SuperLawyer 2018: Rising Star

For the past four years, Damon Chetson has been named a Super Lawyer: Rising Star. The recognition is given to fewer than 3 lawyers out of 100. In addition, Damon was named a Board Certified Specialist in State and Federal Criminal Law in 2016 as a result of his experience and reputation. Fewer than 100 lawyers statewide are Board Certified in Criminal Law.

Can me and my friend / wife / co-defendant hire the same lawyer?

Can a criminal defense lawyer represent co-defendants who may be charged in the commission of the same crime or series of crimes? The answer is a qualified, “Yes,” provided that there are no conflicts between the defendants that require the attorney to choose which client to more vigorously represent.

As a practical matter, it is rarely advisable for an attorney to represent co-defendants charged in the same crime or criminal conspiracy. The reason is that while it may not be apparent at the start of representation, conflicts can often develop.

For instance, if a prosecutor offers one co-defendant a favorable plea in order to testify against the other defendant, the two parties have been placed at odds and a conflict has created.

Or, perhaps, one person has given a statement to police that may tend to incriminate the other (or both) defendants. In that case, a Bruton issue exists and a single defense lawyer representing both defendants may be compromised.

In addition, attorney-client privilege is less secure when the attorney represents two criminal defendants in the same case, since, if one client confides information to an attorney that hurts that client, the attorney may be compromised and in a position where that information reaches the other client.

A conflict can be as simple as an issue related to mitigation – one defendant pressured another into doing a criminal act, or that the attorney needs to argue in sentencing that one defendant’s conduct was more egregious.

If you have a case in which you and a loved one may be charged, run, don’t walk, from the office of an attorney who says he can easily, ethically, and properly represent you both.

It’s all in the “if” – How to interpret what lawyers say…

Reading and posting on Avvo is a treat. Avvo.com is a website that allows lawyers to answer questions from anonymous people about their legal issues. It also gives lawyers rankings, based on various criteria that are run through some kind of secret algorithm. I don’t understand it. But I do post on Avvo occasionally.

Increasingly, though, I get the sense that Avvo is a waste of time. People ask the same questions, rather than search the archives. People get themselves into further trouble by posting very specific details and admissions about their cases. Avvo basically violates two rules of criminal defense practice. You need to pay a criminal defense lawyer ultimately for advice. And the criminal defense lawyer is going to almost always instruct you to keep your mouth shut, and fingers off the keyboard. In other words, Avvo, being a free forum and a place where people can confess in detail, is not a particularly helpful website from people facing criminal charges.

But another issue comes up on Avvo, and, even, when I’m talking to someone about their criminal case. And that’s this phenomenon: In an “If… then…” sentence, lawyers focus on the “If” and people focus on the “then”.

For instance, consider this question that was recently posted on Avvo, but which I’ve tweaked to take out some of the identifying characteristics so the person’s confession doesn’t get him into further trouble.

I’ve stolen $10,000 of merchandise from my employer, a big box retailer. My employer says they will not be coming to court. Will my case be dismissed.

The answer to that question is, probably, along the lines of “If your employer does not come to trial and the state cannot prove every element of the crime, then you will win the case.”

Or how about this question, which I frequently get asked in Domestic Violence situations: “I don’t want to go to court to testify against my [boyfriend, girlfriend, husband, wife]. Will [his, her] case be dismissed?”

The answer to that questions is probably, along the lines of “If no witness to the assault testifies at your trial, then you will likely win the case.”

Note that my answers are not advice here on the Interwebs. Rather they’re mean to show the contingent nature of answers that lawyers give when posed with questions. In other words, given certain facts and what I know about the law, then you can anticipate certain outcomes, although no guarantees can be made.

People tend to focus on the last part of the sentence fixating on the outcomes I’ve described rather than the “if” part of the statement that sets out the conditions that must be fulfilled for that outcome to “likely” happen.

Let’s take one final common example. Someone might give me a litany of facts from a DWI stop. Then they will ask me what I think the outcome will be. My answers are always contingent. First, I explain that no particular outcome can be guaranteed. I don’t guarantee outcomes for two reasons. First, it’s a violation of the Rules of Professional Conduct. And, second, it’s unfair to the client or prospective client who needs to have a realistic view of the law and the criminal justice system.

The DWI scenario is particularly problematic because I am almost always getting a partial story. That’s because, whether or not my client was impaired, a lot of things happened that night. There was an initial conversation with the officer. There were field sobriety tests. Maybe a Preliminary Breath Test (PBT) was administered. All the while, the person was under extreme stress. They were then transported to the jail or a police station where, in many cases, they were read rights, and had to decide to blow into a machine. Maybe they requested a witness. Maybe the didn’t. Maybe they don’t even remember whether the officer requested a breath test.

Now 24 hours later – or a week later – when they call me, I ask them what happened. Even in the best of circumstances, it’s tough to remember exactly what happened.

My clients give me a version of events that may be accurate, but may not be accurate. The possible outcomes I describe, as I always explain, are contingent on the “If,” not the “then”. “If what you tell me is accurate, then these are the possible outcomes…”

So when you talk to a lawyer, or seek out a lawyer’s counsel, listen carefully to what’s being said, including the “If” part of the sentence. Because then “then” is only true if the “if” part is also true. And no outcomes can be guaranteed.

The Futurists and the Law

Cary criminal lawyerA few years ago I was featured in MSNBC in a story about solo’s practicing law. (I won’t link to it. It’s something of an embarrassment to me now. You can google it.) My basic point to the reporter was about the basic economic problems associated with law school. Even in 2011, I recognized that law school as currently constituted was by and large a waste of time and money. (That doesn’t mean legal training isn’t crucial, it’s just that you don’t get it in law school.)

I went on at some length about the structural issues related to law school, the bar, etc. that leave recent graduates relatively poorly trained, and yet eager to find a way to pay down debt and earn a living. I also explained in detail how I had and continue to put clients first, understanding that in the long haul the silly nonsense about virtual law offices overcoming the barriers to affordable legal services has turned out to be… silly nonsense.

What made it into the article was how well I had done in building a business. But the law isn’t just another business. It deals with other peoples lives and futures in a way that only a few other professions do – medicine comes to mind.

Law, like, I assume, medicine, is also the kind of profession where reading about the subject in a book is a poor substitute for actually practicing the law. There is no quick fix for actually doing the work, representing clients, appearing in court, drafting and arguing motions, negotiating plea deals, talking to law enforcement, interviewing witnesses, meeting with clients, cross-examining witnesses, picking juries and giving opening and closings statements. Similarly, there is no substitute for being in the courthouse, day after day, talking to fellow lawyers, meeting with DAs, and making appearances.

(Don’t get me wrong: there’s a lot wrong with the cost structure of a traditional law office that can be ameliorated by new technology including, in certain cases, virtual legal offices, and I’ve written about that. But this is not easy stuff, and it’s important that in trying to deliver legal services efficiently, you do not compromise the actual legal services delivered.)

The problem is new technology always becomes a way for quacks and charlatans to prey on the unsuspecting, whether they be poorly informed clients or desperate under-employed lawyers trying to earn a living. You can go back to the Middle Ages to find alchemists trying to find a cheap and easy way to come up with gold. Ultimately, you have mine it.

On this score, Scott Greenfield makes an excellent point, to wit:

Stephanie point[s] out to me that there are two words that never find their way into the heads of these lawyers who are dedicated to their marketing and futurist delusions: client service. One group[] believes that the only reason for lawyers to exist is to serve their clients. The other believes that clients exist so lawyers can get paid. It’s a fundamental philosophical difference. They deny it vehemently, because their religion demands it. There must be a new way, a cool way, an easier way, a faster way, a better way. There must be.

The Logic of the Innocent Client

Raleigh criminal defendantsEveryone deserves a vigorous defense. In many cases, a person has committed some kind of crime, has been arrested, and has, usually, made admissions or confessions. In such cases, the criminal lawyer’s job is to limit the damage, assess the evidence, and, along with the client, build a defense.

Sometimes limiting the damage means making an early and full admission of guilt, paying restitution, and entering a diversion or deferral program.

Other times, even though my client may have some responsibility, the police or prosecutors lack the necessary evidence to convict. As everyone knows, in order to prove someone guilty, the State must ultimately convince 12 jurors to unanimously find that the case has been proved beyond all reasonable doubt. In other words, the State must entirely convince or fully satisfy all 12 jurors.

A crucial part of building a successful defense is to hire a criminal defense lawyer early in the process, and to avoid making any statements at all to police. Trying to look like the “good guy” or to explain innocent actions is a recipe to talk yourself into a criminal conviction.

About a third of my clients are entirely innocent of the criminal charge. These are clients who have committed no crime. They are wrongly accused or under suspicion because they may be related to the victim, or because the victim has lodged a complaint, for whatever reason.

They are not just “not guilty. They are innocent.

Unfortunately for them, if investigated or charged, they must go through the same process as everyone else. In addition, because they are innocent, there is usually no compromise that can be worked out.

While roughly 95 percent of all criminal cases in the United States end in a plea bargain, for innocent clients there is obviously a great deal of reluctance to accept a plea bargain because, in fact, they did nothing wrong. This creates enormous pressure on innocent defendants because while they may in fact be innocent, the cost of going to trial and losing can be catastrophic.

Defending the innocent is hard, not just for the innocent person who, through no fault of his own, find himself accused of a crime he did not commit. But also for his family, friends, children, and associates.

Should I hire a lawyer or get a court appointed lawyer?

Hiring a lawyer is a difficult decision. Many people are intimidated or nervous when first talking to a lawyer. If you call us, you will talk to a legal assistant who will answer basic questions and, if you wish, schedule an appointment, or you will talk directly with a Raleigh criminal lawyer. We offer free consultations.

I often am asked, whether someone should hire a lawyer, or should request a court appointed lawyer or public defender.

First, it’s important to note that public defenders – that is the lawyers who are employees of the Wake County Public Defender’s Office – are dedicated professionals who work hard for their clients. Some people are under the misapprehension that they are not lawyers, or not good lawyers.

Nothing could be further from the truth. Just there are good and bad in any profession, there are excellent lawyers who work for public defender offices, and also lawyers who are not as good. There are also excellent private lawyers, and also private criminal defense lawyers who are not very good.

The issue, generally, with public defenders is not whether or not they are good lawyers, but case loads. Lawyers who work in public defender offices often have very high case loads, which means that they may not have as much time to devote to each individual client.

If you are not appointed a Public Defender, but request a court appointed lawyer, you will be assigned a lawyer from the appointment list. In Wake County, the Indigent Defense Service has established contracts and put them out for bid.

In the case of misdemeanors, a private lawyer who has a contract unit for court appointed cases is likely to receive 100 or more appointments over the course of the year-long contract, during which he is paid $17,000.

While $17,000 seems like a lot of money, it is not when you consider that at 100 cases, the average payment per client is $170 per case. Given that it may take an hour or two to resolve a misdemeanor case – and in many cases, I spend much more time on a misdemeanor than that – an attorney on a misdemeanor case is making approximately $50 to $60 an hour.

Given that the lawyer must pay taxes, staff, travel expenses, the effective payment per hour on a misdemeanor case is likely not much more than $10 or $15. Of course, these figures are guesstimates, and some lawyers may make slightly more than that.

The result is that court appointed lawyers are woefully underpaid. And public defenders are woefully overworked. While there are great lawyers out there who do dedicated work to help their clients, it’s important to consider these issues when you decide whether you want to hire a lawyer or apply for a court appointed lawyer.

Questions to Ask a DWI Lawyer

Finding the right lawyer to represent you in a Raleigh DWI case can take some effort. What questions should you ask to find the right DWI lawyer?

First, it’s important to understand that most people have little or no idea how to hire a lawyer. The same goes for hiring a mechanic, doctor, accountant, or dentist.

Some ways to determine whether someone has a good reputation is to ask around. But if you don’t know anyone who has used a criminal defense lawyer (and it’s typical for people to not talk about their criminal charges), you need to look for other signs of an effective lawyer.

  1. The school the person went to – I graduated from the University of North Carolina, Chapel Hill, the top public law school in the State.
  2. Word-of-mouth references (see mine here on Avvo and here on Google)
  3. Ratings (Avvo) and Better Business Bureau
  4. Affiliations – I am a member of the National College of DUI Defense, the National Association of Criminal Defense Lawyers, and the North Carolina Advocates for Justice
  5. Training – I have attended the same Standardized Field Sobriety Training (a 24 hour course) that law enforcement officers attend. I have attended numerous continuing legal education seminars on DWI and DUI defense, including on the Intox EC/IR II, blood testing, and DWI detection.

But sometimes you need to interview the lawyer yourself to find out whether the person is the right fit for you. Because the practice of DWI law in North Carolina is unique – this is, frankly, one of the worst states to be charged with a DWI – you need to think about how to hire a North Carolina DWI lawyer.

What are some questions you should ask?


  1. How many cases do you take to trial?
    • While your case may never go to trial, you want to consider a lawyer who fights cases. Since you’ll be relying on his or her judgment about the possibilities for a successful outcome when going to trial, you should ask how frequently the person takes matters to trial.

  2. How many cases do you take to jury trial?
    • North Carolina has a two-tiered trial system. DWIs are misdemeanors, meaning that they are first handled in District Court. Your case may be a good case for a jury trial. It’s important for you to consider hiring a lawyer who takes cases to jury trial, especially if your case may be a case worth litigating in front of a jury.

  3. Do you use experts?
    • Most DWI cases never involve expert testimony by the defense. But you want to be sure your defense lawyer has used experts in the past, and has a network of experts to draw from because your case may be one that would benefit from an expert.
  4. Do you focus your practice in the county where my DWI was charged?
    • In North Carolina, your case will first be resolved in District Court. That process may take 6 to 9 months. It’s important that your DWI lawyer be familiar with the local rules of practice in that county. I do the majority of legal work in Wake County. I am familiar with the local practices, the judges, the prosecutors, and the other staff in the Wake County Courthouse.
  5. Does the lawyer you’re interviewing seem hurried or inconvenienced? Or does he or she take time to answer your questions?
    • Hiring a lawyer is a big financial decision, and an important step in handling your case. Does the lawyer, or law firm’s legal staff seem too inconvenienced to deal with your case? Do they take time to answer your questions before you pay them money? If so, you may want to avoid. We offer a free consultation of a half hour or more by phone. In addition, if you want to meet us in person, we ask that you bring money prepared to hire us, but if you decide upon arriving that you aren’t comfortable hiring us, we don’t charge you for the time.

  6. How many DWI cases does the lawyer handle?
    • DWI law is a different from other areas of criminal law. A lawyer who does a lot of traffic tickets may be a fine traffic ticket lawyer. But you certainly want to consider carefully whether a lawyer who handles only a few, or who has limited experience with DWIs, is the right lawyer with you. In addition, a lawyer who has practiced in other states may be unfamiliar with North Carolina DWI practice, which is unique. You may want to avoid a lawyer who has practiced elsewhere for years, and recently moved to North Carolina.

  7. Does the lawyer handle high stakes DWI cases?
    • While your DWI may be a garden variety DWI, it is important to you. But you should consider hiring a lawyer who has handled very high stakes DWI cases, including felony DWI cases. Such a lawyer is likely to be more familiar with the ins-and-outs of DWI law, including all possible defenses.

These are only some of the questions you might ask or consider when selecting a Raleigh DWI lawyer. Don’t be afraid to ask questions. It is one of the most important decisions you will make.

When Not to Go Pro Se

The phrase “A man who is his own lawyer has a fool for a client” is pretty apt – even if you’re a lawyer representing yourself in court.

It never makes sense, not just because any representations you make to the court about your own conduct can be admissions that can be used against you later on.

But too often people act as their own lawyers. Every day I see pro se defendants – Latin for “representing yourself” – in the Wake County Courthouse, merrily pleading themselves guilty to what they believe are minor crimes, taking plea deals from the District Attorney that are not very good, or making admissions and getting into hot water with judges by speaking out of turn.

At the very least, many people who represent themselves in court, even in misdemeanor criminal cases, end up getting worse results that, in the long run, will cost them much more than had they paid what, in retrospect, turns out to be a very reasonable fee for a Raleigh criminal lawyer.

In some cases, people plead themselves guilty to crimes they could’ve avoided. They create criminal records where none existed. They make terrible, life-altering mistakes that only reveal themselves later when they apply for a job.

Do yourself a favor. Hire a professional Raleigh criminal lawyer.

There’s another phrase: “Penny-wise, pound-foolish.”

CONTACT

NO PRESSURE.
SPEAK TO AN ATTORNEY.
NO HIDDEN FEES.

* All Fields Required

Call

(919) 352-9411

office hours
  • Monday 8am-8pm

  • Tuesday 8am-8pm

  • Wednesday 8am-8pm

  • Thursday 8am-8pm

  • Friday 8am-8pm

  • Sat & Sun 8am-8pm

connect

CONTACT

NO PRESSURE. SPEAK TO AN ATTORNEY. NO HIDDEN FEES.

  • * All Fields Required