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By: Linnea Johansson
Welcome back to the land of paralegal milk and honey, TPS readers or perhaps it’s more like caffeine and craziness?! (Oops, did I just say that aloud?) Today, we’re excited to feature some insight into the fascinating world of criminal law. Ever wondered what it would be like to work in a criminal law practice? Curious about the types of things you would do? Wonder what it would feel like to work on a case where your attorney would try to convince a jury of peers, beyond a reasonable doubt, that his client is innocent? This article is for you.
As a contributor to The Paralegal Society, I am delighted to offer the following tips, tricks and best practices for paralegals entering or contemplating the field of criminal defense. To give a brief overview of my career, I began working for one of Denver’s best criminal defense attorneys in the early 1990s. He was a colorful and controversial mentor. Having worked in insurance subrogation, elder law, estate and water law, with some experience for non-profits, I must admit that at the time this phase of my career began, I was not fully prepared for what was to come next. My feet hit the ground running, though, and this is the key point I want to make.
Criminal defense involves the life of another person held delicately in the balance between proper application of the law and proportional ethical treatment. When my attorney and I are getting the facts on a new case, it is easy to generalize and find ways to ‘pigeon-hole’ what has transpired so far. However, the case is still unfolding, even when someone is in the process of hiring an attorney for representation. There is so much to be discovered, and so much to determine, in order to get an accurate picture of the events surrounding the crime, or event.
The first thing that happens is the intake call. You speak to the person who wants to hire the attorney, and they tell you about a situation for which they need legal advice. What kinds of questions do you ask? Ask for name, proper spelling, contact numbers; ask if they wish to bring family members to the consultation. Will you need an interpreter? When is your next court date? What is your case number and division? The answer to this question will tell you how far along in the process the case might be, and you can check the upcoming weekly docket. If you ask too many questions, you may or may not get the answers you need. It is easy for a distraught caller to launch into the whole tale, because you are listening. Discernment is a key to helping the potential client choose your firm. Remember, the attorney was chosen from a list of potential attorneys and the person decided to call him, so it would be best to get as much information as you can, without overdoing the details. This is also a delicate balance. Remember, the attorney hasn’t been hired yet. The information given to you is privileged. Do not share it with anyone but your attorney. Set the appointment, get out the New Client Information sheet, and keep your antennae up when the person arrives. A note here: Sometimes new clients miss or have to reset appointments. Be mindful of the attorney’s work schedule when setting appointments.
Best Foot Forward. The potential client has been interviewed by the attorney and has agreed to retain the attorney, and has paid a deposit toward the legal services retainer. You have written the receipt and completed the legal representation engagement and fee agreement, with the attorney’s approval and signature. Any payment arrangements have also been approved and signed off, and you have entered information as to the new client and any potential witnesses into your conflicts check system. All of these hurdles having been cleared, you reiterate to the new client that his deposit will be held in a trust account, and how the billing procedure works. Establishing a good rapport with the client is essential. Enter the client’s information into your timekeeping system, and ask the attorney how much of the initial intake consultation will be billed against the deposit. We usually make certain that the first half-hour is no charge, as that is our firm’s policy.
Next Steps. Review the attorney’s intake notes; then make your own notes. My attorney makes handwritten boxes in his notes which can be checked off as tasks are completed by the paralegal. Our New Client Information sheet has a second page for intake procedures, so I check that too. Be mindful of any evidence that might need safeguarded quickly and talk to your attorney about it. Set up the new case file according to your attorney’s preferences. I write the case number and division and the next court date on the jacket of the file so it is easy to see, and I want to get that file filled up with all the information the attorney needs before the court date.
- Entry of appearance. Prepare the entry of appearance according to the attorney’s notes. There are many variations at this point, so ask questions. Is the attorney taking over the case from another attorney? Then you need to prepare a Substitution of Counsel notice. Is this a first appearance, in which the defendant waives advisement and requests a pretrial conference? This is not necessarily so in all cases or all jurisdictions. This initial pleading is usually filed by hand and the copy is delivered to the district attorney (or city attorney). If you are filing an entry outside of your local jurisdiction, check with the clerk first to make sure you follow the correct procedures. You may be filing by mail with a self-addressed stamped envelope for return of the filed pleading, or you may be filing by facsimile. Most jurisdictions in Colorado still require “hand filing” for criminal cases. In the future, with new developments in e-filing, this may change.
- In a DUI-DWAI case, the defendant may be required to be fingerprinted. In this state, there has been recent legislation which requires fingerprinting within a certain period of time before the first court date. Make certain you have given the client the necessary paperwork to accomplish this step, along with clear directions.
- Order discovery from the district attorney. Again, this process is according to your local jurisdiction’s requirements. The district attorney’s discovery process in this county is automated and we can order discovery online and receive notice by e-mail to pick up at the window. More footwork!
- Once the case has passed the first appearance date, and is set for pretrial conference, we often order the 911 dispatch information from the arresting agency, so the attorney can compare notes with the narrative reports of the officers. This is done by a Subpoena Duces Tecum, and our jurisdiction allows the return date to be set on the same date as the pretrial conference. Always check with the division clerk to make sure.
- Pick up discovery as soon as you receive the notice. Print for the attorney’s review, and look at it yourself. What is the blood alcohol content test result? Is it high? Ask the attorney if he wants to order a re-test, as this must be done timely. If you are dealing with a higher-profile criminal case, organize the discovery in a three-ring binder, and get the discovery CDs stored separately in case you need to re-print. Ask the attorney if he will be hiring an investigator, and get the discovery into the investigator’s hands as soon as possible.
Back Pedal. My original experience with the criminal defense attorney who mentored me taught me to pay attention, read analytically, learn everything I could about a case, and how to get along with lawyers. If you read between the lines, there’s a good definition of being a paralegal in those phrases. Just because the lawyer is adversarial, does not mean that you must also take that stance. In fact, the more you can be objective, in spite of becoming passionate about a particular case, the more effective you can be as a paralegal. I learned how to perform jury pool research before software was developed to compartmentalize the task, so we obtained the names and demographics of potential jurors from the jury commissioner, explored the neighborhoods where they lived, and made diagrams on a legal pad from index cards. I came to the conclusion that the jury trial is an essential factor to obtain peer justice.
Fast Track. Trial preparation for criminal defense is similar in many ways to civil cases. There are the obvious differences between civil procedure and criminal procedure, which must be carefully distinguished and tracked when dealing with both types of cases at any given time. If you need clarification on rules and procedures, don’t be afraid to speak with the court clerks. Make certain the defendant’s list of witnesses and exhibits and theory of defense are filed timely. Issue the trial subpoenas at least thirty days prior to trial, even if less time is allowed, because you will need to coordinate everyone’s schedules. Use a waiver of service with friendly witnesses when possible to avoid service of process costs. Call the friendly witnesses, taking notes to determine prior to the attorney’s interview what their testimony will be. Are they defense witnesses, or the state’s witness whom your attorney will be cross-examining? If subpoenaing a police officer, make certain you contact the court liaison for proper service of the subpoena. Make a chart of names, addresses and phone numbers for the defense witnesses and the state’s witnesses.
If you are present at trial, stay alert and keep copious notes. This type of participation is very unnerving to some, and exciting to others. Watch, be ready, and observe court etiquette. Be attentive to your attorney’s needs, even if you’re asked for a breath mint at an awkward moment. Keep a needle and thread in your kit. You may be called upon to sit with the witnesses as they await their turn for testimony. No small talk about the case. In fact, the more you smile and the less you talk, the more the other side will wonder what you’re smiling about.
You may be asked to assist with jury instruction preparation. It is always important to know what premises the attorney may use to assist the jury in making the proper conclusions and reaching the desired verdict. Often the jury instructions become intrinsic in his arguments. I was once instrumental in this process, and was asked to enter the judge’s chambers in the absence of his clerk to input the instructions on the court’s computer record. Today, such an invitation is probably not going to happen, in light of electronic filing processes. However, I was so thankful I’d done my homework ahead of time, and knew where to find what was required on short notice.
When it’s all over, and the case has been won (of course) you must let the attorney bask in the limelight, and step aside. I once ducked out just before the hullabaloo and hoofed it back to the office so I could watch the procession of attorneys, clients, and reporters from the upstairs window.
To tie things up, here are the basic steps again:
- Get a good idea of what the potential client needs and set a time for the initial consultation.
- Once the attorney has been hired: Conflicts check, fee agreement, set up accounting.
- Establish a good rapport with the new client. In a future article, I may elaborate on the types of clients paralegals deal with when working for a criminal defense attorney.
- Entry of appearance, ordering discovery, and subpoenas duces tecum. Gather all pertinent information before the next court date.
- What personal characteristics and skills should you develop to work in criminal defense?
- Trial preparation and conduct at trial. Consider what types of interactions will take place if you attend trial with the attorney.
- It’s not over until it’s over. Just for the fun of it, keep a historical account. You never know, your attorney may be acclaimed as a crusader for justice!
Linnea Johansson is a Paralegal and Office Manager at the law firm of James A. Reed, P.C., which is located in Colorado Springs, Colorado. Linnea has worked for Mr. Reed since June of 2010. She earned the title Certified Professional Paralegal through NALS in March of 2012, with Mr. Reed’s assistance as proctor for the exams. You can connect with Linnea on LinkedIn.
Have we ever got some terrific “rants” headed your way in the near future! You know that super cool “Rant” page you all know and love?! We bet you’ll either find yourself reading ‘em and thanking your lucky stars that you aren’t in those dreaded scenarios, remembering back in a state of sheer trepidation and personal terror to a time when you once were, or hoping like hell-oooo my paralegal friends that you never arrive or return round those parts again! Good times. We’ll chalk it up to sanity shared among friends.
We’ll see you on Friday. Until then, sip, sip, and around the office you shall zip, zip…en route to a lovely array of redwells, banker’s boxes and ringing telephones, that is!
We’ll see you in T-minus 2 days.