Chandler, Arizona criminal defense lawyer  Matt Brown posts about a common favor asked of pals in the courthouse, covering a case when the lawyer is unavailable because he’s tied up in another courtroom.

I do my best to personally attend every single hearing for every single client I represent. Every lawyer I respect does the same. Despite my best intentions, however, I admit I’ve had to ask for coverage. I’m sure I’ll have to do it again. Trials sometimes go longer than planned, and judges sometimes set things over my objection. Every judge thinks his or her orders are the most important.

This is particularly difficult early in one’s legal career, when it’s likely that lawyers will take on as much work as possible to both establish their worth as well as eke out a living.  I recall complaining to a court officer about being held in a courtroom on one case, awaiting a prosecutor who wanted to stand up on his case but who couldn’t be bothered to appear until the calendar assistant let him know that everyone else was present.  I fumed as I sat there, wasting my time, because I had a client sitting in another courtroom waiting for me.

The court officer, older and wiser, looked me in the eye and said, “you can’t be in two places at the same time unless you’re an amoeba.”  Okay, not quite catchy, but it sunk in.  It was an immutable rule, and no amount of anger on my part was going to change it. 

Matt told the story of his coverage for another.

Yesterday morning, the tables were turned when another lawyer asked me to cover two hearings for him. I told him I could do it; I was there anyway. I didn’t charge him, as I view coverage as a professional courtesy to a colleague and not a source of income. He sent me an email with fairly detailed notes about what was happening in each case.

One hearing went fine, but the other was an absolute disaster. What I knew walking into that disastrous hearing was that he’d filed a motion to continue, which he had attached to his email. He had a trial conflict, as did the prosecutor, and he had already bought plane tickets to go on his holiday vacation after the conflicting trial. He wanted some extra time, and nobody objected to his motion. Sounds like a no-brainer, right? What I walked into was anything but the easy continuance I was expecting.

It turned out the trial conflict he cited in his motion had gone away. I doubt he lied in the motion and expect it had been continued between filing and the hearing I attended, but I wish he would’ve told me. The last day for speedy trial purposes was also very close, and the prosecutor told the judge he could find another prosecutor to try the case for him. According to the judge, the Arizona Supreme Court’s policy is that a previously purchased vacation plane ticket isn’t sufficient cause to continue a trial. The icing on the cake was the client, who claimed his lawyer told him the case “was too hard.” I can’t remember when I’ve been so blind-sided walking into a hearing.

It’s long been a truism that no good deed goes unpunished, and Matt’s favor for a friend was no exception.  The problem is twofold, first, that covering a case for an attorney who cannot appear should be no more than ministerial, a quick explanation and adjournment to a date when the attorney can appear.  Second, that neither the covered nor covering attorney presume that the coverage lawyer is anything more than a warm body.

This is where the defense of a human being takes a turn for the worst, when one lawyer fills in for another and is put into the position of doing anything more than simply adjourning the case.  It’s a position that should be avoided at all costs, but that can be hard to do when the judge peers over the bench and refuses the basic request for an adjournment.  The judge stares down at the suit in the well and says, “you’re a lawyer; you’re here; start the hearing/trial/argument.”

While seeking coverage is a fairly common request, it shouldn’t be.  Through careful planning and some advance effort, it can largely be avoided.  The reason it’s not is that lawyers don’t consider it enough of a problem to put in the effort to avoid it, taking the path of least resistance of having a warm body stand up for the defendant instead.  It’s certainly easier than the alternative, but it is not acceptable.  This is how we wander down the path of ordinary injustice on the defense side.

There is no court appearance, none, that is meaningless.  Sure, some are going to be substantially less eventful than others, and we are often aware in advance that nothing is likely to happen, whether for lack of papers or action that’s needed to advance a case.  Still, every time your client, your defendant, stands in the well in front of a judge, his heart races and mind blurs. 

There is always the potential that something will happen, whether for good or bad, that can change everything in a case.  If you don’t appear, you can’t protect your defendant from it, or capitalize on the opportunity presented.  If you aren’t there, you won’t know.

In my time in the trenches, there have been 25 to 50 times when something unanticipated happened during what I would have thought to be a routine calendar appearance (or whatever you call it in your jurisdiction), giving me an opportunity to make a motion, demand dismissal, blame a prosecutor, alter the outcome of a case.  If I wasn’t there, it would have been missed.  If I wasn’t there, 25 to 50 defendants might have gone to prison who instead went free.  Tell those 25 to 50 defendants that it doesn’t matter whether their lawyer was standing beside them.

There is nothing we do as criminal defense lawyers that’s inconsequential.  At least that’s how we must think about our job.  Whenever I hear about a lawyer who says he goes from trial to trial, my thoughts immediately turn to the outrageous failure of representation.  If a lawyer is always on trial, that lawyer isn’t doing his job.  It’s usually a by-product of taking on too much work to compensate for low fees.  And usually, the low fees correlate to the degree of self-promotional puffery, which is never a substitute for excellence and only fools the fools.

Most of our most potent work is done out of court, in motions, investigation, preparation.  Sure, the most fun for us is prancing about the courtroom like a show pony with all eyes on us, but the hard work is done when no one is watching.  That’s where we win cases.

When a client retains us, he does so with the expectation that we, the person behind the law degree, will give him the best we’ve got.  Would anyone want your representation if you told them that you would be there when it was convenient, when you could be the star, but that elves in the backroom, inexperienced or unrelated lawyers whose names they would never know, would be doing the bulk of their work?  No matter how pretty you try to make the story, you’re just wrapping a bow around a turd. You are the lawyer, and it’s your work the client pays for.  Anything else is a lie, both to the client as well as yourself.

Perhaps it’s just a personal quirk, but it’s always been my practice to stand beside my client when he faces the court if it’s at all possible.  Once, when the court was seriously jammed, the judge was kind enough to send his law secretary out to let me know that he wouldn’t get to my case for a few hours, and would adjourn it to whatever date I selected.  He told me I could take off, and he would handle it for me.

I thanked the law secretary, but declined.  I told him that I would wait, even though waiting a few hours was an enormous burden as there was much to do that day, and sitting on my butt in a courtroom awaiting a simple adjournment was a terrible waste of time.  But I would wait.

When the case was finally called, the judge, glared at my angrily and called me to the bench.  He asked me sarcastically why I thought he, via his law secretary, would lie to me, that I couldn’t trust him to adjourn my case.  He was furious at my insult to the court.

I explained that I never doubted him for a minute, but that the defendant came to me, paid me, trusted me, and it was my duty to my client to stand beside him as he stood in the well that took precedence, even if it meant refusing the court’s kindness. 

In the rare instances when coverage is truly required, the most important skill is the ability to shrug.  As the court attempts to coerce the covering attorney into being more than a warm body, a smile and shrug leave the court with few options.  It says, “I know nothing about the case, I have no authority to do anything, and I’m only here to take up space while the defendant’s attorney is elsewhere.”  That’s because he can only be in one place at a time; because he’s not an amoeba. 

The coverage attorney is merely a warm body, and any attempt to be more comes at the defendant’s expense.  You don’t know the case. You don’t know the dynamic. You can’t provide the defendant with the representation he expects and deserves. You may be the most wonderful lawyer in the world, but you’re not the defendant’s lawyer.  Never assume otherwise.  Never let the judge goad you into presuming that you can handle it.  The judge isn’t interested in the defendant. The judge just wants to dispose of cases.

Better that the judge will be angry with you for screwing up his plans than find yourself sliding down a slippery slope.