The Second Lawyer:The View From the Other Side

Brian Tannebaum, over at Criminal Defense, lays out his reasons for not becoming the "second lawyer." In other words, he tells us why he won't take a case if another attorney is already doing the work. This set me to thinking about what the entry of an attorney looks like and means from my side of the bench.

You know when I see 90% of "second attorneys?" After I tender a plea offer. And I almost never see a change in attorney if I offer probation or a misdemeanor instead of a felony. If someone is in jail and the offer is a year or less it usually doesn't happen. Of course, the more time offered, the more likely a new attorney will pop up. What does that mean? Usually one of three things. 1) The Great Stall is on (most likely). 2) The Great Bluster is on. 3) The Wheeler-Dealer has arrived (least likely).

The Great Stall - There are a couple different ways this plays out. However, it always starts when the trial date is imminent and it usually involves an offender who has no real defense. The offender hires a new attorney anywhen from 2 days before to the morning of trial. Of course, the attorney asks for a continuance because there is no way he can be ready in time for trial. Now, if the offender has been smart about it he's hired an extremely busy attorney who won't be able to set a date for a couple months and will probably end up continuing the case several times because he's in federal court or has a murder trial in another jurisdiction or . . .
If the offender isn't all that smart he will try to play rotating attorneys, "firing" each attorney just before trial and asking for a new attorney. This isn't the smartest way to stall; it can backfire because even the most obtuse judges usually catch on and put the defendant in jail pending trial after a couple attorney firings.

The Great Bluster - This guy got hired because all the local frequent flyers think he's a great lawyer. He huffs and he puffs and he puts on a great show. All the local ne'er-do-wells know "He will fight for you!" (tm) This is the type of person who walks in and tells you your case is the worst he's seen prosecuted in his 20 years of practice (each and every time) and even if you win he's going to fight it "all the way to the Supreme Court." Sometimes these guys are really quite good; think about it, if you are going to make it your business plan to anger everyone from appellate judges down to the lowliest rookie officer you aren't going to get any wiggle room - you have to be sharp and right. On the other hand, there are a lot of guys who act this way who are just terrible in court. They make impassioned arguments about statutes and constitutional law which anybody who's practiced for a couple months or done 5 minutes of research knows are bogus. They move for a mistrial every 5 minutes and object every time the prosecutor opens his mouth. Their clients love them all the way through the conviction.

Let's Make a Deal - This guy knows everybody. He goes out of his way to stay on good terms with the police and the prosecution and the judges. Something about him makes him very likeable or very respected or very tied in (usually a mix of the 3). The facts don't matter so much to this guy. He rarely goes to trial, but he works every possible angle behind the scenes to get a better deal for his client. Suddenly, you're getting a call from a 15 year, grizzled vet of the force who is saying, "I talked to Greg and he says Miss Smith has a drug problem and I don't care if she gets a drug program rather than the 3 years the guidelines call for." Of the three, this is the one least likely to be hired in late because the frequent flyers don't see how effective he is as most of his work is done on the down-low, behind the scenes. Usually, he's hired when someone with money and/or influence suddenly realizes his kid is in real trouble.

In reality, my offer doesn't usually change when a new attorney comes on. Often the appearance of the new attorney, especially a Blusterer, means that the chances of there actually being a trial go up, but I've never really minded going to trial so that doesn't change my offer. By the time the second attorney comes in I've already assessed the case and made my offer. In fact, one of the most annoying things is when I have to change the offer and feed the impression that the "real attorney" has forced me to do something the court appointed attorney couldn't. Sometimes the new attorney has come up with something which changes my evaluation. Usually, the change is because of something entirely outside the control of the defense attorney like a witness moving to Utah or a piece of evidence popping up out of left field.