Thursday, February 23, 2017

Attitude is Everything (Kvetching Gornish Helfin)

There is an old yiddish saying that goes Kvetching Gornish Helfin. Simply translated it means that you can whine all you want, it isn't going to make a damn difference anyway! This is something that not only every defendant should keep in mind, but any person who is facing any sort of adversity.

For a defendant, and perhaps more so one who feels he is being unfairly targeted the temptation wo complain, to employ a "why me" or "woe is me" attitude is very real. As mentioned a few weeks back, he feels the system is supposed to be fair and yet feels he is not being treated fairly. A defendant will spend his days complaining to just about anyone who is listening about what his life has become as a result of his predicament. He will spend his day awash in self pity at the precarious set of circumstances that he is forced to confront. He will worry all day and all night about what will happen if and when he goes to prison. His fears will be with him all day and night and he will be unable to sleep. His legal troubles will cease to be a distraction and will become the main attraction.

This attitude is damaging for many reasons. Firstly, from a logical standpoint, it accomplishes nothing. The legal system is not a retail establishment where complaining gets the customer what he wants and therefore actually makes a difference, No, complaining, will have absolutely no positive bearing on the outcome of the case. If anything, it will have a negative affect on its outcome. It certainly will have a negative impact on the defendant's quality of life as well as on his family's.

Generally, we see whining as a symptom of a greater underlying problem. In this case, the whining is a manifestation of frustration over a predicament. To be sure, there is plenty of reason to be concerned over the predicament. But is whining and a defeatist attitude the answer? Any psychologist will agree that actions and attitudes affect out state of mind. For example, if someone believes that he is not a good math student, he will probably have a hard time studying for a math exam even if his belief is unfounded. In essence he creates his own reality. The same is true for whining. A defendant who is constantly whining and complaining  about his predicament, will view his situation with the ultimate despair even though that is not the case. He will cause himself to be constantly depressed and will exhibit behaviour consistent with depression. He will look for way to avoid his life and that can often turn into an addiction to drugs and alcohol.

His depression will have other damaging results as well. Most white collar defendant have families. In other words there are people for who he is responsible Often times this will include a spouse and children who a dependant on him. How good of a parent will he be if he is in a constant state of depression? As a parent, his responsibility is to care for his children and not to make them suffer along with him. A defendant who is in a constant state of despair will be unable to be a responsible parent. His children will not want to be around him. They will resent him for being such a negative parent and that will take years to repair. The same can be applied to a spouse. Your spouse is undoubtedly apprehensive enough as it is and it is the responsibility of the defendant to make this time less stressful, not more so.

A positive attitude is also needed because this is a long process. A defendant needs to be thinking straight at all times so that he can make proper decisions. He needs his head in the game. Many important decisions are going to be made in the coming months and years and a defendant must be in the proper state of mind in order to make them. Anything short of razor-sharp focus is inexcusable, Furthermore, since this is a long process, it is important to be able to go on with life while being engaged in a legal battle. If prison is in the future, that will be hard enough. There is no reason to make the time leading up to a potential prison terms difficult as well. There is no reason to serve to sentences when the government is only trying for one.

How someone views himself affects how others view him Someone who exudes confidence will undoubtedly be more successful than someone who lacks it. A defendant who walks around with his head down and in a constant state of depression looks guilty. The attitude of his friends will be "if he thinks he is guilty then he must be guilty". On the other hand, someone who walks around in a state of confidence and is constantly smiling will cause others to similarly view him positively. It goes without saying that defendants need their friends during this time but at the same time, no one wants to be around someone who is constantly depressed. Constantly complaining will only result in going through this time alone and nobody wants that.

Attitude really is everything. There will be ups and downs during this very difficult time. The key is to remember that a negative attitude will in no way ever help a case. It will only cause a defendant to squander what may be valuable time with his family and friends. When despair hits, always remember, Kvetchin Gornish Helfin!

Thursday, February 9, 2017

Choosing a Lawyer (slightly worse than root canal)

At some point, usually early on, a defendant has to choose a lawyer. The process of choosing a lawyer ranks right up there with route canal and getting a colonoscopy. It is grueling, stressful and mentally taxing. A defendant is there not by choice but by necessity. It is going to cost, at least a moderate sum of money and the outcome is not even assured. It is also, quite possibly the most important decision a defendant has to make.

Before going into what to look for in a lawyer, it is important to realize what a lawyer is not. A lawyer is not a yes-man. Just because a defendant has a view of something that doe not mean the view is correct. If a defendant wants a lawyer who just agrees with everything he says, then he might as well save his money and hire himself. A lawyer is not a life coach who is there to help deal with personal problems. A lawyer is not a friend. A lawyer is not there to predict the outcome of a trial and say one way or another if a defendant will be found guilty or not guilty. A lawyer is none of these things.

What a lawyer is, is an advocate. A lawyer is there simply to put up the best possible defense for a client and look at the facts from all angles. A lawyer is there to lay out the defendant's position and explain to him what the prosecution is alleging. A lawyer is there to provide LEGAL (not personal) counsel. He is a mouthpiece for a defendant when it comes to the press and to the prosecutor. He is there to make sure that a defendant does not do anything to jeopardize his situation. One analogy I was once given is that someone in legal trouble has legal cancer and the lawyers are the doctors. He runs your life and coordinates with other lawyers if the case is complex, as mine was.

So how does one choose a lawyer? There are so many options and it can be very confusing. Does he choose the million dollar lawyer or does he choose the lawyer for a fraction of that. Does he choose the lawyer who goes to trial or the lawyer that always please out. Does he choose the lawyer with the nice office or the ugly office. Veteran or young lawyer. There are so many choices and there really is no right answer.

The first advice I would give is that there has to be a level of trust between a client and his lawyer, If a client dies not trust his lawyer then he will never be able to properly prepare for his defense. There needs to be some sort of rapport between a lawyer and client. Another must is to interview multiple lawyers and talk to people who have used them if possible, It is impossible to make an informed decision without comparing products. The same holds true for doctors and lawyers. A person who is in need of a criminal lawyer is often at his most vulnerable and will be inclined to hire the first layer he meets or the lawyer that someone sends to handle his bond hearing. Big mistake. A defendant needs to take the time-but not too much time-to meet with lawyers and decide which lawyer makes him feel the most confident.

There are of course many types of lawyers. Some cost a large fortune and some cost a small fortune. Some charge hourly and some charge a lump sum for the case. Clearly, not everyone can afford the million dollar lawyer. More importantly, not everyone needs the million dollar lawyer even if he can afford it. Obviously, if a defendant is a major player in a high profile case, and is determined to fight charges at trial, then yes, ny all means, hire the best trial lawyer money can buy. Aside from possibly giving him the best chance at trial, the hiring of the best sends a signal to the prosecution that a defendant is not just going sit back and take a plea. If the prosecution wants him to plea, it send the signal that it better be enticing. Similarly, if someone is a minor player in a low profile case, and knows that he is going to plead out, there really is no reason to hire the most expensive lawyer that money can buy. Often times a second or third tier or even public defender will be able to accomplish the exact same result at a fraction of the cost. Prosecutors will attest that they often offer everybody in a case the same deal whether they hire the top tier or a lower tier. One guy get the deal for $50 thousand and the other guy gets it for $500 thousand.

Of course, a defendant also has to know what he can afford. Is it worth spending an exorbitant amount of money in order to get slightly better deal. For some people the answer is yes and for some it is no. Another misconception is that price equals quality. Nothing could be farther from the truth. True, higher quality lawyers usually do cost more. but there are plenty of outstanding lawyers who are not at the same price point. On the other hand one advantage of hiring the high priced lawyer is that they usually take less cases per year so they are much more accessible than a lawyer who charges less but takes more cases.For some defendants this is important, for some it isn't. Nevertheless, budgetary concerns need to be taken into account. If the worse case is minimal time in prison, for most people it does not make financial sense to spend everything he has (and more) on attorneys fees.

One thing to always keep in mind is that is that just because a lawyer was used for the initial court appearance does not mean that he is the lawyer for the rest of the case. Obviously, they first appearance and immediately afterward is usually when a defendant feels most vulnerable, His head is simply not in the game as he is dealing with so many cross currents. I know of many people who made this mistake and cost them dearly. As I mentioned, trust is critical between a client and his lawyer. At no point should a defendant feel obligated to stay with an attorney with whom he is not comfortable.

Something to consider is trying to use the public defender. There are some very good public defenders at the federal level. The state level, unfortunately is an entirely other matter. Federal public defenders, deal with federal crimes which are much more "sophisticated" crimes than the run of the mill state crime. These are individuals who are trying to get as much experience as possible as before they head into private practice.  This is especially so in the white collar arena. If a defendant is resigned to plea sometimes this can be the best option, provided a defendant qualifies for the use of a public defender. There are plenty of good ones so it really is a viable option that a defendant should explore when there are overriding financial concerns. Unfortunately when dealing with a public defender, he cannot be "fired" absent a conflict.

Choosing a lawyer is never easy. However it is important. It is critical that a defendant understands his predicament in a case when choosing a lawyer. Obviously, when fighting for his life the knee-jerk reaction is to retain the best lawyer money can buy. What a defendant needs to understand is that it does not always make sense to buy the Bentley when a Ford will get him to the same destination at a fraction of the cost.

Wednesday, February 1, 2017

No One Ever Said It Was Going To Be Fair!

Another fallacy of the of the criminal justice system is that it is "fair". We are told that we are going to get a "fair" trial. The whole process is supposed to be "fair". But what is "fair"? One would assume that it means we are dealing with a level playing field. That the prosecutors, as officers of the court will take an unbiased view of the case and would never prosecute if they think a potential defendant is innocent. We believe the process, from the beginning of the investigation through trial is "fair". Well guess what? It isn't, and the sooner a defendant accepts that reality, the sooner he can effectively plan a defense.

The real question should ask ourselves is why do we think the system should be fair and what would a fair system look like. As we all know, there are effectively five parties in any trial; the defendant, his lawyer, the prosecutor, the jury, and the judge. Each of these individuals has a role. One would hope that as officers of the court that the prosecutors would vet their case and only prosecute those they knew with 100% certainty were guilty. If a prosecutor did not know with absolute certainty that you are guilty, then one would hope they would not prosecute. However, if we go down that road, what were are really asking the prosecutors to do is fill the roles of the judge and the jury. Asking a prosecutor to do that is akin to asking a defense lawyer to not put together a credible defense for a client he believes is guilty. However, the job of a defense lawyer is to provide for an adequate defense and not to judge his client. Obviously he needs to advise his client as to the likelihood of success at a trial, but at the end of the day he has a job to do and a role to fill. The prosecutor is no different. The prosecutors job is to bring cases not to judge them. Of course this leads to a potential major problem whereby the prosecutors care less about guilt or innocence and more about their ability to win, but that is a discussion for another day.

Now that we have dispelled the notion that prosecutors are not, nor are they obligated to be  open minded, one would hope that the rest of the process be "fair". Sorry, wrong again. From a logical perspective, it is important to realize that a defendant is never fighting from a position of strength. The reason is simple. As I mentioned before, if you lose at trial, you go to prison, if they lose at trial, they go home and move on to the next case. Defendants have more to lose. By definition, you have to be operating from a position of weakness. Imagine sitting at a poker table and you get raised $500 which is exactly the amount you are willing to lose. Your opponent; however sitting with $1 million. If you lose, you are done for the night; if he loses he moves on to the next hand. Clearly, you are playing from a position of extreme weakness. This is not going to be a fair fight.

Using the poker analogy, lets take it a step further. You opponent, the gentlemen with the $1 million in chips will naturally be very aggressive. He will taunt you, bluff you and do whatever he can to win since he is operation from a position of strength as even if he loses the hand, he just moves on to the next hand. You are going to be relatively cautious as you play your hand and will be forced to withstand all of the mind games that he throws at you. The same is true for the prosecutor. They will bluff you, harass you, scare you and berate you because they are holding all the chips. From the get go you are sitting there with a tremendous disadvantage and that is just from a risk/reward standpoint. From there it only gets worse.

Now lets talk about money. Even if a defendant has millions to spend on a defense, it pales in comparison to what the government has to spend, Remember, defense lawyers, at least the good ones get a massive fee that covers only a certain amount or they get paid a handsome hourly rate. Either way, the longer the case goes on, the more it costs a defendant. The government on the other hand is at the exact opposite end of the spectrum. Prosecutors get paid the same amount whether they go to trial or not; whether then win or lose. They are also getting paid a lot less then most defense lawyers. One would think that this would incentivize them to cut deals so that they can do less work. However, quite the opposite can be true, Many prosecutors are using their position as a stepping stone to one day cross over and become defense lawyers. In-fact, many defense lawyers do come from the opposite side. Often times, a federal prosecutor is motivated to succeed because he has an eye on higher political office. Remember that Rudy Giuliani was a federal prosecutor in New York before he became the mayor of New York City. His record established him as being one who was tough on crime. Some prosecutors believe in"the cause". They believe that their job is to enforce the law. Of course there are some prosecutors that are just spiteful people who will stop at nothing to win.

No matter what their reason for working as a federal prosecutor, they are not going to role over easy. The main reason is that they have an unlimited amount of resources. They can throw as many lawyers as they need on a case. They can keep it going as long as they need to to wait out a defendant, provided of course that charges were filed within the statute of limitations. They can hire all the investigators that they need. In essence, not matter how wealthy a defendant is, a prosecutor can outspend him.  To say that the prosecution has an unfair financial advantage is an understatement. Even if a defendant is found not guilty, the government does not reimburse for legal fees that were needlessly incurred.

The next unfair advantage is the toolbox that is at the prosecutor's disposal. As mentioned in a previous entry, the guidelines are extremely harsh on white collar crimes. A conviction on one count of Wire Fraud can potentially result in a 20 year sentence. Prosecutors will use the leverage to try to force the hand of a defendant. I remember sitting in a meeting with the prosecutors where they told me "If you go to trial an lose you will never live with your children again". Can you imagine? Is it fair to play with someone's emotions like that to try to cajole them to take a plea? Of course it isn't! But they have the tools and they can hardly be blamed for using all of the tools at their disposal. A defendant has no leverage here. The prosecution is not obligated to charge a defendant on the charges that they would allow him to plea to. Logically, of course, as officers of the law, they should be quite content prosecute a defendant on the lesser charges that they are willing to let him plead guilty to. But that is not the case.

As I have pointed out, they prosecutors have insurmountable advantages when deciding to prosecute an individual. Even an innocent citizen would be rightfully frightened at the prospect of going up against a behemoth that the the US government. The tactics they employ are certainly withing their rights and certainly not fair. A defendant has to know that no matter how much he kicks and screams that he is being treated unfairly, that it will make no difference because the system, as it is set up in inherently not fair. But, none one ever said it was!

NOTE: I am not a lawyer and none of this should be construed as legal advice. All legal questions should be addressed with your lawyer. These are merely my opinions based on my experiences.

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