Jason Howard: Are You E-X-P-E-R-I-E-N-C-E-D?

Seventeen years ago, when I started representing people accused of crimes, former prosecutors didn't have to explain to potential clients why they should hire former prosecutors: the clients just knew that former prosecutors had connections in the DA's Office that would help the clients get favorable resolutions.

I never saw a criminal-defense lawyer advertising himself as "never a prosecutor" before I started doing so; when I would point out to a potential client that he was more likely to suffer than benefit as a result of the long-term relationships between a former prosecutor and him (if he has to choose between maintaining those relationships and burning bridges on your behalf, which do you think he'll pick?) his eyes would get wide. His checkbook would come out.

Jason H. Howard has no reason to remember the practice of law in those days because he was a freshman in high school, fighting acne and maybe hoping to get to second base.

Much has changed since then. Clients are now much less likely to see prosecutorial experience as a positive. Young Jason needs to work to convince the potential clients that his prosecutorial experience has value. For this former prosecutor, the benefit he provides his clients is E-X-P-E-R-I-E-N-C-E

Now, if I were a prosecutor who'd been a criminal-defense lawyer for less than a year, I probably wouldn't be focusing on E-X-P-E-R-I-E-N-C-E. It's borderline deceptive, and doesn't stand up to scrutiny. Since Young Jason doesn't have any experience to speak of as a criminal-defense lawyer, the E-X-P-E-R-I-E-N-C-E he focuses on is E-X-P-E-R-I-E-N-C-E as a prosecutor, and more specifically the ability to "think like a prosecutor." (At least he doesn't overtly play the "relationships" card.)

Experience as a prosecutor is arguably more relevant to the art and science of defending people than is, say, experience as a marine biologist. When I say that it something is arguably so, of course I mean that it is arguably not so.

Suppose that there's a lawyer who, like Young Jason, was first licensed to practice law in 2006; instead of suckling at the government teat she started her own practice. For the last six years she's been defending human beings in trouble. She's worked with a hundred different prosecutors on hundreds of different cases. She has a bank of motions that she has written herself. She has been the underdog; she has won some cases and lost more, and she knows why. She has discovered what works and what doesn't. Does she "think like a prosecutor"? Probably not in the sense that Young Jason means: she understands her adversaries, but she hasn't internalized their thinking.

What she has internalized is how to think like a criminal-defense lawyer. This is something that Young Jason will have to, if he is to be honest, concede that he doesn't know (because his definition of "thinking like" requires E-X-P-E-R-I-E-N-C-E A-S, and he doesn't yet have appreciable experience as a criminal-defense lawyer).

An example of Young Jason's fixation with the prosecutorial point of view:

Because our system generates agreements based on what both sides feel would likely happen at a jury trial on any given case, it’s important that your attorney have the capability of seeing a likely trial from both sides.

No criminal-defense lawyer that I know would ever speak of the system "generating agreements." When I hire a criminal-defense lawyer, I don't want her to work with the prosecutor to generate an agreement. I don't want anything the system might generate. I want her to fight like hell and win. I recognize that she might not win, so I want her to accurately evaluate our chances of winning at trial or on appeal.

(An evaluation our chances of winning at trial or on appeal requires an ability to step into the shoes of someone else, but that "someone else" isn't the prosecutor: it's a jury. The prosecutor's opinion is of little importance.)

I want my lawyer to accurately evaluate the odds, and I want her to convince the prosecutor both a) that our chances are even better than that; and b) that a trial would be a pain in the ass.

To convince the prosecutor of those two things, which do you think is more helpful: that the lawyer used to work in the DA's Office and so evaluates the case pretty much the same as the prosecutor does; or that the lawyer is a bomb-throwing true believer who might pull a crazy defense out of thin air and believe it enough to sell it to a jury?

The great defense lawyers who are former prosecutors are great not because they learned to think like prosecutors but despite that fact—they have set aside their ingrained ways and learned to think anew, this time like criminal-defense lawyers.

The argument that former prosecutors make good defense lawyers because they can "think like prosecutors" is one I'll never buy. Young Jason's idea that thinking like a prosecutor helps him defend people is an obstacle to setting aside those prosecutorial thought patterns, and so may be an obstacle to his being a great criminal-defense lawyer.

(The post says "posted by Brandon W. Barnett," but I'm holding Young Jason responsible because a) as a JAG lawyer, Barnett has some defense experience; b) the post also says "Text copyrighted by Jason H. Howard"; and c) the post is tagged "Jason Howard.")

21 responses to “Jason Howard: Are You E-X-P-E-R-I-E-N-C-E-D?”

  1. Well put my friend, well put. I’d love to nail this post to my door for prospective clients to read. Cheers to being a “never a prosecutor, true believing, likely to pull a crazy-ass defense out of thin air bomb thrower”! No other way to go through life IMHO. Thanks!

  2. Mark- Good post.I don’t know this young ex- prosecutor. The courthouse is flooded with young ex-prosecutors, civil lawyers, snake oil salesmen, runners, and a plethora of letter writers. Most of these folks aren’t exactly Judd for the Defense.

    I don’t think being an ex- prosecutor adds much. In 29 years, I take pride in never having prosecuted a soul. I have never been part of the Courthouse Club and never cared to be. While others eagerly put their applications in at the DAs office, I put up my shingle.

    Great criminal defense lawyers think like great Criminal defense lawyers. They don’t think otherwise.

    Robb Fickman

  3. We’ve got a lot of those here in Collin County also. The public believes the dribble and most of them do too. They don’t know any better.

  4. You know, there are those of us to whom the idea of working to put people in jail is repulsive. We never did that. We never will. I like to think that there are those people who can see that it is a bad way to live your life to try to warehouse human beings, and they can change and become real criminal defense lawyers. But the ones who don’t, well, they are just missing the necessary fire in their belly to go the extra mile for persons who are criminally accused. Poor Jason sounds a bit like a con man to me, but I never met him.

  5. I applied for only one job after law school – a job I thought would get me into the courtroom quickest and most. For the last thirty years I have been counting my blessings that the First Assistant in the Lubbock County DA’s office thought I didn’t “look, think or act” like a prosecutor and declined to hire me.
    I tried my first felony about 6 months after licensing and got a win.
    And I still haven’t figured out how prosecutors think. But, like you, Mr.Bennett and Mr. Fickman, I don’t care.

    • The prosecutors who have beaten me (in cases in which I wasn’t beaten by the facts) have done so because they have thought differently than most prosecutors—they have thought like something approaching criminal-defense lawyers.

  6. I think you are correct that the advertisement of one’s experience as a prosecutor is generally an allusion to their connections at the courthouse, as opposed to their trial skills. However, the only shame in having first been a prosecutor is for those who never apply nor learn the perspective of a defense lawyer. Those are the folks who evaluate a case based on an offense report and cannot back up their negotiations with the promise of an actual trial.

      • It took me many years to get over my prejudice against hiring recent prosecutors. Like most stereotypes, it is only correct some of the time. The better practice is to look for competence and compassion. I still have my rejection letter from the Harris County DA’s Office, but I hold no grudge. Everything worked out fine.

  7. I think experience as either a prosecutor or a public defender is very useful for someone who is going to go into private practice as a defense attorney. Aside from getting tossed into a courtroom very quickly, you get a lot of experience dealing with all facets of criminal trial experience, including judges, the other side, the clerk’s office, the sheriff or corrections department and the various police agencies. You get to know the players and their moves, many of which are generic. All useful stuff, I think.

    • I agree that it’s all useful stuff, but there’s an opportunity cost to everything. My law-school mentor (who had been a prosecutor) described a three-year stint at the DA’s Office as “six months’ experience, six times over.”

      • (And yes, at one point I did consider being a prosecutor. But I have never regretted—and I don’t believe that any client has ever had cause to regret—that I didn’t do so.)

  8. I’ve never been a prosecutor, and people do seem to act like I am somehow disadvantaged as a criminal defense lawyer as a consequence. I appreciate this post.

  9. As a young lawyer who started out on my own, I VERY much appreciate this post. When I graduated from law school I had a job offer from the DA’s office in a small town in Texas. Times were tough and most law graduates were desperately looking for a job, so it was quite tempting to say yes. I declined the DA’s offer. I wanted to stay clear of ever prosecuting anyone. I take great pride in that. Now, I am gaining lots of D-E-F-E-N-S-E experience by shadowing great defense lawyers such as Mark Bennett, Carmen Roe and Jed Silverman through the Harris County Criminal Lawyers Association (HCCLA) mentorship program.

  10. Speaking of Harris County, I see its defendants all the time on “The First 48,” as well as those from other southern towns such as Memphis, Birmingham, et al. Here’s a question I have for you defense types: how come you don’t give seminars to young males about how to shut up when brought in for questioning? How tough would this be? Post a few flyers around town viz: “free! How not to confess.” It’s obvious that young (let’s face it, mostly black) males feel themselves to be silver-tongued devils who can scam their way past the detectives. Don’t you think some wholesale disabusing is in order?

  11. I came here from “Why it matters if your defense lawyer used to be an attorney”…first of all…thank you. You are right on the money. “Thinking like a prosecutor” LOL what a laugh. Exactly right, that means they want to settle as quickly as possible and view defendants as the “bad guys”. Imagine watching your lawyer cracking jokes with the DA across the isle who is poised to ruin your life and tell me you aren’t a little nauseous. The whole idea seems two-faced to me. Pick a side. I want a sharp criminal defender known for going to trial who flew in from out of town with a reserved disdain for prosecutors in general. You can keep your “experienced” local favorite turncoats who excel at pleading out solid cases for political favors later in the day.

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