As I write this on a Sunday morning, I am in the middle of a complex criminal jury trial that will likely last four weeks. Of course, I cannot write about the substance of the case or the lawyers. But watching the criminal defense lawyers in that case started me thinking about my observations of other criminal defense lawyers over the last 25 years.
It occurred to me that the readers might be interested in my top ten observations about criminal defense lawyers from the perspective of a federal trial judge. So, in no particular order of importance, here are my observations:
10. Criminal defense lawyers are at great risk of becoming drunken bastards—the stress is beyond description.
9. Being a good criminal defense lawyer requires sincerity whereas being a great criminal defense lawyer requires the ability to fake it.
8. When it comes to convincing a client to accept a guilty plea because it is in the manifest best interests of the client, a criminal defense lawyer must become a client whisperer.
7. When it comes to convincing a client to reject a plea offer and take the case to a jury, a criminal defense lawyer (regardless of gender) must possess balls of steel.
6. Real criminal defense lawyers don’t hate prosecutors, but they don’t trust them either.
5. Criminal defense lawyers know that the federal trial judge is never their friend, but the judge is seldom their enemy.
4. A tiny fraction of people who have law degrees have the ability to become even mediocre criminal defense lawyers.
3. If you became a criminal defense lawyer because you like Rolex watches, then you are an asshole.
2. You must have a big ego to become a decent criminal defense lawyer but you must not be an egotist—it is never, ever about you.
1. Real criminal defense lawyers represent clients and not causes.
By the way, this was to be my last post on Fault Lines. So, I will end by making explicit what is implicit in the foregoing. To all who labor as criminal defense lawyers and who aspire to be good, and perhaps even great, ones, I respect you more than you will ever know.
All the best.
Richard G. Kopf
Senior United States District Judge (Nebraska)
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This was great, and thank you for this. Words to live by for those who’ve chosen to earn their keep by becoming CDLs. This morning, a very good friend — who’s not a lawyer but has had contacts with many of them over decades — told me that this post made his day as well. He said number 3 rang true, in spades, when it came to Miami’s CDLs.
Your post gave me a third wind during an extra tricky week down here in the boondocks.
The best to you and yours.
Boondocks you know not. However, you know much about what it takes to be a great CDL.
All the best.
These are really good observations. Helpful too; especially for those of us not in the legal profession, but *may* have needed one in the past.
I would thank you for this post, except that One of my observations about judges s making me uneasy. I have noticed that when judges start praising the criminal defense lawyer, the client is usually about to get slammed.
I don’t think the two things-praise for a lawyer and slamming a client–are contradictory. Besides, strategic praise can and does forestall silly 2255 motions, and that makes my life easier. It is all about me–don’t ya know!
All the best.
When 2255s fail, the client waits, then the writ of corum nobus becomes ripe for your clerks to laugh at.
There is always the All Writs Act. If you think we laugh at coram nobis writs (and you are correct), imagine the glee when we see something under the All Writs Act. That’s when Miller Time begins.
All the best.
Oops! Sorry for the typing errors. I should not post before my coffee.
There is already a commenter here who goes by EH. You might want to use a different ‘nym lest anyone attributes your typos to him.
I have served as a state trial judge for 25 years and a teacher of trial advocacy for 30 years. I can say without hesitation or reservation that Judge Kopf is right. My particular teaching involves training a group of selected law students every weekend for about 20 weekends a year. They graduate well prepared to handle jury trials. Unfortunately very few law students are able to receive such training. Criminal defense attorneys are crucial to protecting the due process rights of defendants. It is very difficult to handle the sentencing of a defendant who had weak but constitutionally sufficient representation at trial. We can’t fix it, and have to proceed wondering what the result would have been if the defendant had more effective representation.
Judge, while I can appreciate (having taught trial advocacy to law students as well) that the students you taught were better prepared to handle jury trials than those who received no training, it seems a bit of a stretch to say they will “graduate well prepared to handle jury trials.” Maybe they’re only half a million miles away from competent, while other law students are the full million, but well prepared?
Well prepared? I call bullshit.
Take it easy on “Maximum” Mason. He might’ve been a bit groggy when he wrote that.
You Sir, are a total bloody idiot. You never should have posted this,… beeecause it proves/demon-strates how corrupt and incompetent your so-called criminal justice system is. Why don’t you talk to some of us on the receiving end? I repeat: You are an idiot.. Seek mental health services immediately. I feel sorry for you, your family and your close associates. You get paid, while we lose everything we ever worked for. You call yourself a judge? I can say without hesitation, you never should have come here or opened yer stewpid mouth.
What jurisdiction, pray tell? We won’t be going there anytime soon!
He does talk to people on the receiving end. You wouldn’t like it. Take a step away from the edge.
Not buying it, sorry!
Thank you Judge. I have reread A Civil Action. Observations 5 to 1 apply to toxic tort personal injury lawyers, at least before they availed themselves of mediation procedures.
Do you have Kopf’s Top Ten Observations About Prosecutors? It would round out the narrative. ; ]
Very interesting question. I don’t have a top ten list for prosecutors but (darn you) the idea is intriguing. Maybe someday.
All the best.
Amusing. I wondered the same about the list on prosecutors. As a Nebraska girl practicing as a CDL in the Dallas area, I appreciated the remarks and that they came from home. I’ve enjoyed your blog, Judge; Take care.
They get praised constantly for the most incompetent skills as an attorney. While I do consider many prosecutors to be close personal friends, Prosecutors do not need a Top 10 list. Now us criminal defense attorneys do need to hear from judges they do actually recognize the struggle we go through getting slammed by judges, prosecutors, probation/parole officers, the public and especially our clients. I have practiced for 30 years doing federal criminal defense work and i want to thank you Judge Kopf, I needed to hear the things you said.
Amen. As a defense attorney for 18 years this list was spot on. Thank you for seeing us
Wonderful post. I’ve been a criminal defense lawyer – trial and appeal – for 15 years. The profession is highly rewarding but also emotionally draining and, at times, wrecking. But I would practice no other type of law. Thank you for posting this.
Is there a particular reason in your opinion a “good criminal defense attorney” doesn’t trust prosecutors? Asking because I am a prosecutor and I believe I have the trust of many in the defense bar, and I trust many of them. I don’t confuse trust, though, with rolling over in trial, or failing to attempt to contradict the evidence. Do you not trust prosecutors? Just wondering where this observation comes from.
[Ed. Note: Link deleted per rules.]
Kevin Filiatraut, you come from an office where the above took place and you wonder why defense attorneys don’t trust prosecutors?
Google your county and “prosecutorial misconduct.” For your county specifically, google “Carmen Marino.” Think about your personal Brady practices, and whether or not you have ever not turned over a document or information, because in your personal judgment it didn’t matter, without considering whether the defense attorney, who knows different things than you do, might think it matters very much. Think about whether you have ever seen a colleague behave in a way that you considered to be less than full disclosure, and whether you reported that colleague, either to the bar or to the defense attorney on that case. Then come back and ask again why defense attorneys don’t trust prosecutors.
And that is your problem and the reason for my original post – you think all prosecutors are cut from the same cloth.
Since your original question related to Judge Kopf’s list, it was a fair comment. Amy’s, in turn, challenged your position, and you’ve replied. But this is where it ends so this doesn’t go orthogonal about the trustworthiness of prosecutors.
I only speak for myself. And if she were to google my name, Facebook, and prosecutor she could get the answer to her question.
I understood that to be your point. Then again, Judge Kopf’s list wasn’t about any particular prosecutor, but prosecutors in general.
Kevin, I think you are right. The sense I had in mind was blind trust. Like the B-movie actor turned President (and not a very good one in my view) said, “Trust but verify.” All the best.
I’ll buy number one as long as it does not include motions by the trial lawyer. Gideon, Miranda, and Terry come to mind.
I realize you have only the “top ten” attributes but may I suggest one more?
11. Behind every great CDL is a great investigator working tirelessly to build an effective defense. (Yes, l am an investigator in a PD office)
Judge, Thank you for sharing your wisdom, your sense of humor and for your mutual respect regarding both sides of the greatest legal/Justice system in the world!
Having worked as a police officer (prosecutor) and a private investigator (defense) I think you deserve a huge amount of respect and honor for the point of view you have shared. As for the folks (b.k.a. trolls) who want to bash you – they have no clue how honorable your words are because they have no idea how our system actually works. And what’s worse – the bashers are obviously people who blame judges for their loss of a case…. or they don’t understand why our Justice system is the greatest legal system in the world. Thank you again for your respect regarding the rights of the accused and for the noble men and women who labor tirelessly to ensure Justice prevails. Thank you for understanding and proclaiming the honor and privilege due to CDLs and prosecutors. For – we realize that most of us working in the legal system have a common mission:
# To protect the innocent and to protect the rights of all by representing the rights and/or the interests of people – be it the state/nation.
# To ensure that we continue with the greatest Justice system in the world!
Continue to remain vigilant and passionate about the law and justice.
Oh puhleeeze! Just words, which would be meaningful if we had not heard them almost verbatim from my own trial judge. If I hear “greatest judicial system in the world” again, I’m going to vomit. I hear them in my sleep. Is this a paid advertisement?
Remember: YOu have the Right to remain Silent. Anything–AND everything–you say, can–AND will–be used against you. Key Word: Against. Nuf said! That is a direct quote from the court of common pleas, Somewhere, U.S.A. Trust it.
I was a San Francisco police officer from 1977 to 2012. I was a hardworking cop and spent too much time chasing around drug dealers. For about fifteen years I was in court everyday, usually with multiple preliminary hearings, MTR’s and trials (less often). I watched and interacted with scores, if not hundreds, of defense attorneys, coming to know them well. I saw a lot of ethical and hardworking lawyers, doing their best under very stressful conditions. We both had a job to do. I think most of the officers who were frequently in court admired the professionalism and the strong ethics that were commonly exhibited by the public defenders and private defense attorneys. Not all attorneys are equal but I saw a lot of good ones.
I could and should say something, but I won’t. Just too painful.
8, 7 & 1 are ground zero of my daily work for 20+ years now. Especially 7. After serving as an asst NJ county prosecutor and then an AUSA in Madison, WI in my prior lives, I now breath, eat and occasionally sleep those three traits. To the prosecutor posting questions on the validity of your “trust but verify” gloss, let me attest to the fact that until a former prosecutor has defended trials for at least five years, one retains retain certain prosecutorial traits, including blinders to much of the humanity of those who commit crimes. Good humanity and bad. I would suggest, as well, that having an elephant’s memory helps win trials one should not win. Thanks for this list. It made me pause and reflect.
I didn’t question the “trust but verify” explanation Judge Kopf gave to my question about his original comment of not trusting prosecutors at all. I agree with the trust but verify approach as good practice for any criminal defense attorney.
I think it is the prosecution system that cannot be trusted, and when people become agents of the system, not seekers of justice, then the mistrust falls on them. It can be difficult to see outside the forest from deep in the woods.
After 45 years of criminal defense work, 10 in New Orleans and the balance in California, I was touched and moved by the earnest and well-thought out tribute to CDLs by Judge Kopf. I am still dealing with the fallout of New Orleans DP and life cases that fell prey to an overwrought, “hide-the-ball” prosecutors’ office, lack of funding in the PDO and other factors. But I am blessed now with the memory that all of my clients received the best representation I could muster at the time and welcome, now, the exoneration of many clients who suffered the indescribable fate of those who were otherwise too poor, black or antisocial to defend themselves. Thank you, Judge, for those kind words. They should grace the office walls of every defense attorney who follows the gospel mandate to “visit those in prison” and does what he or she can to defend the clients they are charged to represent to the best of his or her ability.
I was a PD for 10+ years. For me, the goal has always been to facilitate perspective. If the lawyers, the judge, the defendant (and often the complaining witness) can all view the facts within context and relativity, justice can happen. Of course, sometimes a person is simply “not guilty,” and DA’s are generally loath to consider that possibility.
You realize this is utter gibberish, right?
I guess I don’t, Scott. Perspective is vital in criminal defense work. Getting the prosecutor or the judge to view the big picture is a big part of my job. My clients frequently don’t understand the process, and focus on unimportant matters. I guess I could have stated that more clearly. My bad.
That makes vastly more sense. Thanks for clarifying.
Which clients do understand the process? That’s a pretty dumb thing to say, considering that they–most of em–did not go to law school and may never have been hauled into the court of common pleas previously. Unimportant matters? Well let me say this about that! What’s unimportant to you and/or the court may be very important to the client, his family and loved ones. But if you guys and gals–functionaries of the state judicial system–don’t want to listen, well,…. where do you go? Your priest? Your decrepit uncle? Your best buddy at the bar on the corner? The ACLU? The Civilian Complaint Review Board? You’ve got to be kidding me!
You are still seriously,… cannot think of the right word. Forgive me! No, not gibberish, but something along those lines.
Like I said earlier, hope you law school education loans have been take care of after ten+ years as a public pretender. (We feel your pain.)
My initial comment was about perspective. I feel that I’ve done good work when I can convince a judge or a prosecutor that an addict is a sick person rather than a menace to society. Many of my clients don’t understand the justice system. This is critical in that they have to make key decisions about their case, and these decisions will affect them for the rest of their lives. When I represent someone I initially focus on educating them about the process and establishing a plan based upon their specific situation and goals. None of this can be accomplished if I cannot communicate to them a sense of perspective, which allows them to make choices that are aligned with their priorities (Sorry, Scott – I’m getting gibberishy again).
All that said, I’ve learned my lesson about posting on blogs.
Nah. We let Bill comment here at the request of the home to keep him away from porn for an hour or two. Don’t let Bill put you off.
We’re still not reading you well, Stephen. Beam me up, Scottie! You are digging yourself into a deeper hole than before. Are you new here? Don’t answer that!
Do not give up; keep trying. Some day, you may be able to make some sense. You’re not talking to kids or children here on this blawg! Trust it.
Bill, stop scaring away the nice people or we’ll have to put you back in the closet.
No worries, Bill. Scott was right – that first post was OAF (obtuse as fuck). I’m just a TX criminal defense attorney tilting at windmills. Whether or not I make sense to someone I don’t know on the internet is no big deal. See? Perspective.