How to Choose a Federal Criminal Defense Lawyer in New York: A No-BS Guide

If you've learned that federal agents are investigating you in New York—or you've already been charged with a federal crime—one of your first decisions will be choosing a federal criminal defense lawyer. But how do you tell which attorney actually has the experience necessary to handle a federal case? Federal criminal practice is different from state criminal practice, and trial experience is only one part of what you should evaluate.

What Should You Look for in a Federal Criminal Defense Lawyer?

Hiring a lawyer with substantial federal trial experience is certainly important—if  your case goes to trial. But since less than 3% of federal cases are tried, it’s pretty obvious that a lawyer’s ability to influence the many non-trial related variables that affect case outcomes is more likely to affect your case’s outcome. So what are those other variables?

Why Federal Criminal Defense Experience Matters

For defendants in New York City and the surrounding area, federal criminal cases are commonly prosecuted in the Southern District of New York (SDNY) or Eastern District of New York (EDNY). Each federal district has its own local practices, judges and prosecutorial culture. Experience with the district where the case is pending can therefore be valuable in addition to broader federal criminal defense experience.

First you want to hire a lawyer with substantial federal criminal defense experience. Federal practice differs significantly from state practice. The state and federal systems have substantially different rules relating to discovery, motion practice, plea bargaining, evidence, sentencing and more. State and federal cases also have different “rhythms.” Your lawyer’s interactions with a state prosecutor will likely be different than your interactions with a federal prosecutor. Ditto your lawyer’s interactions with the judge assigned to your case. You simply do not want to hire a lawyer who lacks a firm understanding of how things work in federal court.

So you should be asking any prospective lawyer to detail their actual experience in federal court. And you’ll want to know whether your attorney has experience defending against charges similar to yours. An excellent criminal defense lawyer can handle new challenges so long as they do not involve a level of complexity that would make it difficult for even the best lawyers to get up to speed. There are lots of good doctors but you wouldn’t hire a proctologist to handle your brain surgery unless, perhaps, your brains are... . You get the picture.

If you—or a friend—have access to the PACER court filing system you can search your attorney’s name in the PACER database for the federal district where your case is pending and see how many cases he or she has had in that court and the charges. A large percentage of federal defense practitioners are members of the National Association of Criminal Defense Lawyers – is your prospect a member?

What about lawyer-rating companies, such as Martindale-Hubbell, AVVO, Super Lawyers and others? Well, we have top ratings in them all, and they are worth looking at, but don’t put too much stock in them, as they can be subtly manipulated.

Additionally, an attorney’s high ratings do not necessarily mean the attorney will be the best fit for you, and many lawyers who are not rated at all by these and similar organizations may be excellent lawyers with whom you can work well.

Much of the critical work in any case relates to discovery review, motion practice, investigation, plea bargaining and sentencing advocacy. And there’s a huge variation in lawyers’  experience and expertise in these areas.

Discovery Review in Federal Criminal Cases

Discovery in a federal criminal case is becoming increasingly complex and it’s not unusual to get “discovery dumps" with multiple gigabytes – or even terabytes – of information. Reviewing such quantities of discovery is difficult – often we need to sift through mounds of irrelevant discovery to uncover the evidence that relates directly to the client’s case. This is where artificial intelligence platforms – such as Claude, ChatGPT, ourfirm.ai and others shine – they are capable of reviewing extraordinary volumes of discovery quickly and make sense out of them. Of course, your lawyer will need to be the conductor of the AI orchestra – providing relevant search queries and reviewing documents himself where necessary. But – particularly in the larger, more complex cases – you should ask whether your lawyer has access to AI platforms and knows how to use them.

Federal Criminal Motion Practice

Motion practice can be critically important in some cases, virtually irrelevant in others. In appropriate cases important motions can be made to dismiss charges, suppress evidence, obtain discovery and/or a bill of particulars, take depositions of persons who might not be available for trial, sever defendants or counts, and much more. Much of successful motion practice turns on issue-spotting; if you don’t know the law you’re not likely to even make a particular motion let alone a successful one – you simply don’t know what you don’t know.

I often give young lawyers this advice: if you want to be a trial lawyer start your professional life as an appellate lawyer. Why? Because appellate lawyers learn the law. And knowing how judges think is the first and often most important step in recognizing issues and knowing how to research them and persuasively write motions addressing them. So ask a prospective lawyer whether they also have substantial appellate experience and whether they can provide you any examples of substantive motions they have filed in federal criminal cases.

Investigation and Defense Preparation

Many cases require investigation. Tracking down likely prosecution and defense witnesses. Issuing subpoenas. Internet research. Opposition research regarding the government’s likely witnesses. And more. You’ll want to ask a prospective lawyer how they go about investigating a case. Do they commonly work with the same investigator? Do they subscribe to a proprietary information database such as idCore or similar? Do they use AI to assist in Internet searches?

Plea Bargaining in Federal Criminal Cases

Because most cases end in guilty pleas (although most clients' first instinct is to say, “I’ll never plead guilty!”) plea bargaining is an important part of any defense lawyer’s practice. And federal and state plea practices are entirely different. To optimize plea bargaining in your federal cases your lawyer not only will need to have a thorough understanding of the case and the application of the very complicated and ever-changing Federal Sentencing Guidelines, but also will need to know what is realistically possible.

For example, if a client is charged with a crime carrying a possible 20-year sentence is it possible to work out a plea agreement that would cap the possible sentence at a lower number of years? (Answer: yes, sometimes). May the parties agree to require the court to impose a particular sentence or, if the court declines, permit the client to withdraw their plea? (Answer: As a matter of law, yes, as a matter of practice, possible in some federal courts, not possible in others).  May the parties agree on the amount of forfeiture to recommend to the court (Answer: Yes).  Can the parties agree to limit the amount of restitution?  (Answer: Not when restitution is mandatory, though a court may apportion restitution between different defendants in a multi-defendant case). May the parties agree how the Federal Sentencing Guidelines should be calculated and applied in your case (Answer: Yes, but generally not binding on the court). Ask a prospective lawyer these questions and gauge the confidence and accuracy of their answers.

Federal Sentencing Advocacy

Experienced federal practitioners know that sentencing advocacy is often their most important skill and the one that can most impact the client’s future. Ask a prospective attorney how they approach sentencing advocacy. Experienced lawyers know that effective sentencing advocacy often begins long before a guilty plea is entered – and even if the client and the lawyer believe the case may well proceed to trial.

For example, in a case charging fraud involving a client who has a drug, alcohol or gambling problem that in part led to the charged misconduct, the client will want to start rehabilitating himself at the earliest opportunity, through counseling, a 12-step program or otherwise. If the client has the means he should isolate available funds to provide for presentencing restitution as a show of good faith. If a client has a substantial mental impairment she should be obtaining and documenting appropriate treatment.

The attorney should thoroughly prepare the client for the presentence interview by the Probation Department. Although generally counsel will advise the probation officer interviewing the client to not ask questions related to the offense conduct there are times when this general rule will not apply. And because the Presentence Report written by the Department of Probation for the Court is a document important to both sentencing as well to how the client is treated by the Bureau of Prisons if he serves a prison sentence, counsel should provide favorable information to include in the report – and be prepared to attack misinformation.

Competent counsel will file an extensive presentence memorandum that specifically addresses all relevant mitigation, discusses with appropriate legal authority related to disagreements in the application of the Federal Sentencing Guidelines, and includes well-written letters of support from the client’s family, friends, and others. The submission may include a letter from the client, or the client’s statement may await the day of sentence (or both). And if a sentence of probation or time-served is sought the presentence memo should include a plan explaining where the client will live, his job opportunities, his support network, etc.

Finally, counsel should thoroughly prepare the client for the day of sentence, explaining to the client precisely what will occur and assisting the client to prepare an appropriate statement to make to the court. And so, when you interview a prospective lawyer and ask her how she approaches sentencing, gauge her response against how experienced counsel would approach the task.

Choosing the Right Federal Criminal Defense Attorney in New York

This has been a very brief discussion of what you should look for in a federal criminal defense attorney, but I hope you at least now have a better understanding of what matters most when hiring an attorney for a federal criminal case and how you might go about assessing a prospective lawyer’s suitability to the task at hand. Of course, at the end of the day, and once you’ve identified a handful of prospective counsel who are up to the job, the final decision will turn on which of these qualified candidates will give you the greatest confidence and comfort level.

If you are under federal investigation or have been charged with a federal crime in New York, contact Levitt & Kaizer to discuss your case with an experienced federal criminal defense attorney. We represent clients in federal courts in New York and throughout the country. Call (212) 480-4000.

Richard Levitt

Levitt & Kaizer

(212) 480-4000