What We Are vs. How We Act

Fort Worth criminal-defense lawyer Shawn “No Prisoners” Matlock asked a simple question:

If you’re hiring a defense attorney, do you want someone to feel your pain, or someone to take no prisoners in defending you?

Given that choice, I argued that a person is better off with a person who has compassion than one who is ruthless. My argument must have been pretty compelling, because “No Prisoners” got his panties in a twist, responding not once but twice.

Austin criminal-defense lawyer Jamie “It’s Spencer-With-a-C, Scott” Spencer equates ruthlessness with aggressiveness, and does his part to save the environment by recycling part of an old post on aggressive lawyers.

New York criminal-defense lawyer Scott Greenfield chimes in, declaring that we can be both compassionate and ruthless. While we can behave at some times as though we are one and at some times as though we are the other, the two words are antonyms and we can’t be both at once. So Scott’s playing the metagame (playing games with the rules) rather than the game that Shawn proposed by Shawn.

To sum up, Shawn hit on an interesting topic. But he’s still wrong.

Iowa criminal-defense lawyer Chuck Kenville (who says “me too!” to Scott) left a comment to my post equating lawyers with surgeons. The “surgeon” metaphor has its place, but it’s not in this context. Surgeons aren’t known for their social skills; they don’t have to get people to agree with them in order to make the patient better. Trial lawyering is all about social skills, and getting human beings to do what is in your client’s best interest. When we try a case, we’re not operating on our client.

Chuck also asks,

How do you empathize with an accuser who lies about your client sexually assaulting them? How do you empathize with the cop that invents the probable cause for his traffic stop out of thin air? How do you empathize with the DEA agent that you talked about in one of your posts that shoots your client and then takes the 5th so he can get his story straight with the other crooked cops?

Chuck’s answer is “YOU DON’T!!”; he suggests “contempt” for the lying witness as a superior strategy.

It has been my observation that contempt for a witness isn’t a particularly productive strategy. The sound and fury of a ruthless lawyer who has nothing but contempt for the lying witness is undoubtedly impressive to the client, to non-lawyers, and to inexperienced lawyers. Contempt for him is easy. It’s made-for-TV lawyering. But your contempt for the lying witness is never going to magically convince the jury that the witness is lying, so until the jury knows that the witness is a liar, though, the sound and fury signify nothing.

Unless you do something very special on cross-examination the jury is probably going to believe the accuser, the cop, or the DEA agent. (If the jury weren’t going to believe the witness, you wouldn’t have a problem in the first place.) Your best bet — assuming that, as is usually the case, you don’t have proof of the lie — is to get inside the witness’s skin, figure out why he would lie, and then step out and use that information to cross-examine him.

We can’t get the state’s witnesses to submit to psychological evaluations before trial. So my response to Chuck is: you must empathize with the lying witness.

An empathetic lawyer can be unrelenting. Relentless, even. He might appear in certain situations and to certain people to be ruthless. It is a great shame of Western culture that empathy is seen as weakness. Empathy is not weakness but a source of tremendous strength.

A ruthless lawyer might imitate empathy, blunder into the truth, and fool some of the people some of the time. When we try a case, we are surgeons operating on the emotions of the participants. A lawyer without empathy is like a surgeon who hasn’t studied anatomy.


0 responses to “What We Are vs. How We Act”

  1. Mark,

    I respectfully disagree. I know what you’re saying, but I think you take it one step too far. PLus, I never advocated showing contempt for a witness, we were talking about feelings.

    I fail to see the value in empathy for a liar. When you describe “getting in their skin” to find out why they are lying I don’t see empathy helping much. I think more in terms of investigation, preparation, and the analytical skills we develop as attorneys. It is usually pretty obvious why the person is lying: The cop lies because the ends justify the means, your client is guilty and must pay. The DEA agent lies because he’s afraid of losing his career, reputation, and freedom.

    I will agree that empathy could serve you with the woman who falsely accuses sexual assault, but the last one of those I defended it was because (1)she had a jealous boyfriend who found out about the rendezvous, and (2) she was mad at my client for doing the f— and run. I don’t need empathy to figure those out…I talked to my client. As far as cross goes, I don’t have to go cave-man on her. Why can’t I “pretend” I understand her delicate situation with the boyfriend, and “pretend” I understand her need to hurt the defendant becase he hurt her emotions?

    I am starting to feel more like Scott: that it is all semantics. We all do our jobs with emotion because humans are emotional creatures. It just plays a bigger role with some than others. I’m on the lower end of the scale, you are not. That doesn’t mean either of us is wrong.

    Although, I’m sure you will say I am still wrong. 🙂

  2. See, Chuck, you and Scott just don’t know how to play the classic game of “would you rather”.

    When someone asks you if you’d rather be stuck on a desert island with Tina Fey or Angelina Jolie, you’re not allowed to respond “Both” or even “Uma Thurman”.

    Ford or Chevy? Ford.

    Mac or PC? Mac.

    Mercedes or BMW? Mercedes.

    Lucchese or Gucci? Lucchese.

    Porsche or Ferrari? Porsche.

    Coke or Pepsi? Coke.

    Burns Bail Bonds or Blackwood Bail Bonds? Burns.

    Glock or Sig? Sig.

    Islay or Skye? Islay.

    Compassion or ruthlessness? Compassion.

  3. While one might prepare for the need to be ruthless, I tend to agree with Mark. Empathy doesn’t require pretending, suspension of belief, or even agreement. It requires only the willingness to genuinely understand a point of view or an emotion when doing so will help you be more effective.

    Charles’ example is testament to two basic emotions that often lead to lying – fear (of lying and/or telling the truth) and revenge (hurting, and wanting someone else to hurt at least as much). While preparation is always important, pairing it with an empathic approach offers an avenue to elicit something truly devastating – an admission of deceit.

    Victims, defendants, and witnesses all want to be understood and believed, and that desire is even greater when one has the additional burden of selling a lie. Under that pressure, attacking only raises the psychological price of getting caught and practically ensures a defensive response. An empathic approach is easily perceived as reasonable and nonthreatening to all, and usually leads the liar to alter his demeanor and drop his guard.

    What can be accomplished? Perhaps an opportunity to determine the emotional locus of the lie and to gather additional information (since, at this point, the liar is still a salesman). Perhaps it eases pressure, allowing the liar to rationalize and begin seeing himself as a good and decent person. Perhaps it then creates an opportunity for the prepared lawyer to manipulate the liar’s basic emotions by underscoring dissonance – forcing the liar to confront the difference and choose between being seen as a common liar or as a good person who made a mistake (i.e., the politics of youthful indiscretion).

    When empathy works, it works to great effect. If not, you still can be ruthless.

  4. It seems that if one replaces “ruthless” with “zealous” the whole matter could be settled. Zealousness is hardly incompatible with empathy (as ruthlessness is) and it can certainly take the form of aggressiveness when appropriate. Zeal is about passion – an ardent interest in pursuit of something – whereas the quality of being ruthless is about mercilessness and cruelty (according to Webster). Of course zealousness is also compatible with ruthlessness so…I am not sure where that leaves us.

  5. Mark

    At the risk of sounding like a sycophant, I cannot agree with you more on the need for compassion in the whole art of lawyering.

    We can be convinced that the opposing witness is a lying sack of sh**; however, if we proceed on the take no prisoners approach, we may miss that the person appears sincere to the jury. We may treat with badly a witness that ultimately appears to the jury as a neutral or positive figure.

    If instead of viewing them as a lying sack of sh**, we instead view them as “confused” or “mistaken” then we can cross examine them in a gentle but effective manner that will ultimately serve our clients.

    There is no “me” in the jury trial, there are only the facts and my client.

  6. No, no, no. There is no one “right” approach. You do whatever you have to do to achieve the results. Guys, it is not an either/or proposition. That’s just the game Mark set up, but he knows better than that.

    Be tough when you need to be. Be gentle when you need to be. And be whatever else you need to be when you need to be it.

    Now let’s stop all this foolishness. Alright, Ruthless Shawn and Empathetic Mark?

  7. Oh come on SHG, I thought we were just getting started.

    But I agree with you SHG, we can be all things depending on the circumstances. Which of course is another way of say Mark is completely wrong! (Just kidding Mark)

  8. No, we can behave one way in one situation and another way in another, but we are what we are.

    TNP Shawn, are you going to let me take the blame for the game that you set up? That’s just . . . ruthless.

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