Keeping abreast of developments in the law
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Show of hands - how many of you regularly read the latest opinions issued by your appellate and supreme courts?
That’s what I thought. I try to. Back when I hadn’t discovered that they were available on the website, I’d pass on the paper versions. But then when I found this thing called “Advance Release Opinions” on the judicial website, I became hooked.
Why, you ask. I’m a trial lawyer; I don’t have time for this appellate gobbledygook. I work in the trenches and we don’t need to know this stuff here. We need to know how to get a client a lower sentence and how to negotiate with prosecutors.
Sure, but unless you’re just winging it, that ability comes directly from knowledge of the law. After all, that’s what we’re supposed to be doing: Following the law. Appellate decisions interpret the law, apply it and sometimes, change it. You can use that to influence the prosecutor - explain to him or her how their case is weak and why they should make a better offer if they want to resolve it.
I can’t tell you how many times I’ve heard “we don’t deal with the law here” from lawyers in various courts in this State. Really? You don’t? Then what, pray tell, are you doing? Do you know what to do when your client doesn’t want to take the plea? Wants to withdraw it? Isn’t canvassed? Isn’t told that he’s being sentenced to probation? Is charged with attempted assault of a police officer? Do you know that a “no-arrest” condition as part of a Garvin plea might not be legal?
Listen, I understand everyone’s busy. I’m no great lawyer myself and I’m also pretty swamped. But realize that we are the only thing standing between the government and our client’s liberty. Be informed.
So please, take the time to read appellate decisions. They come out once or twice a week and take about half an hour to read. You don’t have to be like me, reading them at the first opportunity. If you’re a CT lawyer, in fact, you can even wait a week or two until the good folks at the Appellate Unit publish summaries for the rest of us [which you can access here, using the password they provided - if you don't have the password, shame on you].
The more you know, the better a lawyer you will be. I know how I’ve improved. For your client’s sake, you should do it too.
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Wow, this is preachy - even for you! But it’s a good point, nonetheless.
I am convinced reading appellate opinions fucks up your ability to argue creatively and cramps your ability to effectively argue, unless, and only unless, you read opinions from the “good courts” (ninth, mass, maine, nj, hi) and not just our own courts.
I disagree. I don’t think it should prevent you from making creative arguments - in fact, it would help you in making creative arguments.
On the other hand, if you argue something that’s well settled in your jurisdiction and you plainly display that you’re just not aware of it, you’re doing your client a disservice.
I just can’t see how it would hurt you in your representation of a client.
You HAVE to not only have a good grasp of the caselaw to begin with, you have to keep up with it. It’s one reason I preach motions practice to my mentees. If you aren’t doing motions, you aren’t reading caselaw; and if you aren’t reading caselaw, you’re letting at least some people go down who shouldn’t have. The only thing that even comes close in importance is elements analysis.
I agree wholeheartedly. Elements analysis does come first, but this might just be a close second. It’s impact pervades our entire practice.
I was trying to be helpful for my fellow lawyers out there by covering these exact issues and putting good opinions in helpful blog posts. Guess what my least trafficked posts are? I quit a few weeks ago and haven’t heard a peep from anyone missing them. It’s a shame, since I thought it was the thing people would find most helpful.
I used to work as a law clerk for an appellate judge. We were required to read all opinions from the appellate courts of that state. I would get the opinions hot off the press, and if any were interesting, I would fax to my prosecutor buddy. One time, he told me that the very next day, he referenced a case I had sent to him while arguing a motion. Defense counsel hadn’t heard of the decision yet. I would bet that, at the very least, if you are citing hot off the press cases in your oral presentations to the judge, you will gain credibility with the judge and the prosecutors, which will help you help your clients.
In Georgia, the criminal defense bar sends out a monthly newsletter with all the hot cases. It’s been extremely helpful several times!