Straight Talk

 

“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 your lawyer knows about what really happened, the more he can help you out of that ugly situation.  The more legal issues he might be able to spot.  The more strategies he might be able to pursue.  The better he can react and protect against testimony against you.  But he can’t help you if the data you’re giving him is bad.

Good lawyers explain this to their clients.  Sometimes repeatedly.  We’re not trying to impugn your honor.  We’re trying to make sure our decisions are based on the best information.  We want our decisions to be the right ones.  You give us messed up data, and you risk messing up your outcome.

You don’t want to tell your lawyer about the incriminating-sounding email that you know you wrote, convinced that nobody will ever see it or decipher it?  Guess what: the government is going to see it, and use it against you.  If your lawyer knows about it, he can deal with it.  Maybe it’s really not so incriminating.  Maybe a strategy can be carried out to minimize its harmful effect.  Maybe legal arguments can be raised to keep it out.  Ditto for Facebook posts, Twitter tweets, text messages etc.  It’s out there.  Don’t hide it from your lawyer, the one person who can do something about it.  (It will also save you a bundle if your lawyer doesn’t have to wade through your whole online history to find it himself.)

You don’t want to tell your lawyer about the way your drug deal really went down?  Too bad, you had a great suppression issue.  Your lawyer is getting paid the big bucks because he’s trained and experienced enough to spot those issues.  You might have had the case thrown out, and instead you’re taking a plea to spend the next few years in prison.

You don’t want to tell your lawyer how bad your codefendant really behaved, because it might make you look more guilty by association, or because of some (laudable) loyalty?  Too bad, you could have gotten your case severed.  You might have won at trial by pointing the finger at someone else whose conduct was worse, instead of going down with him (or even instead of him — juries do crazy things like that).  Oh, you didn’t know?  Of course you didn’t know.  You’re not the one who went to law school and spent years making these kinds of arguments.

For anything you can think of, which you’d rather not tell your lawyer about, there are probably plenty of reasons why it is precisely what you need to tell him.

You want your lawyer to give you the best defense he can.  You want him to make the best arguments and the soundest judgment calls.  He can only do that with the most accurate data.  So give it to him.

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Still, that takes a heck of a lot of trust.  It is almost a leap of faith.  Part of the lawyer’s job is earning that trust.

It has to be done quickly, in criminal law.  We don’t have years to develop a relationship and get to know one another.  Often, we only have minutes or hours between the holding cell and the arraignment judge.  So good lawyers earn that trust by being trustworthy.  Telling it straight.  Knowing what the heck we’re talking about.  Explaining what’s happening.

That’s really all it takes: telling it straight, knowing what you’re talking about, and easing the confusion a bit.  People don’t trust you if you’re just talking about yourself, or making grand pronouncements, or if you’re only asking questions.  Take the time to answer a few, and you’re on your way.

After that first hairy meeting, good lawyers keep earning that trust, by continuing to be frank and knowledgeable.  Even though the answers might not be what the client would like to hear, you’re telling him what he wants to hear to maintain trust.

Over the years, a fair number of clients came to us after discharging their original lawyers, in whom they had lost trust.  Sometimes it’s because of a lack of necessary knowledge and judgment; often it’s from a feeling of a lack of candor.  Although “he didn’t return my calls” may be the most common complaint lodged against lawyers, it hasn’t been a reason cited by those who left one lawyer and came to us.  “I couldn’t trust him any more” — to handle the case, or just in general — is the reason we hear most.

So yes, we want our clients to be straight with us.  But usually that only happens if we are straight with them first.

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1 Comments

  1. Dan, September 6, 2011:

    Reading this post convinced me that you know what your talking about. I have met with a number of clients who were naturally wary. As a former convict and current defense attorney I understand the natural tendency toward silence and mistrust.

    If I started the first meeting with a client by asking who their connect was because I didn’t want to mention the connect while I worked on the case, the client would flip out. Instead if I ask the client who I should stay away from in my questions and investigation after I have visited with the client on a number of occasions, they will usually tell me something like “Just leave Jose out of this.”

    Sometimes I tell clients, look not only do I not care who your connect is, I do not want to know because I do not want him to get busted next week and I am the last person you disclosed his identity to, on the other hand if this dude is in the police reports I don’t want to do something that is going to get anyone in trouble.

    Very good article, thank you for sharing it. I am going to read more, I know I can learn a lot here.

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