Hiring Expert Witnesses for Your Case – What You Should Know

October 11, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Expert witnesses are an important part of trial advocacy.

What is an Expert Witness?

A person with specialized knowledge of a particular is allowed to testify provided they comport with other rules surrounding reliability in both Texas and Federal Courts.

Judges have a detailed legal framework they must follow to determine if a particular expert may testify in a particular case.

Experts can testify in applied scientists such as DNA or blood analysis, areas such as computer forensics, cell phone tower triangulation, and in soft sciences such as therapy or domestic violence, and even in areas such as accounting, plumbing, or as in the movie “My Cousin Vinny,” — independent rear suspension cars made in the 1960’s.

Do I Really Need an Expert Witness?

Follow your lawyer’s recommendations here.

The defense can establish their own trial theory either through their own witnesses and experts or through the prosecution’s witnesses and experts.  Prosecution witnesses and experts are predictably uncooperative with us and some of their experts will easily admit to shortcomings in the state’s case and others won’t.  There is no substitute for the clarity and power a good expert witness can provide on your side.

There are risks to proffering an expert witness in your defense.  A good expert witness should be loyal to their discipline – not necessarily to you winning your case.  This helps them be credible.  But this also means your expert may have to admit to facts which can hurt your case when the prosecutor asks… and sometimes those could be facts and analysis the prosecutor was never aware of in the first place.

Ultimately the complexity of certain issues often dictates.  Trial is teaching the jury a theory.  That can be hard with a state’s expert who sees it as their job to make sure you lose.  A good expert witness on your own side is often necessary.

Why is an Expert Witness Paid?

I don’t work for free and neither do you.  I haven’t met anyone who does.

The fact a defense expert witness is paid and how much are typically good fodder for prosecutors on cross examination.  If you think about the fact they’re paid – it’s actually a good thing.  That is because testifying is their livelihood and for that reason they wouldn’t jeopardize it by saying crazy or quack science when a court reporter allows everyone in the State to know how they testify.

The Court Can Pay For Your Expert

The Court can pay for someone’s expert witness in certain instances — even if the lawyer is retained privately.  The expert must be willing to accept the court’s payments which are typically lower than on the private market and the Court will underwrite and evaluate Defendant’s financial status.

Ask your lawyer about Court assistance for experts if money is tight.

*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by the Texas Board of Legal Specialization.

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What is the Difference Between a Flat Fee and a Retainer When Hiring a Lawyer?

October 10, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefenselawyer.com

(972) 369-0577

This is a common question.

Remember a lawyer is selling their time.  Both a flat fee and retainer are different ways the lawyer sells that time.  These are actually topics of much debate in the legal community and are a bit more complex than meets the eye.

Abraham Lincoln said the legal fee is important because “It lets the client know he’s got a lawyer and the lawyer know he’s got a client.”

Important Reasons Which Go Into a Fee Amount 

A lawyer’s time is not an unlimited resource and some lawyers are justified in charging more for their time than others based on complexity of the matter and that lawyer’s experience.

Also, when a lawyer accepts your case – the lawyer is also limiting themselves because the lawyer now can’t sell time to (1) a different paying client because there are only so many hours in a day or (2) other potential clients he or she cannot legally represent because they would be conflicted from representing by virtue of their representation of you.

Flat Fees

A flat fee sounds a bit more self-explanatory than a retainer but there are still restrictions and issues with lawyers charging flat fees.

The advantage of the flat fee is it is clear-cut and caps the client’s potential financial output.  The disadvantage is the client could over-pay if the case is more resolved more quickly than anticipated.

Flat fees must still be justifiable at the end of the day.  Common sense still applies.  Where a client pays a lawyer gobs of money on day one and the client terminates representation on day two – the lawyer simply cannot justify keeping anything other than the amount he’s actually earned, if any.

Retainers

A retainer is money paid to the lawyer which the lawyer sets aside in a trust account.  The money legally remains the client’s property unless or until the lawyer earns it.  Once they earn it, they can then draw it from the account.

If the lawyer does not earn all of the money you deposited in trust then the client is entitled to a refund of the unused retainer.

The upside of a retainer is obvious.  The downside of a retainer is once the retainer has been expended, it typically needs to be refilled.

I compare a retainer to a tank of gas.  Sometimes it takes a half a tank to get to the destination but sometimes it could take 3 tanks.

Is A Flat Fee Better or is a Retainer Better?

It depends on the case in my mind.  You don’t want your lawyer to be paid too much and believe it or not — you really don’t want them to be paid to little either.

In a criminal defense practice there are many cases we handle very routinely where our time is predictable and as the lawyer, we’re willing to take the risk on a flat fee because we know from experience the amount of time we’ll be spending on a certain case falls in within an acceptable range.  Those tend to be misdemeanors like DWI, domestic assault, or theft cases to name a few.

Retainers are a flexible way to handle cases where our time output will be a bit more difficult to predict.  Those would typically be cases like sexual assault, felony drug possession, or white collar charges such as embezzlement or money laundering.  A retainer also assists when we need to pay other client expenses such as investigators or expert witnesses which we’ll need to involve from time to time depending on the case.

The retainer, then, is a good way of making sure the fee is just right on more complex cases where a flat fee may just be far too high or far too low.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is Designated as a Texas Super Lawyer by Thomson Reuters.

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Lessons From Marijuana Legalization in California

October 9, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

I recently started doing a podcast.  Since I love talking it’s really been a blast.

My guest yesterday was a lawyer in California named Josh Schneiderman.  Josh works for a 450 lawyer firm with offices around the Southwest named Snell & Wilmer.  He represents businesses and companies in California in the cannabis industry.  By all accounts it is a cutting edge practice.

You can watch the podcast here.

Here are some major takeaways from the discussion:

While cannabis is legal in California, it is still prohibited by the Federal Government

This creates major headaches in far reaching areas you might not anticipate.  For example, if you are trying to patent a particular cannabis product – the Federal Government won’t grant you a patent.  Or, if you need a loan from a federally backed lender – you can forget that too.  Or, if you need bankruptcy protection you can’t get that either.  And the list goes on and on.

Some Banks and Credit Unions Will Take Cannabis Money – But it’s a Challenge

If a bank is going to take cannabis money — usually cash — they have a complex scheme of checks and audits they are responsible for to make sure they aren’t taking black market deposits.  That includes in some cases detailed direct analysis of the grower or retailer of the marijuana which larger and more sophisticated banks are unwilling to do.

The Cannabis Industry is Still Largely Based on Cash

Credit card companies are intimidated and scared by some of the regulatory nightmares and possible liability – so many in the legal cannabis supply chain still operate on cash.  That forces others in the chain to do the same.

These observations were the “tip of the iceberg.”  We discussed much much more including the path Texas seems to be on towards potential legalization and the pitfalls along the way.  I hope you’re able to watch.  It was truly a fascinating discussion!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is designated as a Texas Super Lawyer by Thomson Reuters.

 

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Your Right to a Speedy Trial – and The Effect of the COVID Pandemic

October 8, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

This could probably be a full blown law review article but I’ll stick to good blogging etiquette – long enough to cover the basics and short enough to keep interest.

These days I sound like a broken record with my clients.  “We’re not able to have your jury trial yet.  We need to reset your case again.  Sorry.”

Many of my clients don’t want a speedy trial and many are happy to put off their prosecution indefinitely.  Everyone is different and their circumstances are different so I can see it both ways.  The Constitution guarantees a right to a speedy trial for no other reason that it takes away a possible prosecutorial ploy to ruin someone’s life by just maintaining a cloud of suspicion over a person without ever having to prove their case.

I find courts and prosecutors still struggle with their own understanding of what a speedy trial is or isn’t.  Unfortunately my experience is Courts and prosecutors generally don’t take speedy trial issues very seriously and only see it as an arbitrary escape hatch for a criminal to avoid responsibility.  Our challenge is to show the Court why the Constitution means what it says and says what it means about speedy trials in every case.

How Speedy Trial Works under the Law

The cornerstone case for speedy trial for both State and Federal purposes is called Barker v. Wingo.  That case weighs four separate factors in determining whether there has been a violation of someone’s rights to a speedy trial.

The Barker v. Wingo Factors (Quickly)

The Court Weighs:

  1.  The length of the delay;
  2.  The reason for the delay;
  3.  The time and manner in which Defendant asserted their right;
  4.  The degree of prejudice Defendant has suffered because of the delay.

Prejudice suffered can be anywhere from the natural stress and anxiety which comes from being criminally prosecuted to things which more directly impact the case such as witnesses being more difficult to find or memories about an event fading.

Another big factor is the reason for the delay.  Courts typically try and calculate who is at fault for how much of the delay.  In Barker v. Wingo, the accused was a co-defendant in a homicide.  The prosecution wanted to convict the other person first so they sought 13 or 14 continuances on Barker’s case for strategy reasons.

COVID Delays

We won’t know how the Courts will construe speedy trial delays under Barker for the purposes of the pandemic.  I don’t think they can blame the defense, obviously, for the delay – but the question is whether the Courts will attribute the delays to the government because of of public safety?  Could courts turn around and try to blame Defendant for asserting rights such as the right to confront witnesses in person – or not having a judge trial instead of a jury trial?  It’s hard to know.

Stay Tuned

In 2021 and almost certainly beyond – we are looking to have a major backlog of court cases which will need to be resolved.  Courts have often been dismissive of speedy trial issues but the issue may have a resurgence.

What Lawyers Should be Doing Now

There is really no reason a lawyer shouldn’t file a speedy trial demand in each of their cases set for trial during the pandemic.  Those speedy trial demands can always be waived, but it helps establish the third prong – that the defense is trying to assert their right early in the process.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.

 

 

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Can I Carry a Firearm if I’m Traveling Through Texas?

October 7, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Yes, but there are do’s and don’ts.

The Texas statute for unlawful carry of a handgun is under Penal Code 46.02.  That provision makes it an offense to “intentionally, knowingly, or recklessly” carry on or about your person a handgun.

The statute is worded in a very confusing manner — but the law specifically allows possession of a firearm on “the person’s own premises or premises under the person’s control.”  Tex.Pen.C. 46.02(2)(A).

And to answer the original question – the law also allows possession “inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control.”  Tex.Pen.C. 46.02(2)(B).

Translation – you can have it in the car.

Limitations to Carrying a Handgun Through Texas

The handgun cannot be in plain view unless you are licensed to carry a handgun in Texas. Tex.Pen.C. 46.02(a-1)(1).

While the law allows you to have it in your vehicle – the law doesn’t allow you to carry it outside the vehicle.  You probably can’t bring it to the park benches where you and your family are eating lunch as an example – and you can’t bring it inside places like gas stations or other businesses which, in all likelihood, prohibit weapons.

You can’t be engaged in criminal activity.  Though this one seems obvious, we do see a number of cases where there is a DWI along with an unlawful carry case (or UCW as they are typically called here).  Speeding and other traffic offenses are omitted, though.

And it goes without saying you can’t otherwise be prohibited from carrying for whatever reason.

This Law Has A History of Changes

When I was a prosecutor – the law made it illegal to have a handgun “on or about” your person.  The law then provided “traveling” was a defense to UCW but that was confusing too.  That just meant you’d be arrested and you could argue to a judge or jury you were “traveling.”

That law was not only confusing but also – as you might predict – otherwise responsible handgun owners would get arrested on routine stops and then they’d have to try and convince a jury the traveling defense applied when they were on their way to the Home Depot instead of Arkansas.

The new statute, while confusing, helps responsible owners avoid that fear and headache.  It basically says “if it’s in your car, then we agree you’re traveling.”

But it’s not a general license to carry any and all places.  That requires special permitting under Subchapter H, Chapter 411 of the Texas Government Code.

*Jeremy Rosenthal is Board Certified in Criminal Law and is designated as a Texas Super Lawyer by Thomson Reuters.

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