Q) I read your column a lot and know the site’s usually focused on BigLaw, but I wanted to ask if you have any advice about becoming a prosecutor. I’m a 2L at a third tier law school and I already know I love criminal law. I just love the feeling of winning trials (even if it is mock) and I’m a natural at both finding the case law for or against a defendant. I also clerked at a local law office and want to find out if there’s anything else I can do to put myself in a better position for the job. Yes, I understand my choice of school isn’t the best, but I know this is what I want to do and just need some slight guidance if you have any. Thanks.
A) First things first. While I understand the excitement over criminal law (or “love” as you call it), that’s one small piece of the whole prosecutorial picture. The rest of the meat involves the three Ps: performance, persistence, and politics. Here’s my take on each:
More than anything in the law, trial work involves all the elements of a good performance. As in the 12 dramatic elements. You will need to hone your dramatic acting skills and apply them to the courtroom. In other words, litigation experience. As much as you can get. And as real as you can get. Not the mock stuff, which is a start but means bubkes in the end. Civil litigation is fine, obviously not as relevant, but it could help if you excel at it. If your school has a clinic, preferably a misdemeanor defense or prosecution clinic, sign up for it now. If it doesn’t have a clinic, well, shit. Consider transferring. Or volunteering at the local county or city prosecutor’s office hauling around and delivering case jackets and trying to work in time spent in the courtroom, at least observing. If you don’t have the chops to perform (and in your gut you should already know this), then consider something else.
Despite the glamor accompanies courtroom dramas and their prosecutors (basically what I call the “Law & Order Effect”), it’s a grunt-eat-grunt job. Or at least at first. So get prepared now and do some due diligence to make sure it’s what you want to do. Take a criminal defense lawyer out to lunch. Let him or her school you in what’s good and what’s bad about criminal law and prosecutors. Let them tell you what criminal law work is really about. Find out about the humans you may one day be putting behind bars and find out from those who defend them. It will be a good lesson (and may convince you to think about CDL instead). But be persistent, not only in doing your due diligence before becoming a prosecutor, but also putting up with all the chaos, crap, and hard work that you’ll have to slog through to actually make it as one.
It’s not so much that you have to dive into politics to be a prosecutor (though it helps immensely to have political connections), it’s just that you need to understand the Machiavellian way that politics influences justice. As in who or what to prosecute. Or what your boss, the DA or DA-equivalent, says you should do. And be comfortable with it, understanding the nuances. Your job will not be locking up as many people as you can find on the street or racking up an impressive win-to-loss ratio. It’s about dispensing justice and maintaining discretion and understanding, as in when to prosecute and when you’ve met your constitutional match. Now, not all prosecutors keep that as a focus, but if you don’t think you can do that or that you are some modern day Wyatt Earp, stop now. We don’t need more douchebag prosecutors.
OK, I’ll throw a fourth P in the pool: personality. You really have to have the balls and personality to be a good prosecutor. That doesn’t mean you’re an asshole. Nor does it mean you have no substance behind your schtick and acting. It means that you are smart on your feet, can read people well, and can react quickly and appropriately to any number of folks who challenge you, whether cops, nutjobs, bureaucrats, or other lawyers. You have to have a solid personality to be a good prosecutor.