Michelle Ochoa

Michelle Ochoa joined the Public Defender Program with Texas Rio Grande Legal Aid in 2011, where she currently serves as a managing attorney (and felony trial attorney) in the Beeville office. One of her proudest accomplishments was the successful litigation of the Martinez case. She currently serves on the Board of Directors for TCDLA (and serves on the women’s caucus and the awards committee). Michelle has served as a TCDLA course director for two different CDLP seminars in Corpus Christi, TX. Michelle also serves as a mentee in the inaugural class of the Future Indigent Defense Leaders. Prior to becoming a Public Defender, Michelle was in private practice working in criminal defense in Corpus Christi and surrounding areas. After attending law school at St. Mary’s University, she worked for several years in the District Attorney’s Office of Nueces County. Originally from Carrollton, TX, she earned her bachelor’s degree from The University of Texas at Austin and taught high school government prior to entering law school. Michelle is a proud parent of an amazingly autistic son Matthew.

Do’s and Don’ts of Being Second Chair

Whether you are a seasoned attorney or a new attorney, being a second chair comes with its own unique challenges and pitfalls. However, if done right, the experience of being a second chair will be invaluable for all parties involved, including the client. This article presents suggestions of things to do and things to avoid doing as we advocate for clients as a second chair attorney. One becomes a second chair on a case in many ways, some of which include: new lawyer needing trial experience to get on the wheel, complicated case that calls for the assistance of a court appointed second chair, retained lawyer with resources to hire additional trial help, or even a seasoned attorney helping our next generation of advocates develop trial skills.

No matter the circumstances around a second chair assignment the following steps should always be taken:

  1. Read the discovery;
  2. Read the indictment;
  3. Read the applicable statute(s);
  4. File a designation of attorney;
  5. Have a meeting to decide exactly what help is needed or what will be provided and establish compensation if any.

First Chair Considerations

Expectations must be clear. This can look different for everyone, and it can look different in every case. Do you just want someone to hold your briefcase or bring you water?  Do you want a second chair to support family members and coordinate witnesses during the trial? Do you want your second chair to focus on the client, fielding questions, explaining the process so you can focus on the substantive trial issues? Do you want your second chair to handle a specific witness or area of law i.e.-experts or jury charge?  Do you want your second chair to make objections on the record, or just support you in crafting your objections? Do you want your second chair to brainstorm a theory of the case with you? Do you want your second chair to research specific issues? If so, do you want a brief, case law, or just an oral report back what they found? Do you want them to review and or summarize medical records, or CPS records? If so, how do you want the information provided to you? Do you want them to prepare sample direct or cross questions based on the records, do you want sticky notes, or outlines? Giving the assignment is just as important as how you want the assignment completed. Do you want them to review media?  If so, what are they looking for? Are they watching for redactions?  Are they watching for incriminating statements, exculpatory statements, extraneous offenses? Are they time stamping and transcribing? Are they just reviewing for due diligence purposes because you have a ton of irrelevant media and need a heads up if something important is there?  Be very specific about what you want them reviewing these records for. Are you looking for other possible suspects, or witness credibility issues? When using a baby lawyer, the more direction you can provide, and the reasoning behind it, the better results you will see in return. For example, “I want you to read the CPS records, I am debating between these two defensive theories—the complaining witness is making it up, or some other dude did it. Note each page and highlight the relevant portions that tend to support one or the other theory. If you see another pattern develop, such as parental alienation, note that as well again, with pages and highlights.  We will discuss your review of the records in two weeks and based on what we learn, I will decide which strategy is best for the case.”

Most importantly give and receive deadlines. I have had the unfortunate experience of not giving specific enough assignments and deadlines in the past.  It led to more work for me on each case and added a level of frustration that was not necessary if I had spent more time at the beginning discussing the assignment and clarifying my expectations. I ended up having to do review all CPS records before trial and in another case, I ended up having to deal with a forensic expert on a phone dump at the last minute. As Brene Brown would say, paint done!1

My last big take away no matter what chair you are serving as is to bring a code book to trial and use it. One of the most memorable experiences I have had with this suggestion was as a second chair. We invoked the Rule at the beginning of evidence and then there was an issue whether the expert needed to be excluded. My first chair did not have their code book. I knew what the Rule was, but I had no idea where it was. We frantically combed the one code book we had in the courtroom, and I painstakingly learned that the rule governing witness exclusion is TRE 614, and experts are excluded from the rule.

Being a second chair as a less experienced lawyer

Watch the jury, opposing counsel and the Judge. During voir dire, take notes of attitudes and demeanors of jurors. The lead attorney is going to be focusing on time constraints and making sure the areas of law that are important to the case are covered. They need your eyes and ears to see the jury from a different perspective. During trial, the lead attorney will be focusing on the witness so they might not be able to read the jury or opposing counsel at the same time. Observe and supply feedback to lead counsel. Don’t be afraid to pass the lead attorney notes with questions or comments. Do you think another question should be asked? Does something need to be clarified? If you did not understand something you can bet the jury did not get it either. 

Don’t show up late to court if you are sitting at counsel table. The jury is watching you; act accordingly. Stay off your phone. The jury has been instructed to be off their phones you should as well. Take notes. Track exhibits, number of the exhibit, comments, objections, which witness it was offered through and whether it was admitted. I once leaned over and asked my second chair if the witness said what I thought they had said, and my second chair was not paying attention or taking notes. Infuriating. Ask the first chair if you can get them anything at lunch, and debrief with them after court at the end of the day. Act like part of a team. You are not just sitting second chair to get felony qualified. You should be sitting second chair to help the client. Do not second guess the trial theory. Trials are stressful enough; lead attorneys do not need back seat drivers in the courtroom.

Being a second chair to a less experienced lawyer

Again, have that first meeting to discuss what roles each of you will have. Don’t take over as the senior attorney.  Your job is to guide and teach.  Remember the saying, “If you give a man a fish, you feed him for a day. If you teach a man to fish, you feed him for a lifetime.” Mistakes made by the first chair attorney are okay if they do not rise to the level of ineffective assistance of counsel. Mistakes and struggles are how we learn. 

Watch how they navigate and use technology in the courtroom. I am a flip chart and sharpie kind of girl.  Watching the young lawyers in my office use power points during voir dire has helped me develop and grow as an attorney. Focus on deferring to the first chair for decisions and strategy calls. For example, I was recently in trial in county court as second chair and the prosecutor kept asking me questions, like would we stipulate to priors. I had to be mindful that it was not my case. I know what I would do, but I wanted the prosecuting attorney to have that conversation with the first chair attorney. Remember there is also an emotional element to trying cases. They might need a little more support and feedback from us while gaining trial experience. Remind them that this is hard work, and everyone makes mistakes, that is why we call it the practice of law. Finally, balance any constructive criticism with specific compliments on their skills and successes as appropriate. If your feedback is professional and helpful, a young lawyer is more likely to take it to heart. Then, your efforts contribute to developing the advocacy skills of a less experienced lawyer.

Biases. We All Have Them. What Are Yours?

Tired, stressed and with limited time, I hurry into my local grocery store to grab a few items for dinner. As I approach the checkout lines, hoping to find a relatively short one, I see a 5-year-old child flailing on the floor. Her mother is right next to her –and so is the candy display. What are your thoughts? I immediately thought, “This mother needs a firm hand to get control and discipline the child. Otherwise, this spoiled rotten child will grow up to be my client in about 15 years.”

While getting into my vehicle, in a rush to get home, I notice the mother and child getting into their minivan.  More importantly, I notice the autism awareness sticker on the back window. I stop in my tracks. Rather than a spoiled child, or lack of parenting skills, what I witnessed was an autistic meltdown, brought on by overstimulation, that sent the poor child into a tailspin.

How much did your biases play a part in your thinking in the child scenario? A bias is a preference for or against an individual or group that interferes with or influences fair judgment. My bias was about bad parenting or bad behaviors in a child. It clouded my judgment, causing me to see the situation as that of a bad parent or a bad child. 

What Are Biases?

We all have biases. It takes vulnerability to acknowledge these biases. Biases can be both conscious and unconscious. Implicit biases are biases that are unconscious, so they can be hard to spot. Implicit biases are unconscious attitudes and stereotypes, also known as implicit social cognition, that affect our understanding, actions, and decisions in an unconscious manner. They can be seen manifested in all areas of life including the criminal justice system, workplace, school setting, and in the healthcare system.

What Can We Do About Our Biases

How do we address our unconscious biases? Consider the following questions from the website Love Has No Labels: Have you ever avoided sitting next to someone in public because of your perception regarding their race, religion, or ability? Have you ever justified using offensive language because a friend told you it does not bother them? Do your three best friends look like you? Have you ever joked around and told someone to “stop acting like a girl”? Have you ever referred specifically to someone’s race when it was not necessarily relevant (e.g. “a black doctor” or “Latina lawyer”)? Have you ever assumed a person’s stance on social issues based on their religion? Have you ever ruled out certain neighborhoods as places you might live or send your kids to school based on the neighborhood’s demographics?

I regretfully admit I have done all of these. The good news is, I can eliminate my own implicit biases through awareness and action. So can you. 

How do our biases affect our work within the criminal justice system?  There are financial, racial, sexual, gender, and religious biases that permeate the criminal justice system. Have you ever had a prosecutor make a better offer to a codefendant who had a retained lawyer? Is there an implied bias that the person who can retain a lawyer is a better person than the one that has a court appointed attorney? As a court appointed attorney, I demand the same plea bargain that the retained attorney received, thereby doing my best to equalize the playing field.

Have you ever had a judge make a bail or punishment decision based on the orange jumpsuit worn by your client? Is there an implied bias that because someone is in jail and not out on bond they are a bad person and needed to be punished? We can confront and challenge the ruling of the court if we see this disparity. Do not be afraid to point it out.

Have you ever had to talk to a client and explain they would be judged differently due to their race, sexual orientation, religious beliefs? Do not ignore these differences. Everyone else is thinking about it. Discuss these differences with the court and the jury; do your best to demystify and dismantle the prejudices or biases.

Have you ever had to tell a client they will hear the words, “boy” or “little lady” from the bench or prosecutor? Have you ever had to hear these words addressed to you? Tell the Court or the opposing party what you expect to be called. Do not allow them to get away with derogatory language.

It is hard to acknowledge that the world we live has all kinds of biases, stereotypes, and discrimination—and that we unwittingly contribute to them. However, it is a fact. We must acknowledge it. Acknowledging our biases, stereotypes, and prejudices is the first step towards change.

I challenge everyone to take a personal self-assessment, make a personal inventory of your own bias and prejudice, and then make a plan of action of how you want to improve yourself through your thinking. Part of your plan could be reading a book about biases or “blind spots” or talking to your children about biases or stereotypes and how to avoid them. The TCDLA diversity committee can provide a mentor; creating a safe environment to discuss your biases or prejudices. Looking inward and being brutally honest with ourselves is the only way we will be able to reconcile what is happening in our society today with how we can make it better. We must stand together as a legal community to fight against oppression, inequalities, and discrimination. As we continue to grow and reflect as a society and as a legal community, we need to challenge these biases and prejudices when we see them. We will be better advocates against biases by recognizing our own. Keep fighting my fellow warriors and Fight the Bias.

  1. I am a proud parent of an amazing autistic son.
  2. https://www.adl.org/sites/default/files/documents/assets/pdf/education-outreach/Personal-Self-Assessment-of-Anti-Bias-Behavior.pdf
  3. https://implicit.harvard.edu/implicit/selectatest.html
  4. https://lovehasnolabels.com
  5. https://ethicsunwrapped.utexas.edu/video/implicit-bias
  6. Mahzarin Banaji & Anthony Greenwald, Blind Spot: Hidden Biases of Good People (2013).
  7. Jerry Kang et al., Implicit Bias in the Courtroom, 59 UCLA Law Review 1124 (2012).