My job as a criminal defense attorney involves a host of roles: counselor, negotiator, advocate, investigator, and more, if the situation requires. Classically though, an attorney is known as someone who practices law. But what does that mean?
Fundamentally, the practice of law is applying both the facts of a case and the law as written (or as, you argue, it should be) to obtain a desired result. Both facts and law are necessary. If you’re asking for the court to rule on a motion, merely reciting someone’s life story won’t get you anywhere. Similarly, reciting a few case cites and court rules, without explaining why they’re relevant to this case, offers nothing helpful either. A blend is required, and deciding which law and which facts are important, along with how to present them, is the essence of good lawyering, of practicing law.
With that in mind, we can see that having a strong legal knowledge is absolutely critical to successfully advocating. Where does this knowledge come from? A little is from law school, but law school is more about teaching research skills than just a mass of case law. And in law school, where you take a variety of classes, you might not get to delve too deep into what ultimately becomes your practice area. In addition, the law is constantly changing. An attorney who’s interested in staying on top of developments in their field needs to take active steps to stay current. Today’s post is about what I do to stay informed of evolving case law as a criminal defense attorney.
Trade organizations are groups of people who work in the same area or have similar ideological bents. I am a member of a number of these organizations, for a few reasons.
One, as a solo attorney, I have no one else in the office to bounce ideas off of. There’s a real danger of tunnel vision with no one to brainstorm with. These organizations maintain active listserves where attorneys dialogue about cases. I’ve asked plenty of questions, answered a few, and generally just appreciate “being in the room” with interesting email chains. I’m not ashamed to admit I’ve “flattered” many attorneys’ arguments in my own cases.
These organizations also regularly discuss new court cases, usually within the hour of them being published. These discussions are hugely insightful for evolutions of existing law, and again provide new strategies for current cases.
The groups I’m a member of include Washington State Association of Justice, the Washington Association of Criminal Defense Lawyers, and the National Association of Criminal Defense Lawyers.
Where do laws come from? Depends how you define “law,” which believe it or not has been debated for centuries. But for our discussion a law is a rule that binds the court to act in a certain way, given a certain set of facts. And under that definition a law will come from one of two sources: the legislature and court rulings.
The legislature is the classic example of how a bill becomes a law. Due to our Separation of Powers doctrine, a court is bound to follow these laws, so long as they don’t violate the constitution. But there’s another method of creation: the courts themselves.
Laws written by the legislature have a problem: real life creates situations that the laws don’t wholly address. This is in fact the purpose of the judicial branch, to interpret the laws written by the legislative branch. These “interpretations” are “law” in the sense they bind other courts. I’ll give an easy example.
RCW 9A.36.031 lists the elements for Assault in the Third Degree, of which there are a number. One of these, RCW 9A.36.031(1)(d), says Assault 3 is accomplished when a person “with criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm.” Criminal negligence is defined in another statute but what about this “weapon or other instrument or thing likely to produce bodily harm?” The statutes are somewhat silent.
This is where the courts come in. A couple years ago, in State v. Marahol, 246 P.3d 177, 170 Wn.2d 691 (2010), our supreme court had to address whether a floor was a weapon or thing within the meaning of the statute. In Marahol, the defendant was in a bar fight where he put the other person in a chokehold, causing the other person to slam to the floor and shatter his prosthetic arm. A jury found the defendant guilty of Assault 3 under these facts.
The Court reversed, saying a floor of a building was not such an instrument within the meaning of the statute. And now, in every court in the land, no defendant can be charged with Assault 3 for using a floor as part of an assault. The statute remains the same, but its meaning has been clarified, which I must emphasize here, has the force of law.
Given that similar cases come out all the time, it behooves the attorney to know about these cases as soon as they’re released. Most criminal defense lawyers, including myself, do this with advance sheets. The name is a holdover from when cases were exclusively on paper, rather than webpages and .pdfs like today. But the principle is the same. You sign up with the court, and when new cases are released they go straight into your inbox.
I get these emails whenever a case from the Court of Appeals for Division One, Court of Appeals for Division Two, Washington Supreme Court, or United States Supreme Court gets released. This can be time consuming, but considering how important they are, I consider it time well spent.
Mandatory CLE requirements
Like many professions, attorneys do not stop learning once they get licensed. Doctors regularly receive supplementary training and attend conferences on medical advances. Police offers receive additional training and certification on a variety of topics. And lawyers, as a condition of staying licensed, must receive so many continuing legal education (CLE) credits per term.
The amount of CLE credits, and the length of the term, varies state-by-state. In Washington, the rule requires lawyers to have at least 45 CLE credits every three years, and of that 45, six of those must be related to ethics. This rule is partially for lawyers, so they stay current in their field, and partially for the public, so they know their lawyers are indeed staying current.
The CLE requirements have created a bit of a cottage industry, in that a lawyer can spend a lot of money to meet the requirement. That being said, CLEs are often enormously educational. CLEs cover every topic under the sun, so that you’re fine only attending the ones that are relevant for your practice area. That means I attend ones related to traffic matters and criminal defense attorneys.
Finally the simplest route to staying informed: watching other people do it! Most of my clients’ court dates overlap with other people, so there’s a good chance I’ll be watching other attorneys work before my turn. This is a great opportunity to watch the proceedings, since it has a number of benefits.
The first is watching the judge I’m about to be in front of. If he or she has a preference, like she wants counsel to stand when addressing the court or she wants documents handed directly to them rather than the court clerk, it’s good to see and integrate that. And if there’s a plan of attack I was planning on using that just got shot down, it’s good to see that too.
It’s also good to watch other attorneys work. The practice of law allows a lot of personal style to come through, and it’s truly fascinating to see those styles from other professionals. And if I see something I like, I have no compunction on adding it to my repertoire.
Staying informed is an important goal for any criminal defense attorney. I take it seriously, because it’s absolutely crucial to getting the best results for my clients.