The Nature of the Job


The job is antidemocratic, to begin with. Our Constitutional mission is to confront and resist authority, which, in America (where we like to elect our authority figures) means flouting the more-or-less democratically expressed will of the majority. Successfully defending people usually means telling those whom the majority has chosen to enforce the laws made by its representatives that either they or the laws are wrong. In other words, the mob is wrong.

Which explains why lots of people don’t much care for us: they are under the impression that they live in a democracy, where what the majority says is always right. This misconception leads them to (among other things) resent judicial review, and feel threatened by those who resist their will. To explain how it is that an intelligent person could stand up in court day after day and tell the mob that it is wrong, they tell themselves (and, as anonymous blog commenters, anyone else who will listen) that criminal-defense lawyers are sleazy, dishonest, unethical.

And so is born the myth of the lying criminal-defense lawyer. Tell someone that you are a criminal-defense lawyer and, without knowing anything else about you, chances are that she’ll assume that you are perfidious. The myth reinforces itself as new criminal-defense lawyers join the bar; some buy into public view that lying is part of the job and confirm the mob’s suspicions.

The truth, though, is that lying isn’t part of the criminal-defense lawyer’s job. A criminal-defense lawyer doesn’t have to lie, cheat, or steal to succeed.

In fact, a criminal-defense lawyer can’t lie, cheat or steal and succeed. A defense based on lies is almost always doomed to fail. A lawyer who lies has failed to find the truth that saves his client, and has lost the case already. Yagyu Munenori, in The Book of Family Traditions on the Art of War, a 17th-century Japanese swordfighting text (available in The Book of Five Rings translated by Thomas Cleary), writes:

Whatever the false mind does is wrong. If this wrong mind emerges, you will lose at martial arts; you will miss the mark with bow and gun, and will not even be able to ride a horse. If you performed in a drama or a dance in this state, it would also be unpleasant to watch and listen. Mistakes will also show up in what you say. Everything will be off. If you accord with the original mind, however, everything you do will be good.

. . . .

The false mind is sickness of mind; getting rid of this false mind is called getting rid of sickness. Rid of this sickness, the mind is healthy. This sound mind is called the original mind. If you accord with the original mind, you will excel in martial arts. This principle is relevant to everything, without exception.

(Hold on to that idea. We’ll return to it another day in the context of what we do, rather than just how we do it.)

Clients sometimes think that they want a lawyer who will act unethically for them, but they don’t: first, because a defense based on lies is almost always doomed to fail; and second, because clients need lawyers they can trust. Unethical lawyers are . . . unethical. A lawyer who behaves dishonestly “for his clients” can reasonably be expected to behave dishonestly toward his clients. [Edit: Or, as Windy Pundit Mark Draughn writes, “you have no right to be surprised when you discover he’s ripping you off and screwing your wife.”]

Let a werewolf into your house, and you’re likely to get bitten.


0 responses to “The Nature of the Job”

  1. “the myth of the lying criminal defense lawyer”

    It’s a myth that ALL criminal defense lawyers are liars, but it certainly isn’t a myth that some of them are, is it?

  2. No, SC, of course not:

    “The myth reinforces itself as new criminal defense lawyers join the bar; some buy into public view that lying is part of the job and confirm the mob’s suspicions.”

    Duh.

  3. Thanks for the link. I don’t really have enough experience with lawyers to be saying things like that, but I figured I could generalize from my experiences with sales people. There’s some overlap in the job skills, and the sharks never stop being sharks.

  4. “some buy into public view that lying is part of the job and confirm the mob’s suspicions.”

    That’s not the fault of or the result of the mob–it’s the fault of the lawyer.

  5. To go farther, we might attribute some blame to the experienced criminal defense bar for not teaching all those the new criminal defense lawyers (of the fresh-out-of-law-school as well as the fresh-out-of-the-DA’s-office variety) that, contrary to what they see on TV, lying isn’t part of the job.

  6. It has been my very pleasant experience in Harris County that 99% of the Defense Bar hear are very honest. The few who aren’t are well known and, I believe, equally shunned by both the Prosecution and the Defense Bar.

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