In the context of criminal plea negotiations, one of the defense lawyer’s jobs is to tell the client’s story to the prosecutor in way that distinguishes him from everyone else that comes through that courtroom charged with [assault, theft, possession, etc.]
In the context of jury trial, the defense lawyer’s job is to tell the client’s story to the jury in a way that leaves room for reasonable doubt, or even provokes belief in actual innocence. Or maybe it’s somewhere in between.
But you can’t tell that story to anyone, if you don’t listen to it when told to you by your client.
Susan Cartier Liebel recently asked “Do You Know What Questions to Ask Prospective Clients? Do You Know How to Listen To Their Answers?”
In the course of a reasonable and effective initial consultation a good lawyer will be doing most of the listening asking mostly open-ended questions and periodically asking for specifics during the narrative for clarification on points that are key to deciding whether or not she wants to take the case.
The only time there will be much talking on the part of the lawyer is when she is answering specific questions posed by the potential client, explaining the law as it may or may not apply to the client’s case or detailing representation.
New York attorney Scott Greenfield chimes in with some specifics on this subject for criminal defense lawyers. First he notes that this particular niche in the law comes with its own peculiar twist:
In criminal defense, as opposed to other areas of practice, we begin with a bit of a handicap. Our clients are not always the most articulate when providing us with information. Worse still, they aren't always the most forthright. Frequently, they tell us what they want us to know, to believe.
Clients assume that if they give us their exculpatory story, it somehow makes their position real and causes all evidence to the contrary to disappear. Of course, this can be the death of a viable defense, since their choice of ignoring evidence does nothing to help us in preparing a viable strategy.
Clients also assume that if they make themselves seem innocent, or at least more innocent than they are, criminal defense lawyers will fight harder for them. This is a natural tendency, since no one wants to make themselves out to be bad people, but it's another stumbling block for the creation of a viable defense. As I've written in the past, criminal defense lawyers don't (and shouldn't) care about guilt or innocence. We don't judge, we just fight. That's our job and we don't fight any harder for "innocent" people than anyone else. I know it's hard to believe, but that's just what we do.
Ah, the Perry Mason effect. Earle Stanley Gardner’s fictional lawyer only took cases where his clients swore to him that they were innocent - despite being found with the smoking gun in their hand standing over the body. (At least that was the case for the TV series. In the novels, he wasn’t always so
Yes, some clients believe they must convince their defense lawyer of innocence first… or else he won’t be able to convince anyone else of the same thing. Or he won’t take the case.
This is actually one area where I find that the typical bias against defense lawyers is actually helpful. After all, which one of us hasn’t been asked by friend, family and stranger alike, “How can you defend guilty people?”
When I sense, let’s call it a ‘hesitance to be completely forthright,’ I’ll mention that I’ve been practicing for over ten years, and that they are going to have to try a lot harder than the facts of their particular case to offend me. And I throw in, “of course I won’t tell anything to the judge or the prosecutor that you tell me, unless it’s something that helps your case.”
Unashamedly announcing that you gladly defend the guilty as well as the innocent (and those in between – there are some) can help a client loosen up. Isn’t that what criminal defense attorneys do?
Scott’s post ends with an excellent observation:
While criminal defense lawyers like to believe that we pay careful attention to our clients, listen to them, and hear what they are telling us, we come to recognize after the fact that we missed something, or got something wrong just a little too late.
Listening to what our clients say, and what our clients mean to say, is a crucial component of our job. Take the time, put aside the attitude, and pay real attention to the client. We want to go into battle with our weapon fully loaded, and facts are the bullets. Listen to your client and be well-armed.
Agreed. In this regard, I give my clients homework. By ‘homework,’ I mean things they can start doing now to help me help them increase their chances of the best possible result.
And one part of that homework, no matter what type of case, always includes writing out a narrative of events. Sure, I can listen as long as they want to talk; and I can ask them all the questions I know to ask. But details will invariably be left out. Very often important details. So at the end of the initial consultation with a prospective client, I ask for a narrative of events.
Go home, turn off the radio and the TV, and give yourself some quiet time. Write me out a narrative of everything that happened. Start it wherever it needs to start. In a DWI case, for example, that might include “I only got 5 hours of sleep instead of my usual 8, because of X, Y & Z.”
Do it sooner rather than later, because, as convinced as you are right now that the memory of this arrest will remain permanently burned into your consciousness, the truth is that memory fades.
More on homework later. But actually writing this out has made me curious. Drop me an email, or leave a comment if you are a criminal defense lawyer and you have more ideas on listening to or receiving the story of what happened from the client. There’s always room for improvement.