17 October 2012

The Attorney's Fault

Often when a warrant issues for a defendant for failure to appear, it is the attorney's fault; or so defendants are inclined to think. After all, it must be--"I would have been in court if you had told me I was suppose to be there." This is one refrain I hear. There is a notice for court appearances for the hearing impaired on the bottom of many court forms. Unfortunately this is for the hearing impaired, not the listening impaired. In my practice, the defendant will have heard the judge verbally tell him his next court date, I will send him a copy of the order setting the date and time, and will have my secretary call in advance of the date to remind the defendant to be in court at the designated time. If the defendant has changed residence and run out of minutes on his phone, two out of three methods of notification are ineffective which leaves the oral notice by the judge or attorney the day of his last court appearance. If, however, one forgets or wasn't paying attention, a fourth method of determining a court date would be to call the attorney or as a last resort, the clerk of court. In my latest experience of a warrant issuing for a client, he was notified of a pretrial and did call in explaining he was too sick to attend court that day. The matter was continued one week with a copy of the order being sent to the defendant. Trial was scheduled two days after the scheduled court date. Five attempts were made to contact the defendant by phone unavailingly. No return calls were made to the office. A call was made to a relative indicating a warrant had issued, and wouldn't you know it, but 20 minutes later the defendant is on the line claiming ignorance of any court date and explaining how it was my fault that a warrant was issued. If the general public had any idea of how difficult it can be to represent such people, we might actually be paid a decent rate for doing what we do. I especially love it when, in open court, they blame their attorney for not appearing--for not telling them when they were suppose to appear. The judge's response goes something like this: "Your attorney is not the one that will go to jail when you do not appear. It is up to you to know when you are to appear in court, not your attorney." I find this response very gratifying.