The Texas Prosecutor, November-December 2018

A prosecutor’s guide to the zombie apocalypse

(Or, how to survive when everybody in your office quits.)

    Rusk County is generally a pretty predictable place. Our jurisdiction is incredibly rural, with a population that’s been a relatively flat 50,000 people since 1940. The office consists of the elected County and District Attorney, one felony assistant, two misdemeanor assistants, two clerks, a victim assistance coordinator (VAC), and an investigator. On top of every criminal case in the county, we also handle Child Protective Services (CPS) cases and a sizeable chunk of the county’s day-to-day civil law issues. Our office is small, and while we all have a wide variety of responsibilities, each of us still maintains a relatively well-defined role.
    Up until fairly recently, our office, while far from perfect, functioned pretty well. Everybody understood his or her job responsibilities, and group success was prioritized over individual achievement. The whole staff got along well enough, even in those moments where we didn’t particularly like each other. We had been together for a solid three years and could have continued to get the job done for many more—until, within about two weeks of each other, both misdemeanor assistants unexpectedly resigned.
    Add to it that this massive turnover happened just before the birth of my daughter, Libby.1 Our office had a plan to deal with my absence for a couple of weeks, but losing both of the other ADAs in short succession threw all of that out the window. The plan had been for me to take three weeks of vacation to be with my wife and our newborn. While I was out, the other two ADAs would divvy up my day-to-day responsibilities while our elected handled trial docket and the wave of defense attorneys that accompanied it. We were able to replace one of the two assistants before Libby’s arrival, but we didn’t have quite enough time to truly get the new hire up to speed. In hindsight, things probably went about as well as could be expected, but in the moment, it certainly felt like we would be overrun at any moment.
    Suddenly, the stability our office had enjoyed for so long was gone. My elected, Mike Jimerson, and I could have been the protagonists of any number of zombie apocalypse movies. You know the script. One moment, the world is perfectly normal. Then something happens: The protagonist is in a car accident, gets shot, or suffers some other malady, and he is sent to the hospital and placed in a medically induced coma. He wakes up days or weeks later, only to learn that everything he knew before has been turned upside down because of a zombie invasion. Now he must learn how to survive in a strange new world where dear Aunt Doris has risen from the dead and wants to eat his brain.
    Mass turnover is exactly like that. Well, not exactly, but it’s surprisingly similar. When a sizeable percentage of a prosecutor’s office suddenly leaves, the survivors must band together and learn to thrive in a work environment that bears only a passing resemblance to the one that existed before.2 That’s the situation Mike and I found ourselves in this past summer when we were faced with the arduous task of covering the dockets for Rusk County’s various criminal courts plus hiring and training two new misdemeanor assistants. To say it was a learning experience would be putting it lightly. If we have to deal with mass turnover again,3 our implementation of the following “survival tips” will insure that our experience is a little less like Night of the Living Dead and a little more like Zombieland. I share them with readers with the same hope.

Preparing for doomsday
Dealing with massive turnover is not unlike dealing with any other disaster. If you wait until the event is upon you, you will most certainly fail. Success requires a little foresight, a lot of planning, and countless cases of Spam and potable water.
    The most important thing you can do to prepare for mass turnover is cross-train employees in the office. Cross-trained employees can step in at any time and perform the functions of multiple jobs. The smaller the office, the more important such training will be. Failure to properly cross-train between the attorneys in an office and between the attorneys and the various other staff members can be disastrous when you lose multiple employees in a short period of time. The consequences can be felt long after the departing employees have been replaced, especially in a small office.
    We are still dealing with problems from our lack of cross-training today, and we have been fully staffed for three months. I’m the longest tenured employee in the Rusk County District Attorney’s Office—I have been here since I was licensed in May 2011—and to this point I’ve been fortunate enough to have never been stuck doing the annual asset forfeiture report required by Article 59 of the Texas Code of Criminal Procedure. I considered myself lucky to have avoided that headache—that is, until a couple of weeks ago when one of our new hires asked me how to get started on it. All I could do was stare at her blankly and mumble something about my stapler.4 I should have been available to walk her through assembling the report, but our lack of cross-training reared its ugly head, and I had to tell her to look through the code and see what information the Attorney General’s office had available.
    Successful cross-training is more than simply knowing the responsibilities of the other members of your office. The goals for a cross-trained employee should be to 1) understand the responsibilities of the position for which they are training, 2) understand how each specific job function is performed, 3) understand why that particular step or process is necessary, and 4) be able to perform the job responsibilities competently with minimal supervision.

What do you even do here?
Keeping up with the job responsibilities is easier said than done. There isn’t an attorney reading this who doesn’t have a full plate. When it takes every bit of your eight- (or 10- or 12-) hour day, just to get your own job done, it can be really hard to take an earnest interest in what anyone else is doing. But understanding just how everybody else in your office is spending his or her days is essential, and time must be set aside to learn. Nobody wants to be trapped in a shopping mall, in need of a doctor but surrounded by zombies, and have to settle for a veterinarian.
    When it comes to learning someone else’s job, no one is going to be able to explain it better than the person who is already doing it. I strongly recommend beginning the cross-training process by having each employee write a comprehensive description of his or her responsibilities. I’m not talking about the paragraph or two that you would use when posting about a job vacancy. Each employee needs to draft a description of his job responsibilities with a level of detail that rivals that of a moody teenager’s diary.
    I recommend that the employee start the description by thinking about his job responsibilities on a month-to-month, then week-to-week, and finally day-to-day basis. By thinking on multiple levels, each employee is more likely to think about (and subsequently include descriptions of) his less-common job responsibilities. Here is a very abbreviated look at the first part of my job description.

Month to Month
January: Set CLE calendar for attorneys
March: Review and revise Citizens ­Prosecutor Academy (CPA) syllabus
May: 
•    Publicize CPA and get applications out (Week 1)
•    CPA applications due (Week 4)
June: CPA begins (it’s usually every Thursday for six weeks)
October: National Night Out
November:
•    Sign up all employees for open enrollment
•    Get with district court coordinator about next year’s trial calendar

Week to Week
Week 1 of each month
•    grand jury
•    trial docket
Week 2 of each month
•    subpoena cases for trial
•    prepare witnesses and victims to testify
•    arraignment docket
Week 3 of each month
•    Monday: voir dire (be prepared to select two juries back-to-back)
•    Tuesday: evidence begins
•    Thursday: begin second jury trial if possible
Week 4 of each month
•    Review cases set for grand jury
•    Work on appeals (if any)
•    Ride along with local LE if things slow down enough

Day to Day
First thing: Review court calendar for unexpected changes
Morning: Respond to emails and voicemails from night before
Afternoon:
•    Touch base with any witnesses needed for tomorrow
•    Return any casefiles left in my office back to file room

Breaking down my job responsibilities in this fashion lets anybody who might need to perform them know what they need to do, depending on when and how long they need to cover for me. Let’s say I unexpectedly miss the whole month of May next year, and one of the misdemeanor attorneys is tasked with covering for me. Because of the month-to-month description of my job responsibilities, my coworker will know that, in addition to simply managing the trial docket and court calendar, he will need to get the ball rolling on our Citizens Prosecutor Academy.

How am I supposed to do that?
Knowing what needs to be done is great. That knowledge is ultimately useless, however, if you don’t know how to get the job done. Some of what we do in our day-to-day jobs is so routine that it’s almost going to be self-explanatory. Someone filling in for me or, heaven forbid, replacing me doesn’t need step-by-step instructions for “responding to the previous night’s voicemails and emails.” But he or she will probably need instruction on assembling the asset forfeiture report for the county commissioners court.5
    The most effective cross-trainings will include the entire office (or pretty close). Don’t limit these cross trainings as “attorney only” or “support staff only,” especially in a small office, because every member of the office is a partner in achieving justice in the communities we serve. The more informed we are about the workings of the office, the better we can serve those communities.
    For example, our VAC is never going to walk into the 4th Judicial District Court and prosecute a Motion to Revoke Community Supervision. But the fact that she has received some training on the topic means that when I find myself in a time crunch, I can count on her to review the allegations in the motion to revoke and organize the necessary witnesses for me. Armed with knowledge that extends beyond her own duties, our VAC is also hugely important in getting our new attorneys up to speed. Because of the cross-training she has received, she can help those attorneys get through the situations that law school doesn’t quite prepare us for.
    The person conducting the cross-training should be familiar with the ins and outs of the topic, and the training itself should involve more than just lecturing your fellow employees for an hour. As you would in voir dire, be as conversational as possible, and don’t simply read from notes or a textbook. For a complex topic, don’t hesitate to utilize PowerPoint, and don’t be afraid to create graphs or charts within PowerPoint if they would drive home whatever you’re teaching. Handouts, “cheat sheets,” or sample documents go a long way toward improving memory retention, as do appropriate interactive elements. For some topics that require finesse, such as dealing with a difficult victim or plea negotiations with a pro se defendant, you might use role-playing scenarios. Other times, try fun quizzes or games to reinforce the lessons. For example, Tiana Sanford, an ADA in the Montgomery County District Attorney’s Office, hosted a game of “Jeopardy!” at TDCAA’s Civil Law Seminar earlier this year; it was absolutely incredible at keeping the audience’s attention and driving home the points she was making. Anything that can make learning easier and more memorable is worth the work it takes.

Why are we even here?
When cross-training an employee on a job responsibility that includes interacting with one of these groups, it’s important to explain not just what to do but also why. Teaching employees the why behind everything they do will help them avoid making an unnecessary mistake (or unnecessary enemy) when and if they attempt to improve a process—which is part of our natural bent as attorneys. Undeserved self-confidence is a common trait in our profession. Sometimes this trait can be an asset, especially when fighting for justice in a courtroom, but it can be a hindrance just as easily, especially when an attorney, upon undergoing some cross-training, thinks of some ways to change and improve the way things are done around the office.  
    This mindset can really be problematic because ignorance and inexperience, combined with our natural desire to improve things, can lead to mistakes of varying proportions, especially when people outside the office are involved. Judges, clerks, and court coordinators are creatures of habit and, in my experience, they are prone to completely shutting down when confronted with something new or different. Law enforcement officers, too, have protocol-driven minds, and a change in policy or procedure, especially one that makes their jobs more difficult, can result in unwanted backlash. Jurors, crime victims, and other community members typically have little to no legal experience and it’s likely that your office has clear protocols (that can’t or shouldn’t be changed) for interacting with them. “Don’t ever take a fence down until you know the reason why it was put up,” as President John F. Kennedy once wrote. He was quoting G.K. Chesteron, the famous Catholic thinker and theologian, who expanded on the idea: “If you don’t see the use of [a fence or gate across a road], I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”6

Boldly go where plenty of people have gone before
You can train employees until you are blue in the face and not really know how much of the message has sunk in. Employees are cross-trained so that when you lose an employee to private practice, another prosecutor’s office, or retirement, you have the next person (or at least a person) ready to step up and fill those shoes. You don’t want to wait until then, your moment of need, to see if cross-training worked or not. You need to assess your employee’s ability to handle the new job responsibilities long before you actually need them to step up.
    Depending on the task, you might want to toss them into the kitchen and see if they can handle the heat. Obviously, this approach should be used only where you can afford a mistake or where you have the time to completely redo something. Despite that, having the employee perform the task without assistance is probably the truest test of whether she has actually mastered the skill. Furthermore, the first-hand experience of making mistakes is the best teacher I have ever had.
    If this is the approach you go with, it’s important to extensively review the employee’s actions afterward. Remember, that employee is being trained so that, when needed, she can step in and competently perform those job responsibilities with minimal supervision, so a quick “Great job! Here are a couple of things to work on”-type critique might be doing your office (and that employee) a disservice. Instead, be thorough but fair in your evaluation. Clearly identify the employee’s mistakes, and work with her to correct them. I suggest going out of your way to make sure she knows that evaluating and critiquing her work is part of a development process, not a disciplinary one.
    For more serious responsibilities where accuracy or efficiency is critical, I recommend letting the employee shadow or second-chair another staffer who has mastered the task. Throughout the process, encourage the employee to ask questions. If possible, the trainer should offer commentary and ask questions to gauge how ready the employee is to handle the task on her own. Once the employee is ready to take a shot at tackling the task solo, it will once again be time for a thorough critique so that she can learn in preparation for the day when she might be thrust into the spotlight to handle it all by herself.

Hiring replacements
Say you’ve cross-trained everyone in the office to the best of your ability, and now any given employee’s absence, expected or otherwise, will not throw the entire office into turmoil—though inevitably, the work day is going to get a little bit longer and a lot more hectic as survivors adjust to the new world order. But you’ve got it covered.
    Now to bring in replacements for the open positions.
    First and foremost, our office learned how important it is to get the ball rolling on replacements as soon as practicable. Because our office is so small and the jurisdiction so rural, it was important we hire people who could handle the diversity of job responsibilities and whose personalities would fit in with our tightknit office. Initially, we took a narrow approach and posted the job only on our county website and Facebook page, the hope being that by keeping the search local, we would attract local attorneys. This did not happen. We had a couple of strong candidates from nearby offices submit resumes, but the salary ultimately turned them off. It wasn’t until we cast a bigger net that we found the right person for the job and, if we had it to over again, we would cast the widest net right from the start. We found success in posting to TDCAA’s job bank (https://www.tdcaa.com/job_bank) and with the career services departments of Texas’s many law schools.
    You will also want to notify local clerks, courts, and law enforcement about the former employees’ resignations. This is a critical step, especially with so much inter-office communication taking place via email. We didn’t realize it at the time, but for a short while, several emails from local law enforcement were being sent to the still-active but unmonitored email accounts of our former ADAs. Luckily, none of the emails were critical, but the potential for disaster was definitely there. With so many defense motions being e-filed now and with the mandatory e-file date rapidly approaching, you will need to ensure that service of electronically filed documents is sent to a current employee.
    After you get the job description posted and have notified interested parties of the old employee’s resignation, sit back and get ready for all the dead bodies to float to the surface. In the almost eight years that I have worked here, I have witnessed the departure of five ADAs, one investigator, one VAC, and two clerks. The whole office (save for the elected) has turned over, and each and every time someone leaves, the people left behind have had to deal with some degree of mess. With mass turnover, the process is even worse. Be on the lookout for the “bodies,” as they are definitely something best dealt with before they have the chance to rise up and come chomping after you. Keep your eyes open for: 1) crime victims who were allowed to develop unrealistic expectations, 2) courthouse staff or law enforcement whose lives were easier because the departed employee was going above and beyond (or breaking office policy) in a way that is no longer possible, 3) a pattern of bad plea offers, and 4) good old-fashioned incomplete work. These are nearly unavoidable, so be on the lookout for them.

A brand-new day
The last of humanity is never going to triumph over the zombie hordes of the future without a solid plan in place beforehand, and a prosecutor’s office is never going to make it through sudden, mass exodus without a similarly solid plan. Dealing with a big staffing change in your office is never going to be fun or easy, but the unenviable task of being understaffed and overworked is always just a couple of resignation letters away, so keep your machete sharp and your ammo bag full.

Endnotes

1  2048’s State Bar of Texas Criminal Justice Section Prosecutor of the Year.

2  If you are imagining a hybrid of “The Walking Dead” and “Better Call Saul,” where Andrew Lincoln and Bob Odenkirk have their morality tested as they partner in a post-apocalyptic law office, please email me. We could absolutely write the pilot episode together.

3  Don’t even think about it, Fannie Northcutt and Todd Smith.

4  It’s a red Swingline. I realize this reference doesn’t really fit with the whole zombie apocalypse theme, but I don’t care. When you write the articles, you can choose the random pop culture references.

5  One of our former assistants (let’s call him Modesto) had been tasked with this particular responsibility for the past several years. Because we are friends and he doesn’t work here anymore, I feel comfortable blaming him for my initial lack of knowledge on the subject.

6  Chesteron, G.K., The Thing: Why I Am a Catholic; Dodd, Mead publishers; 1929, quoted at https://www.chesterton.org/taking-a-fence-down/.