I’ve heard many people say that they believe the best defense lawyers are former prosecutors – is that true? Or is it a product of the flood of former prosecutors who are trying to market themselves to bring in clients and get paid?
Let’s see if we can break down this argument and tease out some truth – what is good about a defense lawyer who used to prosecute people? What are the drawbacks to hiring a former prosecutor?
Why Former Prosecutors Make Better Defense Lawyers
They don’t.
But there are hundreds of former prosecutors advertising their services online across the country who want you to think their experience putting people in prison somehow makes them a better defense lawyer.
What are they saying?
Former prosecutors have tried cases on both sides, and, therefore, understand the trial process better.
News flash – the criminal laws are the same regardless of what side you are on. Courtroom procedure is the same regardless of what side you are on. Any defense attorney with extensive courtroom experience should know criminal law and trial techniques if they have experience trying criminal cases and will know the “secret inner workings” of the solicitor’s office if they are paying attention.
Prosecutors have the power and resources of the government behind them – they have investigators working in their office, police officers and detectives making their cases for them, and the ability to force a guilty plea from most defendants (or dismiss their cases if they do not plead guilty).
The experience of a prosecutor in trial is very different from that of a defense lawyer in trial. For example, most prosecutors never develop effective cross-examination skills (one of the most critical skills for a defense lawyer), because they rarely have to conduct a cross-examination.
In most cases, the presentation of a prosecutor’s case consists of direct examination of friendly witnesses with questions like, “Oh, and what happened next? What did you do after that? Okay, and then what happened?” In many cases, the defense attorneys don’t call any witnesses, so there is no one for the prosecutor to cross-examine…
Representing the government, with the government on your side and helping you at every turn, does not translate into effective criminal defense skills.
Former Prosecutors Can “Get You a Better Deal” Because They Have Connections
If you are gullible enough to believe that defense lawyers work out deals on the golf course in criminal cases or “get better deals” because they are friends with police or prosecutors, you may be in for a surprise.
Prosecutors don’t give “good deals” to their friends. They offer “good deals” when they know 1) the defense lawyer is going to take their case to trial and 2) the prosecutor may lose their case.
If you meet with a defense attorney who says they don’t want to “rock the boat” because they are afraid they won’t get good deals from the prosecutor or police, run. Many defense attorneys do not try cases and see their jobs only as getting the best deal they can.
Why would a defense lawyer not want to rock the boat, and try to market their ability to get “good deals” although they don’t try cases?
Because defense lawyers make more money by pleading cases than they do by trying cases – remember, most criminal defense attorneys charge a flat fee, and they do not get paid by the hour.
Why Former Prosecutors Make Terrible Defense Lawyers
Again, they don’t.
Some of the best defense lawyers I know in SC are former prosecutors. But they are not great defense lawyers because they are former prosecutors – in many ways, being a former prosecutor is a disability that must be overcome if an attorney wants to begin a career as a defense lawyer.
There is a flood of former prosecutors who no longer work for the government, who want to “make the big bucks” in private practice, and who have nothing other than their experience prosecuting people to use as a marketing strategy. I understand why a former prosecutor would want to tout their prosecution experience as an asset when they have nothing else, but…
What Should You Look for in a Defense Attorney?
So, what makes an effective defense lawyer?
There are many qualities that you should look for in a potential defense lawyer, including their years of experience, their willingness to try cases, their track record with dismissals and acquittals, their knowledge of the law, and their adherence to the ethics rules that govern attorneys.
What are the most important qualities? When your freedom is on the line, above all else, I believe that you need an attorney who 1) cares and 2) is a fighter.
Mind Set – Does Your Attorney Care About Your Case?
Caring is contagious.
If your attorney doesn’t care about you and your case, why should the prosecutor, judge, or jury? On the other hand, when your attorney cares deeply about what happens to you, they are more likely to transfer that feeling to the decision-makers in your case.
This is an obstacle that former prosecutors must overcome (and many do). Many prosecutors have the mindset of someone who is “tough on crime” – if you were arrested, you must have done something wrong. Literally, we have heard prosecutors say, “if he didn’t do this, he did something,” to justify not dismissing a case where they had weak evidence.
Some prosecutors, when they leave the solicitor’s office, might see defendants as dollar signs at first. They aren’t trying to help ordinary people who are being crushed by the overwhelming power of the government. Rather, they are holding their nose and doing a thing that they once thought was beneath them because they think that’s where the money is…
Find a defense lawyer who cares, and, if it is a former prosecutor, pay attention to how they talk and whether they have shaken the mindset of a crusader who puts people in cages for a living.
Who Makes the Best Defense Lawyers? Former Boxers…
The most important attribute of an effective defense attorney is whether they are a fighter…
Whether an attorney is working for the government as a prosecutor or working for ordinary people as a defense lawyer, they are not going to be effective unless they have the heart to stand up to the government, to come out swinging when necessary, and to jump right into a brutal courtroom brawl when your freedom is on the line.
I’ve often thought that a good analogy is to imagine you are hanging on the side of a cliff over a precipice, holding onto a rope. At the top of the cliff, someone is holding that rope – a literal lifeline. How long will they hold that rope and keep trying to pull you up once their arms have turned to rubber and they have tired out?
If you have the impression they would let go, that’s probably not the person you want for a defense lawyer.
When they wade into battle for you and start taking hits, will they keep fighting for you? Or will they step aside and let go?
You don’t learn how to be a fighter in law school. You don’t learn it as a prosecutor. You don’t learn it as a defense lawyer. For many people, you are either a fighter or you are not, and some attorneys should probably stick to transactional work where the stakes are not so high.
Who makes the best defense lawyers? Fighters who don’t give up.
Criminal Defense Lawyers in Columbia, SC and Myrtle Beach, SC
The criminal defense attorneys at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC. We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.
We are not former prosecutors, and have no intention of ever helping the government prosecute and imprison citizens.
If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.
