How much time must be given to an attorney who is the subject of an ineffective assistance of counsel claim to be given notice?

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How much time must be given to an attorney who is the subject of an ineffective assistance of counsel claim to receive notice of hearing or does he have to be subpoenaed or is he just required to show up?

Attorney Answers

3
David Lee ·
First things first. Consult with and then hire an attorney to represent you in your IAC claim. The more time that passes, the harder it will be to prevail or even get a fair hearing. The State will soft peddle the former lawyer's performance, now matter how deficient it was. They will try to show there was nothing constitutinally lacking in what, how or why your original attorney did what they did . . . or didn't do. They have a conviction. They don't want to jeopardize that. The Court has taken up his/er time with trying the case once already. They don't want to have another mini-trial, again, let alone another full blown trial de novo (as if the earlier trial had never happened). You need someone to analyze 1) the testimony and 2) evidence as it existed, 3)any and all motions and 4) requests for production of exculpatory evidence, 5) your and the state's "facts" etc, then marshall those deficiencies you allude to and back it up with existing law, in order to have a chance at another trial. Another trial is the best you can reasonably hope for. You need someone who has done all of this before. The odds are stacked against you, but the reward can be high indeed. You've got nothing to lose, by all appearances, by trying to get your case heard anew. Get cracking!
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David Smith ·
I'm not sure there is any uniform requirement. Usually, she would have notice months in advance, but it really depends on the type of legal proceeding to which she is being asked to appear or respond.
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Stephen Gustitis ·
I presume you're the person who is making the ineffective assistance of counsel claim. If so, it will be your burden to demonstrate your lawyer's performance was below the Constitutional standard of effective representation. The targeted lawyer is not required to do anything. It will also be your burden to show that decisions the attorney made were not sound trial strategy. Consequently, I'd recommend getting this lawyer subpoenaed to appear at the hearing. Otherwise, when you appear and the judge asks you to present your evidence on these issues, you'll have none.
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