The Real Deal

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Category: Criminal Law & Process, Legal Education, Legal Practice
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I’m going to start this post with the words “when I was in law school…” and hope that they don’t inspire a collective eye-rolling and a quick click to another link. Sort of the way selective hearing kicks in when some old-timer starts a harangue about dissolute modern youth with “when I was a youngster, I had to walk to school in the snow . . . for five miles . . . and it was uphill both ways . . . .”

At any rate, this is a passionate plea for those budding soon-to-be lawyers to PAY ATTENTION IN YOUR CRIMINAL LAW CLASSES!!

Not all that long ago I was as guilty as the next 1L or 2L of paying really rapt attention in the classes that I figured would be my bread and butter after I graduated, and paying enough attention in the other ones to get good grades. Followed by massive mental “information dumps” after the final exams.

I knew I wanted a career in criminal prosecution, and I knew that I would be drawn to appellate advocacy, so I leaned forward intently and absorbed as much as I could, and committed to memory as much as my fading hard-drive of brain cells could assimilate.

As for the rest—trusts and estates, contracts, civil procedure, secured transactions—I figured that if I ever had a legal problem in those areas, I could always hire me a good lawyer.  

That’s why attorneys specialize. It’s a fair bet that the same presumption applies to folks whose desired career path will take them far away from criminal courtrooms and into more rarified realms such as tax law and real estate and intellectual property. You can go your whole legal career specializing in sports law and never have to deal with a question about a condominium.

The thing about criminal law that’s dawned on my in the past ten years as a prosecutor, though, is that in some way, shape or form, it inevitably touches everybody.

I didn’t know that at first.

But I’ve been in court long enough now to realize that everybody will some day have a connection. Whether it’s that you’ve become a crime victim, or that someone in your family will be the victim of a crime, or that someone you know will be accused of a crime or be victimized, or that a neighbor or friend will call you for advice and direction in the middle of the night because someone that they are close to has had their life touched in some way by this system . . . it’s going to happen.

And in those moments of crisis, which are usually nothing that you’ve foreseen or ever thought about before, it really helps to retain a working knowledge of how the system works.

Remember, the stakes are high, and the fears that they spark are wrenching. While civil litigation usually involves issues of money and property, criminal charges involve the possible deprivation of an individual’s freedom to move and work and raise a family without interference. Whether jail (short term and usually local) or prison (longer term and often away from familiar surroundings and faces), the possibility of time behind bars is often a dark and terrifying prospect.

But what any number of law dramas or “reality judge” programs on television give short shrift to are the simple core realities: How a case marches through the system from the time a person is placed under arrest and taken into custody or released and given a citation for a later court date. The charging discretion inherent in the prosecutor’s office, and the points along the way at which that discretion diminishes. The possibilities of creative solutions that both rehabilitate an offender and help to repair a victim, such as community service, restitution, deferred prosecution or conviction agreements, probation rather than jail or prison. The value of having a competent defense attorney at your side.

When I got divorced, I knew enough to hire a wonderful attorney to get me through the process. I didn’t need to know more than that. When a relative died in another state and made me executor of her estate, I knew enough to hire a good estate lawyer who practiced down there and would keep me on track for what the probate court required of me. I’ve slept easy with both those decisions.

But when someone calls you out of the blue one day as a result of a crime that’s been committed, whether they’re a victim, or they have been accused, or they’ve been called as a witness, or because their child has been arrested . . . they’re calling you for more than just the name of a good lawyer. They’re going to need, even fleetingly, a hand to hold, a little perspective into this scary new process, a few words of comfort and proportion, some small idea of what’s going to happen next.

I’d bet very good money that at some point, that phone call is going to come. It’s just a matter of time. In the meantime, sharpen those pencils, lean forward in your next criminal law class, and repeat the words to yourself, “this is really important.”

And at the end of the semester when exams are over and your brain feels overloaded and you’re tempted to hit the “information dump” button . . . try to save a few bytes. When “some day” comes, you won’t regret it.

Mary T. Wagner is an assistant district attorney in Sheboygan, Wisconsin and the author of two award-winning essay collections, “Running with Stilettos” and “Heck on Heels.”

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