There is no other proceeding in the legal world that involves a dynamic combination of both luck and skill like a probation violation. While there are plenty of situations in which the allegations in a violation are untrue, in the real world, more often than not, it comes down to a person either having done something they weren’t supposed to do, or not doing something that was required of them. The notion that properly handling these cases involves both luck and skill is very real, and makes the whole thing more of an art, rather than anything else.
In terms of luck, this means that, on the one hand, if a case has been assigned to the most impatient Judge around who is known for not being interested in any excuses about anything, that’s bad luck. On the other hand, if the presiding Judge is known to be “forgiving,” then that’s good luck. Unfortunately, there is nothing that can be done about the Judge to whom a case is assigned, other than to make the best of the situation.
And there we get to the skill part of this: the lawyer must make take into account and work around the temperament of the specific Judge assigned to the case. It is critical to have a lawyer who is familiar with the court and knows how that Judge does things. As much as a lawyer needs to talk his or her client out of trouble, knowing the Judge and what will (and won’t) fly with him or her will help avoid talking the client into trouble, as well. For as much as my team and I talk, we also know when to shut up, and that’s important, as well.
Moreover, EVERY Judge sees certain things all the time, especially in probation violation cases. To be sure, some less common and unique situations crop up from time to time, but, in no particular order, the overwhelming majority of violations of probation occur for the following reasons:
- Testing positive for alcohol or drugs
- Missing a breath or urine test
- Picking up a new criminal charge
- Not completing probationary requirements
- Not paying all fines and costs
- Skipping out on probation altogether
It is beyond debate that a breath or urine test can come back positive for a lot of reasons, not all of which mean a person is guilty of drinking or using drugs. That said, those situations are the exception, and most Judges (and lawyers) figure that out pretty quickly.
This is right about where luck and skill intersect, because how a lawyer handles a positive test situation depends on both the facts of the case (is it a false positive, or not?) and the temperament of the Judge presiding over it.
I remember a former Judge, now long retired, who had less patience than a hamster. He was a nice enough guy, but practicing in front of him was often a matter of saying everything important in about 3 sentences or less.
Once in a while, I’d be in his court when some lawyer who didn’t know him would step up to the podium, and, with the best of intentions for his or her client, start blabbing on and on. Soon enough, the Judge, having heard more than he wanted to, would interrupt and move things along.
Of course, this would throw the lawyer off, having not planned on presenting the “60-second defense.”
By contrast, there are other Judges who expect and want a thorough explanation of the circumstances surrounding an alleged violation, and trying to provide a “short and sweet” account to one of them is not going to fly, either.
Moreover it is very possible that, given one set of facts, it’s better luck to have the “make it quick” Judge, while, it might be better, under different circumstances, to have the Judge who is interested in a fuller, longer explanation.
However that shakes out, an important part of the lawyer’s skill is knowing all this stuff (which, of course, means knowing the Judge), and then proceeding accordingly.
In those cases where a legal or technical defense is key (like a false positive test result), then the lawyer needs to be adept and presenting and questioning the evidence, not just in general, but in a way that won’t lose the Judge.
Some of this goes beyond skill, because there are plenty of smart people who can drone on and on to the point of putting the listener to sleep. The right lawyer for a probation violation must be the opposite of that, and have the natural ability to speak in a way that is interesting.
In other words, beyond having a good substance for his or her argument(s), the lawyer needs to have a magnetic style for presenting it.
Thus, in cases where someone simply gets caught drinking, using drugs, missing a test, not completing something required, or picking up a new case, that style becomes the most important skill of all, as it must be good enough to persuade the Judge to take it easy on the client
In other words, the lawyer needs to be charismatic – really charismatic. Here, the lawyer has to be able to first capture and then hold the Judge’s attention long enough to convince him or her to give the client another break.
It’s important to take a step back and understand that a probation violation is, at its core, a hearing to determine if someone screwed up a break they were already given.
The legal standard in for a violation is not “proof beyond a reasonable doubt,” but rather what is called a “preponderance of the evidence,” meaning the Judge only has to conclude that it’s more likely than not that the person did (or failed to do) what is alleged. That’s not a very high bar.
Unfortunately, it is easy to forget, or overlook, that Judges tend to see the same things over and over again. If you asked any veteran local Judge how many people have been violated in his or her courtroom for consuming alcohol in contravention of their probation order, the answer would probably be in the thousands.
As a result, every Judge has heard every excuse a million times over. After a while, the stories offered by people coming in to explain themselves all begin to sound alike, and inevitably seem to become part of the background noise.
This is where the lawyer has to step up and present something different, or at least present it differently, even if the explanation or excuse itself isn’t something new. It takes skill (and practice) for a lawyer to NOT sound like everyone else, blathering on about how the client is sorry, has learned his or her lesson, wants to get on with his or her life, has a job (and/or family) and promises it won’t happen again.
Blah blah blah blah blah.
Instead, and as I noted before, a lawyer has to step up and be “special,” and must have the kind of skill that really makes the Judge look up and take notice right away, and then keeps his or her interest (depending, of course, on whether the Judge is the “hurry up” or patient type) long enough to convince the him or her to give the client another break.
This kind of skill goes way beyond legal training and evidence.
How do know if a lawyer has it? Read what he or she has written, and how they explain things. For example, this article stands as a good yardstick by which the reader can measure our office, and the way we talk.
Moreover, anyone looking for representation should call around. You can learn a lot from a phone call, and, at least in my office, all of our consultations are done over the phone, right when a person calls us. It is always wise to be a good consumer, and to check out your options.
If your case is anywhere in Metro-Detroit (meaning anywhere in Wayne, Oakland, Macomb, or the surrounding Counties), give us a ring. My team and I are very friendly people who will be glad to answer your questions and explain things. We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m., at either 248-986-9700, or 586-465-1980.