Is your legal practice stuck in the “business as usual” trap?

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What if every client was a capital case?  Would it make a difference if you approached each client as if their life depended on it?

Justice is a truth-seeking process designed to resolve human and societal problems.  It is the foundation of a just and peaceful society.  The administration of justice requires lawyers to vigorously represent their client with a fundamental goal of resolving disputes rationally, peacefully, and efficiently.  Procedurally, sentencing is the moment of truth where decisions are made based upon all information available.

[T]he Constitution makes no distinction between capital and noncapital cases. The Fourteenth Amendment requires due process of law for the deprival of “liberty” just as for deprival of “life,” and there cannot constitutionally be a difference in the quality of the process based merely upon a supposed difference in the sanction involved.  (Justice Tom C. Clark, Gideon v. Wainwright, 372 US 335 – Supreme Court 1963)

Sentencing has taken center-stage in an era of plea agreements.  Due process, as guaranteed by the Constitution, demands sentencing proceedings to be based upon accurate and reasonably reliable information. Fundamental principles of procedural fairness require that a defendant have the right to examine and challenge the accuracy and reliability of the factual information upon which his sentence is based.

Defense attorneys are bound to make reasonable efforts to obtain and review material the prosecution will rely on as evidence of aggravating factors. Likewise, they have a substantial and important role in raising mitigating factors both to the prosecutor initially and to the court at sentencing.

We caution that, in the future, counsel would be wise to alert the court to factors that counsel believes the court has not adequately considered.  State v. Valdez, 194 P. 3d 195 – Utah: Court of Appeals 2008

The “business as usual” mentality of the government is content with defense counsel waiting until the sentencing hearing to present mitigating information or challenge the accuracy of the presentence report.  But most often, this is too late.  The judge has already formulated a decision based upon the information contained in the government’s presentence report.

What if there was another way?  What if you presented a capital type defense for each of your clients?

Defense attorneys have the opportunity to provide information before the sentencing hearing, just as the prosecution provides presentence report information prior to the hearing.  Doing so has consistently resulted in more favorable outcomes for the defendant.  It creates an opportunity for contextualizing the illegal behavior and fashioning a sentence that is fair while balancing the competing interests of protecting the public and rehabilitation.

What if defense attorneys approached each case as if their client’s life depended on it and employed the services of a sentencing consultant to present reliable and relevant information that is excluded from government prepared presentence reports?  What difference would it make in the life of the defendant?  How might that impact your reputation as a lawyer and what difference would it make to your business?