What Makes a Great Defender: Advice from the Foxhole

The traits that make a great defender are listed in no particular order, because depending on the case, the order of importance varies. I haven’t included traits that are universal, such as “always be prepared” because that goes without saying. Also, I am only providing nine, because ten is what you expect, and as a criminal defense lawyer, I always want to go with the unexpected!

1. Good sleep habits! This is no joke. The patience, energy, creativity, tenacity, and resiliency necessary for the great criminal defense lawyer are qualities that are sapped by not enough sleep. Of course, everyone needs sleep, but a criminal defense lawyer is in the foxhole every day, and life in the foxhole is emotionally and physically draining. A good night’s sleep prepares you for battle. Also, try this trick: go to sleep thinking about a difficult problem in your case; wake up with the answer. While you sleep, your brain is billing!

2. The ability to rely on others: all lawyers are control freaks and criminal defense lawyers are the most controlling of all. It’s no mystery: so much can go wrong, so much is at stake and we have so little real control. But every successful criminal defense lawyer I know has someone who has their back: a partner, an associate, a paralegal, or a secretary. For my friends who fly solo it can be their office mate, or if they are a member of NACDL or an affiliate, their colleagues on the listserv. Criminal defense work has a million sensitive decision points – you need to get advice, feedback and sometimes, just a reality check.

3. The Double Whammy: the ability to see the forest AND the trees. This is one of the many life lessons I learned at NCDC when I was a baby defender: overall themes are crucial to every stage of the game, from investigation to trial, and even to appeal and habeas. On the other hand, your defense theory relies on every detail lining up: your theory is only as good as your facts, and as we all know, facts are stubborn things.

4. Conviction: when I was a young defender I realized that I was the only person in the court room who believed what I believed (including my client!) and the process of persuading others to come over to my view of things was only possible if I could argue with conviction. When you litigate with conviction, you are believable -- and the fact finders, whether judge or jury, can “hear” your arguments.

5. Credibility: I’ve never gone wrong staying on the high road no matter how low the prosecution goes. Judges like it, juries respect it, and clients who don’t appreciate it are better off in somebody else’s office. Also, when you are on the high road, it is often possible to require your adversary to stay up there with you.

6. Time management practices that provide you with the mental space to properly research and ponder your legal issues and your case. In the olden days, we used to go to the library, take out books, and read cases in hard copy. Sometimes, other lawyers would wander in and talk about your case with you. It was the most wonderful creative process and it didn’t include a cell phone or a blackberry. You need to be able to create that space for yourself now, and that’s a time management issue. Try saying to your client: I will get back to you with an answer tomorrow. It feels great and a client can understand that their problem is important and complex enough to require real thought.

7. Patience and resilience: cases sometimes progress poorly in the beginning, but that doesn’t mean they’ll end up that way. Be patient with the process, with your clients, and even with the prosecutor. When things go wrong, don’t despair; when obstacles arise, go around them. We start out with the facts and the law against us, with a dearth of information, and a well-armed and well-informed adversary. Big gains are often made incrementally and you need to accept and be prepared for that.

8. Care about your client. Caring about my clients keeps them on my mind so when I’m shopping, commuting, gardening, etc., I’m thinking about my client’s problems. The more I think, the more I get good ideas. Over the years, it’s been those “good ideas” that have created opportunities for success and good results. Also, the cared-about client is the client who can be patient and supportive, rather than undermining your good work.

9. Creativity and tenacity: solutions to difficult problems don’t reveal themselves easily. You need to be willing to try ideas that seem counter intuitive until you get to the right one. And don’t give up – keep thinking and trying, because that’s what you do when liberty is at issue. This comes back to where we started: a good night’s sleep: when something goes wrong in my cases, if it’s my fault, I wake up with a sick feeling in the middle of the night. When I’ve tried everything I can but I still get a bad result, I don’t lose sleep over it, because tomorrow is another day in the foxhole.