The Criminal Lawyer

“Why didn’t you tell me that before?”

This is not something you want your lawyer to be asking you in the middle of trial.  Or worse yet, in the cells after you’ve lost your trial.  And yet it is a perpetual ostenato heard in every criminal courthouse.  The head-shaking lament of lawyers whose own clients deprived them of the very information that could have changed the outcome of the case.

It is only human nature, of course, to minimize one’s own culpability.  Each one of us is the hero in our own story, not the villain.  If bad things are happening to you, it’s not because you did something wrong, but because you are the victim of a misunderstanding, of a vindictive lying accuser, of an overzealous prosecutor.  People start rationalizing their conduct before it even happens.  It’s just the way our brains work.  When speaking to another human being about something that might get you in trouble, it takes an almost inhuman amount of trust to be completely frank.  Even when speaking to an ally.  Even when you know that this ally needs to understand what really happened before he can help.  The urge to shade the truth, to make things sound more innocent than they really are, is always there.

It’s a simple truth.  So only a foolish lawyer ignores it.

A wise lawyer with sound judgment — the kind you want defending you — is going to be skeptical of what you tell him.  No offense.  Whether it’s your first meeting or your fiftieth, his bullshit meter is going to be turned on.

That’s because what wins cases is preparation.  Knowing the facts (and applicable law) better than the other guy.  Knowing better what happened.  Not having a more innocent-sounding story.  Facts.

When your lawyer defends you, he assesses the data in front of him to see if there are any legal arguments that might help.  He analyzes the data to see what the actual risks and opportunities are.  He bases his strategies and arguments on that data.  At trial, he weaves his stories and persuades juries with that same data.  The more — and more accurate — the data, the more he has to work with, and the more he can do for you.

This is the case even if the truth is ugly.  In fact, especially when the truth is ugly.  The more (more…)

Over at our favorite blawg Simple Justice, Scott Greenfield has an intriguing discussion about how clients and lawyers often have very different ideas about what makes a good lawyer. “Crappy lawyers,” it seems, will still have “happy clients” when the clients can’t tell the difference between “likeable” and “competent.” But “likeable vs. competent” is a false choice. Really, clients are looking for something else.

We have to admit to being perplexed at times by the things our clients are most grateful for. In court this morning, for example, a client was gushing with praise — not because we’d won an important victory that would get him back on the street, but because we’d bothered to go back to the cells to explain it all to him afterwards. For one thing, we’ve always figured it’s just common courtesy to make sure one’s client knows what’s going on, and it’s weird to be commended for mere manners. But more importantly, what mattered to this client was not the skill of his lawyer, but a feeling of personal attention. The victory he literally shrugged off, but he couldn’t stop talking about how much our discussion afterward meant to him. This happens routinely.

But most of our clients are more sophisticated. What they want in a lawyer is not someone who’ll hold their hand, but someone who can get the job done. They have complex cases, and they know what skills and experience to look for (and insist upon). But even among these kinds of clients, attorney expertise is often secondary to other concerns. Reputation, price, the knowledge that someone else is taking care of it for them, even the satisfaction of knowing you’ve retained the most expensive firm in town — all of these things can and do trump the mere ability to do the job better than the next guy.

But no matter what the client values most, it’s all really the same thing. Clients who love the incompetent clowns, just like the clients who value prestige or convenience, just like the clients who value experience and ability — there are all kinds of things clients say they’re looking for, but what they’re really looking for is someone they can trust.

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Trust really is the key, we think, to client feelings about their lawyers. Trust can be earned with proven ability, but it’s not the only way. Nor is it even the best way. After all, being good at your job does not equate to people knowing you’re good at it, or even knowing you exist.

People trust others for a lot of different reasons. But they all boil down to a shared personal (more…)