10 Principles of Defending People: #1 Put Yourself in Your Client’s Shoes (But Only for a Moment)

June 9, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Over the past few weeks, I’ve been writing about what I think the top principles are when defending a person in the criminal justice system.

Here are no’s 2 – 10 to recap:

#1 Put Yourself in Your Client’s Shoes

There is much overlap in the principles I’ve suggested in this series.  You can make the argument this principle is really a combination of many of the other principles.

I must always remind myself my client and/or the people who love them often feel:

  • Scared
  • Confused
  • Angry
  • Uncertain
  • Embarrassed
  • Ashamed
  • Singled-Out
  • Hopeless
  • Worried
  • Anxious
  • Alone
  • Different
  • Abused

And even then I’m sure I’m over-simplifying what they must often be going through.  Criminal litigation is bet-the-farm type stuff.  People can lose their freedom and/or livelihood.

Lawyers have to appreciate just how important they are to their client and how much power they have in their client’s matters.  Just having an anxious client see my phone number pop up on their caller ID will ruin some people’s day even if I’m just asking a quick question or giving a small update.

Sometimes the simplicity of the golden rule is directly on target.  How would I, Jeremy Rosenthal, want someone handing the most important matter I could have in my entire life or even decade to conduct themselves?  Prepared… yes.  Organized… yes.  Knowledgable… yes.  Experienced… yes.  And on, and on and on.

Why wouldn’t I do my best to try and be the same way for another human who is experiencing many, if not all, of the emotions discussed above?

But Wait a Second…

There is an extremely important distinction.  I am not my client.

I am often asked by clients or their loved ones, “what would I do if I were in their situation.”  My answer is canned — but true:  “I’m not in your situation.”

I tell them I don’t know what keeps them up at night.  I don’t know what they want to be doing with their life in 10 years.  I don’t know if their great aunt Lucielle would spin in her grave if she knew they didn’t fight charges like the ones they’re facing.

The hard balance for any lawyer is putting themselves in their clients shoes and feeling the gravity of the situation — but remaining the detached expert who can give objective advice.  If I suffered from all of the emotional landmines I outlined above there is no way I could do my job.  I just have to remember they are always there.

Some lawyers do too good of a job putting themselves in their client’s shoes.  They stay there.  It can be problematic because the lawyer gets so wrapped up in the client’s problem — it becomes the lawyer’s problem too.  The lawyer loses objectivity, is less objective in their evaluations, arguments, and representation.

Lawyers need to put themselves in their client’s shoes… at least for a little while.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.

 

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10 Principles of Defending People: #2 Find Something to be Angry About

June 8, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

I’m going over to me what are the top ten principles of defending people.  To recap the list so far:

#2 Find Something to Be Angry About

I went to law school because I hate injustice.  It is everywhere in the criminal system.  You only have to look.  In many ways I feel like I’m at my very best when I’m upset although I’m sure it just feels that way.

I don’t care how bad or hopeless a case may seem — there is virtually always something to be upset about.  It may be over-zealous punishment.  It may be battling prosecutors and police lost in an echo-chamber of righteous indignation.  It may be facing a complaining witness who tells half-truths to paint themselves in a better light at my client’s expense.  It could be getting upset because no one seems to understand the mental illness or addiction my client is suffering.  It could be because I feel authority figures are acting like bullies.  There are some cases where I even find myself at odds and in a power-struggle with a Judge.

The good news is most cases aren’t hopeless.  Show me a lawyer who gets fired-up about how his client has been mis-treated, and I’ll show you an effective advocate.

One thing I’ve learned through experience, though, is there are arguments which feel good to make; there are arguments my client enjoys hearing; and there are arguments that win the case.  Give me the latter every time, please.  Being upset has to be channelled and tempered with telling the most powerful and effective story for the jury.

I find apathy is the result of not finding something to be upset about while defending a case.  Again, the good news is I haven’t seen a case go to trial where I can’t find something to be angry about.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.

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10 Principles of Defending People #3 Believe Your Client

June 7, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

I’m going over to me what are the top ten principles of defending people.  To recap the list so far:

#3 Believe Your Client

Your client deserves to be believed.  Often no one else will do it beyond their family and loved ones.

My view is the failure to presume the accused innocent is the common denominator in any horror story you read about or hear about in the criminal justice system.  This goes for the jury’s failure, the prosecutor’s failure, the police’s failure… and yes… their own lawyer’s failure to presume the accused innocent.

People have a lot of help in their cynicism.  We’re barraged by story after story of terrible criminals, child predators, and repeat offenders.  Many stories about criminals make fun of them.  There is even a web page dedicated to laughing at people arrested at dumbcriminals.com.

There is much water-cooler or “locker-room” talk in the courthouse where many enjoy a good chuckle at a criminal’s expense.

But the cynicism takes a negative toll.  I cringe when I hear criminals being made fun of in the media or in the docket room — even if they are laughably guilty.  First is because the person they’re ridiculing is almost always human probably suffering from mental illness, addiction or worse.  Second is it desensitizes everyone and feeds the narrative “everyone is guilty,” and finally I don’t like it when people pick on easy targets.  Anyone can laugh at a person arrested for telling the police the drugs in their pocket wasn’t thiers… but if you want a challenge — try defending that person!

Do yourself and your client a favor.  Just believe them for starters and go from there.  If the facts you later flesh-out prove he or she is lying then deal with it at that point.

Don’t be part of the problem.  Presume your client innocent and do your best to prove he or she is telling the truth.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.

 

 

 

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10 Principles of Defending People: (#5 All Eyes are Equal & #4 Know the Enemy)

June 6, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

I’m going over to me what are the top ten principles of defending people.  To recap the list so far:

#5 All Eyes are Equal:

People don’t trust themselves or their own judgment for some reason.  Lawyers included.

Maverick trusted himself.  He hit the brakes and the MIG flew right by.  He had cunning, creativity, and self-assurance to know the maneuver would work.  The fact it hadn’t been done before didn’t bother him.

What I like about Maverick is he didn’t ask anyone’s permission.  He just trusted himself and to a lesser degree wasn’t afraid to fail.  I’m a pretty far cry from Maverick, but I hope I think like he might every now and again.

When I say all eyes are equal what I mean is if a trial theory makes sense to me then chances are it makes sense to the jurors too.  If I think the police and prosecutors are reaching then I ask myself why?  Maybe they’ve been suckered by a doe-eyed accuser in a sexual assault case…  Maybe they’re blinded by my client’s appearance or problems they’ve had in the past… or maybe they’re so trapped in their own narrative, they can’t see they’re in an echo chamber as in some domestic violence cases.

Too often, lawyers will settle into a conventional defense.  They are afraid to think outside of the box.  But by thinking inside the box, they turn themselves into fish in a barrel waiting to be speared.  Remember all eyes — including the lawyers own — are equal.  The big picture makes sense.

Don’t be afraid to tell the jury about the big picture.  Don’t be afraid of hitting the brakes so the MIG can fly right by.

#4 Know the Enemy: 

The key to knowing your opponent in my book is experience, experience, experience.

I remember how I thought as a prosecutor.  It helps me today.  I was advocating for the opposite position which is something lawyers do.  I remember my thought process in trying to prove-up a case.  I remember my areas of emphasis to the jury, the assumptions I’d make in each case, and the points of emphasis to the jurors.  I also remember how effective defense lawyers would attack my case.

Defending cases are wonderful learning experiences too.

Cross examining hundreds of police officers teaches you how to control a sophisticated witness who is often trying intentionally to personally subvert you in front of a jury.  Mountains of experience teaches you how to strike the precise blows you need to inflict with your questioning without picking losing battles, having your message bogged down, or looking like a jerk.

Experience also teaches you the prosecutor’s playbook.  Prosecutors across the state share practices and training (as do defense lawyers) so it’s not uncommon to see the same techniques and arguments in different counties.  An experienced defense lawyer needs to know what is coming and how to neutralize, spoil, or blow-up certain tactics they ought to expect are coming.  It’s no different than a football team watching tape on their upcoming opponent and figuring out how to defend against certain plays or formations.

Knowing the enemy is important — but it can’t be confused with a winning strategy.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.

 

 

 

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10 Principles of Defending People: #6 Investigate

June 5, 2018

By Collin County Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Here are the previous articles I’ve written about principles of defending people in this series:

Investigation is critically important in criminal defense and in many ways it is one of the central reasons we’ve been hired.  The chief sustained complaint for ineffective assistance of counsel claims is failure to investigate.

In sum, I’ll use a quote again I just used the other day… “the harder I work, the luckier I get.”  This is squarely the truth in investigating a case.

 

What Constitutes a Thorough Investigation?

It obviously depends on the case.  Not every case is capital murder.  The list of what needs to be done to investigate in some cases can be endless.  Examples of research needing to be done includes (but certainly isn’t limited to):

  • Thorough interviews of witnesses (including your own client);
  • Reviewing the background of witnesses (including your own client) such as criminal history, lack of criminal history, mental health issues, or even school records;
  • visiting the scene of the accusation;
  • inspecting physical evidence in possession of the police;
  • independent lab analysis or confidential re-testing of certain evidence;
  • Hiring an expert witness to assist with complex issues;
  • Reviewing public documents such as previous court records;
  • Investigating cellular data and social media such as text messages, Facebook, Twitter, Instagram, SnapChat, etc.;

Pursuing a Theory

A major difference between a Defense investigation and a police investigation is the theories we pursue.  A Defense investigation shouldn’t be scatter-shot.  It needs to be focused towards a particular theory or theories in a particular case.  Police investigations tend to have theories too… but their theory is almost always that Defendant is guilty.

Why Don’t Some Lawyers Investigate?

There are multiple reasons.  First, is lawyers didn’t go to investigation school, they went to law school.  An investigation is something most lawyers learn by doing which might suck for you if you’ve hired one that’s still learning.

Second, many lawyers are afraid of what they’ll find.  They buy in to their client’s guilt and are worried if they dig up bad facts for their client then they’ll end up making the situation worse for their client.

Final reasons might include their lawyer is too busy, not resourceful enough, or tragically are indifferent.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.

 

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