When I arrived home after a lovely dinner involving a nice Chianti (sans fava beans), there was a message waiting from my office. It being late, for me anyway, on a Friday evening, messages tend to mean that something bad has happened to someone. I immediately got the message and learned that a distraught young woman needed me.
Despite the hour, I returned the telephone call and asked to speak with the distraught young woman. In a voice that suggested fear and desperation, she got right to the point. She needed a lawyer to represent her husband. Her husband, she explained, was arrested on Tuesday for a violation of probation and went to court on Thursday, when he was sentenced to 2-7 years in prison. (I’m sure she meant 2 and a third, since there is no such thing as a 2 to 7 sentence). I was not her husband’s lawyer in the case previously.
The conversation from this point went something like this:
Me: Why didn’t you call me before he went to court?
Her: There was no time.
Me: You didn’t know he was arrested on Tuesday?
Her: I was there, and I called the court, and they told me he would go to court on Thursday.
Me: Did you have a working telephone between Tuesday and Thursday?
Her: Yes, that’s how I called the court.
Me: So why didn’t you call me between Tuesday and Thursday?
Her: There was no time.
I then explained to her that her husband, having pleaded guilty to the violation of probation, which he would have had to do in order to be sentenced, no longer needed a lawyer. It was done. Perhaps he was represented during his underlying case by a public defender or an indigent defender, and whoever represented him in the first place would have been notified of his arrest and directed to appear for the violation. That lawyer would have stood next to her husband on Thursday, advised him on what to do, and upon his guilty plea, represented him for sentencing. Lacking any details, I couldn’t venture a guess as to whether the representation was brilliant or terrible. It doesn’t matter much now.
Having received this call a hundred times over the past 25 years, let me interpret what really happened. When the husband was arrested on Tuesday, my caller decided to wait and see whether the situation was “serious”. Whether because of denial or ignorance, people tend to harbor a hope that problems will disappear or at worst result in a firm lecture and a slap on the wrist. If that’s the case, then they get to save the money that would otherwise have been spent on legal representation. In other words, they roll the dice to see if it’s their lucky day.
Thursday was not this woman’s husband’s lucky day. She learned that she rolled craps. On Friday, she sought me out to retain me to unroll her dice. Unfortunately, dice cannot usually be unrolled.
While I’ve said this before, as has just about every other competent criminal defense lawyer everywhere, if you want to retain an attorney to represent a defendant in a criminal prosecution, do so immediately. If you wait until after you learn that the case is serious, it’s often too late. Call the lawyer first. Call the lawyer first.
I understand that hiring a lawyer can be expensive. So can not hiring a lawyer. The difference is that sometimes, as here, there is nothing left to do by the time you realize that it is indeed a serious matter, worthy of the expense of a lawyer. Even if the case is not concluded, it is likely that opportunity to take action to help the defendant has been squandered by the time that you finally retain counsel. You taken away part of your lawyer’s ability to help you by this loss of opportunity. Don’t do it. Call the lawyer first.
My role is often that of the second lawyer, the one people go to after the immediacy of arrest and arraignment is past and they find themselves dissatisfied with their current lawyer. This is largely because I handle a limited number of cases, primarily the most serious, and charge a healthy fee for my services. I do not seek to be the lawyer for everyone; indeed, I reject far more cases than I take. You will not find my name gracing a storefront sign, screaming “hire me, hire me!”
As a result, I am often called upon to pick up the pieces of a botched defense in a very serious or complex matter. If the current attorney has done a good job, I will let the client know and advise them to stick with their current lawyer. Many clients lose confidence in their lawyer for the wrong reason, and need nothing more than an independent voice to help them to appreciate that they are receiving good representation. Since I’m not chasing cases, I’m quite happy to save them my fee and provide them with the comfort of knowing that their lawyer isn’t quite the buffoon they think she is, if that’s the case.
The flip side of the role of a second attorney is to see the mess people have made of their cases, seizing defeat from the jaws of victory with shocking frequency. Whether from hiring inappropriate counsel, to using a public defender when they could well afford their own lawyer, to deciding that they can do better than any lawyer and demand to make their own decisions, to rejecting competent advice and making terrible decisions for themselves. It runs the gamut, but invariably produced disastrous results.
So while I may sound like a broken record, it bears repeating. Hire the right attorney for the case, and retain the lawyer as soon as possible. Real time, not after it finally sinks into your consciousness that it’s serious and you really, really need a lawyer. By the time you realize it, it’s too late.
And as long as I’m on my soapbox, let me add another recurring detail: consider the amount of the legal fee relative to your expectations of what the lawyer will do for you. The numbers don’t lie, and there’s no magic trick involved. If you are charged with a serious crime and the lawyer asks for a ridiculously low fee, it’s because he anticipates a quick guilty plea. If you are looking for a quick guilty plea, then you’ve found the right lawyer for you. If you hope to win the case, then you’ve screwed up.
But regardless of everything else, there is no point in calling the lawyer after the damage is done. So I repeat, call the lawyer first.
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Ugh, this should be required reading for EVERYONE.
Using a public defender when one can afford a private attorney invariably produces disaster? While I can’t speak for your state’s tragically underfunded indigent defense system, a public defender is almost always a better choice than the attorney most people could hire for a serious case here. Private criminal defense in serious and/or complex cases is for the truly wealthy. Your comment was not correct, I suspect even by your own observation.
You are absolutely right, and I explained my self poorly. The fault isn’t with the PD, but with the defendant who fails to cooperate and work with the PD because he doesn’t take his case seriousy and doesn’t respect the PD, a typical mistake when a defendant is waiting to learn if the case is serious or not. Thanks for pointing out this error, as your point is very important.
I knew you could not have meant that the way it came out, thanks for the clarification.
The point you now make is a good one. I often have clients who ask me “well should I hire a lawyer?” What they’re usually actually asking is “how serious is this.” Generally, my answer is that the case is more serious than they thought and that they can’t afford any attorney who would do a better job than me. My general advice to people is that if someone offers to take your felony for less than 15K or 25K for anything serious, you don’t want that lawyer.