This week was a rough week for appellate outcomes for a few appeals where I wrote the briefs. I learned a long time ago – sometimes you just cannot make the sick chicken better and it sucks for the clients who had less than optimal representation at the trial level or had good appellate issues that the appellate court simply punted on (because they can). Elections have consequences – and this applies to judges as well.
Obviously, I was not the original trial attorney and I do not own a DeLorean with a flux capacitor – I cannot go back in time to change what was done at the trial level and fix the problems. Unfortunately, appeals are a difficult undertaking regardless of what everyone perceives may have happened in the trial court. And I caution that “perceives” is the operative word. What may have gone wrong is meaningless to the appellate court if not properly preserved for review.
Error preservation is penultimate in an appeal because the appellate court will presume that the trial court is correct until and unless the party challenging the decision shows otherwise. There are so many reported cases that start off with something to the effect that the appellate court might have granted relief if the error was properly preserved for appeal.[i]
The choice of a trial attorney is the most crucial decision that a criminal defendant and/or their family can make. The better the trial attorney most likely the better quality of the representation. This is not to say, that the outcome will be better. Every criminal case is absolutely driven by the known facts.
In my experience, a defendant usually cannot outrun or outlive bad lawyering. While mistakes may be made because we are all human, a bad lawyer seems to cause more heartache and headaches for the accused by making too many “boneheaded” mistakes, is ignorant of changes in the law, or simply does not care and wants to just close the case (and collect his/her fee).
Obviously, the criminal defense attorney should get paid for their skill, ability, knowledge, and passion. Like everyone else, the criminal defense attorney does not work for free and should command a fee commiserate with their worth. Make no mistake, a good criminal defense attorney is worth their weight in gold.[ii]
When hiring a criminal defense attorney, there is no substitute for experience and knowledge. There are those criminal defense attorneys that are super at handling driving offenses like DUI and reckless driving but would be completely lost handling certain serious felonies like burglaries or robberies. Other criminal defense attorneys are fantastic in federal court but would be utterly lost in state court (and vice versa). There are those criminal defense attorneys who are exceptional at defending narcotics offenses but would be lost handling traffic homicides like DUI manslaughter or vehicular homicide. And yet other criminal defense attorneys specialize in major crimes like homicides and sex offenses. Pay attention to what types of crimes and offenses the attorney typically handles. No attorney handles them all and if they do – be scared, very scared. If the attorney lists a huge, long list of offenses that they can represent someone on, then the hair on the back of your neck should be standing up that something is wrong. This should be a flashing warning signal that this attorney is purely marketing to a google algorithm to drive business to his/her website.
Be very suspicious of marketing. I cannot reiterate that enough. There are a bunch of companies that have popped up recently that want attorney businesses to make money marketing the attorney on the internet. These companies base ratings on all sorts of silly criteria that are meaningless to the average person looking for a criminal defense attorney. Be cautious of official-sounding accolades and awards from various organizations. Google the accolades and awards. Find out if these accolades and awards are truly presented as an award for outstanding work or can an attorney sign up, pay a membership fee, and get listed as a “super litigator” or “up and coming defense attorney under 40,” or whatever. Usually, these accolades and awards are simply paid-for marketing and have nothing to do with any specific skill level of the criminal defense attorney. Lastly, be very wary of the prosecutor turned defense attorney. While it sounds impressive, there are not many prosecutors who can transition to criminal defense effectively. Think of it this way – Tom Brady is an amazing quarterback. Do you think he would make an amazing linebacker if he switched to defense? The question scarcely escapes its own statement.
A good criminal defense attorney has a firm understanding of the rules of evidence and procedure. They know these rules inside and out and recite some of them verbatim. They will also know the elements of the offenses and the applicable penalties for the offenses they typically handle in court. If they try to get into a new lane and represent someone with a different offense that they normally do not handle, they bring in someone with the skill set to assist them. And they will not be afraid to say, “I do not know the answer to that question but let me research it and I will get you an answer as soon as I can.”
A good criminal defense attorney will explain things to a client or potential client in such a way that the person understands and patiently continue to explain things until the client gets it. Otherwise, what is the point? A good criminal defense attorney will sit down with the client and review the known facts and come up with a mutually acceptable plan for the representation. Depending on the facts and the client’s desires, these plans can range from working out a plea bargain resolution with the prosecutor to trying the case before a jury. The plan and strategy for the resolution depends on several factors that the attorney can discuss with the client and his/her family. Everything depends.
There is also a human element to a criminal defense. The accused is a person. Usually, the accused has family and friends that care about him/her regardless of what the allegations might be. A good criminal defense attorney recognizes this and tries to nurture a relationship with the client and his/her family in order to better serve the client. While it might not be in the book definition of criminal defense, it is my book regarding criminal defense that people need to be treated right and that starts with honesty and integrity in discussions about the case and treating people with dignity and respect they deserve for being human (regardless of what they are accused of or may or may not have done).
A good criminal defense attorney is not afraid to show his/her work. Like hiring an applicant for a job, request references or a resume or have the attorney show some of his/her prior work experience and outcomes at trial or on appeal. Have them show you what their work looks like in terms of a motion or brief. Ask yourself does this attorney’s work present as professional or does it look like a fifth grader threw it together the night before the science project was due? Do not be afraid to ask questions of the attorney and make them earn your business. Any criminal defense attorney worth their salt will welcome the opportunity to show you what they can do.[iii]
I am in the minority on this, but I passionately believe that a good criminal defense attorney also handles criminal appellate matters. Prove me wrong, but I have learned that a good criminal defense attorney strives to be a good criminal appellate attorney and vice versa. This is where the practice of law meets the study of the case law (referred to as precedent). In my experience, the best trial attorneys are often excellent appellate attorneys because the attorney understands what is required for the trial court and the appellate court. And make no mistake, sometimes what might be entertaining in a trial court is useless in an appellate court.
Lastly, unlike doctors that must be able to pass practical exams to be licensed (as well as all sorts of other practical and knowledge requirements), all the attorney has to do is pass the bar exam. Florida requires that a candidate to be a medical doctor show all sorts of skills and knowledge before they can become a licensed medical doctor. They must show knowledge of certain skills, diagnoses, and how to suture …etc. Florida has no such requirement for attorneys. All bar candidates must show is that they studied for a test (and a character test) and that is it. There is no practical requirement or extended residency or apprenticeship to ensure the attorney knows what they are doing. Once a person passes the bar, they are deemed ready and off they go. AND MANY PEOPLE IN FLORIDA SUFFER BECAUSE OF THIS because the attorney is incompetent.
Do not let this happen to you. Ask questions. Get answers. Make informed decisions.
Anthony Candela is the Trial Dog and a three-time Board-Certified criminal trial attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog @candelalawfirm @thetrialdog
THE CHOICE OF ATTORNEY MATTERS. IN A CLOSE CASE, YOU WANT EVERY ADVANTAGE YOU CAN GET. YOU WANT THE BEST YOU CAN AFFORD. If you are looking for representation in a criminal matter, criminal appeal (either state or federal), or estate planning, we believe we can help you. Please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your case.
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No. 22-03 Sick chicken
[i] In Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005) (emphasis omitted), this Court “stated that proper preservation entails three components[:]”
First, a litigant must make a timely, contemporaneous objection. Second, the party must state a legal ground for that objection. Third, “[i]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.” Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982) (emphasis added); accord Rodriguez v. State, 609 So. 2d 493, 499 (Fla. 1992) (stating that “the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal”).
“The purpose of this rule is to ‘place[ ] the trial judge on notice that error may have been committed, and provide[ ] him an opportunity to correct it at an early stage of the proceedings.’ ” Id. (alterations in original) (quoting Castor v. State, 365 So. 2d 701, 703 (Fla. 1978)).
Similarly, section 924.051(3), Florida Statutes (2014), provides that “[a]n appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error.” And section 924.051(1)(b), Florida Statutes (2014), explains that “ ‘[p]reserved’ means that an issue, legal argument, or objection to evidence was timely raised before, and ruled on by, the trial court, and that the issue, legal argument, or objection to evidence was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.”
State v. Wiley, 210 So.3d 658 (Fla. 2017)
[ii] No attorney can guarantee any specific outcome, but the better the attorney in terms of knowledge, skill, ability, and passion for the representation, the better the outcome – usually. Obviously, all criminal cases are driven by the known facts. Sometimes the facts are so terrible that Clearance Darrow, himself, couldn’t change the outcome.
[iii] If you cannot afford to hire a privately retained attorney and are appointed an attorney from a public defender’s office or the like, then these criteria apply just the same. Ask the attorney about their experience and skill. If you are not satisfied with the answers you are getting about their skill and experience, then request a supervisor. Get your answers. Like anything else in this world, there are some very skilled and passionate assistant public defenders and then there are some who are simply collecting a paycheck.