5 Mistakes Doctors & Executives Make When Hiring a Federal Criminal Defense Lawyer
By Dr. Nick Oberheiden
Let me ask you a really simple question: If you suffer a heart attack, which of the following specialists should you choose?
- Foot Surgeon.
- ENT Doctor.
- Cardiologist/Emergency Room Doctor.
Well, if you find yourself under federal investigation, let alone federally indicted, you may very well consider yourself experiencing a heart attack. Your livelihood and your freedom are at stake.
Federal court is not state court. Penalties can be extremely harsh.
So, please, don’t hire a dentist. Look for a lawyer with proven, compelling credentials in federal cases! Don’t sabotage your own life. Don’t hire an amateur. Here are some mistakes you should avoid when selecting a federal criminal defense lawyer.
1. Don’t hire your family’s or friend’s recommendation.
Most people react in one of two ways when facing a legal case: they either engage someone they know from before (maybe a former high school buddy), or they simply follow someone else’s recommendation.
Either one of these two choices could very well end in a disaster as far as your federal criminal case is involved.
The streets and the internet are flooded with divorce lawyers, personal injury lawyers, and drunk driving lawyers—but federal criminal defense attorneys? Not so much. It’s a tiny niche, a high level of specialization.
It gets even smaller once you go into the sub-categories of federal criminal defense such as federal healthcare fraud defense lawyer or federal program fraud defense lawyer. Don’t expect your friend or your neighbor to readily recommend a solid specialist.
Here lies the problem. When the FBI knocks at your door, you can’t just go with the first person who happens to have a law license.
You will pay the price for their incompetence.
Don’t let the initial panic lead you into a rushed, wrong decision. Don’t just blindly listen to friends and family. The best local criminal defense lawyer, the city’s number one contract law guru, or the country’s best drunk driving defense lawyer may not be the best fit to defend your livelihood and your freedom when facing the Justice Department, the FBI, and whatever other federal law enforcement agency may be after you.
Don’t forget: It is your life that is on the line. Don’t relinquish your right to make your own educated decision. Be critical. I am sure you would agree that hiring a lawyer to save you from federal prison is an utmost important decision.
The truth is, you should make the most important decision of your life yourself.
Joe, the Justice Fighter, may be the perfect fit to handle a lot of different cases, but arguing against the Justice Department and appearing regularly before a federal judge may be outside his wheelhouse.
I always remember this one lawyer being so badly humiliated in federal court. In a nutshell, that day ten or so doctors were arrested that day and brought to court for their initial appearance. It was a big mess with lawyers everywhere fighting with prosecutors about bond conditions.
One of these defendants, a prominent doctor, was represented by arguably one of the best litigators in town. The problem, however, was that this lawyer had no clue what to do in a federal criminal case. This is roughly how the dialogue with the presiding judge went:
Judge: Counsel, please present.
Defense Lawyer: I am sorry, judge, what?
Judge: Please present.
Defense Lawyer: Uhm, your honor, my client, uhm, he is innocent. He didn’t do it. This is all a big scandal. I read the indictment. Nothing in there is true. The government has no evidence, zero, and this case does not belong here.
Judge [Interrupting Counsel]: I am sorry? Counsel, with all due respect, this is an arraignment. We are not in trial. Can you please make your arguments?
Defense Lawyer: I see, uhm, to be perfectly honest with you, I don’t know what you expect me to do or say here. I am really more of a civil lawyer. This is kind of my first criminal case. What’s the next step? Again, I am sorry. […]
Federal judges are not known for their patience.
Appointed by the President for life, federal judges are utmost independent, and they are easily annoyed by pointless arguments or unnecessary delays. When they walk into their courtroom, they expect a lawyer to be prepared and ready to present.
This incident here was embarrassing for everyone; but the person that suffered the most was the client. He just got arrested, his entire career is in pieces, and now he stands in front of a judge next to an incredibly expensive attorney who really doesn’t know what to do or how to help at a criminal arraignment.
It’s unfortunate because this was totally avoidable.
The point here is: while it is never too late to correct your choice of lawyer decision, be smarter upfront, and don’t waste time and money on someone who is not able to advance your case or protect your interest from day one. Don’t get butchered, select competent counsel right away.
2. Stay Away from “Aggressive” Lawyers.
Look for someone with legitimate federal credentials.
- Where did the lawyer go to school?
- Is the lawyer even licensed to practice where I am?
- Does the lawyer write, publish, or has made a name for himself/herself in any way other than self-marketing?
- What have other clients said about the lawyer?
- What about the lawyer’s team: is he a lone wolf or is he surrounded by similar caliber counsel?
- When it comes to the specific experience in the area of federal criminal defense, has the lawyer ever won a federal criminal trial?
Many lawyers advertise themselves as aggressive lawyers. It’s marketing.
I, for my part, would never choose any professional that claims to be the “best” or that offers to guarantee a certain result. Same with “aggressive.” After all, do you really think for one second that the United States Justice Department is impressed, let alone “scared” because you have an “aggressive” lawyer?
“No, they will laugh at him.”
Let these lawyers entertain you with their TV commercials when they climb on trucks, swing a hammer, or gesticulate their powerfulness. It’s marketing, not a federal legal skillset.
Remember, your lawyer is a mirror of yourself. If your lawyer is not taken seriously, you will also not score 10 out of 10 on the credibility scale.
You probably know already that the United States court system is divided into state and federal cases.
More than 95% of all criminal cases are state cases handled by state prosecutors in state courts.
If you read this article about how to choose a federal defense attorney, you are unlikely facing a state prosecution. You are in for the big one, the federal criminal justice system. Don’t be tricked by lawyers telling you that they have tried 500 cases.
These are state cases.
Completely different system. There is no FBI, DEA, OIG in state cases, there is far less specialization, and the penalties are much more moderate than in federal cases.
Don’t have a state lawyer handle your federal case. That’s a podiatrist doing heart surgery.
Instead, I recommend asking your lawyer pointed questions. Insist on clear answers. Don’t accept a response that resembles a politician who only wants to answer the question he wants to answer. Be a tough interviewer. It’s your case, your life.
Ask these questions:
- How Many Federal Criminal Defense Cases Have YOU Personally Handled?
- What Was the Result in Your Last 100 Federal Criminal Cases?
- If I Hire Your Firm, Who Will Be My Lawyer?
- Will Associates, Junior Lawyers, or Paralegals Do ANY Work on My Case?
3. If you need to explain your industry, choose another lawyer.
There are many areas of law and no lawyer should claim to be an expert in everything.
I see this all the time when a client contacts us and reports what previous counsel did (or failed to do) to provide adequate legal representation to a client in a federal case. Lawyers rush clients into meetings with the FBI, don’t seek a dialogue with the U.S. Attorney’s Office when there was every reason and every opportunity to do so, or simply don’t know how to assess the discovery in a federal criminal case. By the time a client realizes that the lawyer needs almost more help than the client, it can be too late.
“Make sure you don’t become your lawyer’s experiment.”
You must expect your lawyer to lead, guide, and navigate. The lawyer you trust with your life should not need to do legal research on the case unless a novel, unique situation arises.
Take the following example. If you are accused of healthcare fraud, you may waste important time with a lawyer that doesn’t understand your industry, needs to research relevant billing rules, or bills you for lots of document review and legal research for no obvious reason other than self-education.
Keep in mind if a lawyer can’t explain the law and defense strategies to you, he may fail to convince judge, jury, or prosecutors.
In fact, many federal criminal investigations are adjudicated at the U.S. Attorney’s Office where Justice Department officials, Assistant U.S. Attorneys, and highly specialized federal law enforcement agents (FBI, HHS-OIG etc.) come together with defense counsel to either hear counsel’s defense presentation or to negotiate a plea resolution.
Ask yourself: is my lawyer competent to lead those discussions or is he merely there to attend and be lectured in an area that he doesn’t understand?
Too many people get indicted or accept a completely unfavorable plea because their lawyer lacks the experience, the argumentation skillset, and the legal knowledge to handle a federal case.
Don’t become a victim of such a lawyer!
4. Don’t hire someone you don’t like.
In the past, much of the attorney-client relationship was about objective credentials like the lawyer’s experience and track record. But there is much more to the story. When you sit in a foxhole with someone, make sure you can trust and appreciate one another.
You must like your lawyer and your lawyer must know you and care to fight for your interests.
Let me give you an example. Believe it or not, sometimes even lawyers need a lawyer. So, once upon a time I needed a lawyer for a personal matter. Nothing huge, but important enough for me to spend money on a lawyer (note: I am not one of these lawyers who claim they can practice any type of law. Every day, I refer potential clients out because I admit that I don’t sue police officers, or handle privacy invasion cases — but there are lawyers that do, and these experts should handle cases that I lack the experience in).
Back to the story.
My lawyer and I spent about eight hours together resolving the matter. When the case was done, the lawyer asked me “oh by the way, where did you go to law school?” Honestly, I was taken aback. To me, it showed that the lawyer, in all the hours we spent together, never once thought to ask where I came from or what my background was. Obviously, he had a failing interest in learning about me.
The impression I got was that I was just a case and not a person.
In my practice, I condemn such a cold, genuinely uninterested approach. I want to know who you are. I want to learn about you, where you grew up and what got you into the situation you are in.
It’s more than curiosity. It’s an interest in you as a person.
If there is one thing I emphasize in meetings with client candidates, it is the fact that you must form a team with your lawyer.
The best defense lawyer will never be able to do a good job without you.
Too many lawyers seem to forget that it is not their case they are handling; it is the client’s case that they are entrusted to resolve. For this reason, the client must be the center and the focus at all times. I, personally, pursue an interactive and engaged approach.
My clients have my cell phone number from day one; they can call me and ask me questions as they come up, not when a bullying and blocking assistant gives them an opportunity to speak with me.
I often say, you hire me to be the Master of Law, but you need to play your role as well, as the Master of Facts.
To do my job well for you, I need lots of information from you. You and I, we need to communicate well, spend time together and trust each other. Just like in other relationships, things tend to work much better when there is harmony, openness and sincerity. Make sure you can see yourself forming a bond with any lawyer you anticipate working with.
By forming a team, the result will be better.
5. Don’t pay too much.
Lastly, the best lawyer in the world can’t help you if you can’t afford the legal fee.
Depending on the nature of a federal investigation, it may take significant time and resources to bring the case to a successful conclusion. But in the meantime, you and your family need to live.
Most criminal defense lawyers do not allow installments, and the standard procedure is to request the entire payment upfront before entering an appearance in a case.
Whether you have millions to invest into your defense or just thousands, do not make the mistake of underestimating the risk of financial shortfalls.
One efficient way to control and reduce your budget is to not pay for unnecessary services or legal staff. If you hire a firm where the partner routinely delegates your matter to a few hungry associates (who can’t wait to bill you to substantiate their annual bonus) you may be at risk of not liking your invoices.
“You really don’t need ten lawyers when two highly experienced lawyers can do the job for you.”
At Oberheiden P.C., we don’t use associates or junior lawyers because your case is too important to us to entrust any portion of it to someone that lacks experience. Our invoices are predictable, typically agreed to in advance by way of all-inclusive flat fees, and the overall legal fees appear to be far below our few competitors.
Give me a call to discuss your situation within your personal budget!
Dr. Nick Oberheiden
Free Consultation & Strategy Session: 214-469-9009
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