Today, the area of DWI defense is dominated by bigger firms specializing in only DWI defense and practicing in numerous counties. A few firms now advertise and practice throughout the country. While specialization has had obvious advantages to clients, it has also sometimes stretched attorneys’ level of expertise onto shaky ground. As the local attorney expands his practice into new courts, he can be at a serious disadvantage if he is not sufficiently versed on the nuances of local practice. Despite everything, effective DWI defense remains – perhaps more so than the defense of any other crime – predicated on the intimate knowledge of local court practice. In other words, DWIs are not handled the same in every court.
Every attorney, fresh or ripened, has learned some variation of this lesson regardless of the purpose for being in a new court. I still find myself clumsily stumbling along in courts in which I lack familiarity. While an attorney can’t be expected to have intimate familiarity with every court, much of what clients facing DWIs are paying for with their hard-earned dollars is that very familiarity-that security that comes with the knowledge that your attorney has been there/done that before. In fact, with the abundance of television shows and movies depicting defense attorneys, clients expectations have now expanded often beyond what is practical. While attorneys are fast becoming “new-school”, clients still think of them as “old-school”. A client arrested for DWI expects his attorney to know the names of the Court’s clerk, the judge’s clerk, the Court’s deputies and the Court’s stenographer. Ideally, the attorney contributed to the judge’s last election campaign or, better yet, was on the campaign committee. He pictures his attorney having lunch with the judge and sharing old war stories during side-bars.
While some of this is exaggeration for the purpose of making my point, you’d be surprised how much of this is true. When I speak with a prospective DWI client for the first time, one of the first questions usually asked is whether I know the judge. And the second question is: “What will the judge do in this case?” This is the very reason why I’ve always believed former prosecutors have an inherent advantage over younger defense attorneys; they’ve simply been in more courts and know more judges. They can simply say, “In my experience… ” before the remainder of their answer.
Have you ever wondered why big law firms pay a lot of money to beautify their offices, particularly their reception areas. When I practiced at Harris Beach, PLLC, I was greeted my the warm glow of a fireplace each morning I walked through the door. Or have you ever wondered why many defense attorneys (Myself included) wear tailored suits and pocket squares? The answer is simple: At least when it comes to criminal defense, appearance earns and keeps more business than actual substance. If you can articulate well and exhibit confidence inside the four walls of the courtroom, you will earn the confidence of your client. And if you have the confidence of your client, you will probably please that client even when you are unable to beat the charge.
With this in mind, an attorney cannot lose the local perspective when it comes to DWI defense practice. There’s nothing more embarrassing to an attorney when he walks into a new court, the client sitting patiently in his seat watching your every move, and you have to ask the court’s deputy whether you need to sign-in or, worse yet, you proceed to confuse the public defender with the assistance district attorney. Nothing screams “I’ve never been here before!” louder.
Unpredictable Justice Rulings
In most states, prosecution and defense of a DWI always starts out in a local justice court – usually a town, village, or city court. These courts can be in towns having populations of 100 people or 10,000 people. Many of these courts are in little backwater areas of the state. They usually meet once per month for court, which is often held in a church, municipal building, or occasionally in the living room of someone’s house. These courts, like any other court, are presided over by a judge, called a “justice.” The justice is often not even a licensed attorney as there is no present requirement that a person be an attorney to qualify to preside over a justice court.
Thus, justices often lack uniform legal training and, sometimes, a basic understanding of the law and fundamental legal concepts. As a consequence of this, town court justices are sometimes less guided by the law than they are by other aspects of their background, such as their political affiliation or their membership in a particular fraternal order. This makes them less predictable and less likely to share the relevant traits of their fellow justices in surrounding justice courts.
This alone makes defending a DWI a unique challenge, particularly for defense attorneys or firms representing clients across counties, towns, and vast parts of the State. In my own practice, I have often relied upon local counsel in cases where I am unfamiliar with the judge and/or court. I strongly believe that to represent a client in an unfamiliar court without aid of local counsel can be a grave disservice to the client. There are simply too many aspects of a DWI case in local court requiring superior local knowledge more so than superior cross-examination skills.