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How will federal prosecutors and federal public defenders get much jury trial experience?

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Over ninety-five percent of federal criminal defendants enter guilty pleas. Federal sentencing lawyer expert Alan Ellis lays down the numbers even more starkly:

"Nearly 97 percent of all federal criminal defendants will plead guilty. Of the remaining 6 percent who go to trial, as many as 75 percent will be convicted. Thus, nearly 99 percent of all federal criminal defendants will be sentenced."

The foregoing statistics help explain why a federal public defender I knew moved to a state public defender job, likely at a substantial paycut, seeing that federal public defenders are generally the highest-paid public defender lawyers in the United States — apparently paid on par with federal prosecutors, who are among the highest-paid federal lawyers — with Los Angeles being a higher-paid exception, where state-level public defenders are paid on scale with their prosecutorial peers, who earn more than federal prosecutors the last time I checked. By switching to a state public defender job, this particular lawyer was likely assuring not only that he would have the opportunity to try more cases, but he was also likely to expand his types of cases beyond the common federal public defender plate of drugs and assisting clients in snitching.

Last week, I attended a continuing legal education program on litigating in the Alexandria federal court — with the time made available by a continued jury trial that was set for last week — which is aptly known as the rocket docket, as is the rest of the U.S. District Court for the Eastern Division of Virginia, in Richmond and Norfolk. I attended more to get my mandatory live CLE credits than anything else. On the civil side, the federal Alexandria District Court and Magistrate Judges are deeply committed to assisting parties in getting their civil cases settled, to the point that the District Judge at the CLE talked of having had only around three civil jury trials in a year. I asked the same judge how many criminal jury trials she tends to have, and she said that she has not had any criminal jury trials since August 2012, and has a criminal bench trial set for this month. She attributed the federal sentencing guidelines — which tend to be harsh and which tend to lead to lower guidelines when pleading guilty, and I suppose she was also referencing the draconian mandatory minimum sentencing system — for leading to fewer trials.

Financially, resource-wise, and prestige-wise, it may be tempting for public defender lawyers to prefer a federal public defender position over a state public defender position. However, with such high rates of guilty pleas in federal court, state public defender jobs will generally get a public defender lawyer more jury trial experience than federal public defender jobs, at least in the jurisdictions where I practice.

In my view, the best way for a lawyer to get great trial experience is as a state-level public defender lawyer or prosecutor. Prosecutors in general probably get more jury trials than public defender lawyers, because they tend to have higher caseloads than public defender lawyers, and can sustain the risk of going to trial more easily than can a criminal defense lawyer, whose defendants’ lives and liberty are on the line. However, for those like I who cannot stomach prosecuting, working at a high-quality, well-resourced state public defender office is a great way to get trial experience. On the private sector side, handling lower-level personal injury cases (e.g., car collision injuries with limited or no permanent injury) on the plaintiff or defense side also can yield substantial trial experience. I imagine that various government civil litigation positions also get some good trial experience. I was privileged to have worked for five years as a Maryland public defender lawyer and two years at a plaintiff’s personal injury law firm — after working for two years at a corporate law firm — before becoming my own boss fourteen years ago with plenty of trial experience already under my belt.

If one is not averse to prosecuting, District of Columbia federal prosecutors have the possibility of getting substantial trial experience in the Superior Court — where the U.S. Attorney’s Office prosecutes most adult criminal cases, except for various misdemeanors that are reserved for the D.C. Attorney General’s Office — and also federal court prosecuting experience.

Former Assistant United States Attorneys appear to be particularly favored by big corporate law firms for their litigation teams, probably for reasons including that U.S. Attorney offices tend to be well-resourced, well-trained, and focused on lawyers with pedigrees that big law firms tend to prefer, in terms of those from top-ranked law schools, with high grades, with law review experience, and who have clerked for federal judges.

However, when it comes to federal prosecutors and federal public defenders, with the current high rate of guilty pleas, where do they get their jury trial experience? If they remain in their jobs long enough, they will get the experience, but it can be slow coming. Even though I focus on state criminal defense and handle fewer federal cases than federal public defenders, I have had a few federal jury trials, including two in Alexandria federal court, and numerous federal misdemeanor bench trials, on top of a week-and-a-half long federal civil jury trial that preceded the landmark First Amendment Supreme Court opinion in Snyder v. Phelps, et al., 562 U.S. ___ (2011) (I defended Fred Phelps and the Westboro Baptist Church at trial, but did not participate at the appellate level.)

When defending in federal criminal court, it bears keeping in mind that the chances are good that a newer federal prosecutor is likely to have had limited jury trial experience — unless coming from a state prosecutor’s office — for whatever that is worth in considering how to approach plea negotiations. In one federal jury trial that I had in Alexandria federal court, I was stunned that one of the three prosecutors in the case was relying heavily on notes — to the point of seeming to read much of it word-for-word — in giving his opening statement. He did not speak much further at trial. Heavy reliance on notes does not do much to build rapport with a jury and to develop the jury’s trust in a lawyer. I make detailed plans and outlines for my trials, but do my best to rely on notes as little as possible when talking before the jury, and focus on being in the moment, with my outline as a fallback to assure that I cover key matters, am fully rehearsed, and have smooth transitions.

To be a great trial lawyer, nothing beats experience. Where I practice, state court is usually a better place numbers-wise to get that experience than federal court.