As a defense attorney I spend many days in court observing other defense attorneys. I began my legal career as a law clerk for a trial lawyer, and continued as a prosecuting attorney for fourteen years. I’ve had the opportunity to to observe hundreds of criminal law attorneys. I have seen them in court and seen how they interact with clients, the public, the court and juries. What makes some defense attorneys better than others? What makes an attorney great?
First, great attorneys were not always great, they paid their dues. It takes a long time to master the skills necessary to be a great defense attorney. The skill as a trial lawyer only comes through hard work and many, many jury trials. Great trial lawyers are made, not born. Having said that, some people are not cut out for it. You need the right temperament, personality and the ability to think on your feet. You have to have a great body of knowledge on court procedure and what lawyers call “black letter law” at the forefront of your mind and the ability to call upon this knowledge in an instant. It is also paramount that you are a people person and that you can relate sincerely to many types of people that might sit on your jury.
A great defense attorney should also be a good advocate both orally and in writing. They must be clear, succinct and articulate. As a law clerk I had the opportunity to read and dissect hundreds of legal memorandums (briefs). The good briefs were clean and these attorneys presented thorough and succinct arguments supported by good law and there was not a lot of fluff or unnecessary verbiage. Bad briefs were more often than not too long, filled with extraneous material and simply made your stomach tie in knots because they were so disjointed.
Another essential attribute of a great defense attorney is the ability to listen well. They must tune in and listen to their clients to whom they owe their best efforts. They must listen to witnesses while they are on the witness stand whether they are being examined by the prosecutor or the defense attorney. This crucial process of listening and thinking about what is being said must go on for hour after hour. This is extremely important and very exhausting. The minute an attorney puts down his guard or becomes distracted, they are sure to miss some important point which could put their client’s liberty further at risk.
Great defense attorneys must be great negotiators. Going to trial costs money and is risky. Most cases settle for one reason or another, instead of going to trial. A great negotiator can work a case so that his client has a better reason to resolve his or her case rather than go through the added expense and risk of trial. Part of being a great negotiator relates back to being a great trial attorney. A great trial attorney has the respect of the prosecutors and is able to use their trial successes to their credit. Imagine a defense attorney who has never gone to trial, who has never made a stink, who has never put the state to the task of going through trial? Not a good formula for success. Simply put, the better the trial attorney you are the better the deal you can get for your clients. Great trial attorneys, without even trying, intimidate a lot of prosecutors and get then to lighten up because of it.
Great defense attorneys are professional. They are always, always prepared. They are courteous to both the court and the opposing counsel. A great defense attorney pushes only when necessary and goes for the jugular only when the time is right: after they have established that they are professional and the outrage is appropriate from what has transpired on the witness stand. Juries want any attorney to be professional but they also expect an attorney to fight for their client. When I pick a jury through a selection process called Voir dire, I always make it clear that I am there as my clients “champion” and that I am going to do my job, which entails what I call “making a stink.” I let them know up front that I am not going to lay down without a fight!
It is important that great defense attorneys look the part. They dress as sharp as they can and pay attention to how the look down to their shined shoes. It reinforces the fact that they own the courtroom and they respect the decorum of the court. It simply adds to the attorney’s credibility. First impressions count.
Lastly, great defense attorneys have personalities and a great sense of humor. They like people and people like them. Much of the “lawyering” that goes on is the “you catch more bees with honey” kind of thing. As a former prosecutor, I would always give the same or even better deals to someone who I really liked. I tried to be be consistent but in those instances where I could go one way or the other, and I did not like the defense attorney, it was hard sometimes to go that extra mile for them. This is basic human nature.
In closing, these thoughts are what pops into my mind when I think about what makes a great defense attorney. What a defense attorney can do is a reflection of that person’s innate personality and what they have done in the trenches; what they have done to achieve the goal of being a great defense attorney.
When you go looking for a great defense attorney, ask the attorney what they have done and how they go about practicing law with the above thoughts in mind.