the best lawyer in the world.  There will be times when you think you should have become an English teacher.  It all evens out over time.  Don't get too excited one way or the other.

8.  Enjoy yourself.  It's always interesting, or at least it should be.  You get to deal with a wide variety of people.  It's mentally stimulating and challenging.  And you'll find that there's nothing like the rush you get when the jury troops back into the courtroom, gives the verdict forms to the bailiff, and the judge says the two most beautiful words in the English language:  "not guilty." 


Recent Entries

  • October 25, 2016
    What's Up in the 8th
    Drunk drivers, rapists, and shooters
  • October 24, 2016
    Case Update
    I'm always been amused by the argument that the United States Supreme Court has become politicized. The Constitution, which specifically provides for the Supreme Court, is a political document. The process by which justices are appointed to serve on the...
  • October 20, 2016
    The right to counsel
    Musings on the effective assistance of counsel
  • October 18, 2016
    What's Up in the 8th
    Inconsistent verdicts and presumptions of regularity
  • October 17, 2016
    Case Update
    Proof of juror bias, victim impact testimony, what's required for a child porn conviction, and a few appellate cases.
  • October 7, 2016
    Argument analysis: Buck v. Davis
    SCOTUS tackles whether a pyschiatrist should have been allowed to testify that a defendant charged with capital murder would commit crimes in the future because he was black
  • October 4, 2016
    What's up in the 8th
    Don't know what "sentencing entrapment" is? You will after reading this.
  • October 3, 2016
    Case Update
    SCOTUS starts up tomorrow, and appellate cases on juror misconduct and drunk driving
  • September 30, 2016
    Hints on pre-indictment delay
    Does the result in State v. Richardson tell us anything about the likely outcome on the Supreme Court's remand in State v. Jones?
  • September 27, 2016
    8th District Roundup
    There's a fight coming on appellate review of sentencing