By Steve Hayne
of Hayne, Fox & Bowman
Take a look around. Did you notice? Not a beady-eyed prosecution spy within 500 yards. Why? Because we banned ’em, (along with their law enforcement and DOL co-conspirators). We did it because we criminal defense lawyers are getting beat in a fight we can’t afford to lose. When I started defending people 25 years ago, we were seen as champions of the common man, standing up to the power of the state. We were admired for keeping the government honest, for balancing the scales of justice.
All that has changers. When was the last time you were congratulated by someone for “defending criminal”? Or been asked: ” But, how can you defend someone you know is guilty?” Let’s face it, in today’s environment, criminal defense lawyers are not going to receive any civic awards for standing up to lying cops and overzealous prosecutors. As noble as our profession is, most people don’t trust or like criminal defense lawyers until they need one. Defending the accused can be a lonely, difficult business.
We kicked out the prosecutors because we want you to leave here not only netter prepared to defend clients charged with drunk driving, but also with a new inspiration to be the best defense lawyer you can be. To do that, we need to be free to tell the unvarnished truth. So, now that we’re alone, let me begin.
Trying to keep it simple
When I was a young lawyer, I attended a lot of CLE’s that were pretty much a waste of time. But, every once in a while some intrepid speaker would make an attempt at reducing a complex subject to a few basic rules. It usually took the form of checklist, or commands to ‘always’ or ‘never’ do something (always put your client on the stand, never ask question unless you know the answer, etc.).
To me, learning to try cases felt like wrestling with an octopus, so I really appreciated such efforts and usually found them very helpful. But … simplifying anything complicated can be dangerous. In my case, I tended to take the advice too literally and for a long time, I always put my client on the stand and never asked a question unless I knew the answer, (strategies I often had to explain as my clients were led off in handcuffs).
Well, is it a mistake to try to simplify a subject as complex as defending DUIs? Can a formula for success be reduced to ‘ten commandments? Or have I written the equivalent of “ten easy steps for the removal of brain tumors”? I don’t think so, for there are ‘secrets’ to being a successful DUI defense lawyer , and what follows is my best effort at explaining them. They aren’t very mysterious; what follows is my best effort at explaining them. They aren’t very mysterious; what it essentially comes down to is this: believing in your cause, working your but off and never giving in to your fears. But the devil, as they say, is in the details.
The Ten Commandments of Defending DUIs
One: You shall know the law
Two: You shall become a warrior
Three: You shall not do it part-time
Four: You shall know your case as the back of your hand
Five: You shall try cases
Six: You shall increase your fees
Seven: You shall know the secrets of plea bargaining
Eight: You shall know see your client as a real person
Nine: You shall never give up
Ten: You shall be fiercely proud to be a defense lawyer
Commandment One: You shall know the law
Well, of course you have to know the law.
Anyone venturing into the surreal world of defending DUIs quickly discovers: It’s pretty scary. The opportunity for malpractice dogs every step. DUIs are about all we do at HFB, and we ask each other for advice every day. The variables present complex problems, and a thorough understanding of both the civil and criminal process is critical. How do the two proceedings interact? When can a DOL suspension be stayed on a deferred prosecution? When does a suspension following conviction run consecutive instead of concurrent to the DOL action? When is an occupational license available? How do you go get one? When must the court order an interlock? What effect does a Negligent Driving in the First Degree have on insurance? How does being a minor change the rules? And on and on.
At a minimum, anyone taking on a DUI case today needs to have a good grasp of the following, all contained (or accessible through links) on your Bonus CD:
Driving Under the Influence
Alcohol/ Traffic Penalties
Evidential Breath Testing
The Implied Consent Law
Occupational Driver’s Licenses
Datamaster Breath Test Protocols
Datamaster Breath Test Protocols
Alcosensor Portable Breath Test Protocols.
WSP Datamaster Operator’s Manual
Datamaster Database and Repair Records
WSP Field Sobriety Test Manual
NHTSA Field Sobriety Test Manual
WSP Drug Recognition Expert Manual
In addition, Jon Fox has been seen to it that the CD contains reams of additional interesting material; breath and blood alcohol research, field sobriety test studies, detailed explanation of the operation of the Datamaster, officer training manuals, etc.
Once you have mastered the above, you must turn your attention to the relevant case law. In my opinion, the best source available is Defending DUIs In Washington, hopefully available at your local library.*
Knowledge of these materials is a prerequisite for any lawyer taking on a DUI case. Enough said.
Commandment Two: You shall become a warrior.
Nowadays, every victory must be earned.
Of the many ways in which defending DUIs has changed over the past 10 years, the harshest reality is that nothing comes easy. Today’s prosecutors have learned a dangerous lesson; in a game of chicken, defense lawyers will usually blink first. That’s why most cases aren’t settle until the eve of trial; prosecutors have learned that most of us will do anything to avoid trying a DUI, and, when push comes to shove, we collapse and plead guilty. Yikes! What have we become?
If you are serious about being a criminal defense attorney , you must be willing to try hopeless cases. Why? Because most of our cases appear utterly hopeless at some point in the process, and we cannot allow discouragement to defeat us before the state does. You must begin with an attitude that every case will end up in trial, and prepare accordingly. You must find it in yourself to get over the resistance we all feel in climbing into the ring, knowing we’re about to get hammered.
No one knows this better than me, for I have suffered from cowardice all my life. In high school, I couldn’t give a book report without turning red and slinking back to my.
*As co-author, I’m obviously biased. But I don’t know of any other resource devoted exclusively to defending DUIs in this jurisdiction.
Seat. In Vietnam, I was convinced I’d die of anxiety-induced heart attack before anybody could shoot me. My memory banks are full of hundreds of painful experiences, but none more agonizing than my early years as a trial lawyer. Believe me, I know what it’s like to be afraid of trying a case! But just as I refused to allow my monstrous feat to defeat me, you must be willing to confront your own.
As tough as these cases have become, until you are willing to throw yourself on the spear, and get up and do it again, you should not take on a DUI case .
Commandment Three: You shall not do it part-time
You just can’t dabble with DUIs.
Years ago, many of us were general practitioners (even in the big city). We handled a variety of civil and criminal matters to make ends meet; DUIs among them. DUIs were considered ‘bread-and butter’ cases; demanding no real expertise and usually resolved without a lot of fuss
Back then, driving was considered almost a Constitutional right. Jurors would wink while sharing comical recollections of ‘having a few’ and hitting the road behind 425-cubic inches of case-iron, four-barreled American-made V-8. It was a time when many considered the major advantage of a convertible to be the case of tossing out empties. Try having a few yucks with your average juror in a DUI trial today. Then, you could get away with a part-time DUI practice, but (less populous areas aside) not anymore.
Today, the field is too complex and the punishment too severe for dabbling. Let me make the point again: despite the fact that DUI defense is practically all we do at HFB, we ask each other for advice every day. You must deal with the DOL, courts, prosecutors, breath tests experts, toxicologists and treatment people week-in-and-week-out to competently represent a client charged with DUI. In my opinion, (and that’s what you paid to hear) you should devote at least 50% of your practice to DUIs in order to maintain competence.
Commandment Four: You shall know your case as the back of your hand
The best DUI lawyers have one trait in common: Uncommon preparation.
There’s just no getting around it, knowing your case inside-out and upside-down before stepping into the courtroom is indispensable. It is the one advantage we (with the exception of public defenders, God bless ‘them) have over prosecutors. No matter how much easier prosecuting is, they can never know their cases well as the defense lawyer. I cannot count the times I’ve been in trial when knowledge of an apparently insignificant fact has turned a tough case into a much better one.
Here at HFB, as a trial nears we all suffer the same neurosis: we’re scared of screwing up, of missing something. Our response is to prepare the case to death; to talk it over with each other, to tale it home and bore our families with it, to ruminate on it through the night. Just as the best way to avoid war is to prepare for it, the same can be said of trials. By showing prosecutors you are knowledgeable, well-prepared and eager to bring in the jury, they often decide to make you go away so they’re free to pick on someone else capable. The other benefit of working so hard to be the best lawyer to can be, is the financial reward of charging fees which reflect your level of competence in the field.
Commandment Five: You shall raise your fees
When in trouble with the law, does anyone really want a cheap lawyer?
When I began private practice, the going rate for defending a DUI through trial was about $400. Today, our firm charges a minimum retainer of $5000 to $7500 (usually not including trial), and we plan an increase next year.
As anyone who has recently tried a DUI to a jury can attest: it is Very demanding. And trial is merely the culmination of months of hard work. Even with straight-up deferred prosecution, the lawyer’s responsibility lasts five years. Consider that for a moment. My teenage son will have graduated from both high school and college by the time I close the file. The incoming president of the United States will end his term in office before I’m off the hook. Lawyers shouldn’t assume that responsibility without adequate compensation.
In the old days, the reasons for such paltry fees were simple: we rarely tried cases and the penalties were minimal. As things got tougher, defense lawyers timidly raised fees. Each time we feared doing it, and each time we just got busier. If I have learned anything, it is this: When in trouble, people want the best lawyer they can afford.
Simple arithmetic reveals the greatest advantage of charging more; being able to devote more time to each case: Would you rather working on ten cases at $2500 or five cases at $5000? The point is; if you have fewer cases, you can do a better job. If you do a better job, more clients will be eager to retain you. It’s not a matter of being greedy, it’s a matter of being paid enough to be the best lawyer you can possibly be. So, if you’re charging $3500, make it $5000. If you’re at $5000, go to $7500. If you’re already at $7500, charge $10,000. Oh, I can hear the whining now:
“Maybe you guys can get away with those fees, but my clients can’t afford it.”
I hear that all the time. It’s bullshit. In fact, every lawyer I know who has followed this advice reports the same result: They’ve ended up busier than before. The real change in their practice has come in the form of having more time to do a better job.
Now, an important caveat. After raising your retainer fee, you must go out and earn it. Never plead guilty. Prepare for trial like one possessed. Interview every witness, Visit the scene of the driving and arrest. Investigate every aspect of the case. Raise every issue. Prepare exhibits. Work until you know the facts by heart. Treat every case like it’s first degree murder. Then, after working that hard for a year, you won’t have many qualms about charging high-end fees, I promise.
Commandment Six: You shall try cases
There is no other way to become good at this game.
I appreciate your attendance at this seminar. You should go to seminars, read books and articles, and watch other lawyers. You should argue motions, take acting lessons and try cases to the bench.
But in the final analysis to become a real trial lawyer, you must try cases to juries, over and over again. And while winning beats the hell out of losing, keep this in mind: few icons of the defense bar ever made their reputation by winning cases. In fact, most legendary defense lawyers lost most of their cases, (Clarence Darrow and F. Lee Bailey come to mind).
For example, take my dear friend and personal here, Tony Savage. Tony is considered by many of us the finest criminal lawyer in this state’s history. He has also suffered through some terrible losing streaks. Tony’s problem is, he just can’t bring himself to utter the words: “I think you should plead guilty”.
As a result, he tries (and inevitably loses), some of the most horrible defense cases imaginable, (in fact, no too long ago, Tony represented 60% of the inmates on death row). But — and this is the important part-when Tony gets a case with any favorable facts at all, prosecutors know the drill: offer him an irresistible plea bargain, or get your ass handed to you at trial.
In this business, refusing to plead guilty is what separates the professionals from the amateurs.
Commandment Seven :You shall know the secrets of plea bargaining
Usually, less is more.
Napoleon once advised his subordinates: ” never interrupt your enemy while he is making a mistake.” Excellent advice for general and trial lawyer alike. In terms of plea bargaining, I would amend it slightly: “Give your enemy the first opportunity to make a mistake, and then don’t argue about it.” The fact is, I became a much better lawyer the day I learned to keep my mouth shut. If there is a single most important ‘secret’ to effective plea bargaining it is this: Always let the prosecutor talk first. Let me say it again: Always let the prosecutor talk first.
I am embarrassed to admit that for years I didn’t understand this basic principle of negotiation (and had to try a lot more cases because of it). I used to approach prosecutors with a chip on my shoulder, ready to argue my side of the case at the first opportunity. I was stupid. Once I learned to shut up, I was amazed at how often the prosecutor was worried about what appeared to me to a pretty air-tight case.
So, start the conversation with a smile and something like: “Hi, my name is Steve Hayne, nice to meet you. I represent Bob Smith, what do you think about this case?”* Then, state at the prosecutor until you get a response.
*Important practice tip: You should use your own name.
That’s it. If you get a decent offer, the prosecutor is telling you: “I don’t want to try this case.’ Who cares why, the worst case disposition has been set and you can now push to make it better. To avoid problems later, make sure the prosecutor notes any agreement, even if tentative, in the file. Then say goodbye and leave, confirming it in writing as soon as possible.
However, when you get the ‘plead as charged’ offer, be cautious in what you say. Remember you may be trying this case. Often, the best tactic is to await another day; after motions, or when the prosecutor is in a better mood, under more pressure or been replaced by a fresh robot.
The other critical rule of a plea bargaining is understanding what prosecutors find persuasive. They seldom care that your client is a really ‘good guy’, or how many hours she devotes to her church, or whether he’s gone through a painful divorce/loss-of-job/illness/personal-crisis, etc. Two things move prosecutor to plea bargain: 1) proof problems with their case, and 2) knowledge that the defense lawyer is competent, prepared and, if necessary, willing to take them to the mat. See Commandments Four and Five.
Commandment Eight: You shall see your client as a real person
When you’re name’s at the top of the page, allies are a hard to find
One of the first things any competent prosecutor tries to do at trial is to turn your client into an inanimate object be referring to him or her only as “the defendant”. After all, it’s a lot easier to convict someone you don’t care about. A big part of our job is to do the opposite.
But clients need to be seen as real people along before trial. Most shoe up on our doorsteps miserable and depressed. The defense attorney is often the only ally they can count on in a situation they find overwhelming and hopeless. We need to listen with a sense of compassion for their misery, for it is an awful thing to see a defense lawyer join the ranks of those eagerly passing judgment.
Most clients know they’ve screwed up and most expect to pay for it. You need to be hones with them, but to ensure them that they will survive the ordeal and, maybe, become a better person in the process. If you do not possess a sincere compassion for what your clients are going through, it’s hard to advocate from the heart. And if you can’t do that, you probably shouldn’t be a criminal defense lawyer .
Commandment Nine: You shall never give up
“Never, never, never, never!” (King Lear to Gloucester)
In the not-too-distant past, success in a DUI case meant either getting the charge reduced or winning at trial. If you accomplished either, you were a “success”. In those days, few defendants lost their licensers and fewer still were convicted. When the avenging hordes arrived, they were furious.
The remedy came in the guise of (more or less in order); 1) the per se law, 2) the two hour rule, 3) administrative suspension, 4) the .08 law, 5) filling complaint, 6) once-in-a-lifetime deferreds, 7) five year probation, 8)mandatory arraignment, 9)minor DUI, and 10)ignition interlocks.
Their intent was to end the largesse of the past once and for all; to eliminate all avenues of escape for the accused drunk, and to discourage defense lawyers from even trying. They have met with considerable success; it is discouraging to operate in an environment full of landmines and beat-traps, where winning is the exception and your determination is put to the test every day.
Occasionally, we all feel like violating the never-give up commandment, but must not let discouragement get the better of us. At our office, we have a ritual to combat it. Whenever one of us loses a case, everyone crowds around and loudly affirms that the judge was biased, the prosecutor a whining boot-lick, the cop a pathological liar, and the jurors complete morons. We lament the loss as hard as we can for about 24 hours. Then we forger it and move on.
Ah, but when we win! The celebration goes on for months, even years! The judge is still biased, the prosecutor still a whiner, the cop still a liar…but oh, the jurors! those wonderful, intelligent jurors are magnificent! They saw through the lies and redeemed our belief in the whole system.
And the victorious lawyer? Oh, the obstacles overcome, the overwhelming evidence! The brilliance, the bravado! For this moment at least, the lawyer, too is magnificent.
We try to keep the victories alive forever, recalling them for years. They keep us from giving up, reminding us that justice is occasionally done, that right can prevail, that the system indeed work.
But… it only works when you refuse to stay down; when you find the courage to get up, take sword in hand, and charge the monster’s cave yet again, shouting:
“Come out and fight! I’m not afraid! Really…I mean it.”
Commandment Ten: You shall be fiercely proud to be a defense lawyer
What we do is as much a calling as a profession.
The path from being retained to closing a DUI case is full of enemies: the DOL, prosecutor, cop, breath test expert, toxicologist, and more. And, sometimes, judges, jurors, probation officers, and alcohol counselors join their ranks.
The lawyer must stand alone, the defendant’s only place of sanctuary, against the awesome power of the State. As such, defense lawyers are guardians of principles reaching far beyond the walls of any courtroom; it literally falls to us to insure the integrity of the criminal justice system. How long would it take to corrupt a system where power is given free reign, where there is no consequence for distorting the truth?
It is our duty to keep the massive power of the government in check; day-by-day and case-by-case. In standing up for our clients, we stand for something sacred: a tradition of challenging the state, not only to prove its case beyond a reasonable doubt, but to do so with honor and integrity. It’s true, the price of liberty is eternal vigilance, and it is defense lawyers who line the ramparts against its many enemies. In doing so, we help insure the future of our great democracy
Yes, choosing to dedicate your career to defending people accused of crimes is a calling as much as a profession. What we do is not easy and never will be, and those who do it right leave a part of themselves behind with every case. That, too, is part of the price of liberty.