The Law Offices

I frequently receive calls from the distressed clients of other attorneys asking me whether they should fire their lawyers, because no investigation has been performed on the case and the client wants to go to trial and not take any deals. When is it a good time to fire your lawyers, and how do you know if you should?

Criminal law is like any other profession. There are good lawyers and bad lawyers just as there are good doctors and bad doctors. With lawyers, however, it can be harder to know if you are getting a good service. The hallmark of good service is preparation and successful execution of the trial strategy.

First, ask yourself what stage of the case you are in. Generally, it is not a good idea to fire your lawyer on the day of trial. Judges do not like this behavior and see it as evasive. Only in the most serious circumstances where lawyers have committed aggregious conduct do judges allow substitution of attorney on the day of trial. It is far better to fire your lawyer at an earlier stage of the case. If your lawyer has not made clear his theory of the defense, his trial strategy, and the steps he has taken to prepare by your preliminary hearing, then you should fire him or her before your hearing takes place.

In other words, you should be apprised of all the aforementioned data at a very early stage of your case. If you lawyer is too busy to inform you about strategy, preparation plan, and legal issues involved in your case, fire him or her as soon as possible. You may lose money by having to hire a new lawyer; however, in serious cases money should not be the issue. Your freedom and livelihood are the real issues.

From a technical standpoint, the latest time to fire your attorney should be after the preliminary hearing in a felony case, or after the first pre-trial conference in your misdemeanor case. By these hearings, if you are not as well informed as your lawyer, then you may assume your lawyer is unprepared to defend you. Do not hesitate to hold your lawyer's feet to the fire, and do not accept cursory or dismissive answers. If you were to undergo brain surgery, your surgeon would be required to disclose all the risks involved in the procedure. Doctors tend to spew information in the form of disclosures when you get treatments. You should demand the same level of transparency from your criminal defense attorney. What kind of life will you have without your freedom?

Adequate preparation means that your lawyer has hired an investigator, has retained the relevant scientific experts (if necessary), has filed all the motions that comport with the trial strategy, and has prepared his or her witnesses to testify by giving mock direct and cross examinations. If you are on the eve of trial and you have not had practice sessions with your lawyer, and neither have any of the other witnesses, then you should make a lot of noise and fire your lawyer.

A word of caution: I've noticed that it tends to be the case that lawyers who charge discount flat rates for pre-trial retainer agreements, do not prepare for trial; they prepare to plead. Now, if that is what you wanted all along, then you are getting a good deal. Do not be misled by a fast talking lawyer who promises your freedom for one or two thousand dollars. If you are in a position to want a jury trial, then you should expect to pay a significant sum, greater than $10,000, if you expect to have your lawyer prepare witnesses, collect evidence, manage an investigator and engage leaders of the scientific community. But keep this in mind, good trial lawyers make the best plea bargainers, and not all plea bargainers are trial lawyers.

When a prospective client comes into my office or calls me on the phone, I try to gauge his or her expectations and goals. Some people know at the beginning of the case that they do not want to go to trial, such people may be prominent in the community and need the case to go away quietly and quickly. Such people should retain a lawyer who is well known to win jury trials (or can tell you some war stories), because that lawyer will get the best result most quickly. However, the retainer agreement should reflect that the client is not paying for a jury trial and does not expect the same level of preparation as a trial case would entail. Thus, the fee would be substantially smaller, far less than $10,000 in most cases.

When a client tells me he or she will want a jury trial, I make it very clear at the first interview what the theory of the defense will be (i.e., self-defense, entrapment, reasonable doubt, etc., etc.). I tell them what kind of preparation will be required to prove the defense strategy, i.e., which legal motions would be necessary to achieve the goal, what investigation should be performed, and which experts should be contacted and consulted. As the case progresses, I inform the client when he or she should expect to sit at the defense table, and when that time draws near I sit my clients and other witnesses down and do mock examinations until I and the witnesses feel ready.

There are many stages to a criminal case, i.e., arraignment, motions hearings, pre-trial conferences, preliminary examinations, jury selection and in limine motions. If you expect your lawyer to take your case to trial and he or she has not given you input about these stages of the case and what he or she plans to do to achieve the trial strategy, then you should probably cut your losses and fire that lawyer!

I can think of no fate worse than being incarcerated, even for one day. I know I could endure an illness far easier than being in a cage. Thus, your freedom is the most important aspect of your life as a human being on this planet. Please, demand to know what your lawyer plans to do to accomplish the preservation of your freedom; wouldn't you expect no less from your dentist, eye-doctor or physician? Demand explanations at all stages of the case, and if you do not get them or if they are woefully inadequate, you would be wise to find new counsel as soon a possible.