Making the Transition -- Part II
You don't need to change much... just everything about how you think and talk.
In my debut column as the poor man’s Matt Kaiser last week, I talked about what it’s like to make The Transition — to go from being a prosecutor to being a defense attorney. It’s harder than you might think, and harder than most prosecutors expect.
I think that’s because changing sides requires you to change two things that go to the core of how you’ve spent the last several years, and sometimes even decades, doing — how you think, and how you talk.
First, how you think. All prosecutors think they’re the good guys. (This is especially true for those who work at the Department of Justice — because as some of them never tire of reminding you, their mission statement is in the very name of their agency.) They think their job is to catch the bad guys and hold them responsible for their actions, pure and simple.
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They don’t write the laws, so as long as they think they have the evidence, they often don’t think much about whether something should be a crime, or whether just because you can prove something means you should prosecute it. (A supervisor once made me go to trial on a simple assault case in which a woman smooshed a man’s face with her hand during an Upper Northwest cocktail party. The judge was not amused.) If it’s illegal, and they can prove you did it, it’s their job to prosecute you. Their focus is on the crime, not the person.
That changes when you become a defense attorney. When you become a defense attorney, your focus is primarily on the person, not the crime. All of a sudden, you have an actual client — a real, live person who is sitting in your office and scared out of his mind. He’s often a good person who just did a bad thing. He often has a family that loves him, and good friends — none of whom have any idea about what he’s being charged with and can’t believe that this good person would do that kind of thing.
Many prosecutors, even many good ones, don’t care much about any of this. If someone had a bad childhood, that’s no excuse for making bad choices. If someone had a good childhood, then they really should have known better. It is the rare prosecutor who sees the defendant as a person, not a criminal.
Spend enough time seeing people that way, and it can become hard to see them any other way when you switch sides.
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And that leads to my second point — how you talk.
It’s an article of faith among many prosecutors that, when referring to the accused during a trial, you should call him “the defendant” — because you don’t want to humanize him in front of the jury.
To be frank, I never understood that, and I tried hard not to do it. I think that’s probably because my late grandfather, a wonderful Arizona trial lawyer who died last month at age 97, always told me how to act in court. Stand when you address the judge. Never refer to opposing counsel as “my opponent,” or “the defense,” but as “Mr.” or “Ms.” so-and-so. Treat everyone with respect, because the jury is always watching you, and because it’s also the right thing to do. (And frankly, if I am trying to put you in prison, the least I can do is be respectful about it — no matter what you did.)
Dehumanizing someone through language at trial is just one example of how prosecutors talk. Another is how they talk during reverse proffer sessions — when they show you or your client the evidence against him and try to convince him to accept a plea.
The language here is usually very matter-of-fact. There are rarely raised voices or chest-pounding, and there is also almost never any sympathy. The government simply marches through its evidence, piece by piece. There’s a cold logic to the process: this is what you did, this is how we can prove it, and this is how badly the judge is going to hammer you if you’re convicted at trial, so please do the logical thing and accept our generous plea offer.
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I used to love reverse proffers. I was very quiet about it, even friendly, and would couch my whole presentation in a way that made very clear I was doing them a favor. I honestly believed that, and thinking back on the times I did it, I probably still do. The trial penalty is a very real thing, and I also strongly believed that people who accepted responsibility for their crimes should get a benefit. So when I had a strong case, I wanted the defendant to know that in advance and make the logical choice.
The problem, when you switch sides, is that talking to a client isn’t the same thing as talking to a defendant. The facts may be the same, but how you talk about them has to change completely. That’s a harder lesson to learn than you might think — and it took getting fired by a client for me to learn it. That story, and the conclusion of the Transition series, next week.
Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is [email protected].
