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

June 6, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.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 Certified in Criminal Law by the Texas Board of Legal Specialization.  He is Licensed to Practice by the State Bar of Texas.

 

 

 


10 Principles of Defending People: #6 Investigate

June 5, 2018

By Collin County Lawyer Jeremy Rosenthal

www.rosenthalwadas.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 and is licensed by the State Bar of Texas.

 


10 Principles of Defending People (#8 Be Optimistic & #7 Inoculation)

June 1, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Today I’ve got two principles to share and they can be summed up the cliche, “Hope for the best but be prepared for the worst.”

I’m summing up what I feel are the 10 most important principles a criminal defense lawyer should follow in their practice in this series.  You can read about my previous posts so far on the topic here:

#8 Be Optimistic

You won’t find much doom and gloom on my blog.  I’m sure there’s plenty of anger, grand-standing and self-ritcheosness… but hopefully not much fear-mongering.

People often shake as they’re walking into my office.  A big part of it is because they’ve been on the internet or gotten legal advice from their best friend growing up.  They think I’m going to confirm their fears about having body and appendages severed by the prosecution.

I have yet to come across a case in the zillions I’ve evaluated where there isn’t some hope, some ray of sunshine, or something to be optimistic about.  Granted, these things are relative and  if there weren’t legitimate reasons for concern — no one would come and see me at all.

But people crave optimism from professionals they deal with.  There is nothing wrong with being optimistic and letting folks know where the sunlight is.

#7  Inoculate People For Bad News

Again, today’s topic is a ying and yang concept.  While there is nothing wrong with being optimistic — people also don’t come to a lawyer to be lied to.

Bad news is unfortunately part of the job.  It’s important to discuss unpleasant possibilities for many reasons.  What is also important is putting them into context and letting someone know how realistic certain outcomes may or may-not be.

I find it is important to discuss possible bad news before it happens.  This way the lawyer and client can come up with a plan for avoiding the possible bad result and time to come up with another plan should the bad result come to fruition.  This gives the client and/or their family a sense of some control and allows time for them to wrap their mind around things.

I call the concept inoculation.  It is like eating vegetables.  It’s no fun to eat veggies at the table but it’s very healthy in the long run.  Discussing possible bad outcomes in a constructive way yields long term dividends.

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


10 Principles of Defending People: #9 Be Organized

May 31, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I’m writing a series of blogs describing what I think it takes to be an effective criminal defense lawyer.  Yesterday, I wrote about not being judgmental – a cornerstone of the mindset of a defense lawyer.

Today, I’m writing about another concept:

#9 Be Organized

I have two favorite quotes which go hand in hand about how I like to think I approach my work.

The first quote is, “the harder I work, the luckier I get” from Samual Goldwyn, a producer who founded MGM.  The second is from Jim Turner, a player on the Denver Broncos after they lost the Super Bowl in 1977 to the Dallas Cowboys… he said, “We were thinking about being the Super Bowl Champs and they were thinking about football.”

Many lawyers “think about being Super Bowl Champs” but they don’t mind the details or put in the sweat-equity it takes to win.  They confuse thinking about winning with the work it actually takes to win.

Every case is its own snowflake and some can be extremely complex.  It can be easy to get lost.  The more I practice, the more I appreciate the reality lawyers need a compass to navigate each case which makes sure every detail is addressed.

A good defense lawyer in my view needs a systematic way of approaching each case.  Do you think they make things up as the go along in an operating room?  Do you think a pilot with 323 souls on their commercial jetliner just treats their flight like a drive to the 7-11?  Do you think when NASA is about to launch humans into space with a $1.3 billion dollar project they just wing it?

No way!  They have checklist after checklist.  They have redundant failsafe measures designed to minimize their margin of error.  Why would we be any different when we are charged with protecting our clients lives?

Television and movies teach us bad lessons.  They teach us there are some lawyers can just walk into a courtroom and leave the jury in tears when they just got the case two commercial breaks ago.  I know some pretty darn talented lawyers.  But I don’t know anyone quite that amazing.

The rest of us need to be organized!

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


10 Principles of Defending People: #10 — You Can’t Be Judgmental

May 30, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

The next few blogs I write will be about what I think it takes to be a successful criminal defense lawyer.  They are traits I hope my clients find in me.

10.  You Can’t be Judgmental

Being judgmental is for everyone else except your lawyer.  This is Square one.  If you can’t get past this then you don’t have much business defending people in my book.  Carrying judgmental thoughts about your client is excess junk we don’t need cluttering our brains while doing the complex task of practicing law.

Understand two things about my job.  First is I don’t know whether my client is really guilty or innocent.  The only way I’d know for certain is if I witnessed things myself — in which case the rules wouldn’t allow me to represent the person anyway.  Second, is beyond helping a person — our role has a far greater good and purpose… but that is a different topic altogether.  You can read about it here or here.

My impression is by the time a person gets to my office, they feel judged by their parents, spouse, children, neighbors, extended family, co-workers, and strangers they see pushing  shopping carts in the dairy section of the super market.  They don’t need it from me too.

Some lawyers simply can’t clear this hurdle.  Its too hard for them.  What they don’t realize is removing judgment from the equation is the first step towards really understanding their client.

Being judgmental causes lawyers to presume guilt and not innocence which is an extremely dangerous mind-set.  Presuming guilt causes a toxic and circular thought process which invariably results in the lawyer dumping the case — and the client — as quickly as they can.

Many people — not just lawyers — feel if someone “gets away” with something the sun will somehow not rise the next morning.  We hate injustice and we hate thinking about it in these terms, but the Earth will still turn on its axis if a guilty person doesn’t get convicted of Drug Possession, DWI, or even murder.

It is somewhat liberating to know how imperfect the world really is when you really reflect.

And oh, by the way… someone who is unsuccessfully prosecuted occasionally gets to enjoy indefinite sleepless nights, permanent damaged relationships such as divorce, and lost employment and opportunity.  They might also enjoy fear of financial ruin, actual financial ruin, or even their name permanently smeared in the newspaper.  Not that any of this should count as punishment.

A person who comes in and says they didn’t commit the crime deserves their version to be thoroughly investigated.  A person who comes in and says they made a terrible mistake deserves having us make every effort they are really understood by prosecutors, a judge or a jury.  I can’t see where my independent opinion of this person or what they might have done fits into any of this?

A good lawyer needs to clear their mind of the excess junk so they can fight for liberty, more accountable government, and to help a person who needs a voice.

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