Collaborative defense is on the cutting edge of indigent criminal defense practices. But as holistic practices grow, how can defenders stay sharp in the courtroom?
When I tried my first case—in San Jose, California, over a decade ago—a defender’s world was often defined by a triangle: our daily path between the office, the courthouse, and the jail. With stacks of cases to prepare and maybe 20 or 30 new clients to meet on any given misdemeanor morning, our focus was on the evidence, or lack thereof, and how to obtain the best legal resolution for our client. Across the country, we’d heard about “holistic” practices taking root, but in most places, those of us who wanted to do more for our clients—like help them keep their house, job, or kids in spite of court involvement—had few resources and little training. When, a few years later, I left California to join a holistic practice in New York, I remember feeling like I was about to get a glimpse into our future.
As it turns out, holistic defense was both an innovation and a resuscitation of the original way defenders conceived of their work. To recognize that clients are the experts of their own lives, and deserved counsel who would follow their priorities and goals, was not just a crucial step forward for equity (Emily Galvin-Almanza, Equal Mercy: Increasing Legal System Equity with Collaborative Defense, 38 Ohio State J. on Disp. Resol. 93 (2023)), but also a key factor in supercharging the results defenders were able to achieve. Partners for Just., Empowering Public Defenders to Transform the Criminal Legal System (Jan. 2023). Bronx Defenders were able to reduce pretrial incarceration rates by over eight percent and reduce sentence lengths by a quarter, Bail Advocates at the Defender Association of Philadelphia were able to reduce bail violations by 64 percent, clients of the holistic defenders of Santa Barbara were pleading guilty over a third less than their counterparts elsewhere while getting 61 percent more arraignment charges dismissed, and the Harris County public defenders were getting five times more misdemeanor dismissals for their clients with mental health concerns. A sea change was underway, and, interestingly, one that harkened back to the human-centered, interdisciplinary, and social-work-focused 19th century practice of indigent defense, when, long before Gideon, it was the provenance of marginalized lawyers volunteering to help marginalized people survive prosecution. Emily Galvin Almanza, Gideon v. Wainwright Was a Landmark Decision, but Women Invented the Idea of the Public Defender, TeenVogue (Mar. 17, 2023).
In recent years, defenders have made even more striking advances in how defense is practiced in America. We’ve begun to realize that there is no such thing as a one-size-fits-all approach to expansive, high-impact practice. Defenders must be tailored to the community they serve, which means that a defense practice in Cedar Rapids, Iowa, should look wildly different from one in Los Angeles or Wilmington, Delaware. You can’t copy and paste one holistic model from one community to another. Knowing this, there is now an urgent need to develop methods that will help defenders all over become more expansive, inventive, and interdisciplinary, but also nurture their own unique evolution, guided by their specific context and place.
That is the need addressed by the “collaborative defense” approach. Our Mission: Empowering and Supporting People in Need While Building Access to Justice, Partners for Just. (2024) [hereinafter PFJ Mission]. Six years ago, I left trial practice and partnered with my childhood friend, Rebecca Solow, who specialized in helping government systems and nonprofits achieve success. We worked together on reimagining public defense. It took a year to research the extent of the problem we wanted to address—namely, that there are too many defenders who desire, deeply, the ability to do more for their clients but have real barriers in their way. Restrictive charters, lack of funding, lack of support from local government, difficulty finding the right talent or training for unusual roles, lack of enthusiasm for expansion from exhausted staff—all are roadblocks on the path to more expansive practice. But the need for that expansion was staggering: In our initial surveys of defender clients in Delaware and California, we found that 75 to 90 percent of defender clients had a need outside their criminal case (usually something relating to housing, employment, benefits, healthcare access, or family) that could be addressed if they had the right support team. This is how Partners for Justice was born.
Instead of leaving the burden on individual defender agencies to figure out how to make the leap towards holistic defense, Partners for Justice built something new. PFJ recruited brilliant, talented new professionals, building teams whose lived experiences informed their work and their passion to challenge and change the legal system. PFJ developed a specialized training program for non-attorney interdisciplinary professionals, honing their skills on client interviewing and civil legal issue spotting, providing wraparound services, navigating benefits systems, building partnerships with providers in the community, and, crucially, writing powerful mitigation. These teams were sent to two pilot defender agencies—the Office of Defense Services in Delaware and the Alameda County Public Defender in California—where they partnered with attorneys and social workers to address clients’ housing, employment, education, benefits, transportation, and mental health or substance use treatment needs. They poured this service provision into the mitigation they wrote, bringing more clients home and keeping more families together.
Soon, PFJ was sending these teams all over the country, supercharging defenders’ ability to shift to a client-led practice and address the needs clients themselves prioritize—with these needs often outside the criminal case. When Vichal Kumar, former Managing Attorney for the Civil Defense Practice at Neighborhood Defender Service of Harlem, joined our team, we began refining what we were building into a recipe for defender expansion: collaborative defense. PFJ Mission, supra. It was different from holistic defense—not so focused on the defender office and its structure and more focused on what our clients’ needs are, and how to meet them. It became a method that utilizes six simple principles to help defenders develop and hone their own vision of a powerful, client-led representation. By taking concrete, practical steps towards these principles—like ensuring that clients are asked the right questions and treated with care, building intentional outside partnerships that expand our capabilities without expanding our own staff, and focusing on evolving our mitigation practices—we can get astonishing results. Eliminating Incarceration 87% of the Time, Partners for Just. Blog (2024).
What does this look like on the ground? It looks like defenders in Alameda County leaning into deeply impactful community partnerships that advance both the interests of defender clients and also advocacy efforts—like in-custody voter registration drives and public education efforts—across the region. It looks like 60 percent of the clients who walk into that office asking for help with housing getting stably housed by the time their case closes, and 68 percent of clients seeking employment leaving their defender’s office with a job. It looks like the staff of the Tribal Defender on the Flathead Reservation in Montana helping gather outside expertise to help shape a more restorative model of treatment court for the people they serve and taking mental health calls from the jail even on weekends, so no member of the Confederated Salish and Kootenai Tribe is left confined and without aid. It looks like Partners for Justice Advocates at the Office of Defense Services in Delaware combining service provision and mitigation so powerfully that they achieve 87 percent non-incarceration outcomes on a mixture of misdemeanor and felony cases. Id. It looks like similar teams in California securing tens of thousands of dollars in rental assistance to keep clients housed and building new partnerships to secure better family defense advice for criminal court defenders so that parents stand a stronger chance of family reunification even after enduring a criminal case. It looks like record clearance festivals and résumé editing workshops for clients seeking work, partnerships with Uber to give people free rides to court and court-required programs, and making both benefits access and mental health or substance use treatment navigation a core part of defender practice, so that our clients can connect with the healthcare providers they most need.
These results are thrilling. Defenders are helping more clients come home, and doing all the things that research tells us lower recidivism rates, increase economic mobility, improve public health, and foster greater equity. Evidence, Parners for Just. (2024). This means that when defenders walk into the room to argue for their budget submissions every year, they are increasingly able to talk about the incredible positive value they have created in the community—lower incarceration, more education and employment, greater access to restorative treatment—rather than simply once again reminding the powers that be that defenders are constitutionally required, a point that results in lip service but rarely dollars.
We’ve seen great results so far—Partners for Justice has managed to help defenders route over $16 million in funding towards building collaborative defense in recent years, and is now working with defenders in 20 states, still embedding teams of nonattorney “Advocates” but also taking on bespoke capacity building projects to meet more defenders where they are and address their needs adaptively. Yet the stronger a defender agency’s wraparound service and mitigation game becomes, a secondary question also grows stronger: When we can get great results with services and stories, where do trial chops fit in?
In talking with lawyers around the country about collaborative defense, it’s not uncommon to hear troubling stories: lawyers explaining that their office has decided to be “holistic” by tasking line attorneys with figuring out social work or, on the flip side, chief defenders concerned that not enough cases are going to trial as the focus of their practice shifts more and more towards mitigation. Both are bad, though the former is much more straightforward, as true interdisciplinary defense requires, well, different disciplines and skill sets on staff. Imagine a hospital with no nurses, physician assistants, patient aides, or hospice specialists—just doctors. Would you ever want to go to such a place? Probably not, and the reason why is the same reason why it’s never a great idea to ask trial attorneys to be “holistic” without the right team for the job.
The latter problem, though, is thornier—after all, as attorneys, when we see something working, the temptation is to grab it and use it to the fullest extent we can. This means that when the mitigation team gets jaw-dropping results, trying every triable case—and holding the government accountable, serving as a constitutional check on prosecutorial overreach and police misconduct—suddenly seems like a questionable choice. What if I’m taking cases to trial that have a 30 percent likelihood of success, but would have a 75 percent likelihood of dismissal or reduction if I can just get my client into treatment?
It is essential that we as a defense community realize that this conflict is illusory. Having strong service-provision capacity and spectacular mitigation aren’t replacements for a ferocious trial practice—if it were, defenders would no longer be holding up our most essential role as a check on government power.
Perhaps more importantly, we’d neglect what our clients actually want. The most foundational principle of collaborative defense practices is their client-led perspective, and, when you ask clients what they want in a defender, the first thing they say is not “benefits applications.” As game-changing and life-altering as services can be—and as much as clients’ priorities in life might lie outside their criminal matter—the number one thing clients want in their lawyers is the ability to protect them and fight for them in court. Of course, defense attorneys don’t always need to be trial warriors—after all, dismissals and safer paths to liberty are always desirable—but we need to have the skill set and ability, or else we’re failing in the most fundamental capability our clients expect.
In other words, people want a legal team that can protect their housing, jobs, and kids, but they do not want to give up their right to an exceptional trial attorney. Nor should they have to.
When done right, collaborative defense should augment and enhance the ability to win at trial rather than distract from it. The reason offices that place the “holistic” service burden on lawyers alone foster burnout is because lawyers have no comparative advantage at service provision—it’s not usually what we were trained to do. Even I, after years of working to build collaborative defense, feel much more comfortable prepping a cross examination or voir dire than figuring out the rules of SSI. Bringing in new professionals with a service skillset liberates lawyers to do what they do best—win cases. And, as an added bonus, the trust that is built between clients and their defense team when clients are heard and attended to both inside and outside their legal matter is equally game-changing. Trust builds receptiveness to advice, and honesty in the attorney-client relationship, which is essential to effective representation.
It also builds a stronger connection to the community we serve. In the courtroom, our credibility is our currency: Once we’ve lost our credibility with a judge, or, worse, with the jury, our chances of success plummet. Many young defense attorneys have heard the story of the Bronx prosecutor who, in his opening, claimed that the incident in the case took place on a hot day, and there were few witnesses because, given the heat, everyone was inside. The problem with his story? In the Bronx, strong air conditioning is a rarity, and on hot days, most New Yorkers would prefer to get outside and dash through an open hydrant than swelter in their studio apartments. The prosecutor had never lived among the people he claimed to represent, and his failure to understand their lives cost him his credibility with the jury.
In a client-led practice, set up with standard intake procedures that invite clients to share the details of their lives, goals, and challenges, every team member becomes more deeply acquainted with the community they serve. When defense teams ask the right questions, they are more likely to learn information crucial to their credibility with their clientele, as well as with their jury pool. When a client-led practice brings defenders more regularly into the community—following the first principle of collaborative defense—the understanding between lawyers and clients grows. PFJ Mission, supra. That understanding then manifests in the courtroom, where lawyers who have sat with their clients, rocked on porches with their clients, and walked down the street where their client lives are able to bring their client’s perspective more fully to bear.
The future of public defense is already here. Public defenders go into this line of work because they care about their communities. They care about their clients. They care about justice for ordinary people and holding the government accountable. But to do right by the low-income people served by these defender agencies, legal work alone is no longer enough. And to do right by the community as a whole, empowering defenders to take on the subject matter that drives destabilization, poverty, and, yes, crime, is essential. Recent years have demonstrated that defenders are, perhaps, more capable of improving public safety, health, and economic mobility than any other piece of our criminal legal system. Emily Galvin-Almanza, Well-Equipped Public Defenders Can Help Reduce Recidivism, Law360 (June 2, 2023). No one gets well in a cell, and we must stop pretending that any system professional can both help people and be tasked with locking them up. Help must come from a trusted source, a safe haven. But that safety must never be sought in trade for the role defenders play in holding the government accountable in court. To find real justice and best position our communities to thrive, defenders must not only become healers, but stay warriors as well.
