Hiring an Attorney Part 2

Educational Background – While many fine lawyers have come out of mediocre or unaccredited law schools and many lousy lawyers come out of the Ivy League law schools, where a lawyer went to law school can still be an indicator of a person’s ability to regularly achieve trial success. Most of America’s top law firms acknowledge that the best law schools are “ABA-approved.” This means that a branch of the American Bar Association has investigated the law school thoroughly for quality on dozens of “measuring sticks”. For a complete list, please go to the ABA web site to look up your attorney’s law school. But, if you do not recognize the “name” of their law school, it is likely not a mainstream school.

Publications – Lawyers who write frequently about their area of law practice tend to keep themselves better informed about their area of specialty. The ability to get published in legal magazines or DUI trade journals is a good barometer of the lawyer’s expertise. Writing the “book” on DUI law in the state where you were arrested is generally a great indicator of an advanced level of knowledge and expertise.

Promotional Materials – Pay attention to a law firm’s client information package, marketing, Internet and promotional materials. Are they professional and polished or do they give the appearance of being “fly-by-night”? How the firm and its staff presents itself to its clients and potential clients may be an indicator of how the firm will present itself – and, consequently, you – in court. Does your lawyer have a “real” office or only a virtual office?

Conflicts of Interest – Some DUI defense lawyers may also act as part-time prosecutors in one or more inferior (small courts of limited jurisdiction). Some may even act as a part-time judge in an inferior court. An attorney cannot act as a defense attorney in the same court, however. These lawyers typically will screen any potential “conflicts” and never see any potential clients with cases pending in their courts. Usually, such conflicts are not a problem. But be careful to pay attention to this fact if the lawyer does not immediately “step out” of discussing ANY ASPECT of a case pending in his or her “court.”

Sub-specialization within the DUI Field – A number of “drunk driving defense lawyers” focus on particular types of matters within the DUI-DWI arena. For example, some lawyers only handle administrative license suspension or administrative license revocation matters. They never go to DUI criminal trials or pre-trial motions in criminal cases. Other criminal attorneys may only handle appeals of criminal law cases, including DUI-DWI appeals.

Personality Compatibility – Your interaction with your DUI-DWI lawyer in evaluating compatibility with your goals should be more than just an analysis of the lawyer’s experience and competency. At the end of the day, a lawyer’s “bedside manner” can mean a lot to how the overall relationship goes. Some clients are especially “on edge” and need more nurturing, due to the stress that a DUI puts them under. Others merely want the attorney they hire to be a gladiator and go slay the dragon for them, and need no nurturing at all. Find a lawyer who really cares about winning, and be realistic about your level of need in being “nurtured” (or not being nurtured) by the attorney. Since 90% or more of your communications will be with the attorney’s staff, their supportiveness and attitude is also very important. Difficult or uncaring staff members are not being “team players” for your cause. However, you must not constantly call the staff to ask for an update, when the progress of the case may be slow and somewhat plodding.

Promising too much – There are actually DUI lawyers out there who swear they have never lost a case even after a lengthy trial career. Be skeptical about lawyers who promise success. An old wag among experienced DUI trial lawyers is “Show me a DUI lawyer who has never lost a DUI case, and I’ll show you a lawyer who has never TRIED DUI cases.” A lawyer who honestly presents the real risks and perils of trial without trying to talk you into an ill-advised plea of guilty is what you seek. Likewise, be very wary of attorneys who claim to have special influence or “standing” with the judge or prosecutor in your case. An attorney who spends more time “name-dropping” impressive political or judicial names than explaining the favorable aspects of your case should be avoided like the plague! Also beware of lawyers who speak too negatively about his or her competitors. If the lawyer is worthy, he or she can stand on his or her own track record and reputation rather than tearing down the record of qualified competitors. When you have your quest narrowed down to 2 or 3 potential attorneys who all seem to have the right credentials, go back to Number 2 above, and go to the COURTHOUSE for “the final answer”.

Engagement Letters – Read the fine print in your engagement letters or “fee agreements.” Some lawyers create agreements with so much “legalese” and one-sided provisions that such agreements should give you pause. Consider using a lawyer who provides an agreement that is written in plain English that appears to be even-handed. Also make certain that you know what costs (beyond the fees) are your costs to pay and whether any appeals or potential re-trials (after a mistrial or “hung” jury) require additional fees.

Language Skills – Some clients who are not native English speakers may feel more comfortable working with a lawyer fluent in their language. A skilled DUI trial attorney who does not speak your language should have staff members available to translate or telephone-based translation services. In trial, courts must provide translation services available to you.

Ethics – Run as fast as you can from lawyers that tell you it is okay to lie or otherwise act dishonestly in your case. Aside from the obvious questions of ethics, professionalism and morality, you are risking jail time for any complicity in such shenanigans. The attorney is also risking disbarment, jail time and potential civil litigation by suggesting this. RUN AWAY! It is not worth such aggravation and potential increased legal problems.

Appellate History – Has your attorney pursued any DUI-related appeals? If so, get the names of at least 5 significant appeals he or she has handled. Ask for a total number of appeals handled. DUI trial lawyers will often handle an average of 1 or 2 appeals per year of practice. So, a DUI lawyer in practice 20 years or more should have 20 to 40 appeals. Be aware that some TRIAL lawyers “farm out” all appeals to specialists, so be sure to ask for a list of cases of this type that were appealed by another appellate law specialist.

Many people will not be able to afford the top DUI/DWI lawyer in their area due to cost. There are options that will allow you to utilize the services of a skilled drunk driving attorney. Many lawyers who are excellent at fighting these difficult cases are partners or associates in the firm headed up by the top attorney in your market. Many of these attorneys have track records that are similar to the top DUI lawyer’s record, because these attorneys obtain advanced training, share information about trial strategy, defenses to tests and field evaluations, expert witnesses, judges’ tendencies, prosecutors’ weaknesses and police officers’ lack of training or other problems. Why not hire a partner or associate for half or less of the fee set by the TOP DUI attorney?

Keep in mind that you may need to be screened by the public defender or similar organization handling indigent cases, if your financial resources are low. You will usually be screened extensively by your judge or his/her staff to determine whether you truly are unable to pay a fee. Plus, you swear to these financial issues, in court.

Many lawyers may offer to “unbundle” their legal services and may offer “a la carte” legal work. In DUI/DWI practice, the first fee set may be for handling the ALS (ALR) administrative license suspension-revocation hearing. This is NOT a criminal matter, but is a related “civil” proceeding that determines whether you can continue to drive, operate on a restricted license, or not drive at all. This means that instead of the attorney handling a case from beginning to end, some attorneys will work on specific aspects of the case or simply provide the client with the lawyer’s expertise or oversight. Depending on local practice in your area, this may be a reasonably safe plan or could be disastrous.

The opposite of this practice of “unbundling” is the super lawyer who limits the number of cases he/she takes. In doing so, these DUI attorneys may offer a flat, non-negotiable fee. If a client hires a TOP DUI attorney on this basis, relying upon a stellar “track record” at either winning DUI cases or getting charges reduced, the fee is a “results-driven” transaction where the attorney is committing to dedicating one of his or her time “slots” and his/her expertise in exchange for the agreed fee — paid in full. If you hire such a DUI specialist, be comfortable expending the fee quoted, or look for a less expensive alternative.

Unfortunately, the question of what to do when you have hired an ineffective DUI lawyer is more than just theoretical for many. The answer about how to proceed largely depends on the facts of your DUI case. First, determine whether the problem is really the DUI lawyer’s fault. In many cases, people complain that their lawyers are ineffective when, in fact, the problems are beyond the lawyer’s control. One common example is where the police videotape is so damning that the attorney has little chance of success at trial. Some cases are lost by what the DUI client says or does on video.

If your lawyer really has botched the case (or some aspect of the case) but you think the mistake is honest and does not reflect deeper problems relating to competency, it may be easier to work with the lawyer in resolving the matter than in just switching to a new law firm. If you question the competency of your DUI lawyer, you may want to get a second opinion from another attorney. Request this opinion from an attorney who is NOT a candidate to become your attorney and who has no business or personal CONNECTION to the existing lawyer. Expect to pay for this attorney’s time.

Don’t be shocked if a possible “substitute” attorney will not consider taking your case. Busy specialists, especially the TOP attorneys, don’t want to inherit a “mess” created by another attorney on your case. Also, people who switch lawyers are sometimes “problem clients.” Many people simply have a negative mindset and will never be satisfied with their lawyers. While many people have legitimate reasons to change lawyers, you really want to avoid appearing to be fickle or portray a “troublemaker” image, so make sure you choose carefully the first time.

If your lawyer grossly mismanages your case, you have two remedies. You can file a complaint with the board of professional responsibility for the State Bar that licenses your attorney. And you also have the option of suing the attorney for legal malpractice. These remedies are of little use if you have lost your case and have a DUI conviction on your record.

At the end of the day, making yourself an educated consumer of legal services will improve your chance for your case to be managed successfully. That means learning as much as you can about drunk driving law so that you can work with your attorney to seek to achieve the best solution possible for your DUI case. It also will help you make sure that you are hiring a lawyer that really is a TOP specialist in this complex area of law.