AAJ Article by Joseph Lyon: Civil Plainitff Themes in Public Criminal Defense
A Separate Piece in Seeking Justice; Civil Plaintiff Themes in Public Criminal Defense was an article published by AAJ. While Mr. Lyon no longer practices Criminal defense, the experience helped shape many of his skills he uses to provide representation to his many clients.
A Separate Piece in Seeking Justice:
Civil Themes and Skills in Public Defense
Joseph M. Lyon, Esq.
In November, 2008, the NY Times published a frightening article indicating that due to overcrowding and fewer resources at the public defender’s office, public defender offices in seven states were refusing to accept new cases on behalf of the poor. It appeared as a call to all trial lawyers to lend a hand, and it reminded me of the important service that accepting public defense serves to my development as a lawyer and to the community.
“THIS IS MY LAWYER!”
Turning back to my introduction to criminal defense, three days after passing the bar exam I walked into the holding cell in the Hamilton County, Ohio Justice Center, waded through the numerous defendants, brushed off the stale smell of crime, and introduced myself to my first felony client. He was a twenty-one year old with a lengthy history of petty crimes. I felt compelled to tell him he was my first client. He looked at my suit and my shoes and smiled and said, “ This is my lawyer!” He knew I had no experience, but he could tell I cared and would work hard – and that was enough for him. My first day and my first big lesson in client relations: Look like a lawyer, passion plays, and a desire to work hard can make up for a lack of experience.
I reviewed the bond sheet and complaint and found my client was unemployed, graduated high school from the state penitentiary, and most strikingly had just been released from jail two days earlier after serving four months for an unrelated crime. I was appointed to represent him in what was to be his eighty first arrest (this charge being theft). Allegedly, he was released from prison and walked down the street and stole a car. The police pulled him over in the stolen vehicle two days after being released from jail. There was no history of violence, but a long history of poor choices. Naturally, I thought how does one person find himself in this much trouble in such a short period of life, and I thought what can I do to help this situation or break the unbreakable cycle of the repeat offender.
The criminal world is a world many of us are never exposed to unless our lives happen to unfortunately intersect with the criminals’ path. As a lawyer, we are fortunate to get a glimpse into this world without the risk of personal safety or loss of property. The criminal mind is often where we see the end result of failed public policies, poor life choices, inadequate family structures, inadequate education, and a failed justice system. In the vast majority of cases, namely drug offenses, the criminal mind and act are simply manifestations of desperation and too few choices. Looking to the root of the cause of the crime reveals where the best efforts can be applied. I spend a considerable amount of time with my client and his family, often making home visits, which can be the difference in establishing the trust, as well as understanding the root cause of crime.
We tend not to forget the first clients, and that case will forever be part of my growth as a lawyer. It was the starting point and I learned many value lessons in one short case. I learned not to judge, to listen, and to be more than simply an aggressive advocate. Most importantly, I learned my role in the process. The facts were the facts and there was nothing I could do to change those facts. Nevertheless, and contrary to many, I have seen the human spirit prevail and hope inspire even an individual with my client’s record to take new steps to improve their lot in life. Most of the time, they fail, and changing direction is the client’s choice. I now know not to carry that burden – I can only use the available tools to try to put my clients in the best position under the circumstances. At times, the best I can do is to simply require the State to meet its burden and walk this young man through the system with some dignity.
“PRACTICING LAW IS A PRIVELEDGE”
A number of years later, I had to give up the criminal work to accept a position in a large mass tort firm. While in the larger firm, I had spent the previous years reviewing documents and travelling with some of the finest lawyers and participating in highly publicized litigations such as Vioxx and Ephedra. I had tried one medical malpractice case to verdict but was otherwise relatively invisible in the local trial bar. The Firm eventually dissolved, and I ventured out on my own intending to reintroduce criminal defense into my practice and have been successful in doing so.
As I weighed my options, I realized I was more excited about building a small practice than continuing as a small piece of a big machine. I recognized that our country had gotten away from the small business and public service, and I wanted to be part of a new movement of giving back. I recall standing at the New Lawyer party in Seattle, discussing my decision with the senior partner of the acquiring firm and saying that I love the mass torts but what really has me excited about practicing law right now is going down to the public defender’s office and taking some appointments.
Practicing law is a privilege, and that privilege extends to representing the most fortunate and the least fortunate of our society. Many of us have had the honor of representing individuals from all walks of life and assisted them in their toughest days and worst moments only to gain more wisdom from our clients that we ever bestowed upon them. The small part of my practice dedicated to accepting public defender appointments has consistently surprised me and aided me in my developing my duty as a lawyer, a citizen, and a human being. Furthermore, and the primary focus of this article, public defending has helped me to develop new trial skills, helped me develop my overall practice, and allowed me to participate and have a voice in an area of public policy that is critical to the legal system and society as a whole.
“POSSESSION OF CIVIL TOOLS”
As the trend in over-specialization remains and many lawyers find comfort in working in the same area without exception, we must remind ourselves of the strong incentive for building litigation skills in a diversified practice. As jury trials become fewer and farther between, it is critical, particularly for the younger lawyers, to find different forums to learn and excel. The specific skills acquired through public defending translate into better representation in the civil cases.
If we choose not to try different types of cases, we may continue to develop those skills that are typical of our primary practice, but we run the risk of becoming predictable to our opponent and bored within our practice. The Criminal case offers a chance to develop skills that one may not otherwise develop if practicing in the isolation of civil law. The criminal defense lawyer is charged with the duty to force the prosecutor to prosecute the case fairly and to meet the burden of proof. In order to fulfill that obligation, the defense lawyer must have sound understanding of the constitution, the rules of procedure, evidence, cross examination techniques, and the concept of the burden of proof. A lawyer armed with both civil and criminal tools is more effective than a lawyer offered with one set. I have found that attorneys from large defense firms are at times intimidated by the trial experience and judicial relations that a criminal lawyer acquires quickly. While many associates are writing briefs, a young lawyer taking appointments will be trying jury and bench trials and conducting motion to suppress hearings and acquiring the respect of the judiciary. The combination of a civil and criminal tool set will open up a creative approach to a civil case, and will stave off boredom and the daily repetition.
i. Evidence
The only way to truly master the rules of evidence is to use them in different cases and under different fact patterns. We can never have enough practice working with the evidentiary rules. The criminal cases offer the opportunity to work in a fast paced court setting with little knowledge of what a witness may say. Objections are not preserved in trial as they may be in deposition setting, so the lawyer must be focused and respond timely.
ii. Cross Examination in Trial
Tort reform has had the effect of pushing the smaller cases and lower middle cases aside. Due to the expense and risk, attorneys are not able to accept these claims. As a result, the cases that are being litigated are fewer but larger in damages. If you accept cases with large exposure and work the case properly, fewer cases will be going to trial. However, as a result, it is becoming increasingly more difficult for young lawyers to get into the court room. At the same time, more experienced lawyers may go years without trying a case allowing the trial skills to get rusty, which may affect the standing with the insurance companies. The defense bar has the advantage because they are constantly trying cases.
The criminal case though does not involve depositions in the vast majority of cases. Therefore, the cross examination is the first time you are dealing with a witness. For the inexperienced lawyer, this can be incredibly challenging, particularly dealing with an aggressive police officer. Going through the preparation and execution of a cold cross examination makes the civil process much easier and helps tone the deposition skills.
iii. Third Party Discovery
Criminal defense is based on third party discovery. The State’s witnesses are often unwilling to discuss matters with the defense counsel, and the State is not taking steps to uncover the evidence that will hurt the credibility of the officer or the complaining witness. There is an incredible amount of public information that is available through FOIA requests with public offices, and these requests should never be limited to criminal settings.
It is the act of getting out of the office, building relations with possible witness, understanding FOIA requests, and where other information can be obtained. The most effective Plaintiff discovery often occurs when we roll up our sleeves, or take the time to track down third party information either via subpoenas or FOIA requests. By working on behalf of the State, the attorney can learn more about the available public information and access to that information.
iv. The Burden of Proof
As we live with the burden of proof in each of our civil cases, representing an individual from a defense perspective can be both relieving and insightful. As defense counsel, you see how difficult it can be for the party bearing the burden to meet that burden. Although the burden is “beyond a reasonable” doubt, which is by law different than civil, in application in many jurisdictions, particularly with medical malpractice, juries often hold the plaintiff to a beyond a reasonable doubt standard. The better we as plaintiffs understand this burden and adopt our practices to attempt to meet the highest burden rather than settle for a lower standard, the more successful we will become. Picking apart the state’s case, and seeing how lack of credibility destroys an opponents case where they carry the burden are extremely motivating lessons when preparing a civil case. Very simply, there is never enough evidence from a credible source.
v. The Client Trust
Establishing client trust is fundamental to any case, yet far more difficult in criminal case. In the criminal context, the client is less willing to trust you than in the civil setting. Often the client feels his previous lawyer gave him poor advise on how to proceed, has a jaded vision of the system as a whole, and may feel that by being truthful about the facts you will not advocate for him. Dismantling these barriers is difficult and sometimes impossible, but the experience in dealing with a difficult client and implementing different mechanisms to represent that client are skills that can be used in the civil context when the relationship with the client becomes demanding.
I have found that the following exercises work well with the client who does not want to tell you the entire story: (1) After listening to the client’s version, always ask what the witness or officer will say. Often times, the stories are very different, and listening to your client give the rendition of the facts may provide some insight into whether the client is being truthful with you or not; (2) Always speak in terms of risk and percentage change of different outcomes. You cannot see the future or offer any guarantee. All you can do is review the evidence and provide an assessment of the risk and benefits of moving forward; (3) Speak highly of the jury system. Juries will see the truth. If the client is not telling the truth, ensure him that generally juries will get it right. Moreover, you are part of the system and this give you credibility in the client’s eyes; (4) emphasize that they should not talk to anyone other than their lawyer. This is a mistake made by civil and criminal litigants alike, an can be devastating in both cases; (5) emphasize attorney client relationship. Have them sign waivers if they want to discuss case with other family members. This establishes the formality and sanctity of the relationship and shows it is something you take very seriously; (6) document your file and copy them. Your client is very capable of coming up with things if they don’t get the result they want. Many criminal lawyers do not copy their clients on all correspondence. This shows that you are working on the file and keeping them informed. All of these issues move in direction of establishing trust so the client will listen to you when the tough decisions need to be made. Finally, (7) emphasize it is their decision you are merely there to help weigh the risks and benefits and present the evidence in the light most favorable. Empower them with the decision. Often the responsibility will be too much and they will follow your advice knowing you are acting in their best interest.
“VISIBILITY”
Given that most of my product liability cases are outside of Cincinnati, if I were not to take appointments, I would not be in the local courthouse for months at a time, and would be a stranger to the local bar. Cincinnati is a smaller town. One prominent criminal defense lawyer once told me that the court house was a lot like high school. I had no idea what he was saying at first, until I spent more time there and realized that the staff talks a lot. Moreover, the court house staff is willing to do favors for friends or the popular kids, and tend to ignore those who they don’t know.
This can all work to your advantage: One good verdict or settlement and the courthouse knows you are capable of working a complex case. When you show up and accept a criminal appointment, they recognize that you are a part of the community and willing to do your share to help things run smoother. More importantly, the criminal defense bar and those lawyers in the courthouse and courthouse staff and judges will all begin to recognize and respect the fact you can switch hit. They will respect your heart and spirit as a trial lawyer and will start asking for advice on the civil cases since they do not handle them. It is easy to get a reputation as standoffish and absent if you are not in the courthouse, and it easy to get a reputation as a good trustworthy lawyer who handles difficult and different types of cases if you are visible and smile at the courthouse personnel.
I have wondered whether accepting these cases diminishes me in the eyes of the community. It is possible that some in the big law firms frown upon it. Some lawyers may not understand why you would spend any time on such cases. Those same lawyers don’t understand how we litigate the civil cases either, and they are usually the first ones to settle their cases.
“CIVIL THEMES”
It is within our blood as trial lawyers for public justice to accept the responsibility of reaching beyond our comfort zones, because it is within the unorthodox reach that we have found pleasure and wisdom and changed the direction of society by taking on the most difficult and important projects. As trial lawyers we accept that that we will not win every case; but every case matters; every person matters; and every case is part of the system as a whole.
These same civil themes and charges run true in the practice of criminal defense, yet our communities are suffering with a lack of quality representation for the downtrodden of our society. As a lawyer, I have always been beholden to the altruistic torch that we carry, which has kept me fighting the fight in tougher times. The individual cause is easier to see in the civil case, and we generally have the benefit of selecting our clients. For most of us, we only select clients that will present well in front of a jury. In the criminal context, the client is unpresentable in most cases and cannot testify without running the high risk of a cross examination that he will not survive. Therefore, the challenge is in the understanding that the system is bigger than anyone case, and the role we play in the system is beneficial to democracy and our communities. The role of a criminal defense lawyer has far less ego and stake than the plaintiff case, and this position is enjoyable to some extent.
A. Sixth Amendment:
In the landmark case of Gideon v. Wainwright, the Court found that a defendant has a absolute right under the Sixth Amendment to counsel where he cannot afford one. This is not only a constitutional issue but a moral issue. Notwithstanding the recognition of the importation of adequate representation in our system, the application is challenging. We are all very busy in our civil practices and have a difficult time finding the time to complete our daily work. For the young aspiring trial lawyer though, there is a unique opportunity to give back while acquiring skills very quickly.
B. Community Effort/ Obama Age:
As a trial lawyer, I am deeply committed to the values of the cases I litigate and cannot envision working in an area that would not offer a broader focus of the law. As America faces a financial crisis, we are all being asked to share in the burden. The most valuable skill we have is our skill as trial lawyers. The mentality, intelligence, courage and trial skills of the Plaintiff lawyer are unique and powerful and can be applied to assist many in need in the criminal context. Many States are struggling with budgets that are being cut for the public defender’s office, and many lawyers are over burdened. Often I am appointed cases where young men have been arrested for the first time and are charged with felonies for drugs or theft that appear out of character. These cases are where I see the purpose and opportunity to help America at its roots.
Fortunately, in Hamilton County, the cases are widely distributed, and I am only asked to represent a few clients a month, which allows me to remain focused on my civil practice, which makes up 95% of my practice, and allows me to provide the attention to the clients that I receive. It is a challenge to represent individuals who have hurt someone else. We as trial lawyers are programmed differently. We are passionate about the people we represent and the causes we advocate. Often times, and sadly, a client may be lost to the world of crime, addiction, and self serving behavior. It is these cases that we as lawyers are challenged to separate our feelings from the application of law and our duty as lawyers.
As civil lawyers, we choose our clients. We choose clients that are likeable and will present well in front of juries. As a criminal lawyer, we are asked to represent individuals that fall well below societal norms and may even be outright malicious. It is challenge, but without the dedication to the system, the system will not be there for the innocent, or we will simply revert to violence as a means of dispute.
C. Working with a drunk/ addict:
Representing indigent and career criminals can lead a lawyer to question the futility of the recognizing that the client will likely be back in front of the court within months of release. At times, this may be for no other reason than to help yourself. In a profession that is plagued with substance abuse issues, the best way to avoid those problems is exposing yourself to the element first hand. Unfortunately, lawyers are often in front of judges facing DUIs and other substance abuse offenses. These are issues that are part of the profession and the more familiar we are with those issues, the less chance one has of being afflicted. Alcoholic Anonymous advocates to anyone who faces a substance abuse problem that the best treatment is to work with a drunk. The service and perspective will offer a separate peace of mind.
CONCLUSION
My decision to actively pursue a criminal practice and stay loyal to my instincts of starting a small firm has proven to be the right road for me. While I remain at heart and in practice a product liability and medical malpractice attorney, the work I continue to do on behalf of those unable to pay for counsel and otherwise represent themselves has become an important part of my personal and professional development. With Obama’s call to public service, we can all offer a separate and extremely valuable piece by dedicating some time to the criminal system.