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Public Defender versus Private Attorney

Posted by attorney Kevin Guyette

YOU OR A LOVED ONE has been arrested, and assigned a public defender. You are worried: should I hire a private attorney ? Is this public defender going to get me off ? What are my chances ?

A PUBLIC DEFENDER often, but not always, is a member of a public defender's office. That means that they are a member of a trial law firm whose job it is is to represent people charged with crimes. They receive initial training in criminal procedure, penal law, and evidence. They are constantly updating their skills. They have colleagues to confer with, and resources such as brief "banks" for research. Because they are involved so much, they interact with the DA's office, so they know each other, which can be a plus in plea negotiations. They can be overloaded, and overworked, and inexperienced. Perhaps their class rank isn't the highest, or perhaps they were tops in their class. They do not deserve the scorn they receive, however, merely from the fact that they are "Public Defenders". Many times you can do far worse.

PRIVATE COUNSEL will have to be paid an initial retainer, and perhaps additional retainers from time to time as they work on your case. The quality of their work depends on experience and training. Perhaps they were former public defenders, or assistant district attorneys. Merely because they are private does not mean they are not overworked either. Experience is a key, you get what you pay for, and an attorney who fights for you may not be as charming as you might like. If you want a warrior, accept him/her as that. If you want someone to hold your hand, paint an unrealistic picture and answer your questions seeking predictions, expect to pay a lot for little or no results. Merely because they are private does not mean quality; ask court staff if you can. Additionally, a solo practitioner can be the best, so don't gravitate towards a medium or large firm just for size sake. A solo practitioner may be solo beacause they cherish independence, and truly understand the importance of freedom. Perhaps their attitude turns other attorneys off from working with them in an office, but it is this persona and attitude that establishes the reputation you want: a thorough, careful workhorse that fights and fights and exhausts themselves in their effort to persuade on your behalf.

ASSIGNED COUNSEL isusually a private attorney,and can be a godsend or a nightmare. You have a right to counsel, not necessarily a particularly gifted attorney, so you get what the court assigns. A godsend may be more than you could ever afford. A nightmare could be a real estate attorney assigned to a capital murder case. Ask pertinent questions as to background, and if you have a nightmare, petition the court for someone experienced. Even if you don't get a new attorney, you will have made a record for an appeal on ineffective assistance of counsel.

WHAT ARE MY CHANCES ? You are not in Las Vegas. You don't get percentages on what will happen. You are also not in a fortune teller's chamber getting a reading. An attorney can tell you what steps will occur, and discuss strategy and proposed motions. The outcome of your case depends on a number of factors: the quality of the evidence against you, and whetherit is in admissible form; the severity of the charge; the DA's policy towards this crime; (Yes, DUI/DWI IS a crime); your background; prior record; social/family history.

CAN THE RIGHT ATTORNEY MAKE A DIFFERENCE ? ABSOLUTLEY. THERE IS NO SUBSTITUTE FOR EXPERIENCE OR ATTITUDE. Knowing what motions to file, and when is crucial. Knowing when to fight, and when to accept a deal is very underrated; they have been here before, you haven't. How do you know what is a good deal, what do really have to compare to ? If you proceed to trial, how does this attorney prepare ? Knowing what questions MUST be asked, SHOULD be asked, and what to stay away from are critical. Keeping their evidence out, and getting yours in is a key. Having a quality theory of the case is important. Attitude drives results, and persuasion is the key. Your attorney might not even like you or even be likable but if he/she fights for you,that is what you want.

Additional resources provided by the author

If possible, go to the courthouse and ask personnel about a particular attorney. Since they have been in court and have seen the attorney "in action", they can give an opinion. The books and the internet don't always tell the whole, or even accurate story.

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