In states where periodic re-election occurs, judges fear being defeated in political races based on being “soft” on crime, especially for driving while intoxicated [D.W.I.] cases. Hardly a week passes that a celebrity or entertainer is not arrested for impaired driving. Police officers are often promoted and given favorable duty based on their “track record” in arresting and prosecuting drunken drivers. MADD has become a formidable political and social juggernaut in America, and has its financial tentacles in various levels of federal, state and local government.
Many “hanging” judges get the majority of their financial backing from M.A.D.D. members and its supporters. In large part, many police departments and courts depend upon revenues from fines and surcharges from D.U.I. convictions to stay afloat. Recently, legislation piling on these excessive surcharges in DUI-DWI cases has become a new source of revenue for cash-starved state budgets in Texas, New Jersey, Georgia and other states, after the recession.
Therefore, it is not surprising that tremendous financial resources from the Government have been amassed to detect, evaluate, arrest, prosecute and punish DUI-DWI-OUI-OWI-DUII suspects across America. Numerous branches of the federal government are deeply involved in trying to deter and punish DUI offenders, and every state has special agencies that are an extension of the Governor’s office that monitor progress in the never-ending fight to thwart drunken driving and drugged driving from occurring. For example, In Georgia, this office is designated “The Governor’s Office of Highway Safety”. Even some municipal and local authorities have passed local ordinances or laws to tack on additional punishments for offenders (such as New York City’s well-publicized effort to forfeit the DUI driver’s vehicle upon arrest and conviction.)
Additionally, DUI-DWI cases are among the most difficult criminal law cases in the United States to successfully defend due to the many “scientific” issues that permeate this area of criminal law practice. While a criminal lawyer handling a shoplifting or murder case may be able to rely on top trial practice skills and a general knowledge of the rules of evidence and criminal procedure, the drunk driving defense specialist must be fully versed on breath testing instruments, electronics, flaws in breath testing procedure, crime laboratory blood testing and analysis, human physiology and pharmacokinetics. The DUI attorney must also be trained to be able to understand the job and all computer-generated print outs of a laboratory toxicologist when dealing with blood tests and urine tests involving drugs or a combination of alcohol and drugs in these impaired driving cases.
Further, a body of law has evolved around so-called “field sobriety tests” that are almost always utilized at the roadside by police officers in evaluating possibly impaired drivers, before deciding to arrest the person for D.U.I. The criminal attorney handling drunk driving litigation must be knowledgeable of “human factors” affecting such variables as stress during roadside agility testing, environmental factors, surface irregularities and lighting deficiencies or distracting during the nystagmus test, the balance tests, the dynamics of ambiguous verbal instructions, and the intricacies of psychophysical evaluations that have been promulgated and “validated” by NHTSA. In 2013, the latest training manual released by NHTSA totally omits the requirement of “standardization” and falsely claims that these non-scientific evaluations prove “impairment” by alcohol.
While books on DUI law and attorney web sites hawking their skills in handling drunk driving defense are ubiquitous on the Internet, you should not rely entirely upon these sources for soliciting your DUI lawyer (like YouTube). You only get one chance to win your DUI case.
All of these Internet sites and sources of information provide copious amounts of data and “hype” to the citizen facing a criminal conviction and a likely jail sentence, but may not in any fashion identify a truly skilled DUI-DWI lawyer. Why? Consider the following points:
These sources have no strict oversight or civil liability for the information they provide, and typically disclaim such responsibility in writing in their websites.
Many attorneys who have launched web sites are NOT skilled in fighting DUI/DWI cases at trial, but seek a volume DUI business to allow them to handle guilty pleas in large numbers in order to increase their bottom line. Often, these lawyers’ practices are known as “bait-and-switch” shops, referring to the front-end assurances of their successful track records, “connections” within the courts, prior prosecutorial experience and promises of fighting a D.W.I.-D.U.I. case “tooth and nail”, fighting to the last breath in his or her body. To the utter shock of many trusting clients, their “gladiator” later changes to yellow-bellied skink, giving a later report of “gloom and doom” or “I have bad news” that ultimately leads to the lawyer pushing the accused DUI offender into accepting a “slow GUILTY plea” to the drunk driving or drugged driving charges. Many lawyers in the DUI arena, unfortunately, opt for this type of practice rather than let a jury or a trial judge decide these cases. This is the most dangerous pitfall and difficult to detect culprit in the DUI defense business. I have suggested for decades that you go to your court to watch the proceedings PRIOR TO your court date, and (at a break) ask the court reporter or a bailiff about Lawyer A, Lawyer B and Lawyer C, before you make a mistake.
Seeing that a specific legal defense in a reported appellate case or trial was successful for another person (by reading about it in a book or on-line) in no way prepares the average lay person (citizen) who is untrained in law to properly raise and assert that defense in court, much less fight a knowledgeable prosecutor in court. Often, the winning DUI client hired one of the best lawyers in the business to help him or her. To act as your own attorney in DUI litigation is a mismatch, plain and simple. Much like reading a book or Internet site about successful abdominal surgery, you would not want to slice yourself open to try to cure your medical problem!
Individual case situations in DUI law differ dramatically, and even the most hopeless looking DWI cases can be winners, if the DUI attorney is a specialist in the field of “drunk driving defense” (or “DUI defense”, as it is commonly called). Conversely, even the simplest looking D.U.I.-O.U.I.-O.W.I. prosecution with a low alcohol test result and a roadblock arrest (i.e., no bad driving) can result in a conviction, especially when a person tries to fight a legally trained prosecuting attorney who is working for the Government.
DUI arrests that lead to criminal convictions can have a lifetime of reoccurring or isolated consequences that can be devastating to the offender, including loss of job opportunities, disqualification for public office, restrictions on travel to other countries, disqualification for certain positions, loss of college scholarships, being turned down for professional schools, embarrassment in social or business matters that could result in either termination of employment or relationships or possibly cost the convicted person millions of dollars in potential future income.
Even if you could manage to succeed in identifying the legal issue, or issues, that might win your case, your lack of experience in courtroom proceedings could lead to mistakes that could cost you a victory, thereby squandering the one chance that you had to walk away from a DUI-DWI conviction. If you seek to hire a lawyer after you have botched your defense, your early mistakes will almost always limit your options to appeal the loss. Drunk driving defense specialists are likely to charge more than the originally quoted legal fee to try to clean up the mess.
A top drunken driving defense attorney should be able to give you an honest and thorough assessment of your case and be able to explain the options that are available to you based on not only the current law, but also on potential legal changes that are in the legislative pipeline at any given time. We provide FULL information, in order to fully disclose both your options in court, but also all of the adverse consequences of a conviction. Often, new legal challenges are in the process of being pursued by top-rated DUI lawyers in the appellate courts, and ONLY a drunk driving law specialist would know about these pending, cutting-edge legal attacks and be able to structure your case and its pleadings (written motions and other maneuvers) to take advantage of such transitions in the law of your state.
The specialist DUI-DWI lawyer can then work with you to prepare your case, locate top expert witnesses and represent you at your administrative license suspension hearing as well as your criminal case. In some situations, the lawyer should be able to explain to the prosecutor why your case deserves to be dropped or reduced to a lesser charge, assuming your state’s law allows the prosecutor to drop the DUI-DWI. Be aware that a reduction of charges may not be “legal” in your state, due to state law prohibiting this negotiated plea reduction.
The drunk driving defense specialist often has additional specialized training and access to knowledgeable professional resources (e.g., expert witnesses, private investigators) to help find answers to these difficult and highly politicized criminal law matters. General practice attorneys do not have such resources available, since their practices are not focused on winning DUI cases.
Is it significant that a lawyer calls himself or herself a “DUI Attorney”, “DWI Lawyer” or “Drunk Driving Defense” guru?
Any person who has passed the Bar in a state can call himself or herself a DUI attorney or DWI lawyer. Since drunk driving cases are among the most lucrative criminal matters to handle, many legal practitioners claim to “specialize” in this area of law in order to attract potential clients. This in no way means that the person is necessarily proficient at obtaining reduced charges (a non-DUI disposition) or skilled at obtaining an acquittal of the drunk driving (or drugged driving) offenses.
The advent of legal marketing on the Internet, multiple phone directories, radio, billboards and other media has led to some attorneys being excellent marketers, but poor DUI lawyers. One Atlanta attorney that I saw in the City Court of Atlanta in September of 1993 who was a HUGE yellow page advertiser was in court to plead all 104 of his clients guilty or nolo contendere to DUI (nolo contendere is a form of guilty plea that still counted as a DUI conviction). He finished all 104 cases in one day and (according to him) pocketed more than $250,000 for his “efforts”. I had 17 files for 17 clients, and pleaded all of them “not guilty”. By contrast, only one of my 17 clients ultimately ended up with a DUI on his/her record. It took three months for that court to schedule all those trials for me due to my other trials (in different courts) having priority.
This article is being offered to assist you in screening, evaluating and possibly eliminating a potential attorney candidate who is vying to be the DWI lawyer for your case. If you merely wish to plead guilty, this may be a legal service that you can perform entirely on your own, without ANY attorney. Hence, this article will focus on what questions to ask of your potential DUI TRIAL attorney in order to determine what legal services, if any, you will be expecting him or her to perform on your behalf to FIGHT the charges. If the lawyer you are considering cannot pass the “litmus test” of being a qualified DUI specialist (as explained in this article), you should look further for legal help, if you plan to try to WIN your case. If you have already hired a DUI lawyer for your case, and you realize that the choice you made was wrong, this article may help you understand your options for changing lawyers.
What to look for in your lawyer
There are a number of factors to consider when hiring a drunk driving defense lawyer. With more than 50,000 so-called criminal defense lawyers practicing law in the USA, the process of selecting the right drunken driving lawyer can be difficult. Only about 500 lawyers in the United States are “the best” in their geographic areas in defending drunk driving cases. Hence, you will need to eliminate 99 of the avowed criminal lawyers to find the ONE “best” attorney for your DUI case. One reason Mr. Head set up this web site nearly 20 years ago was to help people do just that!
The following list of factors may prove helpful in making your decision:
Specialized Membership or Professional Affiliations – This is a good starting point to consider an attorney’s “involvement” and “commitment” to the field of DUI defense. What specialized professional membership standing does he or she maintain? Although these memberships are often only a matter of paying certain periodic fees and being admitted as an attorney in some state, affiliation may be indicative of the attorney’s dedication to the field of DUI defense. Also, within certain organizations, lower levels of membership are more a matter of paying the fee, while the top attorneys are often found in special “founding member”, “life member” or similar “special status” categories.
In the DUI defense field, here are some places to examine to determine “proficiency”:
DUIDLA.com – A national directory of DUI-DWI defense attorneys – Like all organizations, some are more experienced and better than others. Always go to that attorney’s State Bar directory to search for any prior Bar discipline.
NCDD.com – National College for DUI Defense, Inc. – The Regents and Fellows (retired Regents) are attorneys with an average of 30 years’ experience who have been invited to join the highest ranks of attorneys. The 100 Founding Members (all Regents were Founding Members) and the later-admitted Sustaining Members are eligible to become a Regent. Sustaining Members must be “recommended” for inclusion within the Sustaining Member echelon by at least a Regent and then “voted in” by the Regents. Generally, the Regents defer to the Regent or Fellow (former Dean of the College) from the proposed Sustaining Member’s state for a “thumbs up”, or not. This group (NCDD) now offers Board Certification of members who are able to pass a grueling written and oral exam about constitutional rights, breath testing, human physiology, field sobriety testing, criminal procedure and the rules of evidence. The regular members are licensed DUI-DWI attorneys in their respective states who pay the regular member’s annual dues, and may be among the best lawyers in their state or may not be among the best in their state. Again, go to YOUR court ahead of time to ASK about the best DUI lawyer. Paying the annual assessment obtains this “regular member” status and proves nothing more than that. Look further for other indicia of “skill” versus merely joining a group that may give the DWI defender a web link or visible credential.
NACDL.org – The National Association of Criminal Defense Lawyers – For more than 40 years, the leading national directory of CRIMINAL DEFENSE ATTORNEYS in America. Notice that this covers ALL criminal defense – federal, state, tribal and both felonies and misdemeanors. Many lawyers in this great organization are fine DUI-DWI-OUI-OWI defense specialists, while others take no DUI cases at all. Life Membership signifies dedication to the field of criminal defense, but does not necessarily identify skill level in fighting DUI cases. Dig deeper, and look for other indicia of dedication to this field.
State NACDL affiliates – Many states and even a few large metropolitan cities have formed local affiliate branches of the NACDL. I am a “Life” member of both the GACDL.org and the SCACDL.org (Georgia’s and South Carolina’s state affiliates). However, I have successfully handled thousands of DUI cases in Georgia since passing the Bar in 1976, and NONE in South Carolina, despite passing the Bar in that state in 1990. I merely joined the South Carolina organization and helped fund its start-up out of a sense of loyalty to the exceptional DUI lawyers in that state who invited me to assist in forming the original Founding Members’ seed group in June of 1992. The first SCACDL president was my co-author of “101 Ways to Avoid a Drunk Driving Conviction”, Reese I. Joye of North Charleston, SC, clearly the top DUI lawyer in that state. Certainly, the Life Members or Founding Members of such state organizations are typically among the best in that state.
Martindale.com – Martindale-Hubbell is the oldest and most widely respected directory of attorneys in America. Their rating of “AV” and/or their Pre-Eminent Lawyers designation signifies excellent reputation and credentials. These designations of attorney quality alone do not mean proficiency in handling DUI cases, but often identify members of the Bar in your state who are deemed by their peers to be among the most ethical and elite in your state. Martindale-Hubbell gives you a good bit of information, including the name of the attorney’s law school (see Number 14 below, as to why this matters).
Advanced Training
After finding that your attorney fits one of these designations, search further within the Internet profiles of the attorneys you are considering to confirm that he or she is a specialist in “drunk driving defense”. The most highly trained D.U.I. lawyers have attended several of the following specialized courses:
NHTSA Standardized Field Sobriety Test (Student or Practitioner Course) .This is a 20 to 24 hour course that teaches the attorney how field tests are SUPPOSED to be done, so that errors can be discovered and used to impeach the officer’s testimony in court. Most DUI Task Force officers have taken this course, at a minimum.
NHTSA Standardized Field Sobriety Test (Instructor Course) This is the NEXT level of training for serious D.W.I. defense attorneys. This training consists of 32 to 40 hours, and teaches the defense lawyer what the INSTRUCTOR teaches the police office students within his/her classes. This course has extensive written and video/DVD materials, and requires each person attending to practice instructing the course.
Breath Instrument Training Courses Several of these breath testing devices are available, but no manufacturer will train criminal defense lawyers. The manufacturers also blocks direct purchases of their breath machines because they fear that the flaws and limitations of the machines will be uncovered and disclosed. The best training is a 32 to 40 hour breath test course that covers the pharmacokinetics of alcohol, basic human physiology in the absorption and elimination of alcohol, the electronic components of the machine, the scientific principles upon which the machines function, shortcomings or limitations in the specificity of the devices, analysis of computer downloads and similar training.
A good course requires extensive hands on laboratory work where the students are required to set up and connect all parts of the instrument (directly out of the packing box), connect and fill the simulator and run calibration tests, opening the cover of the machines to observe and identify the various parts (i.e., chopper motor, light source, solenoids, RFI detectors, etc.). This training meets or exceeds the training that most state supervisors receive. The National Safety Council set standards for breath instrument training in the late 1980s, and these standards are still our best available standards today. Ironically, the State of Alabama has the most scientifically up-to-date breath testing program of any crime lab in the USA.
DRE (or DRT) Overview Course The latest training for police officers (almost 100% of whom were originally trained as DUI Task Force officers) is the Drug Recognition Technician (DRT). The acronym DRE stands for drug recognition expert, a title that officers eagerly boast about. The officers are provided extensive training including time at hospitals where they observe symptoms of patients who are known to be under the influence of drugs. Lawyers are not permitted to take the OFFICIAL course, but there are training courses designed especially for DUI-DWI attorneys to attend whereby DRE-trained, ex-police officers disclosed the PROPER and complete training methodology and expose how officers misuse this training by misstating the criteria and protocols required in conducting a proper DRE evaluation. These courses are 20 hours (or more) in length, and demonstrate the same steps that police officers must complete to be able to fully analyze a suspected DUI-drugs suspect for possible impairment.
Blood and Urine Training Only one of these courses has been taught so far in the USA. This course focuses on flaws in crime laboratory blood and urine testing procedures and testing methodology. A 24 to 32 hour course is required to identify these testing inadequacies and to explain the scientific and electronic components of blood testing by gas chromatography (for alcohol) or GC-MS methods (for drugs other than alcohol). Urine testing is also covered extensively, for such drug screening tests as immunoassay screens, marijuana identification, etc. Attorneys who handle DUI-accident cases, including vehicular homicide cases need this training to be able to challenge the junk science and sloppy laboratory work done at many state laboratories.
Seminar Speaker – The top attorneys in each state are asked to speak for DUI-DWI-OUI-OWI seminars in their state and others. Being a regular invited speaker for several consecutive years is generally a great indicator of “quality” of the attorney. Be sure to distinguish between “invited” speaking engagements versus self-promoting seminars. Ask about this “indicator” from any D.U.I / D.W.I. attorney that you are considering hiring.
One final note: Although it would be highly unlikely that any attorney could be highly regarded or rated in ALL of these types of professional organizations and services and not be a top-notch DUI defender, it is possible. Starting with candidates who have membership in as many of these legal organizations as possible will most likely lead you to one of the best DUI attorneys in America. On the other hand, it is possible that a skilled and successful DUI-DWI attorney COULD be a member of NONE of these groups or organizations, but I would be highly skeptical of such claims.
Community and Courthouse Reputation – This may be the very best measuring stick that anyone can use to judge an attorney’s “skill level”. It best identifies whether the lawyer has established a good name for himself or herself as a “winner” in the legal community where your case is pending. If your attorney has a sterling reputation within the legal community where your case is pending, chances are it was earned through hard work. Having a great COURTHOUSE reputation is more difficult than having a stellar community reputation. Checking the attorney’s COURTHOUSE reputation is the most direct and accurate litmus test of the GREAT drunk driving defense attorneys. Once you know the courtroom you will be assigned to and the name of the judge handling your case, go to that judge’s court BEFORE your court date. Sit and watch what occurs in court. After the judge recesses for a break, try to speak to the court personnel near the front of the courtroom. Ask a bailiff or the court reporter or the calendar clerk or the deputy overseeing the courtroom WHICH one of the lawyers that you are considering would he or she hire if they were facing a DUI prosecution and HAD TO TAKE A SHOT AT WINNING. Be sure to give them names, because they may be hesitant to “recommend” any one attorney or law firm. Also, the prosecuting attorneys may or may not give you an earnest opinion. Unless a prosecutor is a personal friend, with your best interest at heart, do not rely on prosecutor recommendation. Many of them will try to steer you away from the hell-bent DUI trial attorneys, to ease their work load. Go with a person from the clerk of court’s office, a bailiff, a deputy who is assigned to that Court or the court reporter. Another good source for a referral is law enforcement officers who regularly face these lawyers in court, and will tell you their honest opinion.
Disciplinary Actions – Has the attorney ever been disciplined by the Board of Professional Responsibility of the State bar of his/her practice location? This is an obvious sign of problems. Also, some people falsely claim to be licensed attorneys, so be careful. The state Bar is also the place to check that the attorney is licensed and in good standing. Call your state Bar to see if your lawyer is in “good standing”. Here is an American Bar Association map with links to all state Bar associations.
Fees and Fee Structure – How does the attorney set his or her fees? Most drunken driving lawyers work on a flat fee basis, though in some matters, hourly billing or staged billing (triggered by the progress of the case through court) may be done. Criminal matters cannot be handled on a “contingency” basis, due to Bar rules prohibiting this practice. Highly experienced attorneys often charge much higher fees than younger, less experienced lawyers. Often, these high fees are derived from market-driven “supply and demand” pressures, but more likely are a natural function of the free enterprise system. Additionally, a lawyer who fights each case cannot take the volume of cases handled by a “pleader” because trials and contested cases typically require 20 times as much legal time (or more) as handling a guilty plea. Thus, a GOOD trial lawyer typically will limit his or her caseload in order to do an excellent job for each client thoroughly and meticulously. If an attorney prices himself or herself much higher than MOST other DUI lawyers in the area, then do not hesitate to ask why. Don’t be accusatory—just ask what distinguishes this lawyer from the other candidates you are considering who charge less. Conversely, a low fee quote usually means that you will get exactly what you paid for. One friend from Louisiana, Glynn Delatte, ends each e-mail with this maxim: “Good lawyers aren’t cheap, and cheap lawyers aren’t good.” Seriously, the lawyer who quotes a “low ball” fee may not have any idea how much work is really involved in properly handling the case, or this attorney just may be desperate for money. More likely, he or she is planning to do very little work and later enter a guilty plea for your case unless the State’s case just falls apart and cannot be prosecuted. Trial for such “pleader” attorneys is out of the question. The lawyer who quotes a low fee may also be able to price the services this way because the work is being pushed down to the level of a legal assistant or very junior associate. The great DUI lawyers typically charge more, and always do the critical legal work (pre-trial motions and trials) themselves. Comparison shopping may serve a valuable purpose, but if you are looking for the attorney who can BEST handle your DUI successfully, the “pool” of super lawyers is often very small in every community. In smaller cities, you may need to go to a suburban or larger metro area attorney to find a quality fighter. However, for many persons facing the extreme penalties of a DUI-DWI conviction, price is secondary to results.
Client references – A strong reference from a friend or colleague who has used the potential DUI defender is often the best indicator of whether a lawyer is worthy of hiring. Be sure, however, that the friend or colleague has seen the attorney’s skill in court versus merely winning by default or pleading guilty for the friend. Often, attorneys in your “market area’” who do NOT handle criminal cases will know the names of several top DUI attorneys. Interview several, to see where you are the most comfortable.
Focus of practice – Most truly great DUI attorneys either restrict their cases to drunk driving (and drugged driving) or stay entirely within the field of criminal law. Some of these attorneys work within law firms that handle other matters, but the DUI specialist does nothing but drunk driving litigation. If the attorney that you are considering spends less than 80% of his or her legal time on criminal law, look further for an attorney. Consider limiting your search for an attorney to a criminal defense lawyer with a strong background or emphasis in DUI/DWI defense. Watch out for firms that sign you up with “any available” lawyers in the firm versus the top dog in the firm. If you pay premium dollars, this should be the lawyer handling your DUI trial and (generally) the DUI pre-trial motions. Other appearances can be handled by other attorneys who assist the DUI specialist, or possibly even “waived” (pre-filed and no appearance in court on the court date necessary).
Drunk Driving Specialists – Nationally, only a few attorneys work 100% within the DUI field. However, some are primarily “pleaders” who are not TRIAL SPECIALISTS. The lawyer who call himself or herself “DUI attorney”, yet has not tried any cases (or only a couple) in the past 12 months are either pleading guilty a great deal or not handling very many cases. Ask questions about why no trials have been conducted. Even though I limit the cases I accept to contested DUI cases, about 65% to 70% of all the drinking and driving cases I take are resolved by a reduced plea (a non-DUI disposition such as reckless driving or “lane violation”) that are clear “victories” in my state. This means no loss of driving privileges, no DUI on the criminal record of my client, and a very “favorable” outcome for the person. Plus, the client does not have to risk trial and possible harsher punishment after trial. In other states (e.g., California) getting a case reduced to reckless driving (versus the original charge of DUI) is NOT a “victory” if it is a “wet reckless” (defined as an alcohol-based original charge that gets reduced to an alcohol-based reduction), due to the penalties and license implications of such a plea. Also ask the attorney about a percentage of ALL DUI cases that he or she handled in which the clients ultimately ended up with a favorable non-DUI disposition (on all the DUI counts, not just the common law count or just the “per se DUI” charge).
Years in Practice – There is no substitute for experience. This rule is true in both warfare and in criminal trial practice. The longer one is involved in an active trial practice, the better one’s litigation instincts generally become. But, the opposite can be true as well. Some lawyers who have been practicing for years may become lazy about staying up to date on the latest legal changes and trial strategies. Missing a key, late-breaking appellate decision can allow a high breath or blood test into evidence when it SHOULD be excluded based on some new legal attack. Some of the worst lawyers practicing DUI law in this country are the ones who have been around the longest and have quit following current case law or stopped learning the newest and most advanced techniques for winning. So, look at the candidates’ RECENT advanced DUI-DWI-OWI-DUII-OUI law training and seminar attendance record.
Lawyer-Paralegal ratio – A busy, experienced DWI-DUI trial attorney will have 1 to 2 paralegals assisting him/her. Trial preparation requires more time than processing guilty pleas. A knowledgeable paralegal is worth his or her weight in gold. Our paralegals are like the HUB of a wheel, and assign tasks and responsibilities to many other support staffers, such as couriers, process servers, investigators and law clerks. The paralegals also coordinate the attorney’s schedule. Most paralegals also organize our files for motion hearings or trial. An attorney who maintains a more modest ratio of one to two paralegals per attorney may mean that the firm is not too overloaded with work and it may mean that the attorney you thought you were hiring actually knows what is happening on your case and has the time to speak with you about your case. However, a truly skilled trial lawyer relies on the trained paralegals to handle all routine inquiries in order to keep him or her in court trying to negotiate or win DUI cases.
Caseload – Is your lawyer taking on so much work that there is no way cases can properly be handled? Too many lawyers don’t know when to draw the line and either say no to taking on additional work or to make the decision to take on more attorneys and staff. A trial attorney may limit his or her caseload to between 40 and 100 cases per year, depending on these factors:
What percentage must go to trial. In some states (e.g. Oregon and Kentucky), the prosecutor is legally barred from offering to reduce a DUII (DWI). In Georgia, I get about 65% to 70% of my cases resolved by non-DUI dispositions each year, without having to complete trials in each case. The fee charged is earned by the “win”, despite the case not having to go through a two or three day trial.
Can the case be resolved at a non-jury trial or pre-trial motion hearing? In some states, the “first level” of trial in any traffic law case is a non-jury trial. In states such as Mississippi, North Carolina, Arkansas and Virginia, if the first trial is lost, a completely NEW trial can be pursued at the next level. In most states, however, this stage of a DUI case is relegated to pre-trial motions hearings, and a successful hearing can result in a victory or force the prosecutor to “cut a deal” for a non-DWI disposition. Lawyers who are successful at winning bench trials and pre-trial motions can handle a larger number of cases because DUI jury trials require 3 to 6 times the hours (or more) to resolve.
Use of Technology – Technology has revolutionized the practice of DUI-DWI law probably as much as any other area in the legal profession. Does your attorney not only USE e-mail, but encourage its utilization by you? Does the attorney have the latest legal research and case management software? Does the attorney provide electronic newsletters and e-mail alerts to inform clients of breaking news about DUI and criminal law matters? Does the firm have an extranet (or a quick response e-mail plan) that allows you to log in to a private and secure web site to see what is happening on your case? Does the lawyer participate in state or national list servers or blogs? Criminal lawyers who master technology deliver legal services with better quality and can often use technology to deliver legal services less expensively. Additionally, miscues such as missing a court date will typically be minimized by utilizing case management software.
Communication – The number one complaint against lawyers in this country is not poor work quality. It is failing to communicate with their clients. You are paying a lot of money to hire a lawyer and it is your right to expect to be kept informed of developments and have your calls and e-mails returned in a timely manner. Please note that this does NOT mean that the client and attorney’s firm communicate daily. Busy trial attorneys cannot do that. There is such a thing as anxiety or excessive inquiries on the part of a few clients. Calling your lawyer every day to find out what is happening on your case is not “communication.” It is a sign of extreme anxiety that may dictate a mental health evaluation and treatment for the stress that these difficult cases may cause.
Board Certified – As mentioned in Paragraph 1, the National College for DUI Defense (NCDD) now offers a national certification for DUI specialists. Of course, your attorney’s state may or may not allow lawyers within that state to broadcast or “advertise” such certification. A few states certify lawyers in the area of criminal law (as opposed to “DUI defense”). If your lawyer practices in a state that does permit certification, ask whether he or she has obtained this credential. It may be a desirable designation in some states (i.e., in Texas, most criminal attorneys who specialize do NOT seek this Texas bar credentialing) due to the manner that it restricts the practitioner or exposes him/her to additional liability. Board certification is no guarantee of quality, but it can certainly be an indicator of expertise, especially if obtained from NCDD.
Educational Background – While many fine lawyers have come out of mediocre or unaccredited law schools and many lousy lawyers come out of the Ivy League law schools, where a lawyer went to law school can still be an indicator of a person’s ability to regularly achieve trial success. Most of America’s top law firms acknowledge that the best law schools are “ABA-approved.” This means that a branch of the American Bar Association has investigated the law school thoroughly for quality on dozens of “measuring sticks”. For a complete list, please go to the ABA web site to look up your attorney’s law school. But, if you do not recognize the “name” of their law school, it is likely not a mainstream school.
Publications – Lawyers who write frequently about their area of law practice tend to keep themselves better informed about their area of specialty. The ability to get published in legal magazines or DUI trade journals is a good barometer of the lawyer’s expertise. Writing the “book” on DUI law in the state where you were arrested is generally a great indicator of an advanced level of knowledge and expertise.
Promotional Materials – Pay attention to a law firm’s client information package, marketing, Internet and promotional materials. Are they professional and polished or do they give the appearance of being “fly-by-night”? How the firm and its staff presents itself to its clients and potential clients may be an indicator of how the firm will present itself – and, consequently, you – in court. Does your lawyer have a “real” office or only a virtual office?
Conflicts of Interest – Some DUI defense lawyers may also act as part-time prosecutors in one or more inferior (small courts of limited jurisdiction). Some may even act as a part-time judge in an inferior court. An attorney cannot act as a defense attorney in the same court, however. These lawyers typically will screen any potential “conflicts” and never see any potential clients with cases pending in their courts. Usually, such conflicts are not a problem. But be careful to pay attention to this fact if the lawyer does not immediately “step out” of discussing ANY ASPECT of a case pending in his or her “court.”
Sub-specialization within the DUI Field – A number of “drunk driving defense lawyers” focus on particular types of matters within the DUI-DWI arena. For example, some lawyers only handle administrative license suspension or administrative license revocation matters. They never go to DUI criminal trials or pre-trial motions in criminal cases. Other criminal attorneys may only handle appeals of criminal law cases, including DUI-DWI appeals.
Personality Compatibility – Your interaction with your DUI-DWI lawyer in evaluating compatibility with your goals should be more than just an analysis of the lawyer’s experience and competency. At the end of the day, a lawyer’s “bedside manner” can mean a lot to how the overall relationship goes. Some clients are especially “on edge” and need more nurturing, due to the stress that a DUI puts them under. Others merely want the attorney they hire to be a gladiator and go slay the dragon for them, and need no nurturing at all. Find a lawyer who really cares about winning, and be realistic about your level of need in being “nurtured” (or not being nurtured) by the attorney. Since 90% or more of your communications will be with the attorney’s staff, their supportiveness and attitude is also very important. Difficult or uncaring staff members are not being “team players” for your cause. However, you must not constantly call the staff to ask for an update, when the progress of the case may be slow and somewhat plodding.
Promising too much – There are actually DUI lawyers out there who swear they have never lost a case even after a lengthy trial career. Be skeptical about lawyers who promise success. An old wag among experienced DUI trial lawyers is “Show me a DUI lawyer who has never lost a DUI case, and I’ll show you a lawyer who has never TRIED DUI cases.” A lawyer who honestly presents the real risks and perils of trial without trying to talk you into an ill-advised plea of guilty is what you seek. Likewise, be very wary of attorneys who claim to have special influence or “standing” with the judge or prosecutor in your case. An attorney who spends more time “name-dropping” impressive political or judicial names than explaining the favorable aspects of your case should be avoided like the plague! Also beware of lawyers who speak too negatively about his or her competitors. If the lawyer is worthy, he or she can stand on his or her own track record and reputation rather than tearing down the record of qualified competitors. When you have your quest narrowed down to 2 or 3 potential attorneys who all seem to have the right credentials, go back to Number 2 above, and go to the COURTHOUSE for “the final answer”.
Engagement Letters – Read the fine print in your engagement letters or “fee agreements.” Some lawyers create agreements with so much “legalese” and one-sided provisions that such agreements should give you pause. Consider using a lawyer who provides an agreement that is written in plain English that appears to be even-handed. Also make certain that you know what costs (beyond the fees) are your costs to pay and whether any appeals or potential re-trials (after a mistrial or “hung” jury) require additional fees.
Language Skills – Some clients who are not native English speakers may feel more comfortable working with a lawyer fluent in their language. A skilled DUI trial attorney who does not speak your language should have staff members available to translate or telephone-based translation services. In trial, courts must provide translation services available to you.
Ethics – Run as fast as you can from lawyers that tell you it is okay to lie or otherwise act dishonestly in your case. Aside from the obvious questions of ethics, professionalism and morality, you are risking jail time for any complicity in such shenanigans. The attorney is also risking disbarment, jail time and potential civil litigation by suggesting this. RUN AWAY! It is not worth such aggravation and potential increased legal problems.
Appellate History – Has your attorney pursued any DUI-related appeals? If so, get the names of at least 5 significant appeals he or she has handled. Ask for a total number of appeals handled. DUI trial lawyers will often handle an average of 1 or 2 appeals per year of practice. So, a DUI lawyer in practice 20 years or more should have 20 to 40 appeals. Be aware that some TRIAL lawyers “farm out” all appeals to specialists, so be sure to ask for a list of cases of this type that were appealed by another appellate law specialist.
What do I do if I just cannot afford the TOP DUI lawyer in my area?
Many people will not be able to afford the top DUI/DWI lawyer in their area due to cost. There are options that will allow you to utilize the services of a skilled drunk driving attorney. Many lawyers who are excellent at fighting these difficult cases are partners or associates in the firm headed up by the top attorney in your market. Many of these attorneys have track records that are similar to the top DUI lawyer’s record, because these attorneys obtain advanced training, share information about trial strategy, defenses to tests and field evaluations, expert witnesses, judges’ tendencies, prosecutors’ weaknesses and police officers’ lack of training or other problems. Why not hire a partner or associate for half or less of the fee set by the TOP DUI attorney?
Keep in mind that you may need to be screened by the public defender or similar organization handling indigent cases, if your financial resources are low. You will usually be screened extensively by your judge or his/her staff to determine whether you truly are unable to pay a fee. Plus, you swear to these financial issues, in court.
Many lawyers may offer to “unbundle” their legal services and may offer “a la carte” legal work. In DUI/DWI practice, the first fee set may be for handling the ALS (ALR) administrative license suspension-revocation hearing. This is NOT a criminal matter, but is a related “civil” proceeding that determines whether you can continue to drive, operate on a restricted license, or not drive at all. This means that instead of the attorney handling a case from beginning to end, some attorneys will work on specific aspects of the case or simply provide the client with the lawyer’s expertise or oversight. Depending on local practice in your area, this may be a reasonably safe plan or could be disastrous.
The opposite of this practice of “unbundling” is the super lawyer who limits the number of cases he/she takes. In doing so, these DUI attorneys may offer a flat, non-negotiable fee. If a client hires a TOP DUI attorney on this basis, relying upon a stellar “track record” at either winning DUI cases or getting charges reduced, the fee is a “results-driven” transaction where the attorney is committing to dedicating one of his or her time “slots” and his/her expertise in exchange for the agreed fee — paid in full. If you hire such a DUI specialist, be comfortable expending the fee quoted, or look for a less expensive alternative.
What to do if your lawyer mismanages your case?
Unfortunately, the question of what to do when you have hired an ineffective DUI lawyer is more than just theoretical for many. The answer about how to proceed largely depends on the facts of your DUI case. First, determine whether the problem is really the DUI lawyer’s fault. In many cases, people complain that their lawyers are ineffective when, in fact, the problems are beyond the lawyer’s control. One common example is where the police videotape is so damning that the attorney has little chance of success at trial. Some cases are lost by what the DUI client says or does on video.
If your lawyer really has botched the case (or some aspect of the case) but you think the mistake is honest and does not reflect deeper problems relating to competency, it may be easier to work with the lawyer in resolving the matter than in just switching to a new law firm. If you question the competency of your DUI lawyer, you may want to get a second opinion from another attorney. Request this opinion from an attorney who is NOT a candidate to become your attorney and who has no business or personal CONNECTION to the existing lawyer. Expect to pay for this attorney’s time.
Don’t be shocked if a possible “substitute” attorney will not consider taking your case. Busy specialists, especially the TOP attorneys, don’t want to inherit a “mess” created by another attorney on your case. Also, people who switch lawyers are sometimes “problem clients.” Many people simply have a negative mindset and will never be satisfied with their lawyers. While many people have legitimate reasons to change lawyers, you really want to avoid appearing to be fickle or portray a “troublemaker” image, so make sure you choose carefully the first time.
If your lawyer grossly mismanages your case, you have two remedies. You can file a complaint with the board of professional responsibility for the State Bar that licenses your attorney. And you also have the option of suing the attorney for legal malpractice. These remedies are of little use if you have lost your case and have a DUI conviction on your record.
At the end of the day, making yourself an educated consumer of legal services will improve your chance for your case to be managed successfully. That means learning as much as you can about drunk driving law so that you can work with your attorney to seek to achieve the best solution possible for your DUI case. It also will help you make sure that you are hiring a lawyer that really is a TOP specialist in this complex area of law.