How COVID Broke the Courts Blog 3 -(Negotiation)

August 19, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

COVID has altered the way we negotiate cases.

Communication isn’t the same.  At times, the new modes of connection are difficult to overcome.  Rapport, trust, sincerity and the degree of how emphatic a particular plea is just harder to convey if it’s anything other than in-person.

Email pic

Prosecutors are funny creatures.  I believe they are driven by decency, a quest for justice and a sense of duty.  I know because I was one and I really enjoyed it and found it fulfilling.

But understanding them and what makes them tick is far more complicated.  Many are younger and being a lawyer for the State is their first job in our profession.  Some of the more experienced ones have still never ventured outside the DA’s office.  Their world is like none-other.  I found it to be eerily similar to an echo chamber at times filled with adulation of citizens and the all-to-often somewhat self-assured notion that we had a monopoly on the truth.  The result is prosecutors often take the guilt of the accused (or proving the guilt of the accused) for granted.

I include this to say their view of cases — and often their firmness in sticking to their point — is often far different than mine.  When I’m negotiating with them for a better plea offer convincing them to simply walk-away and dismiss a case – it takes persuasion.

Knowing what motivates prosecutors is absolutely crucial in criminal defense.  And whether I’m trying to convince a prosecutor a certain case requires cooperation or collaboration — or I’m simply trying to convince them their poker hand is an offsuit 2-7 split — it is far more difficult to do it with short, choppy emails or text messages than it is just to sit and visit with them for a few minutes.

What tends to happen with phone calls or emails is the prosecutor tends to hear the message — perhaps miss some of the intonations I’m trying to convey — and then retreat back into their echo chamber to consider it further.  It shouldn’t come as a surprise it’s a far more difficult sale.

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

 

 

 


How COVID Broke The Criminal Courts – Blog 2 (Access to Courts)

August 11, 2020

 By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

One of the things I miss most with the pandemic is not seeing everyone at the Courthouse every day.

Being a defense lawyer is like being an athlete who shows up to the same clubhouse 3 or 4 times every week.  Over the years you have the opportunity to develop social, collegial, and professional relationships with everyone in the building.  You get to know other defense lawyers, prosecutors, judges, court coordinators, bailiffs and even the security guards at the front door.

These relationships are more than just fun.  They are the “WD-40” of courthouse efficiency.  It goes without saying being face to face allows everyone in the building to do their jobs more efficiently.  Not only that, being physically in the courthouse allows me to solve 10 problems a morning instead of just 2 if I’m trying only to work the phone.

Put in its simplest terms — I have a much more challenging time being an active influence for my client when I’m not “in the room where it happens.”

The limited access to prosecutors and court personnel presents two main problems.

Courthouse pictureFirst, is the limited ability to communicate.  In grade school we learn about verbal and non-verbal communication.  The stuff happens to be true.  Advocating for a client in person where the prosecutor or Judge can see and sense the depth and passion of an argument — even an informal one — is far better in person.  Texting, phoning, and even zoom simply isn’t as effective.

The second is simple access to prosecutors and court personnel.  During normal times it is much easier for me to be able to — for example — grab a prosecutor and visit with a Judge quickly about troubleshooting a problem either on the bench or in chambers.  Hurdles to those conversations are far more easy to overcome.  What used to take minutes can now take weeks.

Life will get back to normal.  My hope is that when it does, the ability to communicate with everyone at the courthouse does too.

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

 

 


Returning Calls

October 16, 2019

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

A lawyer has an ethical duty to communicate with their client under Texas Rules o Disciplinary Conduct:

Rule 1.03 says:

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. 

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Lack of Communication is the Chief Complaint About Lawyers

I wish I had the answer why.  I hate more than anything when someone comes into my office and says another lawyer they’ve worked with seems sharp, competent — but they just don’t return phone calls and the client is left in the dark.  Anyone in a criminal defense lawyer’s office is going through a stressful episode in their life either for themselves or along with a loved one.  The last thing they need is to be left in the dark about crucial aspects of a case.

Communication with Clients

Communication is a two way street and its complications go back, no doubt, to the dawn of mankind.  Every client of mine is different just the same as I’m different than any other lawyer.  Every attorney-client relationship is therefore unique.

Here are some observations:

  • My phone number ringing and flashing on a screen can be the most traumatic 8 -seconds of that client’s month;
  • It can be dicey to call a client while they’re at their place work for obvious reasons;
  • Giving mundane details either bores clients or causes them unnecessary stress;
  • There is certain news or updates which are better done in person due to the time it will take or possible follow-up questions;
  • You want the lawyer explaining to you the intricacies of preserving jury charge error under the standard promulgated by the Almanza case from the Texas Court of Criminal Appeals in 1986 — but the lawyer doesn’t need to be the one who tells you the best exit to take to get to the courthouse.

Many of the points listed above say the same thing — communication for the sake of saying you were communicating isn’t always a great idea.  Rule 1.03(a) & (b) have built in words like the attorney shall keep the client “reasonably informed,” promptly reply to “reasonable requests for information,” and the lawyer shall explain matters to the extent they are “reasonably necessary” for the client to make informed decisions.

Customer Service

We want happy clients who refer us business long after their case is over and they have a friend in need.  That means good customer service and we don’t need some rule to tell us that.

One of our advantages at Rosenthal & Wadas is we have a great office staff who are trained to handle any and every question they are capable of answering.  This accomplishes a number of things:

  • You get the answer to routine questions without having to wait for a lawyer;
  • You never feel like you are bothering us with something you worry might be trivial or simple to us but is important to you;
  • It makes our office staff happier to help, get to know, and be involved with our client care;
  • It allows our lawyers to focus on the intricate and crucial parts of your case.

One of the down-sides is it is common for some people to have built-up such a good rapport with me or one of our other lawyers that they feel less comfortable talking with our office staff — even about basic issues.  That’s fine too and we are happy to accomodate this as well.

How I do It

I do my best to get back to everyone every day.  Email is normally the best though if the answer is too complex I may give you a call back when I can spend the time to do the issue justice.  If I’m in a spot where I can’t get to that question or issue quickly then I’ll ask one of our staff members to help if the question is appropriate.

At our office — we never want to hear a client feel like they aren’t being communicated with.

*Jeremy Rosenthal is a Licensed Attorney in the State of Texas and is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He was designated as a SuperLawyer by Thomson Reuters in 2019.


The 5 Most Common Police Attitudes – #4

May 12, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Today, I’m continuing my series on the 5 most common police attitudes which I see case in and case out in the many, many cases I handle as a criminal defense lawyer.  As noted before, these opinions are due to my amateur police psychology.

#4 — Undecided

Police get complaints all day every day about wrongdoing.  They also see things while they are on duty which arouse their suspicion or curiosity.

It goes without saying often times when they approach a particular problem they are undecided about the outcome going into their work.  Normally, the longer a police officer is undecided in their investigation the more objective they will be.

Being undecided about an outcome is an extremely healthy attitude for someone making big decisions about another person’s life.  It causes the officer to investigate in detail and in doing so — to test alternate hypotheses, to review both favorable and unfavorable evidence in a balanced approach, and to understand the weight of their decision.  Obviously at some point an officer is likely to move off the undecided bubble one way or the other with the more information they assess and gather.  What is important is when they are undecided — they are better able to view the evidence neutrally.

I often see police who are extremely conscientious and do their very best to make the important decisions they are charged with making.  An officer should be undecided entering into every investigation undertaken.

But the equation breaks down a bit from here.  Police would have you believe they are undecided when approaching or investigating a case 100% of the time.  My experience is it is more like 20% of the time.

In fairness to police — I usually won’t see cases they don’t file unless I’m brought into the case very early.  The 20% could easily be much higher because I don’t know how many cases are put right in their trash-cans.

What I can say is by my best guestimation of the cases I do see — probably about 80% of the time the officer has a particular preferred outcome going into their investigation of cases they do ultimately file.  This can apply to DWI arrests, sexual assaults, or even white-collar embezzlement schemes.

Police are human too.

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

 


Aggressive Criminal Defense Lawyer

March 6, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

My name is Jeremy Rosenthal.  I eat nails.  I crawl on broken glass.  When I’m not screaming at prosecutors or judges for my clients, I’m having a 30 Lb. medicine ball slammed into my abdomen like Rocky Balboa training to take on the planet.

Not really.

I suspect all lawyers – let alone defense lawyers – are regularly asked by prospective clients if they are “aggressive,” “tough,” or if they are “a fighter?”

Truthfully, I’m not the best person to answer the question.  I’d say go ask some prosecutors how fun I am in trial.  I’ve been at this long enough to be pretty sure I’m not the path of least resistance for them — but again — this is for them to answer.

I’d like to make two points in this blog.  The first is the question itself assumes being aggressive is the right approach in any given case.  Second, is being an aggressive, tough fighter isn’t mutually exclusive with other skills which make an excellent lawyer.

It would be interesting to be asked if I was “thorough,” “meticulous,” and “calculated…”  Just once I’d like to be asked if I was “sensitive,” “encouraging,” and “thoughtful.”  Maybe today someone will try to see if I am “charismatic,” “clever,” and “crafty.”

It takes all these skills — and more — on many cases.  There is a right time to turn up the aggressiveness and toughness.  There is a right time to be calculated,  a right time to be sensitive, and a right time to be charismatic (to the extent I can turn that one on and off).

Ultimately a person needs to choose a lawyer which makes them feel comfortable.

But your lawyer needs to have a complete game.  They need to be a Swiss Army Knife of skills because each case is it’s own snowflake.  There are cases where I’ve made courthouse enemies for decades and there are cases where we need to pay attention to the carpenter’s rule – measure twice and cut once.  Sometimes both are appropriate given the case.

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