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March 30, 2008

Thoughtful analysis of Gall

The Daily Report legal newspaper has this effective piece on Gall by Steven Sadow headlined "Gall offers options at trial: Fewer defendants will plead, as judges can depart from guidelines more often."  Here is an excerpt:

Sentencing has finally moved from the hands of the prosecutors and the harshness of the Federal Sentencing Guidelines back to the discretion of the district court judges. The federal sentencing menu options have changed, and white-collar criminal defendants can, and should, consider retaining veteran trial lawyers. Attorneys who fit this mold have real experience defending criminal cases in the courtroom, will not be dissuaded to go to trial when the facts and legal issues demand it and will not settle out of fear of a presumed harsher guideline sentence.

March 30, 2008 at 11:12 PM | Permalink


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Are they really saying that in years past white collar defendants would retain people with no trial experience in representing them when they faced decades in jail?

Posted by: S.cotus | Mar 31, 2008 6:42:27 AM

the answer to your question is a hard-to-believe, yes. my own experience suggests that many of the new breed, ex-federal prosecutor "criminal defense attorneys" have little to no actual courtroom trial experience (by this i mean to jury verdict) defending white collar clients. any recent (say since 2000) ex-federal prosecutors out there who have tried more than 10 federal cases to verdict?

Posted by: steve sadow | Mar 31, 2008 8:07:22 AM

Maybe this is a regional thing, but all the ex-AUSA guys I know have tried more than ten cases to verdict. Maybe they were not all white collar cases, but still.

Posted by: S.cotus | Mar 31, 2008 9:58:42 AM

This is a very good article on the changes taking place. I believe small drug cases will eventually go the same route as white collar criminals. I am acquainted with an attorney who is on a "panel" of appointed counsel in a federal district who gets paid an hourly fee. He has been doing this for over ten years. It is a large part of his every day practice. He has never tried a jury trial in his life (50+years old and 20+ out of law school) and could not do so effectively. The federal defenders office tries but a few cases each year. Each day the ranks of those who are seasoned criminal trial attorneys shrinks as the overall number of lawyers grows exponentially. Across town there is a large law firm which formerly represented major corporations on a variety of strictly corporate matters. They now have a white collar crime department which is staffed by several ex U.S. attorneys. Like the appointed counsel mentioned above, they do not try cases. One of them refers to his practice as "pimping".

It is difficult to become a seasoned trial lawyer. The best place for someone to gain the skills and earn the guts is in a small criminal practice with a seasoned trial attorney as boss, co-counsel and mentor.

Thanks Doug for printing the article. It is a breath of fresh air.

Posted by: M.P.B. | Apr 1, 2008 5:53:05 AM

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