15 July 2005

How Can You Try a Case if Your Client Doesn't Come to See You?

A question from a comment (from my post about clients not coming to see me) a few days back:
How can you put together a decent trial strategy if they don't meet with you?
I was concerned that the answer which came to mind might not reflect the experiences of other lawyers so I read the question to another lawyer and asked his opinion. He laughed at me: "If you can't do that you can't do criminal law."

That's a little blunter than I'd state it but generally true (at least in Virginia). It is more true of misdemeanors rather than felonies and more true of some misdemeanors than others.

Basically, if you practice in a particular locality for a while you know the disposition of the most common misdemeanors: marijuana, trespass, petit larceny, &cetera. You meet with your client for a few minutes before trial and ask the important questions:
1. What happened? (By this time I usually know the officer's version of the event)

2. How do you want to plead?

3. Are there any witnesses you want to testify? Are they here?

4. What's your background (family, job, school, &cetera)?
Most of the time with this information you can handle the basic case. It's not optimal but you had best be adept at it.

If anything comes up which requires further research, non-present witnesses, or anything else then you go before the judge and ask for a continuance. Sometimes the judge will allow it; sometimes the judge will require you to go forward anyway. As an aside: By far, the reason a client most often wants a continuance is "I can't go to jail today." He'll come to court on his 6th driving suspended charge and be upset when I tell him that he's going to get some jail time. Judges are particularly unsympathetic to clients offering this reason (which is why, if there is any other reason I will offer it instead).

The important thing to remember is that in Virginia no matter what the result is and no matter how your client pled in General District Court he has an absolute right to a trial de novo in Circuit Court. This is because the lower trial court has constitutional deficiencies (i.e no juries) which can only be solved by allowing defendants the option of a brand new trial in the higher trial court with all the constitutional protections. In effect this makes the trial in the lower trial court into a type of preliminary hearing. The judge has the option of dismissing the case and if he does it is finished (unlike a regular prelim when a prosecutor can direct indict). However, if the judge finds your client guilty your client has the option of accepting the sentence or taking his shot with a jury or judge in the higher trial court. At that hearing you've seen the prosecutor's evidence, talked to your client and have had time to prepare for your case.

Felonies operate generally the same way. It still surprises me how many of my clients who are facing serious prison time don't come to see me before their first day in court. It makes some sense in misdemeanors wherein most people who have had frequent contact with the court realize that these are handled "on the day"; I'd still rather have prior contact but I understand. However, when facing 20+ years in prison you need to go see your lawyer. YOU NEED TO GO SEE YOUR LAWYER!!! Even when I set appointments these guys don't come to the office. I had one guy fail to show up both on last Friday at 4 p.m. and this Monday at 4 p.m.

Still, most felony trials have a preliminary hearing in the lower trial court. In Virginia we don't have those month long prelims I see on CourTv; a prelim usually lasts about as long as a misdemeanor trial (longest I've seen was an afternoon for a multiple defendant murder prelim). Even if the client hasn't come to see me I can talk to him on that day and basically get a glimpse at part of the prosecutor's evidence. The actual trial is usually a couple months later and there is time to prepare in between. Hopefully Client will come to the appointment I set for him when you meet at the prelim (or at least give me a working phone number).


Ken Lammers said...

I started this post a couple day ago and finished it today. In the meantime I was talking to another attorney and he was telling me how some high muckity-muck in the Bar went to a trial court to observe and was shocked, just absolutely shocked to see defense attorneys walking to the front of the courtroom prior to trial and yell out client names. How could we not know our clients prior to the trial date. Every defense attorney who hears that grins because we all do that procedure. Sometimes the client never met with you, sometimes you've only had phone conversations, sometimes you met the client one time 3 moths ago for a 30 minute interview and the case has required nothing since. Even if you met the client two weeks ago Wednesday, so many faces and names rotate through our professional lives that it becomes difficult to remember anyone other than the jerks and saints.

I remember having the same reaction when I first started practicing. Now I look around and realize that a good number of those attorneys yelling out client names are among the most experienced and capable ones in the courtroom.

Anonymous said...

I'm the one who asked the initial question. I'm just a neophyte studying for the bar exam. I clerked for a firm that did civil trial work. The civil cases dragged on in time with mulitiple client meetings and extensive discovery, etc. It all seemed necessary because if you cross-xed a hostile witness, you had to have some record to hold them against, right?

I guess in these crim cases where you don't meet with a client, and obviously have very little time to do any form discovery, etc...the record you hold witnesses against are police reports, statements, and just common sense, no?

I'm curious, because I'm interested in practicing criminal defense.

Ken Lammers said...

In Virginia discovery is very limited. Basically you get your client's statements, evidence the prosecutor feels is exculpatory (and, yes, I have had prosecutors give me this type of evidence), and you are supposed to get a copy of your client's record (but some places play games with this).

You must understand that in a lot of cases that the evidence is going to be what the police officer states against my client and his witnesses. The police report is not something I'm entitled to possess and the time I talk to an officer is generally right before court (there are tactical as well as practical reasons for this).

I guess what I'm stating is that a lot of criminal cases are done on the fly. You don't have anything to impeach a complaining witness with because there are no depositions before the trial. If you know that the case is going to the superior trial court you can tape record the hearing in the lower court to develop your own impeachment material (assuming the complaining witness changes her story).

It is always better when your client comes to see you ahead of time and lets you know what is going on. However, you must be able to function well when he does not.

Anonymous said...

I've heard it said you should never ask a question in cross you don't know the answer to. I guess that's not always feasible, eh?

In big crim cases there seems to be a lot of prep and discovery done. Why's that? If you don't mind me asking.