Andrew T. Wise on What Public Defense Teaches a Trial Lawyer

ALEXANDER POWELL: Welcome to Cited Authorities. I’m your host, Alexander Powell. Today, I’m joined by Andy Wise, a member at Miller & Chevalier and practice lead of the firm’s White Collar Defense Group, for a conversation about trial craft, public defense, high-stakes investigations, and what real courtroom experience teaches. Andy, thank you for joining me today.

ANDREW WISE: My pleasure. Thank you for having me, Alexander.

ALEXANDER POWELL: What did public defense teach you that still shows up within your practice today?

ANDREW WISE: Yeah, it’s a great question. And I will say, I think my five years as a public defender kind of inform everything I do as a lawyer now in ways that I’m not sure I understood would be the case when I left the Public Defender Service to come to a law firm. But those five years, which followed having worked at the Public Defender Service and for a couple of lawyers as an investigator, taught me a ton about the importance of fact development and the importance of storytelling and the importance of case theory. That was a huge part of what it was to try cases, to defend clients that were facing sometimes the most serious charges you can imagine in the legal system. And, you know, I’ve carried those lessons into the private practice. When we do investigations, you know, it’s a constant process of trying to identify the core issues that are going to be relevant to that corporate client’s engagement with regulatory authorities, with enforcement authorities, perhaps later, you know, in a court proceeding. And especially as the investigations get larger and the scope gets larger, it becomes more and more important to be focused on the minutia and on the facts and on how those things relate to a legal theory. And those are all things that I learned, sometimes the hard way, as a public defender here in D.C.

ALEXANDER POWELL: What drew you to public defense specifically out of law school?

ANDREW WISE: Yeah, so I first worked at the Public Defender Service as an investigator when I was still in college, between my junior and senior years. And, you know, I wish I could say that it had been a lifelong dream of mine, but I really stumbled into it. I was a political science major who thought I would do something in government and had an internship during a summer that was plenty interesting, but not particularly inspiring. And I ended up thinking maybe I would pursue something in the law. And I wrote a letter to a number of alums from my college who were lawyers in D.C., not really knowing much of anything about what it was to be a lawyer, certainly not understanding what it meant to be a public defender. And I got a number of letters back, including one from an alum from my college who was at the Public Defender Service at the time. And she wrote this amazing letter that was very thoughtful about what had brought her into that work, what inspired her about the work, and ended the letter by basically saying, we have these internships in the summer, can’t pay you, but I can promise you that if you join me for the summer, it’ll change the way you look at the legal system. Which seemed pretty intriguing, so I did about 12 weeks there as an investigator. And this lawyer, who continues to be a mentor and an inspiration to me, was just starting a rotation, trying homicide cases and serious felony cases, and had a couple of trials during that summer, including one on behalf of a client who I was convinced, and I think I was right, was completely innocent of the murder that he had been accused of. So it was a very heady case. And it was one of those cases where investigation was critically important to the defense, and got to know the client, got to know the client’s family, and eventually the case was dismissed. There were elements of prosecutorial misconduct that were involved in terms of exculpatory evidence being buried. And it was just one of those cases that makes you realize how easy it is for someone to get crushed in our system the way it sometimes operates. So, you know, for a college junior, I thought, boy, this is, you know, fascinating, really interesting. And that’s kind of what sent me down the road toward someday being a public defender. I then spent a couple of years after law school investigating for three of the best lawyers that were trying cases in D.C. at the time. They were all former PDS lawyers who had started their own private practice. And so for two years, I was, you know, on the front lines investigating some of the, you know, most interesting murder cases and cases like that in the city. It made it a pretty easy road for me. When I went to law school, I knew that I wanted to be a public defender. I only applied to one job at a law school and I was lucky enough to come back to DC and join PDS, which at the time and still is one of the great offices in the country, in part because it really prides itself on training its lawyers and providing resources for its lawyers. So, you know, you hear horror stories all the time about public defenders across the country who have, you know, enormous caseloads and don’t have the time and the ability to represent their clients in the way that their clients deserve to be represented. I mean, PDS was a very hard job, but I had resources. I had law clerks. I had investigators. I had an amazing group of colleagues that I could bounce things off of. And it was just, it was an incredible place to start as a lawyer. I’m quite certain that I will, when I retire, look back on those years at PDS and say that was in many ways the pinnacle of my time as a lawyer. But it was interesting. You know, I think I started, when I first went in college, I think I started the way many public defenders do, which is fascinated by the constitutional elements, thinking that I wanted to be someone that, you know, breathe life into the Fourth and Fifth and Sixth Amendments. And what I found, I mean, that was all important, right? I don’t mean to diminish that at all. But what I found during my time as a public defender was that what I loved and what really inspired me was just the power of standing in court next to somebody who, in many instances, the system had kind of agreed to condemn or ignore or marginalize. A lot of times folks were charged with very serious crimes and it was palpable, the judgment that was being placed upon them before their guilt or innocence had even been resolved. And so for me, the most powerful thing about being a public defender was I was the one person that was standing next to this person and preventing some of the most horrific things that could happen to someone based on perhaps the worst mistake they had ever made. And so that became a very powerful thing. And that’s something that I’ve also kind of brought into private practice as well, right? There’s something very powerful to me about being the one that’s standing next to someone that’s facing something that has as much gravity as being charged in the criminal justice system in this country.

ALEXANDER POWELL: How did representing indigent defendants prepare you to represent institutions and executives?

ANDREW WISE: Yeah, I think... So one of the real challenges for me as a public defender was figuring out how to win my client’s trust. And it was something that evolved over time as I practiced. I mean, I worked harder when I was a PDS lawyer than I ever have. You know, people always talk about the grind of being an associate at a law firm. And, you know, there are certainly, when cases are very busy, you can find yourself working really hard. When I was at the Public Defender Service, my wife was a lawyer there at the time. We didn’t have kids. We were all about that work. We were in the office six days a week and at the jail on Sunday. And so it was very easy to assume that your clients, when you first meet them, will recognize that they’ve been appointed a lawyer who’s going to work really hard for them. In fact, you know, for a lot of my clients, they didn’t know who I was, right? What they knew was that they were getting a lawyer for free that was appointed to them by the same government that employed the prosecutor that was trying to put them in jail, and the same government that employed the judge that was often treating them without a whole lot of respect and what they viewed as without a whole lot of fairness. So there was a huge part of the beginning of every one of those relationships that involved convincing your client that they should trust you, that they should put their faith in you, that they should confide in you. There were a lot of conversations about the facts of the case that necessarily had to be built on the client feeling like he or she could share with you, right? And I think ultimately what you learn as a public defender is the only way to win that trust is to prove to the client that you are worthy of that trust, right? So it’s, how do you listen in the first couple of interviews? Do you follow through on the things you say you’re going to do? Do you deliver to the client both a realistic view of what the case is about, but also creative thought about how you’re going to try to get them from point A to point B? That’s very much, I think, something that’s informed my private practice at a law firm, right? There’s a lot of, you know, sometimes you get a little bit of grace from clients that have decided to retain you because they’ve done their due diligence on you and they’ve chosen to hire you. But the opening stages of a case are very similar, right? I mean, it’s about whether the client feels like you are really putting their interest at the center of the representation, whether they feel like you are curious about them, their business, the issue that’s brought the two of you together, whether you’re listening, whether you are incorporating what’s causing them stress and concern. All those things. And that’s not a whole lot different than some of the early stages of some of those Public Defender Service cases.

ALEXANDER POWELL: Were there any things you had to unlearn when your practice shifted into white collar matters?

ANDREW WISE: Not really. Not really. I think there’s a perception that public defenders get to where they are by being really good on their feet and being able to just grab a file and sprint across the street to the courthouse and come up with an argument on the fly. And that’s really not how that practice worked, right? That practice was so much about putting in the time to really understand the facts, about thinking really creatively about how to use the law, about building and maintaining credibility with the court. And all of those things are similarly key to success in the investigations practice, obviously key to success in the litigation practice, but even in the investigation space, right? I mean, a big part of earning the credibility with the Department of Justice, for example, when you are doing an investigation and then dealing with the enforcement authorities is, you know, are you speaking in objective facts rather than trying to paper over that with a bunch of adjectives? Is the process that you’re following sound and credible? Is the way that you communicate findings reasonable? And if you’re pushed, can you kind of back up the representations you’re making? So a lot of it, you know, the speed of it is a little bit different. Certainly the dynamics of being in front of a jury versus being in front of a group of DOJ lawyers is very different. But some of the things that I think are convincing to a jury are the same kinds of core things that are convincing to an enforcement authority and certainly to a judge. So I’m not sure there was a lot of unlearning to do, but there was a lot of kind of building on different techniques and certainly a ton of kind of learning from people both at the firm and also other white-collar practitioners around. I mean, the white collar bar in D.C. is exceptional. There are some incredibly talented, creative, thoughtful lawyers. And a big part of it was just kind of soaking it all in and trying to learn from, you know, the people that you were interacting with. But that, too, was very similar to what it was like at PDS. I mean, one of my mentors at PDS said, you know, “the best way to learn in this job is to just go to court, watch a bunch of people who are really good at this and steal the things they do and call them your own.” That’s just as true in a white collar practice, right?

ALEXANDER POWELL: And finding your own style too. In my experience as a prosecutor, I would watch other trial attorneys and think, oh yeah, I like that, I think that would work for me. Or, you know, that works for them, but I’m not sure if that fits within my style. You become like an amalgamation of all the most fitting qualities that you observe from other attorneys.

ANDREW WISE: Absolutely. I think that’s so true. You know, and the beauty of being a lawyer at the Public Defender Service was that I was in court all the time, right? Got to do things, try new things. And there were a bunch of times where I saw somebody do something that I thought was brilliant and I tried it myself and it just didn’t work. It wasn’t genuine to who I was. And, you know, juries especially can tell when you’re faking it. And similarly, they can tell when you are being yourself, right? And so, but I do think, right, that a lot of the learning curve is figuring out what does work. Sometimes you really don’t. And I would imagine you experienced this, too. You don’t really know that something doesn’t work with you until you try it under the pressure of standing in front of a jury. And then you sometimes, unfortunately, realize that that doesn’t work. But you know, the great lawyers are the ones that are always willing to push themselves out of their comfort zone and try new things, even if they don’t always work.