• US v. Washington
  • State v. Taylor
  • Townsend v. Burke 1948

Bad Legal Advice

posted in: Legal Practice | 0

Which path will you choose?Are you receiving the best legal assistance possible or are you the recipient of bad legal advice from an ineffective, incompetent, or overworked attorney?

The government has marshaled investigative and prosecutorial resources to pursue criminal charges against you.  In many respects those resources far exceed what is available to average citizens – but that does not require the accused to settle for less than adequate representation.  In fact, justice is not obtained when those accused of breaking the law receive bad legal advice from ineffective, incompetent, or overworked attorneys.

What constitutes bad legal advice and what are the signs of an ineffective or incompetent attorney?  Some of the more egregious that have been documented by the Innocence Project (available here) include falling asleep during trial and being drunk. Townsend v. Burke 1948

Quote - washington1But most are less obvious.  They may not even become evident until it is too late to correct them.  In most instances, however, they present themselves over time and can be categorized as time and information.


  • Is your attorney always prepared, meaning he does not miss important filing deadlines, does not arrive late (or fail to show up) for court hearings?
  • Does your attorney meet with you before important hearings?
  • Does your attorney take your calls, respond to emails, or otherwise communicate with you to your satisfaction between court hearings?
  • Does your attorney take the time that you need to explain procedural issues, available options, and identify alternatives?
  • Do you have adequate time to make decisions (particularly in terms of plea negotiations)?

If you answered “yes” to these questions, your attorney may be overworked or overextended and unable to devote the necessary time or energy that you deserve.Quote - inadequate investigation


  • Does your attorney keep you informed of the progress, including offered plea deals, and case strategy?
  • Do you have the “information” necessary to make informed decisions pertaining to case strategy and offered plea deals?
  • Are your questions answered fully (and explained if necessary) and do you understand what is happening in your case?
  • Is there a “team” of people working on your case that includes specialists, investigators, and other experts?
  • Did your attorney consult with independent experts, investigators, or specialists specifically regarding the sentencing outcome (that is in addition to those consulted for purposes of trial)?

If you answered “no” to these questions, your attorney may be ineffective or incompetent.

Most importantly, is your attorney responsive to your needs, concerns, and questions?  That is, do you feel that he works for (or with you) in resolving the case, as opposed to feeling powerless when it comes to making critical decisions and that those decisions are made by the attorney without you?

While you may be guaranteed certain constitutional rights, it is incumbent upon you to exercise those rights – especially when it involves the potential loss of liberty.  You are the client and it is your life that hangs in the balance.  Unless, or until, you choose to stand up for yourself and make yourself heard it is left to chance whether justice is achieved. State v. Taylor

Competent criminal defense attorneys generally follow 8 Steps to prepare for sentencing.  Many of these steps are time and labor intensive and begin immediately upon accepting your case.  Although there are similarities and they can be pursued simultaneously, there are significant differences between preparing for trial and preparing for sentencing.

  1. Conduct a “mitigation” investigation to identify existing factors as well as outline proactive steps that may be undertaken to establish additional evidence that will be relevant to sentencing – should also include a risk assessment to identify criminogenic needs.
  2. Engage in detailed and ongoing discussions regarding pertinent sentencing scenarios.
  3. Explain the sentencing process in its entirety – including the role of probation in preparing the presentence report, the importance of that report, and the fact that most sentencing decisions are made by the judge before even entering the courtroom for the sentencing hearing.
  4. Help prepare for the probation interview and document what is provided to the probation officer preparing the presentence report.
  5. Gather evidence and character references that may be used in mitigation.
  6. Carefully review the presentence report in detail & compare the information provided with what has been documented elsewhere.
  7. Meet with the client before the day of sentencing to review the presentence report and recommendation.
  8. Prepare a detailed and cohesive outline of oral arguments which includes the identification of factual errors, omissions, and/or misrepresentations that have been included in the presentence report.

The most effective criminal defense attorneys engage the services of a sentencing specialist to assist them in preparing for sentencing.  This allows the attorney to focus on trial preparations and/or plea negotiations.  It also enhances the attorney’s ability to consistently deliver the best legal assistance possible.

You do not have to settle for “business as usual” when it comes to your criminal defense.