May 22, 2015 The importance of helping the prosecutor and judge reach the right decision
In the state courts where I practice, my number of clients overall and for the day ordinarily is substantially smaller than the number of litigants the prosecutor and judge are dealing with. That means I can put much more time into preparing the case than the prosecutor and judge can focus on the case, which strengthens the defense team and helps me offset any downside of the prosecutor’s possessing essential evidence that is non-discoverable and otherwise unavailable to me.
Prosecutors’ and judges’ workloads can get so seemingly burdensome that they (and often police) will appreciate a lawyer who approaches them not as a bull in a china shop, but as a learned advocate ready not unnecessarily to make the prosecutor or judge seem to others to be ill-prepared, in over their heads, foolish or incompetent, nor to unnecessarily cut down the judge’s or prosecutor’s feeling of self-dignity.
Judges are generalists, so should not be assumed to have the same fund of knowledge relevant to the case that the criminal defense lawyer has. Prosecutors are juggling daily case preparation, calls and emails to and from police and other witnesses, and the policy and politics of their office. When they feel they can be trusting enough in the criminal defense lawyer to seek guidance from that lawyer, and not feel that they will be stabbed in the back for doing so, the defense side benefits.
If a lawyer falters one day in not alienating a judge or prosecutor more than necessary, the next day brings on a new opportunity for the practice. Besides, some judges’ and prosecutors’ memories of unpleasant interactions with the attorney will fade faster than others’.
Criminal defense lawyers with the reputations of excellence, great experience and knowledge, and stellar personal and professional ethics are particularly well positioned to proceed in the above role. This is somewhat akin to being friendly outside the boxing ring and off the playing field, and merciless once the starting bell rings to do whatever is necessary to win so long at the lawyer proceeds lawfully and ethically.
The foregoing approach does not in the least mean that the criminal defense lawyer should be anything but a battle-ready proverbially lethal fighter when needed, and the lawyer should never kiss anyone’s butt (and kissing butt risks being sharted on). This approach is about powerful unblocking and finding overlapping mutual interests with judges and prosecutors in fighting to achieve the best results for the lawyer’s client.