Recently, I saw an attorney in court who was clearly out of his environment and most likely doing a favor for a friend on family member. What a terrible situation for this lawyer and the accused person, especially someone facing felony charges in Pennsylvania!
Most people know a lawyer and if they don’t know one they’ve probably seen one on TV, the internet, or heard one on the radio. Attorneys are everywhere and people are creatures of habit. We like going to the same supermarket to buy our groceries and the same department store to buy our clothes but hiring an attorney is different. As I have said a number of times, when you hire a lawyer you’re hiring knowledge and access to understanding. It is for this reason that the attorney who handled your personal injury or your real estate transaction shouldn’t be handling your drug, gun, or DUI case. Over the years of representing people charged with crimes, I have witnessed firsthand how much of a disaster this decision causes for a person; especially if they’re facing felony charges. There are five reasons why an attorney who doesn’t handle criminal cases or who “handles everything” shouldn’t handle your criminal case.
- They think its lets make a deal. Civil litigation attorneys like to settle!
Most civil cases settle and most of the argument is made during discovery and not in the courtroom. Civil attorneys just have that mindset and therefore aren’t used to litigating cases in a courtroom but rather scoring points during a deposition or other parts of discovery. Criminal courtrooms are much different and if your attorney goes in with the mindset of settling, the prosecution or District Attorney will pick up on it very quickly and have no reason to negotiate with him. Further, the prosecution will understand that your attorney really isn’t prepared to try the case because he lacks a strong understanding of pre-trial motions and the evidentiary burden of proof at trial.
- They think that preliminary hearings are an opportunity to put up a defense.
Most people believe that any appearance before a judge is an opportunity to argue your case—even some lawyers who don’t handle criminal cases! Preliminary hearings, however, are not the place to argue defenses or even present evidence. As I have written in previous articles, preliminary hearings aren’t trials but rather the prosecution’s opportunity to present a prima facie case in order to have criminal charges held for trial. A lot of civil attorneys, however, wrongly believe that these hearings are the proper forums to argue Fourth Amendment issues (probable cause and reasonable suspicion) as well as present defenses which are only appropriate at trial.
Probable cause and reasonable suspicion are the foundations for pretrial motions to suppress evidence which are critical in drug, gun, and even DUI cases. Police need at least reasonable suspicion to stop someone and probable cause to arrest. There is also the issue of reasonable suspicion and probable cause regarding the search of a person or a person’s property. These are all critical issues which civil litigation attorneys just don’t deal with in their practice. Their lack of familiarity with the rules of evidence as well as the evidentiary standards for reasonable suspicion and probable cause will seriously jeopardize your criminal case.
- They think that the illegal possession of a gun or drugs is limited to what police find on you.
It is essential that your criminal defense lawyer understand the difference between constructive and actual possession because these are important concepts in drugs and gun cases. The prosecution doesn’t have to establish beyond a reasonable doubt that a person actually possessed these illegal items but rather the prosecution can establish guilt beyond a reasonable doubt through constructive possession. Constructive, unlike actual possession, means that the person had the item in their area of immediate control and could exercise that control over it. This is an important issue because an attorney who isn’t’ familiar with the concept will fail to argue these points to a judge or jury trial. This is also an important concept if your attorney’s attempting to distinguish between simple possession and possession with the intent to deliver in a drug case where you are charged with a felony rather than a misdemeanor charge.
- They forget who has the burden of proof and they ask too many questions.
There is power in silence and its important that your criminal defense lawyer never forget this important concept. It is always easy to argue what the prosecution hasn’t presented rather than what they have put into evidence at trial or during a pre-trial motion. The burden of proof is never on the defense and sometimes what is not said at trial provides your criminal defense lawyer with a stronger argument for a judge or jury.
In closing, I have nothing against personal injury or any type civil litigation attorneys as I consider many my friends but hire a lawyer who knows what he is doing in a criminal court room and not a friend who just happens to have a law degree. For more information on criminal defense and my practice, I invite you read my books and my monthly newsletter