Will My Lawyer Fight My Case?

As you know, I recently moved back to the Lehigh Valley to open my own law practice. When I was putting together a business plan, I looked at statistics on types of cases being handled in the area. I looked at Lehigh County’s stats, since I’m practicing here and it’s the third-largest county in the state. I was fascinated by what I found.

It seems that very few cases go to trial. Consider this: In 2012, there were 5,132 cases disposed in Lehigh County. Of that, 32.6% went through ARD (essentially a pre-trial diversionary program). A staggering 58.8% were disposed through guilty pleas. How many actually went to trial? 53. Out of 5,132 cases, only 53 actually saw trial; that’s 1.1%. If I look at just my caseload over the last two years, I’ve taken far more than 1.1% of my cases to trial…and I’m just one person. So, it would seem the majority of attorneys in the area don’t see even one trial per year.

The civil side isn’t much better, though civil law has somewhat of a reputation for settling and not making it to trial. Of 8,565 civil cases available for processing, 1,060 reached settlements. There are a variety of other ways to dispose of cases in the civil arena, but in the end only 62 total cases went to trial. 62! It’s hard for me to wrap my head around these numbers.

I’ve practiced in many counties throughout Pennsylvania and have now spoken to numerous attorneys in the Lehigh Valley. I can tell you from experience that there are only a handful of attorneys that I’ve interacted with that actually enjoy litigating cases. Far too many are eager to churn and burn, especially DUI cases. To these attorneys, criminal cases, and particularly DUIs, are open and shut cases; not only are they not worth fighting, but some attorneys don’t know enough to attempt it. I even came in contact with several judges who actually got annoyed because I took cases to trial where there was a valid defense. But why?

I don’t know if it’s an age thing, a training thing, a money thing, or just pure laziness. But I’ve proven you can be successful in fighting criminal cases, including DUIs. In fact, I’ve been successful in more than one DUI trial. Then again, I also have advanced training in DUI defense, cross-examination, and other areas of litigation that help me be a more effective lawyer.

The stats support what I’ve experienced; in most counties, the majority of ARD cases are DUIs, and DUIs are far and away the most common type of crime charged in Lehigh County. Yet, as you can see from the stats, very few are litigated.

I like to think that attorneys, both criminal and civil, are doing everything in their power to effectively fight for and protect their clients. But statistics don’t lie; 1.1% is almost nothing. 62 out of 8,565 is almost nothing.

It’s not something I understand or for which I have an explanation. I’m a litigator. I went into the areas of law I did because I like the courtroom. I like trial; it’s where I’m at my best and most confident. But I know people who have gotten into criminal defense and civil litigation who hate trying cases. In fact, I knew a lawyer who focused his practice on DUI defense and who, for whatever reason, was one of the go-to lawyers for people charged with a DUI. He hadn’t conducted a trial in 20 years.

What does this mean for you? It means if you want someone who is going to fight your case, you need to be very selective when choosing an attorney. It means you’ll need to find someone who isn’t afraid to litigate – someone like The Fliszar Firm.

Why do you think cases aren’t making it to trial? Keep the conversation going in the comments.

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The Innocent Defendant

This is Part Two of a three-part series examining the rise in prosecutions for DUI of lawfully prescribed medication. In Part One, I explained the law and how it is that someone can take medication as prescribed and still face a possible DUI charge. Now, it’s time to look at a specific case I recently handled where I firmly believed my client was innocent.

Last year, a very scared and frustrated young woman came into my office, charged with a first offense DUI of a controlled substance after being pulled over for a faulty front headlight. She’d never been in trouble before and her attorney was pushing her to enter into ARD rather than fight the case. She maintained that she had done nothing wrong, as the only thing found in her system after a blood test was lawfully prescribed antidepressants and migraine medication. Plus, even ARD would cost my client her job and ruin her career. She wanted to fight and prove her innocence rather than admit she drove impaired and enter into ARD, as her attorney kept recommending. Because I’d recently taken on these types of cases as my pet project at my firm, I immediately told her I could help and became her attorney.

I looked at her blood results and saw that all the medications she was on were well within therapeutic range, meaning she was taking them as prescribed and obviously not abusing them. Then I looked at the synopsis from the officer and there was a clear disconnect between what he said he observed and what was in her system. I watched the dash cam video, and it showed my client driving perfectly. It also showed that she didn’t do great on the SFSTs, but it looked more like she just wasn’t taking them seriously and wasn’t really trying. She did tell me that she thought the whole thing was a joke, so the video jived with what she had said. However, according to the officer, she was swerving and weaving and performed extremely poorly on the SFSTs, showing numerous signs of impairment. I told my client she should hire an expert witness who specializes in pharmacology so that we could have testimony explaining that the meds she was on wouldn’t produce anything the officer observed. She agreed.

At her first hearing, I asked the judge for a continuance to give us time to hire an expert and provide an expert report. The judge shockingly denied my request, informing me that he didn’t care that this was a first listing and that time to obtain an expert report is not a valid reason to grant a continuance. He then forced us to trial a few weeks later.

When we showed up for trial, we had worked out a plea deal with the DA. We didn’t have time to get the expert and my client was afraid of what would happen if we went to trial. However, when she tried to enter her plea, the same judge that had denied the continuance rejected the plea deal, again forcing us to trial. After this, the trial was rescheduled and a new DA took on the case. That’s when things became disturbing.
The behavior of the DA defied all standards of logic and professionalism. It very quickly turned from a case of seeking justice to a crusade against an innocent young woman. In Part Three, I’ll tell you about the months of maltreatment my client was forced to endure at the hands of an over-zealous prosecutor. Stay tuned!

Making Jury Selection Personal

Recently, I represented a client in a jury trial. I’ve done a lot of jury trials before, but this was my first time in front of this particular judge. Every county handles their jury trials differently, and every judge within every county handles jury selection differently. When selecting a jury, we conduct what’s called “voir dire,” which is essentially questioning the panel of possible jurors. I’ve selected juries in several different counties in front of different judges, and one thing I always do with my panel is tell a story to humanize myself and illustrate to them what we mean when we ask them “can you be a fair and impartial juror?” This time, though, I was hit with a peculiar admonition by the judge that I never expected.

Everybody in our country has the right not only to a trial by a jury of their peers, but to have a jury that is fair and impartial. When I conduct the voir dire, one of the things I’m looking to see is if there is anybody on the panel of potential jurors who would not be able to remain fair and impartial for any reason. Everybody has biases based on their own life experiences, so I always try to explore those and strike for cause anybody who would not be able to put aside their biases and render a fair and just verdict.

It’s important to humanize yourself when conducting voir dire. Jurors need to know that you’re not just some big bad defense attorney (or plaintiff’s attorney). They need to like you. They need to trust you. The way I do that is to always start or end voir dire with a story about myself and the type of jury I couldn’t sit on. I do this because it not only makes me more endearing to the jury, but it puts into simple terms what I mean when I ask them, could you be fair and impartial? The story I tell is as follows…

The point of voir dire is not to find the jury we think is most likely to rule in our favor or help us win a case; rather, the point is to find people for whom this is the RIGHT jury. Let me give you an example of what I mean by that. I’m extremely active in animal rescue. I volunteer a lot and am passionate about saving homeless and abused animals. In fact, I have two rescue cats that I love, and if anything happened to them, I’d be devastated. So, if I was called into jury duty and the defendant was charged with animal cruelty, I couldn’t sit on that jury. Because of my experiences with animal rescue, I would want that person to be guilty and be punished for what he or she did. I couldn’t put my bias aside, so it wouldn’t be the right jury for me. With that in mind, does anybody feel this wouldn’t be the right jury for them?

By the time I’ve told this story (which, by the way, is 100% true), the judge and the DA have asked numerous questions, including specifically asking if the jurors can be fair and impartial. But this story inevitably leads to at least one or two people, sometimes more, who raise their hands and say it’s not the right jury for them. They almost always volunteer why, and I can usually strike them for cause. I’ve now been able to connect with the jury, plus I’ve identified jurors who shouldn’t be on my jury but otherwise may have been picked had I not illustrated what we mean by fair and impartial.

At my recent trial, as I have in all my other jury trials, I told this story. I’ve never been stopped by a judge before or told that it’s not something I should be saying. As always, I had another person raise their hand and tell me they didn’t think they could be on this jury. Afterwards, the DA and I were called up to the bench for what I thought was our final challenges to people we thought should be excluded from the jury. However, as soon as the DA and I got to the bench, the judge immediately asked the DA if she wanted a new panel of jurors. We were both completely confused as to why she would need a new panel to choose from, until the judge began reprimanding me.

The judge informed me that he’d better never again hear me tell a jury that I could not be fair and impartial. According to him, as an attorney, I’m an officer of the court and it’s therefore my job to remain fair and impartial. Telling potential jurors that I couldn’t sit on a jury for a case is completely inappropriate, because it makes them think it’s okay to admit that they have biases and shouldn’t be picked. Mind you, all of this was done in front of the jury. When he was done, he just stared at me. I think he was waiting for me to apologize or say he was right or something. I just stared back, mainly because I wasn’t sorry, and I didn’t think he was right.

I had two problems with what he was saying. First of all, just because I’m an officer of the court doesn’t mean I’m not human. Developing biases through life experiences is natural. It’s why the Disciplinary Board gives attorneys an out when confronted with a client they can’t adequately represent because of these personal beliefs. It’s why the Code of Judicial Conduct requires judges to recuse themselves in cases where they have personal biases they can’t put aside. For this judge to tell me I’m required to be fair and impartial at all times in every case, simply because of my chosen profession, astounded me.

Second, when he said it would make jurors think it’s okay to admit their biases, I almost said to him, well, it is okay. That’s the point of voir dire. We question jurors about their life experiences and preconceived notions for the sole purpose of figuring out who is able to sit on a jury and fairly assess the evidence presented to them. If they’re told a story that helps them see they can’t do that, why is that a bad thing? They should be encouraged to admit this. Otherwise, we could just do away with the voir dire process, draw names out of a hat, and hope for the best.

Although this will not stop me from using this strategy when selecting a jury, I’ve learned this is something I can’t do in front of this judge. I’ll continue to tell my story in front of every judge that allows me to. It’s a great way to personalize myself to the jury and discover who I definitely don’t want determining the guilt or innocence of my client.

Challenging a DUI Serum Blood Test

You’ve been pulled over for a possible DUI. You’re taken in for a blood test and it comes back that your Blood Alcohol Content (BAC) is above a .08%. End of story, right? Wrong. What people don’t realize is that different laboratories are approved by the state for different kinds of testing. Specifically, some labs are approved for testing on whole blood. Other labs are certified for testing of serum. What does this mean for you when challenging your DUI case?

When looking at lab paperwork, it’s vital that you check to see what the lab is approved to test and then confirm that that is indeed what they tested. For instance, if the lab where your blood was tested is approved for whole blood testing, make sure that’s what they tested. If they performed a serum test, you automatically have a challenge to that bloodwork, as they can only perform the test they’re approved for. If they’re approved for serum testing and that’s what they tested, there are very specific things the Commonwealth must show in order to prove their case.

First, a little scientific background. What’s the difference between a whole blood test and a serum test? When a lab performs a whole blood test, the lab tech literally just takes your blood sample and puts it directly into the machine. A serum test is different. Some labs use machines that are not able to handle a whole blood sample; the sample is too dense and will clog the machine. Therefore, because of the machine they use, they are only approved to test on serum. To do this, the lab tech will take the sample, place it in a centrifuge, and essentially spin it until the blood components are separated. The serum from the blood ends up at the top of the test tube. Rather than put the entire blood sample through the machine, the lab tech takes a sample of just the serum and runs that through the machine. Because serum is less dense than whole blood, the BAC that’s calculated will be higher than what your actual whole blood BAC is, and that’s the number we’re concerned with. To get to a whole blood BAC, the machine then uses a conversion factor to convert the serum BAC to a whole blood BAC. That number is what’s used to charge you with DUI. But how do you challenge the number that comes from the serum test?

First and foremost, don’t stipulate to the lab work. Make them bring in the technologist to testify. Why? Because there are very specific things they must prove in order for the BAC generated to be sufficient to prove DUI. The Commonwealth has to show more than a generated number and a conversion factor used. Under Commonwealth v. Karns, they have to show that the conversion factor is scientifically reliable and that it’s generally accepted in the scientific community. Commonwealth v. Renninger also states that it isn’t enough that a machine is used and that the lab is approved for the testing; more testimony is needed regarding the conversion factor.

What I’ve done in several of my cases is argued that the witness the Commonwealth brings in (the lab technologist) must be qualified as an expert in order to testify about conversion factor. Usually, the lab tech has very little advanced education and minimal, if any, advanced knowledge about conversion factors. Because it’s a scientific concept that requires more knowledge than the average layperson, I argue that any testimony about conversion would be expert testimony. Because of the lab tech’s limited knowledge base, they usually can’t meet the requirements for expert qualification. Therefore, if they can’t testify about conversion, they can’t meet the requirements of Karns and Renninger.

Some judges will refuse to qualify the lab tech as an expert and won’t allow them to testify about conversion factor. If that happens, you’re golden. Without that testimony about scientific reliability and acceptance, the Commonwealth can’t meet their burden. If you do end up with a guilty verdict, you’ve set your case up perfectly for appeal. I have run into a judge or two, however, that will say that conversion testimony is not expert testimony and allow the lab tech to blindly testify about scientific reliability and acceptance. In that situation, create a record! You need to gear up for appeal. Make sure you get all your arguments on the record, cite to published case law, force the prosecutor to put on record what they’re using to support their argument that the testimony should be allowed, and make sure the judge clarifies on the record the reasons for his decisions. In at least one county, they’ve relied on unpublished, non-precedential case law to override the binding case law. This is an abuse of discretion and will absolutely help you in winning on appeal.

Of course, this isn’t the only way to challenge the bloodwork. You should always look at the chromatograms and look for things like contamination, machine malfunction, etc. But especially in cases where the chromatograms are acceptable or for people who may not know enough to analyze them, this is a much simpler way to challenge serum blood tests. It takes the argument in a different direction when you need a more unique or out-of-the-box idea for challenging a blood result. Even if you don’t prevail at trial, you can set your case up for a successful appeal. Just be prepared with your arguments, case law, and basis for your objection, and you’ll greatly increase your chances of obtaining a successful outcome.

What is an Advocate?

“Common Law” is a blog meant to provide legal information for the everyday advocate. This statement led to an interesting conversation this weekend. While talking with some friends, we started discussing what I do for a living and what I want out of my career. I said that I want to provide individualized legal representation to everyday people, educate them about the law so that they can be active in their case, and advocate on behalf of my clients. However, the conversation turned to something I took for granted: I assumed that everybody knew what an advocate does. What I didn’t realize was how little people actually know about the role of an advocate.

Merriam-Webster Dictionary defines advocate as “someone who argues for or supports a cause or policy; a person who works for a cause or group; a person who argues for the cause of another person in a court of law.” To me, an advocate, quite simply, is someone who looks out for and protects the best interests of another. I always thought this definition was common knowledge; what I soon realized was that it isn’t so common. I started asking around and discovered that when asked the question, “What is an advocate?” almost everybody I asked hesitated before answering the question. Some honestly didn’t know what, exactly, an advocate does (although they at least knew it was something good); others knew the answer, but said they couldn’t put it into words. Well, advocacy is something everybody needs to do for themselves on a daily basis, especially when caught up in a legal situation. So, I think I need to clarify what an advocate is.

As a criminal defense attorney, I advocate for my clients every single day. I always start this job by meeting with my clients and discussing their goals for their case, then tailoring my representation to meet those goals. Sometimes people want to beat their charges completely; other times, they know they did something wrong and simply want to mitigate the consequences they face. In any event, I always take the time to explain the process and ask for my client’s opinions on his or her case. Why? Because the old saying is true – you are your own best advocate. No one knows how the results I obtain are going to affect your life better than you. You have to live with the results.

So, my role as an advocate is to work to achieve the goals my client desires, ensure that his rights are protected throughout the process, and basically make sure he knows he has someone on his side fighting for him. I do this in a variety of ways. I file pre-trial motions when I think evidence shouldn’t be admitted. I negotiate with my adversary and make recommendations to my client in order to come to a resolution that limits my client’s exposure to adverse consequences or that secures a positive result. I make arguments in favor of my client every day. I do everything I can to achieve the best possible outcome for my client. That is advocacy.

In my opinion, everybody needs an advocate. This is true is so many areas – medical, legal, and just everyday life. Everybody deserves to have someone on their side, fighting for what’s best for them. I do it every day, and I’ll continue to do it until I’m old and gray. Why? Because I love it, and few things are more satisfying than when somebody thanks me just for being on their side. It’s the best part about being a lawyer. And now, you’ll always know exactly what an advocate is.

I Want a Trial, But…

This blog has several goals – to make people better advocates, to provide legal information in a way people can understand and use, and to make people more informed about the justice system. Sometimes, that will involve me writing a post just to discuss things I witness in court or challenges I run into. This is one of those posts.

My job as a criminal defense attorney is to ensure that my clients’ Constitutional rights are always protected. Defense attorneys are tasked with making sure the government is following what the Founding Fathers intended for this country.  That’s really the ultimate goal – protect the Constitution. It’s a lofty goal, indeed, but a noble one. One of the most important rights we advance is the right to trial by jury.

Everybody in this country has a right to a trial by jury, thanks to the Sixth Amendment of the United States Constitution. In the state where I practice, Pennsylvania, this right is also extended through Article I, Section 6 of the Pennsylvania State Constitution. Although there are some exceptions where a person only has a right to a bench trial (trial in front of a judge rather than one in front of a jury), the fact still remains that if you’re charged with a crime, you have a right to some sort of trial. But what happens when citizens are punished for exercising this right?

There’s a distrubing trend I’ve noticed. People who exercise their right to a trial are then punished at the time of sentencing. It’s been happening at an alarming rate, from what I can see. A defendant wants to exercise their right, they refuse to take a plea deal, take the case to trial, lose, and then at the time of sentencing, the fact that they went to trial is used against them. How? Well, the DA argues that the fact that the defendant took their case to trial rather than plead guilty is evidence that they aren’t taking responsibility for their actions, therefore they should receive a stiffer sentence.

I’ve seen judges agree with this sentiment over and over again. Even in cases where the judge admits that the defendant had a viable defense, the act of requesting a trial is used against the defendant and a much harsher sentence is handed down. I’ve also seen the harsh sentence handed down when the defendant did everything he or she could to turn their life around – work a steady job, receive alcohol treatment, take care of their family, etc. All because the defendant exercised his constitutional right to a trial by jury.

So, where do we go from here? Should this dissuade you from taking cases to trial? The answer to that is, in my opinion, simple – absolutely not!! It’s important to do two things when facing this issue. First, determine if you have a valid legal defense, something you can hang your hat on. If you don’t, chances are the threat of a harsher sentence isn’t worth the risk. Second, get the client involved. Explain your strategy, the legal defense and how strong you think it is, and make sure they know that if they go to trial and lose, there’s that possibility of a harsher sentence. You shouldn’t try to scare them, but it’s important they know all the pros and cons of going to trial so they can make an informed, educated decision. At the end of the day, it’s the client’s life, and they need to make the ultimate decision whether or not they want to exercise their rights.