Wednesday, January 18, 2006

zealous vs fruitless vs useless advocacy

If your client does not appear for a court date and you don't have a good explanation, i.e., funeral / hospital / in jail, do you argue to stay a bench warrant?
In my mind, that seemed to be part of this job.  At least sometimes, there's an argument like, "My client has made all other scheduled appearances" or "My client just told me yesterday that she'd be here, it's possible that there was a last minute transportation / childcare / health problem and she's already left me a message, can you stay the warrant?" 
Because most of the attorneys in my office have so many years of experience, they've all developed their own work habits.  This is one of those habits - unless they have heard a good reason from their client, they don't argue to stay a warrant.  They also get annoyed when I choose to do things that they do not include in their routines.  I don't think they realize that when I choose to do something that may be fruitless but hey, why not try, they get snippy with questions like, "Why bother?  What's the point?"  It's true - most of what I do in court is a foregone conclusion.  But don't beat me down for trying.  I don't see what the problem is with just trying.  In some cases, I have no good argument - the client has every reason to flee the jurisdiction or not show up - and I don't try to argue against those.  I can't try and vouch for every client because then I lose my credibility before the court.  That's what attorneys say when they tell me not to argue at all.  But I don't think that's necessarily the case.  I don't think this is useless advocacy.  I don't think I need a foolproof reason to argue against issuance of a bench warrant.  Let me wear down on my own time - if I find that sort of practice habit doesn't work for me, let me eliminate it myself. 
How does arguing against a bench warrant differ from, say, filing a suppression motion?  You know that you will probably lose, but that doesn't stop you from making the argument.  And you never know, you might get a judge feeling particularly law-like that day, and just maybe they'll see your argument and just might agree with you.  It's not useless to file suppression motions - although it may be fruitless. 
For practitioners, students, observers, and citizens out there:  What do you think?  If you were sitting in the audience watching a courtroom or if you were a client or if this were your case, what would you say?  Do you try to argue against a warrant being issued for the client's arrest, or do you just chill until they're hauled back into court?  Does it matter whether you think the client will get thrown in on bail when they're brought before the court?


Gideon said...

From my experience, ask that they issue a BCL (bail commissioner's letter). That's a better alternative to a warrant for an FTA. That gives them one more opportunity to appear in court. I don't know if your court system provides for that, though.

I'd always argue to have it stayed - to help prevent the client from picking up extra charges.

Anonymous said...

I'd ask, of course, the attorneys at

Gideon's Guardians said...

Around here, you can almost always get a judge to pass someone to the bottom of the docket, which gives you the rest of the morning to get them there. If I've got a half-way decent reason or recent contact, I'll ask that the bench warrant be taken under advisement for a couple of days.

Regarding the bigger picture, just because it's the way things have always been done doesn't make it the best way to get things done. If you've got the time, reinvent the wheel. Even if you don't figure out a better way to do it, you've taught yourself how to make a wheel and why its built the way it is. Even if you get the same answer, you know the why and how of the answer, rather than "but that's how its done" But don't forget the caveat that you've already noted; watch your credibility. There's sometimes a very fine line between thinking outside the box and being a crank.

(almost) always ask.
always find out why for yourself


Sanchovilla said...

Anything within reason to keep a client out of jail.

Also, don't let all the old Public Defender curmudgeons bring you down or make you change the way you do everything. Of course they have experience, which you should always be open to, but you said it best:

Let me wear down on my own time - if I find that sort of practice habit doesn't work for me, let me eliminate it myself.

Sometimes, the old timers forget what it was like to be a fresh Public Defender. I've met some old PD Investigators that I pray I never turn into.

Blonde Justice said...

I don't make the argument on every case, but on some. It depends:

If I've met the client, spoken to him lately, he's actually kept in touch, he's come into the office for an appointment, or he really has made at least a couple of other court dates, I'll ask.

Also, if a client doesn't have any criminal record, I'll ask. Maybe they don't understand the severity of having a warrant. Because the warrant will stay on your rap sheet even if you take a non-criminal disposition.

But if it's a transfer case or I've never met the client, I usually try calling the client from court to say "Get your butt in here!" If I can't get through, I don't even know if the phone number is working, I don't.

I feel that it's different than making a suppression motion which could be malpractice not to request. Making a plea to stay a warrant is a little more about your credibility (not the lack of the prosecutor or police's credibility as it is in a suppression motion). Depending on the judge, I know there are going to be many times when I making an honest and reasonable request to stay a warrant and I'm not going to get it - I worry that unreasonable requests (where I really have no way to get in touch with the client to tell him his new court date anyway) are going to make me less likely to get those "real" requests when I need them.

Blonde Justice said...

But that doesn't mean you shouldn't give it a try. But I think it's worth you being aware of why others might not do it so that you can keep an eye out for it (i.e. keep an eye out for a judge who starts to roll his eyes every time your client doesn't show up) and use that in your assessment of when to eliminate it yourself.

ambimb said...

Thank you for this post. I don't even have a job yet, but after interning and doing clinic cases I have seen the same tension between what you know you *could* do vs. what experienced attorneys tell you you *should* (or should not) do. What springs to mind for me is the one contempt hearing I had. Going into it, my supervisor said, "nobody ever wins these; the judge always finds probable cause." He didn't in any way suggest I shouldn't make the best argument I could make, but he "knew" we would lose. Lo and behold, the judge did *not* find probable cause. So yeah, most of our arguments are losers, but what about that one time that they work?

I understand asking to stay a bench warrant might be different, but you know, this is one of those things that is so infrequently done that I didn't even know you *could* do it until I read this post. I will almost certainly try it the next time a client fails to appear!