How to Find Your Hired Gun

15 Questions You Must Ask A Lawyer You Might Hire (And 3 Rules)

Most people feel intimidated when first meeting with an attorney, suspecting the lawyer to be more intelligent and experienced than themselves, and instinctively feeling an outsider from the attorney’s suspected membership in a sort of secret cabal controlling the will and the ways of the court system.  Much like the first time car buyer, they let the seller dictate the terms of the discussion, and much like the car salesman, the attorney may use certain long known industry techniques to part the buyer from his or her money, often on a lemon.  One such technique is to overemphasize the worst that can happen to the potential client.  If you’re already charged with a crime or already sued for millions of dollars, and normal, you’re already scared when you walk into to the legal office.  So the lawyer’s task to heighten that fear by continuously pointing out the maximum jail time you face or the weaknesses of your case is made all that more easy by your preexisting fear.  This brings us to Rule #1.  

RULE #1:  DO NOT FEAR YOUR LAWYER OR THE LEGAL SYSTEM

If you’ve been through the system before, you know very well these feelings of intimidation brought on by court personnel such as attorneys are unnecessary. Those emotions are intentionally emplaced in us from childhood through all of the medieval trappings of royalty, honor, obedience and ritual found in our courtrooms and courthouses, and the nearly sacred manner in which we must treat the judge as the final arbiter of our fate.  We see the same indoctrinating designs when we view our national memorials like the White House, the Congress, the Supreme Court, and the Lincoln, Washington and Jefferson memorials, all built to instill in us a sense of sacred awe.    

We are taught to be subservient to the lawyer:  he of superior logic, intellect and verse.  And there was a day those things were true.  However, the modern law school does almost nothing to prepare its students for the real practice of law, and many had undergraduate degrees in business instead of the humanities, so there is no guarantee they know anything of logic, intellect, and verse.  Moreover, the law schools pump out lawyers faster than a country preacher can pump out fire and brimstone, so standards have been slipping all around.  The old barb holds true:  being a lawyer is a license to steal.    

Remember, though, we are hiring the attorney.  He is our employee; not the other way around.  And the simple fact is most lawyers are only of average intelligence, are themselves afraid of the courtroom, and are mostly worried about meeting their monthly overhead.  That’s why they try to scare you into paying them a large fee, even when they know at heart a lawyer just down the block would serve you much better for much less.  So don’t fall for the fear tactic.

Discard the fear!  Go forth boldly!  If you litigate in fear, you will lose.  Don’t be afraid to ask the following questions directly to the face of a potential lawyer you may hire.  Do not feel shame you were arrested or sued.  Recall the article you read that brought you to this article.  And by the way, any attorney worth a dime will offer you a free first consultation just to review your case, see how much money you can pay, and maybe provide a little free advice.  If he or she doesn’t offer a free consultation in person, don’t bother with them.  Move on.  Which brings us to Rule #2.

RULE #2: NEVER WAIVE YOUR RIGHT TO A JURY TRIAL

The following questions assume you have a criminal legal problem, but they are just as applicable to civil cases tried before juries, and to some extent, cases tried before judges—which is something you want to avoid if at all possible.  Juries are good.  Judges, normally, are bad.  There are rare exceptions, but never waive your right to a jury trial without first obtaining a second opinion.  Do not let the judge, prosecutor and your own lawyer team up to attempt to force you to waive your right to a jury trial, unless you are voluntarily entering into a plea agreement.  Ask for time to get the second opinion.  

If your lawyer is urging you to waive a jury trial, you probably have problems and need a new lawyer.

You must somehow tell the Court, if true, you used up all of your assets on your current lawyer and need a public defender to advise you whether waiving your right to a jury is advisable in your case.  If the Court denies you public counsel on that single issue, object for the record to preserve the issue for appeal, and request a stay and the appointment of  public counsel to file one of the Great Writs so an appellate court can determine pretrial whether you are entitled to public counsel for a second opinion.

Your lawyer should be willing to perform these tasks for you, but if he or she does not, do them yourself after asking for the Court’s permission to perfect the record.  Do not be afraid.  Treat the judge with respect, but you not only have the right to place issues on the record, you must do so if you want to raise them on appeal later if you are convicted.  And if your attorney wants to waive your right to a jury trial, unless something about your case so reeks of “not guilty” the judge would fear his or her re-election if you were found guilty, you stand a good chance of conviction.  Attorneys who waive juries just want your money and short trials; which gunslingers think of as long guilty pleas. 

Hope is everything once convicted and sentenced because Public Defender offices employ some of the best appellate lawyers in the country, and you are entitled to at least one appeal by a Public Defender.  So preserving the record is everything during trial preparations and trial.

FIFTEEN QUESTIONS YOU MUST ASK A POTENTIAL LAWYER

FIFTEEN REASONS WHY YOU ASK THEM

  1. How many criminal jury trials did you conduct in the last year? If the answer is 0, you need a different attorney.  Otherwise, ask about the outcomes.  Gunslingers will take anything to trial, so they sometimes lose, but not often.  A “not guilty’ rate of 75% is a good benchmark.  You can ask for case numbers and back check the attorney’s account at the court clerk’s office.  Just give the clerk the case number and tell him or her what you want to check.  (Court clerks are the angels of the court system.)  A good criminal attorney should have tried at least 4, unless he is politically connected to obtain fantastic deals without first showing the state he can beat them nearly every time he goes to trial.  There are usually one or two such attorneys in every town.  They are extremely expensive, and are usually former officials of some kind.  Even their great deals normally leave you with some criminal record, which is bad.  Otherwise, you need someone the state fears when he or she announces ready for trial:  the gunslinger.  With him or her, the best deal will come just before or during jury selection.  Charges may be completely dropped.  Radically unexpected outcomes suddenly appear.  Juries find you not guilty despite overwhelming evidence to the contrary.  That’s why the prosecutors fear the gun for hire.  
  2. How many of those trials were felony jury trials?  You do not want a lawyer who does drunken driving (misdemeanor) cases for a living.  You want one who faces death or life in prison or other significant sentences.  
  3.  What proportion of your work is in the federal criminal courts as compared to the state criminal courts?  There exists an immense difference between practicing criminal defense in federal court and in state court.  Depending on the system that charged you, which will most often be a state court system, you want a lawyer experienced in that system.
  4.  Do you do any kind of civil law, and, if so, what kind?  What percentage, roughly, of your practice is criminal law?  You want an attorney who practices almost exclusively criminal law. Some gunslingers practice a little family law or personal injury law to finance the defense of pro bono (free) criminal cases.   
  5.  Is there a local criminal judge before whom you’ve never tried a felony case? It is best if your attorney has a good relationship with the judge assigned to your case, but not absolutely necessary.  A good trial attorney pushes the limits of his case, forcing the court to look like a biased official at a sporting event, something juries notice and  dislike.  They feel the defendant didn’t get a fair trial, just like their favorite sports team got cheated out of the win it rightfully earned.  Good criminal judges enjoy these chess matches.  Others, usually of less mental acuity, recuse themselves from that attorney’s cases.  So in a mid-size city, there should be judges in whose courtrooms the attorney hasn’t tried a case.    
  6.  Have you ever recused a judge in a criminal case?  Recusal is removing by force of law the judge assigned to try the case.  Considered similar to an attempted coup or assassination, lawyers joke you better not miss when you shoot at the king.  Yet, recusal, at least the first time in a case, is easy.  So you should hear yes as an answer.  If the attorney never got a bad feeling about a judge on a particular case at some point then he or she doesn’t understand judges are human and biased, or does understand this and is a coward.  Judges need to be recused sometimes—sometimes several judges on the same case, which gets tricky, legally.    
  7.  Do you believe there is a potentially successful defense in every criminal case, no matter how hopeless others may view it?  (THIS IS A KEY QUESTION).  You better hear a yes. If the answer is “no”, move on to a different attorney.  Period.  
  8.  Do you have an in house private investigator and/or do you use private investigators?  (ANOTHER KEY QUESTION).  In house is best, but hiring as needed may be necessary in smaller areas.  Gunslingers build defenses.  That takes investigators.  
  9.  Do you hire paralegals instead of secretaries?  (ANOTHER KEY QUESTION).  Hiring a paralegal is like hiring half of a lawyer, so why hire secretaries anymore when email and legal forms are available due to the Internet, and most attorneys can type their own memoranda. A well-trained paralegal or two may sit at the defense table with you as trusted aids to your trial attorney. They anticipate exhibits, cases, and passages of former testimony they see their lawyer may soon need based on where the cross examination, direct examination, legal argument, opening or closing is going.      
  10.  What is the longest you ever cross-examined a state witness?  This is a more minor question, but it gives you an idea of how much of a gunslinger you are getting.  An answer of anything from one day to more than a day is excellent. 
  11.  Have you ever tried a capital case?  If yes, first seat or second seat?  A capital case is a death penalty case.  First seat means serious experience if it occurred within the last few years.  Second seat is good.  
  12.  Have you ever attended the National College for Criminal Defense?  (IF YES, HIRE HIM OR HER).  (Assuming reasonably good answers to the other questions).
  13.  Do you regularly give up the sandwich in order to enter your own evidence in the form of experts, exhibits, police witnesses, etc., to build an affirmative defense?  The answer should be yes.  The “sandwich” is the right during closing argument to go first and last, a right defendants possess unless they present evidence.  In that case, the sandwich switches to the state, so the state gets the final word to the jury and the defendant closes in the middle.  Gunslingers know how to overcome losing the sandwich, and presenting an affirmative defense is definitely worth its loss.  
  14.  Do you ALWAYS give an opening argument at the beginning of the trial, never reserving your opening until the state rests?  Study after study has proved the defense must open at the same time as the state, but many defense attorneys still reserve their opening  until the state rests its case.  If the attorney answers “no”, do not argue.  Just leave.  
  15.  Can you “own” a courtroom?  He or she will know what this means if you’re sitting across from a gunslinger.  Otherwise, he will have no idea, answering something like,”what do you mean by ‘own a courtroom’?”.

This is a rigorous test few trial attorneys could fully pass.  If you find one who passes every question, definitely hire that person.  No outcome can be guaranteed in the court system.  Outcomes are about increasing your odds of success.  So the more questions a potential hire passes on this test, the more you increase your odds of a successful outcome to your litigation.  

The only thing guaranteed here is that some attorneys will take your money knowing they will never prepare for a trial but will only hold your hand to the train station that goes directly to prison via a plea bargain.  Others will take everything you own and hold your hand to a better plea bargain that still may lead to jail or prison.   And a few warriors will prepare for trial from the moment you hire them, presuming you are innocent and finding a way to prove it, throwing themselves on your case as if their own freedom depended on the outcome, providing you with the best possible defense within the broadest definition of the confines of the law.  

That last one is the gunslinger, the lawyer you really want, the lawyer who can set you free if anyone can.  You just need to put fear behind you and find that lawyer.  Which brings us to Rule #3.

RULE #3:  DON’T WASTE TIME

As soon as you know you have a legal problem, start your search for your lawyer.  

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