Harris County Criminal Lawyers Association

Controlling Chaos

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Practice Pointer: Controlling Chaos
by JoAnne Musick

If your practice is like mine, chaos can easily take over. Each client’s question is the most important question in the world…to him. Sure it’s important to you as well, from a representation perspective, but you must manage the chaos before it takes over.

  1. Set Priorities

Do you really need to read every email as it comes in? Not likely. Turn off email alerts on your phone! Every alert draws your attention away from the task at hand. Minimize the alerts and minimize the distractions. Email can be a priority, but set a time for it to be the priority rather than all day and all night.

  1. Calendar

Follow a calendar: paper or electronic. Make sure every appointment and appearance is recorded. Schedule time for emails. Schedule time for phone calls. Schedule time for research and case review. The more you schedule the more you realize just how busy you are and how productive you can be.

  1. Electronic Files?

Paper is just fine. Create a file for every client. Keep track of everything you do. Make notes about conversations with prosecutors and clients. Keep a running list of things to do. Follow a checklist to make sure you aren’t forgetting something. Do you need a paperless office? Maybe, maybe not. If you have time, scan everything. Get a Dropbox or similar online storage and place only current files in it. Then you will have access from your smartphone or tablet anywhere, anytime. Once a file is closed, consider scanning its entire contents for storage. Electronic storage is must easier than warehouse space; just make sure you have adequate backup systems in place so you don’t lose your electronic file.

  1. Face the Music

Clients get mad. Clients get aggravated. Clients blame you when they don’t get the plea offer they want. Instead of becoming defensive or avoiding, call the client or schedule a meeting. Review the process and options. Before speaking though, give the client an opportunity to talk or even vent. Sometimes they just want to be heard.

  1. Make a List

Keeping a “to do” list is simple and effective. It can be written or electronic. I’m currently using Evernote to keep a master list of general items plus categorized lists for specific projects. Having a list helps you set goals for getting tasks done and helps you visualize the priorities. Anything not done today gets done tomorrow!

Practice Pointer: Reinforce Information for Your Client

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by JoAnne Musick

Client communication is key! You must communicate with your client regularly so that they will know what is happening and so that you can answer any questions they have. Because criminal lawyers spend a great deal of time communicating in person (with frequent court settings, visits at the jail, telephone calls, etc.) you end up sharing a great deal of information verbally with your clients. Often, clients become confused about what you have relayed or they simply cannot remember it all due to the stress of the situation and the volume of information they must process. The question becomes how do you reinforce the information for your client?

Simply, you do so with written correspondence. It is important to provide your client with as much information as possible so that your client can make appropriate and informed choices about his or her case. Think about all the information you share with your client in a typical case: the offense as charged, the punishment range, possible enhancements, possible defenses, summaries of evidence, witness information, collateral consequences (ALR, occupational licenses, ability to seal or expunge, sex offender conditions, immigration consequences, family consequences, employment consequences, firearm possession rules, and so much more). How can your client remember and process all of this information following that 30 minute jail visit? How can your client explain some of these to family when they seek family advice on how to proceed?

Provide your client with written guidelines. Cheat sheets if you will. You can create a general “how to” page on getting an occupational license and/or reinstating a suspended license. You can create a general “informational” page on the ability to seal or expunge records. You can create a general “how to protect attorney-client privileged information” guideline to warn your client about talking to others, especially in the jail. There are many general information categories that apply. Create “cheat sheets” or general information sheets to hand out to your clients to reinforce some of this common information. Think of it like FAQs. You know the questions clients routinely ask you. Start a list, create a handout or two, and get these into your client’s hands.

Additionally, when you convey important information about your client’s case directly to him or her, follow that up with a written letter that summarizes your conversation. Yes, it takes time, but it’s about helping a client. When there is a plea bargain on the table and a timeline for accepting or rejecting it, send a letter to your client reminding him or her. When you need a list of witnesses for guilt/innocence or punishment/mitigation, send a letter reminding your client to get that information to you timely. And, most importantly, when your client disregards your advice, send a letter stating what your advice is and that he or she has declined to follow that advice which could result in certain consequences. This is about keeping the client informed and making sure you have a file of what you have or have not shared with your client.

Add correspondence to your case “checklist” and make sure you are providing information to your client. The correspondence might even include a “welcome letter” and a “closure letter”. Send your client a welcome letter upon representation, something that spells out your scope of representation, how they can best contact you, your typical schedule for returning calls or letters. Send a follow up when you have the details of the charge explaining the offense and its range of punishment. Send plea offers. And finally send a closure letter to let them know where to go from here, i.e. when they might be eligible to seal or non-disclose their records, how to proceed on probation, what to do if they encounter problems or have questions, and thank them for entrusting you.

Anyway, you get the point. There are many things you can do to reinforce the information you provide to your client. Just start with the basics and get in the habit of providing more information to your client.

Practice Pointe: Setting Up Client Files

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By JoAnne Musick

So, you have a new client; whether that client hired you or you were appointed by the court, you need to get a new file opened and set up so you can get to work. In my office, we use a checklist (below) to make sure we have preliminary information about the client and his case. Every client needs a file, even if you choose a paperless office!

We start with a contact sheet (our happen to be on yellow paper to make them easy to spot on a desk and in a file). The contact sheet is created when the client (or his family) first calls the office. This is replaced with an order of appointment for non-hired cases. The contact sheet has preliminary information from the call so that the attorney can start to evaluate the case and keep notes. This contact sheet will exist on every potential client contact. It tracks when an attorney speaks with the potential client, what was discussed, whether an in-person meeting was set up, etc. So even a call that doesn’t result in a hiring is tracked and kept for conflict purposes and institutional memory, if you will. We have found that a call from a client “shopping for a lawyer” will often result in a later call to set an appointment or meet. And with the contact sheet, we will know everything that has been previously discussed with the client or family. Once the client hires, that sheet ends up in the client file.

Our office pulls the JIMS or other district clerk data on all new clients and potential clients (current charge and any priors). So this is included in our checklist for setting up the file. When the file is created, the legal assistant checks to make sure all of that information is included in the new file.

We have every client (retained or appointed) fill out a “client information sheet”. This two page document has name, address, phone numbers, relatives who may know client’s whereabouts, the charge or legal matter, a space for client to self-report priors (so we can cross check), the complainant’s information (when known), and a space for client to add anything he wishes for the attorney to know up front.

It’s also important that every client sign a contract, so we include this as a part of our checklist. (If appointed, the order of appointment serves the same purpose.)

We send an engagement letter to each client, confirming that we are retained or appointed to represent them and what they can generally expect. It also gives instructions to clients about the use of social media, not talking to anyone other than their lawyer, etc.

Our checklist is a simply one page list for opening the file so that assistants and lawyers alike can quickly make sure that all preliminary information is in the file and available as work begins. Again, this is just an example of how we open our files, and I hope it is of help to those starting their practices or looking to hone their procedures.

 

Practice Pointer: Managing Client Expectations

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By: JoAnne Musick

What does your client expect? Knowing what she expects can help you meet those expectations. Knowing what she expects can help you redirect those expectations when they are unrealistic. Communication is key in this regard.

When you first meet a potential client, it is important that you ask her what she expects. Does she expect to walk? Does she expect to go to trial? Does she expect to plea-bargain her case? Granted, you will not be in a position at this point to properly advise your client as to the realities of those expectations. At an initial meeting, you are not in position to promise, guarantee, or suggest a possible resolution. You may have heard your client’s side of the story, but most often, there is at least one other side to that story. There would be no way to know at this point whether you can successfully negotiate a dismissal. There would be no way of knowing whether your client might prevail at trial. Making a promise as to a dismissal or particular plea-bargain or even a win at trial only sets up unrealistic expectations from the beginning. Some lawyers make these promises to encourage the client to hire them. This is wrong; don’t do it. Instead, explain why you cannot say what will happen because you have not seen the evidence.

When you ask your client what she expects, be prepared to explain why those expectations are likely or unlikely to be realistic. I have clients tell me they expect to plea-bargain their case. That’s fine. I explain that a plea-bargain is certainly a possibility; however, first the case must be investigated and analyzed to see if a dismissal might be warranted or if a reduction is possible. I have clients tell me they expect to try their cases. That’s fine. I explain we are a firm of trial lawyers, and we start out preparing every case as if it will be tried to a jury. But I also ask the client to keep in mind that we have no way of knowing at this point if a particular plea-bargain offer is good or which jurors will show up for jury duty and how they might feel about the evidence because we haven’t even reviewed the government’s evidence or developed our evidence and strategy. So I ask the client to let me help them understand the evidence that the government will try to present so that we can make the best-educated decisions about trial. I also remind the client that while we might believe we have the best air-tight defense, ultimately, a jury makes that decision so we cannot promise or guarantee any particular result.

This key communication sets the tone early for understanding your client’s expectations and managing those. I also begin my representation with a letter to the client (after the contract is signed or after the court appointment is made) that details how to reach me, why I may not be able to take or respond to phone calls immediately, how the case is expected to proceed, and what is expected of the client. This tends to help clients understand the process and what to expect. It also lets them know what I expect from them.

As the case progresses, strive to keep those preliminary expectations under control. You should communicate early and often with your client. This could be via telephone, email, or meetings. But, where any of these conversations come down to the client needing to make a decision (whether to accept a plea-bargain that has been made, whether to proceed to trial, or other similar matters), I prefer to follow-up that meeting with a letter detailing our conversation. It could be as simple as: you have been offered a plea-bargain of X, and the range of punishment for your charged offense is Y; we have discussed the pros and cons of accepting this plea-bargain; and you have indicated you would like to accept/reject/counter that offer. This is simply a letter from you to your client so they see the offer and can think about the consequences of their decision. Obviously, this type of letter will not always be necessary, but where decisions are complicated (like multiple alternative plea-bargain options: conviction with time served or probation), or where the client wants to “think about” the advice you have given, this gives the client a framework of reference while they contemplate their decision or discuss it with family. It also helps prevent a misunderstanding as to what you have told your client during your telephone call or meeting.

Practice Pointer: Communicating with Clients

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By: Nicole DeBorde

A client who feels they have access to you is generally a happier client.  Even if you are working feverishly on your client’s case, he has no way to appreciate your hard work if you are not communicating your efforts and work to him.

That said, separately updating mothers, sisters, girlfriends, aunts and cousins can lead to significant misunderstandings.  The best practice is to get written permission to communicate about a client’s case from the client.  This permission should be specific as to the person with whom communication is allowed.  Even if a client gives a lengthy list of people who can discuss the case with me, I limit my conversations to a person designated by the family as a spokesperson for the family.

I always invite the client to call or make an appointment to come in whenever they feel it is helpful or necessary to discuss the case.  When the accused is in jail, accepting collect calls is usually helpful.  I always stress to the client that the calls are recorded, but often times the calls are questions about court dates or other basic procedural matters.  If a client has a more specific question, comment or concern that needs to be discussed in person at the jail and we arrange a jail visit.  For federal clients in custody, I invite them to set up a Corrlinks account so that we can correspond by email on non-sensitive matters.  Clients are typically very grateful for a lawyer’s accessibility, and sometimes just knowing the lawyer is available to answer questions cuts down on anxiety.  I make it a point to call clients back the same day or the next day at the latest whenever possible.  This includes while I am in trial even if it means returning the calls by cell phone in the evening. Clients who are not called back promptly will take it personally and feel mistreated.  Promptly returning calls is great for future business as well as keeping the clients you have happy. Far too many State Bar disciplinary cases are the result of failure to communicate with a client.  This is a very easy problem to avoid.

Sometimes, I run into a client who is insistent on doing the opposite of what I am advising or who asks the same questions repeatedly as if the questions have not ever been addressed.   In these circumstances, I will write down the information in a letter and even sometimes have the client initial my copy of the letter.  This is NOT something I file in court.  It is a document for my file and for the client to have something they can refer to if they are having trouble remembering what was discussed.  Sometimes having the information to read helps significantly when a client has had difficulty either believing or understanding information.

Many client-lawyer disagreements can be avoided with simple communication.  Taking the time to make sure the client’s questions are answered is always worth it – for the lawyer’s peace of mind and the client’s.

Practice Pointer: Firing a Client

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by Pat McCann

If there is one group who should know about bad relationships, it is criminal defense lawyers.  We could write books on surviving them, with chapters by local experts [you all know who you are!] but here is one topic that may not get discussed enough – getting rid of bad clients.  We all have ones we want to dispense with, appointed or hired, and we all often, in a similar view to our perverse pride in surviving bad relationships, continue to represent them as badges of honor.  However, my uncle, who is semi-retired now, had a great point once over dinner; he asked me “If ten to twenty percent of your clients are taking up fifty percent of your time, aren’t you hurting your other clients by keeping them?” That was my wake up.

Here are three simple questions to ask in determining whether you should fire a client. Do you cringe when you hear they are on the phone or see their name come up on your smarty-pants phone?  Do you deliberately avoid setting appointments with them?  Do you consistently lose your temper with them, or consistently struggle?  If the answer to these is “yes”, fire them.  Here is how:

Withdrawing from a case requires notice to the client [should be in writing sent certified mail, return receipt requested, NOT email] with a full statement of all settings remaining, availability of the file for pickup or the file itself returned, and a letter explaining, short and sweet, that either they have failed to follow advice or pay you, or that communications have broken down so badly that the attorney client relationship is irreparably compromised.  You will also need to file notice with the courts, and if you are appointed, a motion requesting withdrawal [which can sometimes be handled informally by approaching the judge and explaining, without revealing confidences, that this just ain’t working] and ask for another lawyer to be appointed.  Do it, and when you feel that sense of relief, you will know you did the right thing.

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Harris County Criminal Lawyers Association
P.O. Box 924523
Houston, TX 77292-4523
(713) 227-2404