July-August 2008

What do you know now that you wish you’d known then?

Editor’s note: 

This issue marks the debut of a new column, War Stories, where TDCAA members are ­encouraged to e-mail their answers to a new question every issue; the question will solicit collegial advice and information.

For next month:  What was your proudest moment in court? Send your stories to the editor at [email protected]. Put “War Stories” in the ­subject line, and keep it under 500 words.

Rebecca Gibson, Assistant District Attorney in Midland County

It isn’t personal. I learned that the hard way. A defense attorney picked a fight with me, not a big one, but a war of words in misdemeanor court. I was so insulted that he didn’t think my plea offer was fair. It took me many months and conferences to learn that an attorney may be picking a fight with you because his client is in the courtroom, the case isn’t looking good for the client, and the attorney has to go back and say, “The prosecutor’s tough. That’s the only rec she’ll give, so we’d better decide if we’re going to trial.”

I also had a trial where the defense attorney was a maniac. He didn’t listen to the judge, suggested that I didn’t know what I was doing (he was right, by the way)—you name it. And he won a losing case. I told him on the elevator, the day after the case, that I thought he was the “most unethical trial lawyer.” To his credit, he didn’t hold that against me; he understood that I was new. In time, I came to understand that in trial, it’s war. A defense attorney is fighting for his client, not to insult the prosecutor’s position. In the end, we are all just a bunch of lawyers arguing for a cause in the courtroom. It’s just not personal. Every new prosecutor needs to know that.

John Rolater, Assistant Criminal District Attorney in Collin County

You should have a place to keep all the knowledge you acquire, such as a notebook or journal. You will probably be able to remember the details of each big case or trial for a number of years, and then, all of a sudden, you won’t remember Smith or Jones anymore, and you won’t be able to put your hands on the case file. A uniform way of tracking that info will be invaluable. Now that we are really getting computerized, you can keep track using a word-processing file, and then you can text-search it (or even Google search it using Google desktop). If you are a Mac user, try the program Notebook by Circus Ponies. I use a Word file on my PC, but Microsoft OneNote looks like it has promise. These clipping or notetaking applications give you enhanced search features and the ability to store web pages.

I also keep a daily log in a Word file that contains notes about what I do and lots of legal questions and answers. When the file becomes too big, I peel off the oldest year or so and save it to another file. It is a great help when some opponent says you didn’t do something, and you can search your notes and say, “Yes, on October 7, 2002, I offered to agree to X in exchange for Y, and you told me where to stick it.” I learned this from a great chief of mine, Lori Ordiway.

Greg Gilleland, Assistant Criminal District Attorney in Bastrop County

When you bring caselaw to court, bring two extra copies, one for the court and one for defense counsel. And always, always, always shepardize those cases. If it is totally good law, you might bring only one copy of the shepardization—until the defense attorney tells the court that it is bad law, in which case you can whip out your good law-indicating shepards.

On the other hand, if the case has been distinguished, be the first to tell the judge and point out why it’s distinguishable from those cases that might alter its holding. This will tell the judge you are an honest advocate, and the next time that a defense attorney questions a case you are presenting to the court, the court will know already that you present information adverse to your position to the court if it is out there.

Terry Breen, Assistant District Attorney in Goliad County

Ride with the cops. It will give you a lot of insight as to how situations go down, and that will help you screen cases and will assist you at trial. This is especially true if you are handling a lot of DWIs. As an important by-product, riding with the police increases your stock with the cops.

David Newell, Assistant District Attorney in Harris County

Track down every answer. If you are in a hearing and something crazy gets thrown at you, go back and find out what the law is so that you can answer it should it happen again. Do this regardless of the result in your case but particularly if you win. Winning is good, but knowing how you got there makes you a better attorney, and correcting mistakes for the judges enhances your credibility. And don’t shy away from tracking down the answers to things that seem obvious. Just because “that’s the way it’s always been done” doesn’t mean it’s been done the right way. All of this will, I hope, establish a base of knowledge from which you can answer the most esoteric questions.

And enjoy your knees. You’ll miss them when they’re gone.

W. Clay Abbott, TDCAA DWI Resource Prosecutor in Austin

Remember the stuff you learned in kindergarten as well as the stuff you learned in law school. Courtesy matters. My first day in misdemeanors, Rebecca Williams, the misdemeanor legal assistant, dropped into the chair in my office and told me, “I can make you look brilliant or I can make you look stupid.” She was right. We all work in a very closed environment. We see the same folks day after day. A kind word is a most valuable tool. It is amazing how little a “please” or “thank you” costs but equally amazing how it pays off. Remember that your legal assistants, investigators, and victim assistants have been in the office a long time and, like Rebecca told me, can make you look brilliant or stupid.

When you receive praise, spread it around. No one in this line of work succeeds solely on his own efforts. When you receive criticism, shoulder it yourself. Never pass the blame, make excuses, or retaliate. There is something to be learned by even undeserved criticism. If you blew it, and you will, admit the error, apologize, and promise to do better. It is amazing how much shorter a sincere “I’m sorry” makes these unpleasant events. Acting courteously makes you a better person and a much more effective prosecutor.

Scott Brumley, County Attorney in Potter County

Refer to everyone in court by the appropriate title (Your Honor, Mr. Smith, Ms. Jones, Deputy Johnson, Officer Doe, etc.). Resist the urge to use familiar modes of address with those you like or are comfortable with, because your use of formal titles with others will convey that there is a dichotomy between the ins and the outs. Regardless of whether that’s OK in social circles, it’s not acceptable in court.

Andrea Westerfeld, Assistant Criminal District Attorney in Collin County

Your most valuable asset is your reputation. No matter how big a county you work in, it’s still a small world.  Everyone works together and knows each other, and people talk.  So rest assured that every deal you cut and every trick you pull in court will be known by every defense attorney, judge, and prosecutor sooner or later. Be sure that the deals are fair and the tricks are honest.  Once you get a bad reputation with local counsel or the judiciary, you’ll have an uphill battle to fight in every case. But if you have a good reputation, people will be more willing to work with you and won’t be suspicious of everything you say. ✤