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Selecting a Lawyer

If you’re shopping for a lawyer, it’s chancy to rely on advertisements from the yellow pages, billboards, or TV. Many good attorneys don’t advertise at all, but just get clients by relying on word of mouth. So try getting referrals from:

•  friends and acquaintances who’ve used
particular attorneys and been pleased
with their performance;

•  other attorneys—most lawyers have a good
sense of their local colleagues’ reputations, at
least in their own area of practice;

•  bail bondsmen (though bondsmen may just be
returning favors to attorneys who’ve referred
clients to them).

Referrals from county bar associations aren’t necessarily of much value. Many bar associations simply charge attorneys a fee for putting them on the association’s referral list and don’t sort the members according to quality. So when you call the bar association, they may just be referring you to whichever attorney is next on the list as they rotate through all the names.

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When an attorney says that she’s a “state-certified specialist” in criminal law, that’s significant, because it means she’s met extra requirements established by her state’s bar association. Certification as a specialist usually involves passing an exam, taking additional continuing education classes, having practiced that area of law for least five years, and having done a substantial number of serious trials. States that certify lawyers as criminal law specialists include:

Arizona             New Jersey

California          New Mexico

Florida              North Carolina

Idaho

The National Board of Trial Advocacy also certifies specialists in criminal law. Their website, from which you can obtain referrals, is: http://www.nbtanet.org/.

Don’t be overly impressed by criminal defense attorneys who claim that they’re better because they used to be prosecutors. Connections with the prosecutor’s office don’t necessarily produce better plea bargains—that has more to do with the experience, personality and negotiating skills of the particular attorney. And if you’re going to trial, you may be better off with a former public defender, who will have had lots of practice actually defending cases, as opposed to prosecuting them.

Being a member of various professional organizations usually isn’t significant—it depends on how many sets of membership dues the attorney is willing to pay. Neither is it very important which law school the lawyer attended—what counts is accomplishments while practicing law.

Nearly all criminal defense attorneys give free consultations. It makes sense to interview several so that you have a choice. You might want to ask how many years the lawyer’s been in practice and how much of that was spent doing criminal defense. It’s also good to know how many trials the lawyer’s done, and how many cases involving your charges.

If you’re having trouble deciding between two lawyers, try asking whether they would be willing to work together, sharing the fee. Assuming they get along, both of them may prefer such an arrangement, because they can strategize together, and then each can focus on the parts of the case he does best. Besides, attorneys like to have a partner during trial, a process that always involves a great deal of work and stress.

When you interview an attorney, make sure you’re clear on exactly how much money you’d be paying if you hired her. Criminal defense attorneys are normally paid a flat fee in advance. They don’t take cases on contingency and rarely charge by the hour. Often, a criminal defense lawyer will charge half the fee if the case settles (through a plea bargain or dismissal), and require the second half of the fee only if the case goes to trial. Some attorneys break the fee into thirds in felony cases, when those fall naturally into three stages. Most criminal defense lawyers also expect the client to pay separately for “costs,” such as travel, investigation, experts, etc. All this should be in the fee agreement (contract)—do not sign it until you understand every single part of it.

You may run across some lawyers who claim they never lost. Most cases are settled before going to trial or before a verdict is rendered. Technically a settled case isn't a "loss". If a lawyer is losing, they will usually try to convince their client to settle. Even when some lawyers are winning, they still try to settle to avoid the risk of lossing, even when they have a good case.

Additionally, lawyers get to choose their cases. If a lawyer only takes cases that they believe should be easy to win, the fact that they haven't lost a case is really meaningless. Great lawyers win cases everyone else thought was hopeless.

Most criminal cases involve pleas. The prosecutor makes an offer and the defense attorney may make a counter offer. If the defendant is facing the death penalty, but the defense is able to make a deal for life in prison, did that lawyer win or did he lose?

If a business is being sued for two million dollars and an attorney is able to settle it for $150,000, did the lawyer lose that case? Possibly both sides, the business and the person receiving the settlement money are satisfied with the outcome. Sometimes it is simply cheaper to settle, even when you believe you're right. If you're being sued for $5,000 but you are certain that you could win the case at trial, but legal and other expenses to win would cost $10,000, it's cheaper to make a settlement offer. 

No matter how good a lawyer is, they cannot guarantee you will win your case. They can however determine that your case has a good chance of winning or not. Once the judge or jury has seen all the evidence and heard all the arguments, you can't control how their experience and bias plays into the decision they reach.

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©2007 Katya Komisaruk: 

Republished by permission from the Just Cause Law Collective, with edits from Court.rchp.com ©2015-16

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