Dean Watts

Dean Watts is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He has been a TCDLA member since 1998, and practices criminal law in Nacogdoches, Texas. He can be reached at .

From the Front Porch: Is Opening Up the Courts Good for the Rural Practitioner?

/

After Governor Abbot announced that he was lifting regulations involving mask‑wearing and social distancing, it was not long before the OCA put their two cents in on the issue. Their recent opinion can be summarized by the lyrics of that old Mamas and Papas song. Now courts can go where they want to go and do what they want to do. The OCA left it up to each county to be restrictive or not, continue Zoom hearings or not, or go back to 2019 procedurally speaking. The question is, is opening up the court system good for the rural practitioner? The answer is… it depends!

Positives:

COVID rules put the brakes on jury trials. This can be good. If you have someone out on bond, time usually works on the Defendant’s side. The backlog makes more minor state jail felony cases and third‑degrees look even smaller to the judges and DAs. When there is a huge backlog, do you really want to go to court on a mandatory probation state jail felony case, or give them a 12.44 (b) and move it down the road? Opening up the court system to the good old days may lurch the criminal justice machine back to the days when these cases were taken much more seriously.

COVID made courts shift to Zoom hearings. This can be also good for the criminal practitioner. You can do court hearings and jail visits in your pajamas and slippers. Just wearing a dress shirt and tie over them, or move the camera, so it only shows your face! This makes these standard time‑wasting activities a snap. This has allowed the rural criminal defense attorney to be much more efficient, sometimes allowing them to be working on one case while in the Zoom waiting room on another. This is especially so when you practice in numerous counties. Opening up the court system could make our jobs move from being a quasi stay‑cation to having to dress up and go to court again like the old days.

Negatives:

COVID rules put the brakes on jury trials. This can be very bad. If you have some languishing in jail, the possibility of a jury trial looks very remote. Your client will probably wait years, if they have not already been, to have their day in court. The most heartbreaking scenario is a person accused of serious crime, has a high bond that they can’t make, and claim to be innocent. If the powers that be wont lower the bond, they’re stuck. If they genuinely are innocent, that’s an enormous injustice. Hopefully, you have gotten a good investigator to get some exculpatory information to grease the wheels of justice somehow. But if not, this is a horrible nightmare. Opening up the court system could really help these people get their day in court.

COVID has made courts shift to Zoom hearings. This can also be very bad. As we all know, getting into court, meeting the prosecutor face to face, seeing your client face to face, and having the judge pressure both parties to get things done can help resolve or get cases dismissed. When dealing with everyone in an impersonal zoom hearing, the immediacy and intimacy of in‑person contact are lost. These intangibles fuel the process. Opening up the court system can make innocent defendants get off the hook, and guilty ones gain a better result. Opening up the court system, in this case, would be positive.

In conclusion, COVID has been a double‑edged sword for the rural practitioner. Guilty folks on bond have enjoyed a long continuance, perhaps using the time to gain employment, get help for their addictions, and build a resume for a better resolution down the road. Zoom hearings have allowed the criminal practitioner to be more efficient, and it has made it easier logistically to practice in other counties. On the flip side, COVID has caused innocent folks may be languishing in jails for months or years before a trial. The lack of in‑person hearings has caused an enormous backlog, which hurts anyone trying to resolve a case.

Long story short, we will have to roll with whatever happens, just like we did a year ago when the system was upended.

Note: In the March edition, From the Front Porch was actually written by Dean Watts, not Clay Steadman. The appropriate person has been properly flogged.

From the Front Porch: Mending Fences

/

If you practice in a small town, sooner or later, you’re going to tear your britches with the prosecutor or the judge. Sometimes, you tear your britches with both. Me? I’ll take the 5th (as always). In a big city, this is not so much of a problem. Prosecutors come and go, and your cases are probably so spread out that you may not see that pesky judge for awhile. In the big city, things can cool off organically. The conveyor belt of problems will often quickly remove yesterday’s problem with today’s, then tomorrow’s. And as a learned attorney in Nacogdoches once said, “Time is a soothing balm.”

However, in a small town, time’s soothing balm may not always be so soothing. You may be dealing with that judge or prosecutor for the next 20 years or more. Literally! In my experience, rural practitioners seem to have a long memory. So, what do you do when you get crossways with the powers that be? Telling them to just go to hell doesn’t work in the long run. Unfortunately, and inextricably, they hold the keys to what ultimately happens to your clients. In my experience, there are three things that you can do to mend fences when things go south.

If you are wrong, admit it. No one likes to admit when they have made a mistake. But, hey, we’re all human. You may perceive that admitting when you made an error bruises your public perception. On the contrary, it enhances it. The worst thing you can do is wrongfully blame someone else, make excuses, etc. This makes you look far weaker in the long run. If you make a mistake, own up to it.

If they are wrong, don’t rub it in. Just as the rationale for #1, we are all human. If they don’t realize their mistake, you can point it out gracefully without making them lose face. If they own up to it, don’t rub it in. As stated before, you may be dealing with these people for a long, long time. Be graceful and dignified about their mistakes, just as you should be with yours.

Whether it is 1 or 2, don’t let your emotions dictate how you respond. This is probably the toughest advice to follow. Whether it’s extreme anger or fear, it is best not to show this to the other side. When I first started practicing, I often needed to leave the courthouse and drive around the block to cool off. One time, I almost hit my colleague driving around doing the same thing (I’m not kidding). With today’s zoom hearings, it’s even easier. Just mute your app, turn off the video, and let loose. Compose yourself and boogie on.

We are all going to be in this position sooner or later. Avoid the temptation to act like a jackass. Because our jobs inherently involve conflict, at some point in time, some fences will need mending. But our actions determine whether we need a small repair or if we need to fix the whole damn fence! If you practice in a small town, you probably are doing so to avoid the big-city headaches. I’ll take our unique rural problems over the big city headaches any day! I hope this helps you a little when you suit up and take on the state – even if only from the waist up in our current age of Zoom. Take care, good luck, and have fun!

Small-Town Advice for the Big-City Lawyer

As a solo practitioner in Nacogdoches, I always enjoy seeing fellow criminal defense lawyers from out of town travel to the courthouse and defend the innocent accused (and occasionally a few guilty ones). It can also be quite entertaining to see how they handle practicing in a small town. In the twenty-odd years I’ve been practicing here, I’ve noticed that many make the same mistakes over and over, which although entertaining to us locals, do not serve their clients well. With that in mind, I wanted to share with you six common mistakes I see when city attorneys come to smaller towns.

Mistake #1: They overdress. While it’s good to dress for success, I often see attorneys from big cities wearing custom-made suits, matching socks, handkerchief, and tie, Rolexes, fancy briefcases, etc. The local prosecutor understands you are successful because your client must be paying a big fee to have you come up here. But looking dressed to the nines will often be counterproductive, as I’ve seen what are normally reasonable prosecutors dig in their heels against someone they think is trying to visually intimidate them.

Mistake #2: Don’t talk down to prosecutors. This is very common. An out-of-town lawyer treating a small-town prosecutor like an idiot will not get the desired result. A case that might ordinarily be dismissed because of a bad stop may need a few more settings so that the local prosecutor can casually “look up” all that complicated law so haughtily thrust upon them. They live here, but you have to drive here. Sometimes, over and over again . . . You don’t need to be a kiss-ass; just don’t be a smart ass.

Mistake #3: Don’t threaten prosecutors. This is closely associated with Mistake #2—especially when combined with Mistake #1. Threatening to file a suppression hearing, threatening to go to trial after the first setting, etc., will probably result in you coming back up here many more times than if you’d just acted like a rational human being. When threatening a prosecutor, you will just motivate them to figure out how to hammer you and your client. If you have a good case and the state has a bad one, great. Point it out in a non-threatening way and see what happens. Your result will usually be better than aggressively firing an opening legal salvo right off the bat.

Mistake #4: Don’t aggravate the court staff. If you tick off the prosecutor, that’s bad enough. But you really don’t want to make the court staff mad. They live nearby and go to that courthouse daily. You may have made your point that you want a jury trial, but you could be at the bottom of the list for many dates down the road. And, you may find yourself angrily driving back and forth indefinitely if you make the wrong court coordinator mad.

Mistake #5: Don’t pick a jury without consulting local counsel. This one may be obvious, but it’s worth noting. The smaller the jurisdiction, the more likely local counsel is going to know a lot about the folks on the jury panel. They may have kids that go to school with jurors’ kids or may have gotten one of their family members out of trouble. If you don’t have the resources to hire local counsel as a jury consultant, at least ask a fellow TCDLA member to give a once-over on the jury list.

Mistake #6: Don’t go to the judge for important issues without consulting local counsel. Every judge is different, and some judges are good with probation and some generally are not. Local counsel is going to know which ones are good about that, as well as suppression hearings, continuances, etc. They will probably have some entertaining war stories to punctuate their opinion.

I hope this will help you the next time you practice in smaller towns. You can always consult the TCDLA directory and find fellow members to help you fill in the gaps if you find yourself in over your head. Good luck and have fun!