How to Become a Federal Criminal Defense Lawyer

If you’re a young lawyer interested in defending people in federal court, listen up. A few days ago an anonymous commenter to this post asked:

How would you recommend that a new lawyer get started defending people in federal court? How did you get started?

I started in federal court long enough ago that I hardly remember how I did it; most likely I went about it all wrong (my first jury trial ever was a bank-robbery trial in federal court). But having made plenty of mistakes qualifies me uniquely to advise others; this question has acquired some urgency in my mind recently as I have noticed a glut of young lawyers seeking advice on practicing in federal court.

One of these young lawyers told me a couple of days ago that, if all else failed, he would go to trial and ask the jury to determine if the arrest was legal. No, I told him, you won’t: while we have that option in Texas state court, federal law does not provide for juries to decide suppression issues. Today he reported that, as far as he was concerned, it was still an open question — two other defense lawyers, one of whom used to be a federal prosecutor, had told him that juries could decide such issues in federal court.

So the first and most important thing for the aspiring federal criminal lawyer to know is this: you don’t know squat. Accept that with calm humility and good cheer. You may have edited the law review . . . and captained the mock trial team . . . at Yale. You are not prepared in the slightest to defend people accused of crimes anywhere, let alone federal court. Even if you spent years as a state prosecutor, even if you spent years as a defense lawyer in state court, even if you served as a federal prosecutor, you are now officially a federal criminal defense newbie, and a newbie you will remain until you have tried several federal criminal cases to juries as a defense lawyer. Pleading people guilty does not count. Only after you’ve tried some cases as defense counsel in federal court will you know squat.

How many? It depends on you. If you’re a fast study, two or three should do; if you were paying attention when you were a federal prosecutor, one might be enough; if you’re lazy or slow or set in your ways, you probably won’t be trying cases anyway. The bar for admission to the U.S. District Courts is frighteningly low, and lots of lawyers in the courthouse are eternal newbies. Don’t set your sights on being as good as the worst of them, or as good as the mean. Work to be as good as the best, or go back to state court, with its bus-station atmosphere, its semi-pro cops, and its forgiving rules.

Don’t be so afraid to lose that you never try cases. If you set your client’s interests (freedom) above your own (dignity), you’re not going to win every case you try. Trying cases and losing them is good for your ego, and will raise you above newbie level, but no matter how much of a badass you were in law school, or the DA’s office, or state court, or the U.S. Attorney’s office, you are nothing more than a speedbump over here in U.S. District Court until you’ve proven that you can beat the United States Government in a jury trial.

Don’t pretend to know squat. Don’t pretend in order to impress your colleagues — we know that you’re a newbie, and we’re not impressed. Don’t do it to intimidate the AUSA — he knows that you’re a newbie, and he’s not intimidated. Nor to persuade the judge — she knows that you’re a newbie, and she’s not persuaded. Most of all, don’t pretend in order to sign up the clients. They don’t know that you’re a newbie, but it’s dishonest, unethical, illegal, and sleazy not to tell them.

“But they won’t hire me if they know how little federal experience I have.” First, that’d make it fraud, wouldn’t it? Second, a few special clients will hire you despite your lack of experience. They won’t pay you what they’d pay a more experienced federal lawyer — and rightly so — but people with a limited budget will be willing to take a flyer on a green criminal-defense lawyer who will work hard to do a good job. (You’re not just coming over to federal court to make money, are you? Well, are you?) Instead of trying to convince the potential clients that you know your stuff, show them that you’ll work harder than anyone else.

Work harder than anyone else. Study hard. Observe. If you don’t work hard, you’re going to do an incompetent job. Apply for the CJA panel, and take advantage of the Federal Defender’s training programs for panel lawyers. Go to every federal-specific CLE program you can afford. RTFM. Get Georgetown Law Review’s Annual Review of Criminal Procedure. Browse it frequently. Get a copy of West’s Federal Criminal Code and Rules and carry it with you to court. You may be the only lawyer in the courtroom with the book. Get the Sentencing Guidelines Manual, read it and understand it. Get a copy of Defending a Federal Criminal Case, by the Federal Defenders of San Diego, and refer to it often (word is that there is a new version in the works).

The easy way out of a case is to get the client to plead guilty. The sad truth is that most clients need to plead guilty.

There is a happier truth, though. Write it on your bathroom mirror. Put it on a sticky on your car windshield. Print it on a card, and put it in your wallet. Make it the screensaver on your computer:

Many federal defendants need jury trials.

If you try a case for a guy who should have pled guilty, his punishment is likely going to be somewhat higher than if he’d pled (an extreme example of the disparity between plea and trial: today I pled a guy guilty to an agreed 60 months on a kilo and a gun; if he’d gone to trial and lost, his sentence would have been at least double that). Pleading a guy who should have gone to trial is much more costly: he’s going to go to prison when he should have walked. If you don’t consider a federal jury trial an option, if you plead every case, you are screwing some percentage of your clients (5%? 10%? 20%). (If you didn’t consider a plea an option, you’d be screwing more of your clients less severely. But who doesn’t consider a plea an option?)

Whether a defendant should plead or not does not depend at all on whether he is “guilty” or not. The only thing that matters is whether the government can prove its case beyond a reasonable doubt in the face of all the resistance you can offer.

Not knowing squat, you don’t have any way of knowing if the government will be able to prove its case beyond a reasonable doubt in the face of your greatest resistance. So how do you learn which cases to try? Sit second with someone else who is not a newbie. Do so at every opportunity. I have second-chair counsel at every trial, and I still sit second whenever I get a chance. Do it pro bono if necessary. Offer to sit second on CJA cases — sometimes the court will pay for a second-chair lawyer who is not otherwise qualified to be on the CJA panel. When those special clients hire you, get someone else who is not a newbie to sit second with you. Split your fee with her if necessary.

If you can get on the CJA panel, treat appointed cases no differently than you would hired cases. Many of my jury trials, and some of my greatest wins, were on appointed cases. (I would bet that indigent defendants have jury trials more often than paying clients.)

Find mentors. I’ve said before that the criminal bar is very supportive. Sure, we federal criminal defense trial lawyers don’t much care for the idea of a glut of newbies in the U.S. Courthouse, but all of us were newbies ourselves once, most of us would prefer that the newbies not be entirely incompetent (you’re probably going to wind up representing a codefendant, and we’d rather not have you screwing up our defense), and many of us are willing to help you become competent. If you can’t find anyone local, email or call me. (Someday I may be trying a case in your district, and you’ll be representing a codefendant; I sure would appreciate it if I don’t have to babysit you to keep you from inadvertently torpedoing both of our clients.)

If you haven’t already joined your local criminal defense bar (why not?), do so now. Find the helpful experienced federal defenders in your area (speaking of which: make friends with the lawyers in your local federal PD’s office; many of them are better lawyers than you will ever be, and they too want to help you become competent) and don’t be shy about asking them for advice.

Even when you think you’ve got a case figured out, ask a mentor for his take on it. Before your client pleads guilty, run the facts by someone more experienced than you and see if she concurs with your judgment. Until you have tried several federal criminal cases to verdicts, getting an experienced lawyer to check your work should be part of the due diligence that you perform on every case.

Finally (for now): You’re going to make a fool of yourself in court. Making a fool of yourself, if you’re aware of it, is inevitably a learning experience. Get over your bad self.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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