“My Lawyer Changed His Tune”

October 28, 2016

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

My favorite thing to be able to do in my practice is give great news and if I can’t do that — then at least folks can leave my office with hope and optimism.  Giving great news, giving people hope and a reason to feel optimistic has to be honest, realistic or based in fact or it’s destructive.

I hear “my last lawyer changed his tune” a lot when I talk with people who either are getting a second opinion about their case or from someone (or their family) who had a bad experience in the legal system.

They tell me their lawyer was really excited at the onset of their case about the prospects for getting a case dismissed, acquitted or charges reduced.  At some point later, the lawyer’s attitude and demeanor seemed to change and all the news turns bad.  Instead of gallantly fighting — the lawyer is insisting the client plead guilty.

I’m always disappointed to hear this and it does make me reflect a bit about what really went on.  I do my best to understand not only from the client’s side but also the lawyer’s side.

Here are some of the reasons this is a recurring problem in my view:

The Lawyer is Afraid of the Courtroom or is Risk Averse

Some lawyers are simply intimidated by the prosecution, by juries, or even by certain judges.  They give you a very rosy outlook in the comfortable confines of their conference room, but when the lights get bright or when the prosecutor begins to gnash their teeth —  they wilt.

Other lawyers are afraid of risks.  Trial is to lawyers what surgery is to doctors.  Some always err on the side of playing it safe.

Risk is a part of the practice of law, in my view.  Often my clients are less risk averse than I am and other times they want to take risks I try to talk them out of!  There are times when a lawyer has to firmly let the client know the risk must be taken.  Some lawyers can’t do that.

The Lawyer is Inexperienced

Inexperienced lawyers make a handful of mistakes.  First, they fail to see the downside to a case when it walks in the door.  When they hear the facts of what happen — they often see great issues but their lack of experience may fail to see how certain issues tend to collapse or be more difficult to handle than they originally thought.  They also lack the experience to foresee other developments which might change their outlook on the case.

Some lawyers really do get excited about your case but their mis-evaluation of it causes them to change course which is difficult to understand and can be confounding to the client.

The Lawyer Fails to Set Proper Expectations

Some lawyers do see the pitfalls in your case but over-promise in hopes of getting business.  This invariably backfires because when the case does become difficult, the lawyer is forced to retreat from their earlier optimism without any real reason.

The experienced lawyer knows hard truths up front equal a satisfied client at the end of the case.  My hope is my client understands that I’ll fight as hard as I can for them regardless of whether my outlook is rosy or bleak at the onset.

 

Sometimes the Case Really Does Change for the Worse

Every case is it’s own snowflake… unique and distinguishable from anything and everything else.  The more and more cases I handle, the less unpredictable developments happen.  But unpredictable developments do happen even in the most common types of cases.  New and unforeseen facts can arise about an existing case or things unknown to me about my client’s past can crop up and present a bigger hurdle than originally considered, or sometimes just a change in prosecutor can throw things for a loop.

What Your Lawyer Should Have Done…

Lawyers can avoid “changing tune” in the middle of the case by setting a realistic tone from the outset.  This is a function of experience of knowing the variables to come in the case and how they typically break, having the discipline to “tell it like it is” to the client up front and temper optimism with appropriate caution, and to show the proper follow-through with risk associated with the case.

I hope this helps anyone in this predicament understand.

*Jeremy Rosenthal is licensed to practice in the State of Texas and is Board Certified in Criminal Law.  Nothing in this article is legal advice.  For legal advice about any situation you should contact an attorney directly.

 

 


24-Hour Criminal Lawyer

October 28, 2016

By Board Certified Collin County Criminal Lawyer Jeremy Rosenthal

(214) 724-7065 (24-hour line)

www.rosenthalwadas.com

Call if you’re having a criminal law emergency.

Examples of things the lawyers at our office can help with 24/7 are:

  • Police want to interview you or a loved one about anything;
  • You have reason to believe you or a loved will are or soon will be investigated;
  • Law enforcement has just executed a search warrant on you or a loved one;
  • A loved one has been arrested for a felony or Class B Misdemeanor or higher and you don’t know what to do;
  • A loved one is being held in jail without bond;
  • You or a loved one are concerned about probation violations;
  • Any other type of “bomb-shell” which you know or suspect needs a lawyer;

Criminal law emergencies come in many shapes and forms, so if you have a question please call.  (Please, no traffic tickets or traffic warrants).

All calls are confidential pursuant to Tex.R.Evid. 503(b)(2).  Rosenthal & Wadas has a team of 7 lawyers so someone will be available 24/7 to help.

 

Common Mistakes People Make With Criminal Law Emergencies

  • They Self-Diagnose on the Computer

There is only so much you can google about a situation where someone has an urgent criminal legal problem.  There is no substitute for picking up the phone and calling a lawyer who has handled thousands of cases.  If you had a true medical emergency, would you call 911 or would you go to a search engine?

  • They panic too Little

I can’t tell you how often someone comes into my office after it’s too late.  They considered calling a lawyer earlier but because they didn’t their situation is worse than it was before.  People often follow their gut instinct which is understandable.  The problem when you face an unknown and new situation is “you don’t know what you don’t know.”  We’ve handled thousands of cases.  We can tell you if there is a problem or not and what to do.

 

  • They Panic too Much

We can help ease the stress for some problems — which just aren’t problems.  We do see plenty of cases where someone or their loved one is worried sick about a situation that isn’t worth the mental strain of the worry.  Nothing makes us happier than to give some good news and help people understand criminal proceedings, consequences, or jail is simply unrealistic or far-fetched.

Your Call is Welcome 24/7

If you’re having a criminal law emergency, please call (again, no traffic tickets or warrants please).  If you’re just web-surfing then put the phone number in your phone.  I hope you never need it, but putting it in your phone is absolutely free and it could save you valuable time if you ever do need to find a criminal lawyer in a hurry.

 

*Jeremy Rosenthal is an attorney licensed in the State of Texas and is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should consult an attorney directly.

 


Emergency Protective Orders – FAQs

October 21, 2016

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

What is an Emergency Protective Order?

An emergency protective order (“EPO” for short) is an order issued by a magistrate judge after someone is arrested for Assault – typically during a family or domestic situation.  They can be broad, sweeping, and they can often worsen a family situation.

The order can prevent someone from going back to their home, having contact with their loved ones, and even going to the their children’s school to pick them up.  It can order the Defendant not have access to or possession of firearms.

How Can They Do This?

Texas law allows a magistrate judge to issue these orders upon application which may be done by a police officer or may even be done on the Judges own discretion.  It can be done “Ex Parte” which means the accused does not have the right to be there.  Understand, then, that the information the magistrate judge is given can be very slanted.  Also remember the laws in the State of Texas were written by politicians who — by and large– were elected on promises to be tough on these types of cases regardless of the facts.

How Long is the Order In Effect?

An EPO can be in effect for up to two years unless there are aggravating circumstances such as serious bodily injury allegations or Defendant has a previous history of domestic violence.  Most protective orders state their duration.  If the Order has no duration on it then the duration is 2 years as a matter of law under Tex.Fam.C. Chapter 85.025(2).

Most Emergency Protective Orders in Collin County are about 60 days.

Can an EPO be Modified?

Yes.  This is typically done through the same judge who signed the EPO.

How Do We Get the Judge to Modify an Emergency Protective Order?

You or your attorney can petition the judge for an amendment to the EPO.  Normally there is a hearing where the judge determines whether to lift or modify the protective order.

I’m the Alleged Victim… Can’t I Just Go Tell the Judge to Undo This?

It’s probably not that simple.  Most judges prefer to have a formal hearing because they don’t know the parties involved and they are worried about additional violence if they immediately undo an order.

A case to them resembles many other cases they’ve handled.  Also there is a prevailing mentality amongst law enforcement, prosecutors and often some judges which presumes several things about family violence arrests.

Their mentality is the assailant is guilty, and that the victim is asking for this leniency because they feel guilty or intimidated by the abuser because that is part of the circle of domestic violence.  It is flawed logic because it’s circular – though I’m sure it can be true in some cases.  (Defendant one is guilty therefore we don’t believe the victim when they say it didn’t really happen therefore Defendant is more guilty than before).  In cases where it isn’t true — the logic particularly confounding.

Most judges I’ve worked with have broad policies about these types of things.  They are not un-sympathetic to real world problems protective orders create such as financial strain of paying for multiple housing, child care, and impact on the family.

Should I Hire a Lawyer to Deal With a Protective Order?

It goes without saying that if you have been arrested for Assault/ Family Violence then you need a lawyer immediately upon your arrest.  There are pitfalls to modifying protective orders which require skill too.

What Happens if I Violate the EPO?

It can cause additional criminal charges and bond to be revoked.  In many cases the violation can be as bad or worse than the original allegation.

Can the Person Come Over to Get Necessary Things?

Always read the specific language of the EPO and if you have any questions talk with a lawyer to make sure it’s clear.  Most protective order’s I’ve seen have a provision which allows for a way to get necessities from a home such as clothes, computers or whatever is needed.  Sometimes the language provides a friend or neutral person can assist.

Understand if the police are called and the protective order is shown to an officer who wasn’t at the hearing or who doesn’t understand an EPO very well — the person can go back to jail even though the officer might be wrong.  Make sure it is crystal clear what you can do before you take any action.

*Jeremy Rosenthal is an attorney licensed in the State of Texas.  He is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice on any situation you should contact an attorney directly.

 

 


The Difference Between Real Experts and “Instant” Experts

October 21, 2016

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Expert witness testimony in a criminal trial can be a funny thing.

Article VII of the Texas Rules of Evidence is pretty strict about who can qualify to be an expert and what they can and can’t conclude on it’s face… but appellate decision after appellate decision have eroded boundaries between actual experts and what I call “instant” experts.

Judges are human and the law of “the way we do things around here” carries more weight than it should.  This worsens the problem of allowing the instant expert to spew their conventional wisdom dressed-up as expert witness testimony.

Real experts are valuable courtroom assets who can and will answer questions honestly for both sides.  “Instant” experts often shill for one side and are just trying to win their case.

Why Are “Instant Experts” a Problem?

Because their testimony is being sold as the gospel on a certain topic.  Additionally, they are allowed to make certain conclusions other witnesses are not allowed to make.  Materials they review to form the basis of their opinion can be admissible whereas otherwise they might not.

Additionally Judges are not allowed to comment on the weight of evidence.  They do exactly that lawfully, however, when they tell a jury a certain witness is better than the rest.

The Textbook Example

Toxicologist or Pharmacist vs. Police Officer:

Rules allow for both to testify about intoxication in a DWI trial in most situations as expert witnesses.  It is not uncommon for some police to have drug recognition training, but the lines can be quickly blurred in a courtroom if the officer and prosecutor over-step their bounds.

A police officer might try to make medical conclusions based on factors observed.  The conclusions might include the individual has ingested CNS depressants or the individual is on opioids, or is intoxicated due to a combination of substances ingested.  They base this on training provided to them either at the police academy or at advanced courses and experience from work.

So a police officer under-qualified expert often describes something which may or may not be obvious to everyone and tries to explain why.  That’s all fine but when pressed on details, alternate causes, or any medical principles at all — an officer normally retreats into, “I can’t answer that because I’m not a doctor.”  See how unfair that is?  They are fine opining about how guilty the defendant is but basically can’t be cross-examined at all because of their lack of knowledge.  It is a lose-lose for the defense.

The toxicologist or the pharmacist, on the other hand, has had far more academic training — in addition to applied training — and can discuss specific evidence which must be present to make certain conclusions.  With most drugs, they need to know someone’s medical history and history of taking prescription pills to know how much a certain drug would affect them.  They are also aware of medical journals, studies, and research which often goes contrary to conventional wisdom but is clinically tested medical fact.

The toxicologist and/or the pharmacist will concede points to both prosecution and defense lawyers so long as they are consistent with accepted conclusions in the scientific community.

To analogize — it would be like me saying that I’ve seen clouds my whole life so I’m an expert on the weather.  I throw out a few cloud types I might have picked up on the way… the direction of the wind maybe and come to the conclusion it will rain when it’s mostly cloudy.  When I’m pressed on details about barometric pressure, dew-point, and ionization of the clouds I shut down and say — “well, I’m not a meteorologist!  I just know it’s going to rain!”

 

Why Real Experts are Important

Real experts help juries with all sorts of complicated things on topics ranging from molecular biology to nuclear physics to even the practice of law.  Without expert witnesses Juries would be making completely uninformed guesses.

Experts can be found in practically every specific field you can think of to include medicine, science, law, toaster ovens, tennis racquets, art and on and on and on.  It is very important to get juries to understand nuances of any particular field.

The Rules About Experts

Rules of Evidence 701 and 702 discuss the difference between ‘lay’ witness and ‘expert witnesses.’

Rule 701:  

“If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

  1. (a)  rationally based on the witness’s perception; and
  2. (b)  helpful to clearly understanding the witness’s testimony or to determining a fact in issue.”

Rule 702. Testimony by Expert Witnesses:

“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”

So — in theory at least — an expert has scientific, technical or other specialized knowledge which everyone else doesn’t have.  They normally attain the knowledge from formal education, academic journals, and real world experience.  So having blood in my veins for my entire life doesn’t make me a blood expert… being an accredited scientist who keeps up with medical journals probably does.  See the difference?

The Court’s Gatekeeping Function

The Courts have what is known in caselaw as a “gatekeeping” function.  This is to say the Judge must make the determination whether an individual is acceptable as an expert or not.  Several important cases expand the rules.  See Daubert v. Merrell Dow Pharms, 509 U.S 579 (1993) and Kelly v. State, 824 S.W.2d 568 (Tex. 1992).

The Judge is bound, however, by appellate precedent and to a lesser extent by “the way we do things around here” as I discussed earlier.  Case law makes clear, for instance, that a police officer who is fully accredited can testify as in expert in intoxication due to alcohol.  Officers with specific training about the effects of drugs on the body can almost always testify as drug recognition experts.

“The way we do things around here” sometimes kicks in when defense lawyers don’t make routine challenges so that when one finally does — the Judge might not take the challenge seriously because the Courts have always allowed a certain person to testify as an expert.  Certainly everyone else can’t be wrong?

So How Do We Deal with “Instant Experts” When Defending People?

We fight through it.  We make the proper challenges and the proper objections at the appropriate times.  If we must cross examine an instant expert then we do it wisely by logically cornering and limiting what they can credibly say.  We expose the massive gaps in their knowledge.  If it is appropriate in a given case — we present our own expert with the proper credentials.

 

The harder we work, the luckier we typically get!

*Jeremy Rosenthal is an attorney licensed in the State of Texas.  He is Board Certified in Criminal Law.  Nothing in this article should be considered legal advice.  For legal advice contact an attorney directly.