When you are charged with a crime, choosing the right lawyer is often crucial to assuring the most favorable outcome for your case. Therefore, you should not make a snap decision, but carefully consider the following questions.
Q: Does the lawyer limit his or her practice to criminal defense?
A: This is one of the most important questions to consider when choosing a criminal defense attorney. Just as the medical profession has become increasingly specialized, the increasing complexity of the legal system has led to more and more attorneys limiting their practices to certain areas of law. By limiting his or her practice, it is much easier for an attorney to keep up with new developments in the law and to master the skills needed to succeed in a given area of law. The jack of all trades is master of none. Therefore, you are usually better off with a criminal defense lawyer than a general practitioner who dabbles in criminal defense or an attorney who focuses on an area of law other than criminal defense.
Q: Does the lawyer have a proven track record of success?
A: This is another important question you should ask yourself.
If a lawyer loses the vast majority of his trials, he is either not a good trial lawyer, is not good at discerning which cases would be best suited for a plea agreement instead of a trial or he may simply have the misfortune of always having clients with bad facts who insist on going to trial against the attorney's advice.
If, on the other hand, a lawyer has won most of his trials, the odds are that he is a good trial lawyer. This is particularly true of criminal defense lawyers who consistently win, because the deck is usually stacked against the defendant.*
It is much easier to build a winning record as prosecutor than as a defense lawyer. A prosecutor with a losing record is probably a bad trial lawyer, while a defense attorney with a winning record is probably an excellent trial lawyer.
Q: Does the lawyer have experience as a public defender or prosecutor?
A: One thing that most successful criminal defense lawyers have in common is that almost all of them invariably spent the early part of their careers as either public defenders or prosecutors. There are several reasons for this. First of all, there is usually a strong mentoring system in place in public defender and district attorneys' offices. The older, more experienced attorneys will teach the younger attorneys how to practice criminal law. The newer attorneys will start out with simple and less serious cases and work their way up to more serious and complex cases.
In a private law firm, the more experienced attorneys are often too concerned with generating billable hours and fees to take time out to mentor less experienced attorneys. Thus, the inexperienced attorneys in private firms often are left to fend for themselves and learn on the job, with the paying client funding this on the job training.
Public defenders and prosecutors carry heavy case loads and see every conceivable type of criminal case. Because a public defender handles so many cases, he gains experience much more quickly than a private attorney handling a much smaller criminal case load. The hurried public defender must also learn to efficiently manage the limited amount of time he can spend on each case.
Before an attorney starts charging people money to handle a criminal case, the attorney should be skilled and experienced in the field of criminal defense, and not learning on the job. The only way to gain skill and experience without charging people money is by working as a public defender or prosecutor.
Q: Is the lawyer death penalty defense qualified?
You may ask yourself why this is an important question when you are not charged with capital murder. However, when you hire a death penalty qualified defense lawyer, you are assured that he or she is experienced in the field of criminal defense, and in particular, has had experience handling jury trials involving serious offenses. The reason that only certain attorneys are qualified to handle death penalty cases is to assure a minimum level of experience and competency of defense counsel and thus, reduce the possibility of an innocent person being wrongfully convicted in a death penalty case. Therefore, only seasoned defense lawyers who have undergone special training in death penalty defense are permitted to handle death penalty cases in Pennsylvania . Any lawyer skilled and experienced enough to handle a death penalty case can handle any other type of criminal case, whereas anyone with a valid Pennsylvania law license can hold himself out a as criminal defense lawyer for non-capital cases, regardless of experience or skill level. Attorney McClenahen used to be death penalty certified, but let his certification lapse for several reasons: 1) there are very few death penalty cases in the counties where he usually practices, 2) as a solo practitioner, it would be nearly impossible to take on a death penalty case and still keep up with his usual case load. Thus, it was not worth staying current with required death penalty certification classes each year. Nevertheless, Attorney McClenahen does possess the trial experience necessary to become death penalty certified, which means that he is capable of handling any type of criminal case.
Q: Has the lawyer ever worked for anyone else, or did he start his own firm with no experience right out of law school?
Don't be afraid to ask what work history a lawyer had before his current position. If he started his own firm right out of law school without ever working for anyone else, this is not a good sign. The practice of law is far too complex to just teach yourself, regardless of the field of law. Although the best criminal defense mentoring occurs in public defender's offices, a young attorney will at least get some mentoring in a private firm. An attorney who simply starts his own firm right out of law school is like a home-schooled student without anyone teaching him or even telling him what books to read.
The biggest mistakes that a young attorney makes should be confined to the office of his or her mentor. The young attorney will suggest a particular approach, which has no chance of succeeding and will hurt the client, only to have the mentor set him straight before he actually commits the mistake. A young attorney with no mentor does not have such a luxury. Instead, he will make the mistake in court at the client's expense, a client who is paying him, no less.
Even after years of private practice, the attorney who never had a mentor will often still not know what he is doing. This is not because he lacks the innate ability to be a good attorney, but rather because no one ever taught him how to practice law. In fact, the unmentored attorney may have developed bad habits, which no one ever corrected, and then become ingrained in the attorney's practice.
You would not want a doctor who decided to start performing surgeries right out of medical school without having first worked under experienced surgeons. Neither should you choose a criminal defense attorney who never went through a mentoring process.
Q: Should I apply for a public defender or hire a private attorney?
This question only applies to you if you have a low enough income to meet the eligibility requirements for representation by the public defender's office.
Some of the best defense attorneys in Pennsylvania are public defenders, however, so are some of the least experienced and most overworked. You are almost always better off with a public defender than with a private attorney who does not handle many criminal cases. In fact, those private attorneys who only dabble in criminal defense often consult public defenders for advice on how to handle the few criminal cases they have, and the overworked public defender is more than happy to give friendly advice, because the private attorney has taken a case, which the public defender otherwise would have been stuck with. So, your real question should be whether to go with a public defender or with a private attorney who concentrates his practice on criminal defense.
When you apply for a public defender, you rarely get to choose who will be assigned to your case. The chief public defender will review your application and either choose to represent you himself or assign your case to an assistant public defender. If you are unlucky, you may get someone who is right out of law school and is several years away from reaching his full potential. If you hire Attorney McClenahen, you know that you are getting a highly skilled defense lawyer with a proven track record of success.
Public defenders tend to be overworked and carry much bigger caseloads than do private criminal defense attorneys. Thus, a private criminal defense attorney is usually able to devote more time to your case than can a public defender.
Attorney McClenahen will be the first to tell you that he would not be the defense attorney he is today without having spent 5 years in the pressure-cooker of the York County Public Defender's Office, where he carried a heavy caseload involving some very serious and complex cases. Just as the best physicians did grueling residencies in their areas of specialty, the best private criminal defense attorneys usually received their training and baptism of fire as public defenders or prosecutors. Those who excelled as public defenders or prosecutors often stay in criminal law, while those who are not so successful often find another area of practice, which better suits their attributes and personalities.
Q: Should I hire a big law firm, small law firm or solo practitioner?
Most firms in Central Pennsylvania are small, especially those which handle criminal defense, but there are some big firms that handle criminal defense as part of their practice. You are more likely to run into a big firm if you look for an attorney from a bigger city like Philadelphia , Pittsburgh or Harrisburg.
There are two advantages to hiring a solo practitioner instead of a big firm. When you hire a solo practitioner, there is no question as to who your lawyer will be and the solo practitioner is often in a better position to charge a more reasonable fee.
When you hire a big firm, or even a firm with just 3 or 4 attorneys, a senior partner often assigns the cases to the associate attorneys, much the same way that the chief public defender assigns cases to the assistant public defenders. In fact, the fee agreement may even state that there is no guarantee that the attorney of your choice will represent you and the senior partner makes all case assignments.
In many firms, the senior partners or other experienced lawyers will take the big fee-generating cases themselves, while pawning off less serious small-fee generating offenses to less experienced associates. When you hire Attorney McClenahen, you know that a skilled defense lawyer will be representing you, even if your case involves underage drinking, DUI or marijuana possession. On the other hand, if you go to a big firm, you might get a lawyer right out of law school, who is learning on the job how to practice criminal defense. This learning on the job may be made more difficult because the senior partners are too busy with their own work to effectively mentor the young associates. Another difficulty is that the young associate might not just be learning criminal defense on the job, but also might be learning how to practice other areas of law. If you go to a big firm, you would be the one footing the bill for this on-the-job training.
Big law firms often charge higher fees than small firms and solo practitioners because they have more overhead. When you hire a big firm, the senior partners are going to want to take a cut of your fee, even if you are represented by a lowly associate attorney right out of law school and the senior partners never have any involvement in your case. Thus, when you hire a big firm, you are paying the salaries of multiple lawyers even when you only deal with one lawyer. The irony is that you may end up paying more money for a recent law school graduate at a big firm to handle your case than you would have paid a seasoned solo practitioner.
Q: Should I just go with a family friend who is a good lawyer?
A: If your family friend is a criminal defense lawyer, then you should go with him or her as long as he or she is comfortable taking your case. Because your family members know that their friend is reputable, you do not have to worry about mistakenly hiring a lawyer who talks a good game, but is actually a scheister.
If, on the other hand, your parents' friend practices family law, real estate law or tort law, he or she will be of little value to you in your criminal case. Just as the practice of medicine today is specialized, most attorneys today limit their practice to particular areas of law. Just as the best urologist in the world will not be performing brain surgery, you should not expect a non-criminal defense lawyer to handle your criminal case.
You should, however, talk to the non-criminal defense lawyer to get his or her opinion about a lawyer you are considering hiring. In a small area like Central Pennsylvania , the lawyers either know each other or know of each other, even if they are not in the same practice area. If three different lawyers say bad things about a particular lawyer or law firm, that should set off alarm bells. If three different lawyers say good things about another lawyer or firm, that is a good sign.
*"The deck is usually stacked," against criminal defendants because the police very rarely, if ever, file criminal charges against a defendant unless they themselves are convinced beyond a reasonable doubt of a defendant's guilt. Where the evidence is flimsy, a prudent police officer will generally elect not to file charges unless and until he or she can acquire more solid evidence. Felony drug cases are generally the most difficult cases to defend, as they often involve a sale of drugs either directly to an undercover police officer or to a confidential informant, while the police are observing, recording or filming the transaction. With the evidence in most criminal cases being overwhelmingly against the defendant, it takes a very skilled criminal defense attorney to overcome this disadvantage.