Always Being Ready

I am on the TCDLA committee for Young Lawyers.  We are currently collaborating on creating a piece for The Voice, the monthly TCDLA magazine.  

The following is what I wrote as the best piece of practical advice I received when I first started defending the citizen accused.

When I first started practicing law, maybe within the first month or so, I saw an older, very well-respected attorney I knew in Houston who was there for a pre-trial on a very high-profile murder case.  He was there with another attorney, who I don't think had ever been a prosecutor (I have never been one either).

I asked them what the best piece of advice they could impart to a young attorney practicing criminal defense.  Also, I think I remember somewhat conveying to them how hard I perceived it was to do defense work because usually the state holds all the cards.  They are the ones that give you recs, they are usually close with the judge in their respective courts, and often they control the docket regarding what gets tried on any given jury week.

 Anyway, I asked them what the best piece they had was, and I can still remember what each told me.  They told me that to be good at criminal defense work, you always have to be "ready."  What they meant was you always have to be "ready" to go to trial.

I remember them telling me that if I was always super-prepared, and always showed up at court "ready" to go, good things would almost always happen.  After doing 90% of criminal defense work since I received my license, I do think this is perhaps the best piece of advice I have ever received.  Merely setting something on a trial docket a lot of times works like magic.  Sometimes I am shocked by how much the state moves in their position when they finally sit down and think about what will actually be tried on a jury week.

It is very easy for prosecutors to simply hand out recs at announcement settings.  Probably half of their dockets are court-appointed cases, and probably 25% of the remaining cases are worked by attorneys who will take the first rec offered (or who will avoid a trial literally at all cost).  

The one advantage a defense attorney has, therefore, is the opportunity to show up "ready" and prepared to go to trial.  Most likely prosecutors (at least where I have worked) will not know what will actually be tried, sometimes not even until minutes before the jury is to be seated.

This should be used, therefore, as an advantage.  It is not until they are forced to get ready to try a case, call all their witnesses, and are finally made to actually think about what the loopholes in the case might be, that they start to offer something substantially better than what they have to.  A huge advantage a defense attorney has is not being controlled by having to prepare for ten different cases all set for the same jury week (like prosecutors sometimes have to).  

Prosecutors often try to keep their judges happy by having clean dockets, and sometimes merely to avoid having to go through the process of having to try a case, they may offer something that is beneficial to the accused.  As well, what prosecutors hate most is when two-word verdicts are given by juries.  And if not forced to think about whether or not they can actually prove their case in a trial setting, nine times out of ten they won't.

Every criminal defense attorney has their own war stories (if they don't, they should).  A case of mind personally that I worked on illustrates this point was for a client that was charged with her 5th DWI.  The rec was, from what I can remember, 6 years in the Texas Department of Corrections.  She had done time in "TDC" on her 3rd and 4th DWI, respectively.  They offered 6 years, and we didn't take it.  I remember the lead prosecutor called Friday around 4pm and said we were #1 and we should expect to go Monday morning.  I had big weekend plans with my fiance, I canceled them, and spent my entire weekend preparing.  I spent most of Saturday preparing my client on how to testify.  I spent my entire Sunday preparing everything else, and embracing how good it would feel to get a "Not Guilty" on a Felony DWI where her previous lawyers pled her to "TDC" time.

The case could have gone either way, especially (obviously) because it was a Felony DWI.  But I thought the case was good.  The video was very hazy I remember, and it was hard to tell what was on it, but the client refused all SFST's because of severe medical conditions (one of her legs was 6 inches shorter than the other).  I worked every angle, and was confident at the very least I could get at least one juror out of 12 to see my way.  No breath or blood was obtained, and my client was pulled over for going 5 miles over the speed limit.  Looking back, I honestly do not believe my client was intoxicated.  

We showed up for trial Monday morning, and I remember casually going over to the prosecutor and asking when we should be back to pick the jury.  She looked kind of stunned, and told me voir dire started at 1pm.  I told her that was great, I would go and get the jury list, and I would see her at 1pm.  I started to walk out.  

Right before I reached the door the prosecutor grabbed me by my arm.  She told me she wanted to offer a misdemeanor.  I was pretty shocked, and frankly, I didn't want to take it.  I was ready to go to trial and I was highly annoyed I had spent so much time preparing over the weekend to try the case.  I had it worked up so much in my mind there was not a chance I wouldn't be able to convince at least 1 in 12.  In fact, I was pretty confident I would get a "Not Guilty."

I went to my client, and we all agreed it would be border line insane to turn down a misdemeanor on a 5th DWI, where she had already done two stints in "TDC" on her two previous convictions.  Sidenote was there was no jail time "as a condition of probation."

This is just one example, but for me it very clearly illustrates the point.  Prosecutors sometimes like to play "cat and mouse" games to see if defense attorneys will budge.  They will even call Friday at 4pm just to see if the other side will flinch.  The only remedy, therefore, is to show up "ready" to go to trial.  The state will always have the advantage of being able to offer something so enticing to avoid going to trial, as it was in my case.  But many times the only way you will get that offer is if you show up "ready."  Only then, in a lot of cases, will you get an offer that you "can't refuse." 

I know every decent criminal defense attorney has a war story similar to this, especially in DWI cases.  I think every good DWI defense attorney should have a war story where they are going over the jury list, and the state finally comes out with an offer of dismissal, reduction, etc.

It is for this reason that I will always show up "ready" to try a case every time I set foot in a courtroom on a jury trial setting.