How do I know if my lawyer is doing a good job?

Dear Norm:

I have a public defender, and I have no idea whether he’s doing a good job for me. In fact, several of the things he does in court make me really, really  nervous. Also, the things he hasn’t done make me really, really nervous. I feel like a kitten floating downriver in a basket and I’d like to know whether I’m headed over the falls. What should I do?

Sincerely,

Concerned Consumer

Dear Consumer:

Condolences on the fact of your pending criminal case. As you now know, an arrest is just the start of a long, complicated process. If you were arrested and taken directly into custody, it probably felt like you were plucked out of the life you thought you were going to lead. Dour gendarmes stuffed your belongings into a locker at the jail. Your fingerprints and DNA samples are now cataloged in a computer database (you know, for those many unsolved murders that you might have done). You had your clothing replaced with an ill-fitting jumpsuit with garish colors that almost hide the stains. The monetary value of your freedom was computed, and if you were lucky enough to make bail, when you returned to your old life you found that everything was different. And that’s if you were lucky enough to make bail. All of this happens on or before the first court date, the arraignment.

If you are in custody, you are entitled to a court-appointed lawyer or public defender, no matter how much money you make. If you post bail after having been appointed a public defender or a court-appointed attorney, the PD’s office can ask for an income reassessment if they think you are hiding assets or otherwise trying to scam the system. This rarely happens, primarily because it is rare to have someone scam the system like that, but know that it is possible. If you live somewhere with a good PDs office and you’re on the cusp of being appointed a lawyer, consider the benefits of staying in a few extra days.

After the first court date, you will meet other parts of the justice machine. For example, you will meet a district attorney. Anyone who is offended by the manner in which the district attorney treats him should remember that a typical DA endures an entire career without ever, ever having a client. A successful prosecutor doesn’t have to be a “people person.” In fact, they are probably successful prosecutors because they aren’t. Don’t take it personally when they forget that the target of their in-court sermons are people, albeit people who might have hit their spouse or sold a dimebag.

It is important to realize here that a district attorney isn’t out to get the “truth.” The district attorney is out to get you. The “truth” is not what happened; the truth is what it looks like happened. It doesn’t matter how guilty you actually are, what matters is how much the evidence makes you look guilty. Good criminal defense lawyers operate with this in mind. Good criminal defense lawyers don’t moralize. I don’t care whether or not you actually did what you have been accused of doing; it’s irrelevant to your defense. Please remember this before you choose who you will talk about your case with. I strongly suggest not talking to the cops or the DA — or anyone, really — before you talk to your lawyer.  Your lawyer will help you avoid saying or doing things that make you appear even more guilty than you already do. Your lawyer is also ethically obligated to advise you what is in your best interest, unlike the district attorney, the cops, and that crazy guy you were housed with who wants to turn snitch.

Furthermore, DAs often refrain from even talking to their victims and civilian witnesses until the latest possible time before trial; this spares them from having to memorialize those conversations and hand them over to defense counsel — especially those inconvenient conversations that reveal weaknesses in the district attorney’s case. After all, a civilian can’t be trusted simply to re-read a police report moments before their testimony and recite it as though it were his honest-to-God memory; it takes at least 16 weeks’ worth of police academy training to master that trick.

No public defender ever, ever wants to admit that despite their best intentions, they too are parts of this machine. That being said, a person’s typical experience with a public defender is probably going to fall into a handful of patterns. Also, that person’s public defender may or may not do certain things that make that person nervous. However, none of the following are cause for concern in and of themselves. Only you know your situation, but I can give you some possible explanations for some common complaints.

I. My public defender only sees me in court.

This is a common complaint, but is not necessarily a reason for concern in the majority of “non-life” felony cases. An experienced public defender can diagnose a typical felony case within a few minutes of conversation. Domestic violence cases in particular follow certain patterns. Is there a pending child custody dispute? Was she drunk? On psychiatric medicine? Who hit who first, and with what? Here, you’ll read the police report and tell me which parts are bullshit. We don’t need to set up another meeting to do this. It can be done in court.

Please don’t take this the wrong way – every client’s case is important. But important does not mean the same thing as complicated.

Here are some things that you should do in court to ensure that your public defender is on top of your case outside of court.

  •  Ask for a summary of every investigative report. You might be unpleasantly surprised by the amount of information that has been collected against you. It will also give you an opportunity to guide your lawyer toward information that might rebut the prosecution’s case.
  •  If you have witnesses (that is, anyone who might have helpful information), give your public defender as recent and accurate contact information as you can. Your public defender will be in mild disbelief when you tell him that this witness is someone you have known for years without, somehow, learning his last name.
  • If alcohol was involved, consider going to AA meetings and keeping an attendance record. AA leaders will ask for sign-off sheets at the end of meetings.
  • Start rounding up whatever character references you want the sentencing judge to read. By character references, I mean letters by people describing all of the good things that you’ve been up to in the community aside and apart from this case. These are, effectively, pleas for leniency to be considered by the judge and district attorney at the time of sentencing.
  •  Feel free to ask whether a proposed plea bargain is a “good deal” before deciding whether to take it. Our advice will be quite candid.

II. My Public Defender is Telling Me to Plea Guilty

First of all, she’s probably telling you to plea “no contest.”

Second, your public defender may just be trying to tell you something. A public defender doesn’t suggest a plea bargain because she is “judging” the client; she is concerned with how the evidence against the client will look to a jury. A public defender will typically recommend a plea bargain if the proposed sentence is appreciably better than a likely post-trial sentence. If a public defender repeatedly insists that a client take a deal, it may not be because the public defender does not understand the client’s problems with the deal. What the public defender might be trying to say is that whatever the client’s problems with the deal, the alternative of trial is not likely to solve those problems.

III. My Public Defender isn’t doing anything for me.

Articulate exactly what you would like your Public Defender to do. He cannot make your case go away. He can try to talk some sense into the DA, but he might not be successful at it. Sometimes, the hard truth is that when you are accused of a crime, it’s because “they” want you in jail.

IV. If I had a private attorney, I would be out of this mess by now.

Not necessarily. I know it seems that celebrity clients can get away with murder and maybe you think you could too, if their lawyer was working for you. This is only fantasy.

You don’t get to go back to your pre-arrest reality. The sooner you can accept this, the better decisions you will make. I had a client so in denial of the evidence against her, she refused a plea-bargain that included no jail time and potential for record clearance. It can be difficult to think logically about the evidence against you. Although it is cliche for a public defender to pressure a client into taking a plea deal, consider whether it might actually be a good deal before you refuse.

I know that what I am saying here can be seen as part of the growing field of public defender apologetics, so how do you know if your public defender or criminal defense lawyer isn’t doing a good job? What are some warning signs? How do you know it’s time to mortgage everything you have  in order to get a defense that will keep you out of jail? Isn’t that exactly what you want to know? Of course, I can’t tell you what you should do. Just about the only legal advice I can give you is not to take anonymous advice from over the internet. But I can give you some thoughts to consider:

Know that any kind of no-custody bargain may be the start of a whole new set of problems. Are you going to be on an ankle monitor? You have to pay for that. Counseling? You have to pay for that. Drug tests? You have to pay for that. If you choose probation, make sure you know the terms of your probation and are able to follow those terms. Be honest with your lawyer about any addictions. If you violate your probation, you might be worse off than if you had just accepted jail time in the first place.

Also, know that a trial is a very stressful experience. And juries are weird. Anything can happen; do you still want to roll the dice? That is your decision alone. I’ve had many cases settle right before I was about to pick a jury. It’s okay to listen to your stomach if it’s trying to tell you something.

Do you know what the evidence is against you or is it that you don’t like what the evidence is against you? You will make better decisions if you are informed about your case and know your real options. You can’t go back in time. You must face this problem head-on.

Keep written records of all court appearances, conversations about your case, everything that has happened. If you do think you are getting Ineffective Assistance of Counsel, this will help your case.

Ask yourself what the potential for downside will be before you take independent action in your case, especially against your lawyer’s advice.

And finally (and this should go without saying), don’t intimidate any witnesses! Not only is it a felony in itself, it never helps the case. It’s better a witness says what they have to say and give the jury the opportunity not to believe them than for you to have to explain why you acted like a guilty person if you’re not. So if you have any friends who might talk to a potential witness on your behalf, tell them to knock it off.

When you are accused of a crime, the best thing you can do is keep quiet and mind your business until it’s over, which may be a very long time.

If you do end up going to trial with your public defender and she does get you a “Not Guilty” verdict, be prepared that the judge may order that you pay for attorney’s fees. Sometimes, the DA will even ask on “our behalf.” Although this is transparently vindictive bullshit, you just ducked all of the worse possible fates. Congratulations!

Good luck out there.

Respectfully submitted,

Norm DeGuerre

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32 comments on “How do I know if my lawyer is doing a good job?

  1. themodernidiot says:

    Yours is one of my favorite blogs to follow. I am always amazed at how the system operates. I want so much to believe the fantasy of fairness and justice, but my lord our criminal justice system has grown into a strange monster.

  2. […] How do I know if my lawyer is doing a good job? (chasingtruthcatchinghell.com) […]

    • Rose says:

      I do realize there are good PD’s and not so good ones as you stated, but my sons appointed lawyer does not return any of our calls when in fact he gave us his card and told us to call him with any questions. Its been over 2 months now and he wants my son to have a drug evaluation but wants us to do all the leg work and the MSW we found is willing to do it but she needs clearance to get into the jail to evaluate our son.. The lawyer will not return our calls, even about this matter and told my husband to have the woman call him. Her policy she said is that the lawyer has to call her to schedule it. We are now in a catch 22 and our son is being sentenced on Dec. 7th 2016. Time is running out. Should we and can we hire a lawyer to do just this for us or does the new lawyer also have to appear with our son for his sentencing? It is very frustrating and scary that the lawyer is not even returning calls over something he wants done. What can we do, any suggestions?

  3. Dan Sandberg says:

    Why would someone who got a not-guilty verdict be required by the judge to pay for the attorney they couldn’t afford in the first place? Please explain!

    • A person can still qualify for a public defender even if they bring in a modest monthly income. Normally, a felony jury trial represents about $40,000s worth of legal services. After a trial, a judge will sometimes order attorneys fees to the tune of $500-$1500.

      • Dan Sandberg says:

        What is the rationale for penalizing someone who was found not-guilty? Obviously the non-guilty person has suffered a lot going through the trial and it seems irrationally punitive to charge them for having been incorrectly accused of a crime.

        Ah well, like you said, it’s a court of law, not justice 🙂

      • That pretty much covers it.

  4. sonica says:

    thanks for doing this- i have been in a drawn out family law case with the other side as an attorney who has an attorney. – i am a pro per mom- they said that if i filed any motions i they would put a restraining order on me. they arranged a dog exchange with me giving our child a dog to spend the night to make my sons overnights more comfortable- they took numerous picture, declared that i was stalking. they had a false tro against me when i was in the hospital with stage 2 hypertension and some injuries. my son was used then, and the commissioner put a 3year restraining order on me t say 100 yards away. while my son and i were supposed to be going on vacation, i was entrapped in a call that my son was alone and not doing well. i was arrested for waving at him. when i was in jail, he ex went into my house freely. within 10 days our dog came running to me with a severely injured nose. my ex was out of town and falsely claimed that i went to his house and took the dog. i heard a knock on the door, and while in almost a nightgown, still recovering from a previous arrest, the law enforcement came in harshly handcuffed me and my house was again left open, and my ex freely walked around and came again using our child doing this-
    The bottom line is i have a public defender that really wants a trial, although i have evidence against thses false arrests. they later slapped on 2 extra charges for communicating on our court approved method. the paper with my case and some very serious criminal r.o. was wihited out with someone elses case under neath and they didnt say there was a related family law case where i needed to behave communication and care for my child.

    Because my child is suffering and is afraid that i will be arrested, he has been deeply affected, and if there is a criminal matter pending, they will try to use it to delay issues in my family law case. i believe this may be being done to delay settlement and cover gambling activities. they want to get the state to pay for a psych eva which could be used against me later.

    i am afraid that if i ask my public defender may i talk direct;y to the DA with my evidence? doesnt a trial cost the State too much money? Law enforcement advised me to be very careful, that this guy wants me out of the picture. i am scared. any words of wisdom for me?
    Thank you sincerely

    • Thank you for reading. Before I say anything, remember my warnings about taking legal advice from anonymous internet sources. What follows are observations and things to consider, not legal advice.

      You have a number of legal problems that you’re dealing with right now. I think it is dangerous for a pro per mom to face a lawyer husband as well as his own lawyer in family court, especially when restraining orders are being thrown around. Since the outcome of your criminal case will likely determine several things in your family court case, it would benefit you to have an attorney coordinating with your public defender. Your county’s bar association may have referrals for family lawyers who perform pro bono (free) legal work.

      Regardless of whether a restraining order is just, there are few/no legal excuses for violating it once it is in place. Until it is lifted or modified, the protected party has all the power, and your only protection is to obey it scrupulously until either the family or criminal court modifies it.

      It sounds like you have a public defender who is willing to fight for you; he or she would not favor a trial otherwise. Tell your PD about the favorable evidence in your case. Talking to the DA directly does no good at all. Clever DAs can often find ways to twist defendants words against them. Don’t be surprised if your case is not simply dismissed without a trial, and certainly don’t hold this against your public defender.

      In short, seek more legal advice, not less, and follow it closely. Good luck to you and your family.

      Norm

  5. Vince Murray says:

    I have a pending misdemeanor assault & battery case in Dearborn, MI. I was handcuffed, in a hospital, and unresponsive to hospital staff’s attempts to bring me back to consciousness. A Dearborn cop was called to assist and began performing a painful “sternum rub” that did revive me.

    However, after I was revived, he continued doing the maneuver as a method of toture. So much that I began violently coughing, he then solidly punched me directly in my eye, all while I was still handcuffed behind my back. I had a black eye for about 3 weeks.

    I was charged with assault as a result.

    How can I get the names of the people working that night, must I have my PD subpoena the hospital? Will that be allowed or must I represent myself in order to follow this defense?

    I’ve heard, and read, that PD’s in Michigan are among the most ineffective in the nation, are there any pro bono attorneys you know of in the Detroit metro area?

    Why can I not press charges of assault against this cop? Is there no recourse?

    Warmest regards,

    Vince

  6. fraser wainui says:

    Dear sir I am a 42 yr old father I had a accident in 2012 which still effects me today I was lucky to be alive the thought of my kid s and family brought me throu and hav support me ever since on the 20th of nov around midnight a had an arargument with my daughter in the morning my step daughter and her father laid a complaint to the police that I had attack my girl punch kick stomped chocked her the police went to her school took her to the hospital with my mother to take photos witch came up with no bruises or anything the office r on charge said this should go away but I facs charges off assault on a female my girl my lawyer has said I should plead guilty to the charge and accept 30 40 hr community service my medical conditions I hardly can stay awake a whole day due to my medication I have been talking since the accident day and night I ask my lawyer to write a complaint about this I received a letter telling to do it ive telling my lawyer the effects to heath this all is havn on me he said he sent a email to the police and has no reply that the police are worried about thiu get n out to the media I lov my family and feel I am being treated un fearly by all involved I am on acc because I cannot work yet so legal add is help I fear because of this my lawyer does not help I am really scared I hav asked why this going so wen there is no prove of such a violent crime happening I am 6.5 150kg maori I lov my and we hav never had this happen b 4 can u please help or advice on wat to do

  7. Janet Thompson says:

    So what do you do when your Public Defender gets more abusive each time you refuse to sign a plea bargain? Yelling, calling you an F..ing idiot, your F..ing stupid, your the monster under the bed, refuses to answer your questions? Tells him to shut up and throws her hand up to his face He has been diagnosed PTSD and Bi-Polar and this is the way she treats him even though he has always treated her with respect. She is refusing any suggestions he has to help on his case.

  8. […] July of last year, I wrote a post entitled How Do I Know if My Lawyer Is Doing a Good job? This post, with its accurate-but-uncreative title, was meant to give readers an idea of whether […]

  9. Many things should be noticed to ensure that your lawyer is doing the right job. All the points you have mentioned are really helpful.

  10. It is important to realize that your lawyer is doing his best for you. The points explained by you will help people to make sure that their defender is doing best for their justice.

  11. timrote says:

    This is a powerful blog, great depth, real life challenges in an imperfect judicial system. Read on. This is real.

  12. Myana G. says:

    In October a friend of mine was charged with felonious assault on a baby. The only thing is, is that he did not assault the baby. He arrived at the mother’s home of which he was involved in a sexual relationship with. Upon entering the home the child was crying hysterically. He asked the mother what was wrong with the child and why she was crying like that and the mother responded that nothing was wrong. He recommended that the mother do something to console her child. The mother proceeded to put the child in a different room and closed the door leaving the child alone crying. She then went back into the room with him where they had sex. After they were done the child was still in the room crying. She decided to go take a shower and begged him to stay until she was finished. He stayed but since the child was still crying he asked the mother did she want him to get her and give her a bottle or something and she said yes. He proceeded to get the child and take her downstairs to get a bottle but she never stopped crying. After the mother returned from the shower he told the mother that the child had a painful cry like something was wrong and that she should take her to the emergency room. The mother stated that she would the next day if the child was the same. A few hours after leaving he phoned the mother to check on the child to see if she was doing any better. The mother said that she was at the emergency room and asked if he would come because the police wanted to talk to him. Not thinking anything of it he said sure and went to the hospital. Upon arriving he was arrested and charged with assault. They said that while the mother was in the shower he lost patience with the toddler and punched her in the face causing substantial amount of injuries. All of which is untrue! They have since dropped the charge of felonious assault because records show that her injuries could not have been caused by a punch in the face as she also had injuries to her ribs and lower extremities. They lowered the charge to child endangerment. This is where the questionable lawyer comes in. Even though there’s been a change in the case the lawyer was pushing him to take a 7 year plea deal. The lawyer never asked for a bond hearing to get the bond lowered from $500,000, And he’s been in jail since Oct 2014. The Judge also asked the lawyer why he would push for a 7 year plea when his client has no priors and the new charge could have time served or probation. The lawyer then asked for 5 years. The judge told asked the family to get as many letters as they could for the client and send them to him. After court the lawyer asked the family not to get any letters to send to the judge stating that it would mess up everything that he has gotten so far. And he keeps stating that the client, his client, should do some time because its not fair to the family of the child if he doesn’t because they are expecting something. Its like he has lost reality of who he is working for. The lawyer says that the case has no prosecutors and that everything lies solely on the judge& that the judge is a good friend of his and will probably go for 2 years. I have never heard of a case of this caliber not having a prosecutor. I googled it and apparently google has never heard of such a thing either. I think the lawyer is trying to railroad his own client. The lawyer is supposed to be on your side and get you off of the crime correct? So why would a lawyer push for more jail time them needed when their client is still saying they are innocent? I feel like he is stringing the family along to get as much money as he can from them which at the time is upward $15,000 in the past 5 months. I feel like they are involved with a crooked lawyer who does not have his best interest at heart. Tell me what you think because I said they should fire the lawyer.

    • This is a heart-breaking story, for everyone involved. However, I cannot and will not give legal advice to a stranger over the internet – doing so would be begging the state bar to yank my license to practice. By all means, consult with other attorneys in your area to see if they can be of any better service to you.

  13. Hi Norm, Very nice article. Your lawyer is responsible for your case and you are entitled to his or her best efforts on your behalf. However, you can check that your lawyer is doing his job good or bad by this example.

    You hired the lawyer a year ago. He or she never responds to your letters or calls. You worry that the lawyer has stopped working on your case. Such a situation could warrant State Bar intervention.

    • Hi Richard,

      Thank you for reading, but I cannot give specific advice to any specific person about any specific lawyer. However, I have written two pieces on the very question of whether your lawyer is doing a good job for you – one for public defenders and one for private lawyers. Scroll through the blog and you will find them. They contain…pretty much all of my thoughts on the subject.

  14. Debbie says:

    My son has been found guilty in a trial and charged with a felony. That was in May of 2013 and he has yet to be sentenced. He was told today by his public defender he could face prison time. We were once told that the presiding Judge would have the final say (prison or probation). But the PD said today that is not true …the states attorney wants prison. Is this a true statement? We are trying to get a retrial. Please advise Thanks

    • Hello Debbie,

      I am sorry to hear about your son’s situation; being judged by twelve strangers can be a crushing experience. However, I cannot give legal advice to someone whose case I do not know fully, especially a stranger’s case where my only information is second-hand from the internet. Most criminal defense lawyers will at least give you time for a free consultation – I suggest that you go that route. Good luck.

  15. Jimmy says:

    “If you are in custody, you are entitled to a court-appointed lawyer or public defender, no matter how much money you make.” Is this the law in California? If so, is it statutory or case law and would you mind sharing?

    -Fellow Public Defender

    • Hi, thanks for reading!

      If a person is in custody, they are presumed indigent, given that they have no source of income. They should be entitled automatically to a public defender or, if your county doesn’t have a PD’s office, a court-appointed attorney. I am not familiar with the specific authority, but Sixth Amendment case law is pretty clear. Try searching Google Scholar?

  16. Heidi says:

    WOW. Excellently written in a straightforward manner that makes it easy to absorb the KEY points, without taking notes. Loved it, & believe me…considering a family members situation…I’m not feeling much “Love” at all since being notified that the D.A signed off on a “3rd Degree Murder” charge. Still in shock. Definitely will be sharing this site with many!

  17. Jman says:

    Like the from the gut narrative -say it like it is advice keeps it real. Knowing the positions of both sides defense/prosecution in layman terms very helpful. We all make mistakes that’s life, live & learn -just don’t repeat,

  18. James says:

    Too bad no one acknowledges the reality that there are public defenders who let prosecutors throw their clients under busses

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