In Support of the Nudge


New York criminal-defense lawyer Scott Greenfield and I usually agree on things, and he’s a lot older and somewhat wiser than me (though still spry), so when he seems to disagree with me I take a careful look to see if maybe I’m wrong.

The client charged with a crime has three (in Texas, four) decisions that only he can make: whether to plead guilty (more broadly, the objectives of the representation, including whether to seek a lesser included offense), whether to try the case to judge or jury, whether to testify, and (in Texas) whether to ask that the judge or jury set punishment.

None of these are decisions to be taken lightly. And, as Scott says of the trial/plea decision, “many defendants are poorly educated, harbor disturbing misconceptions about the system and are ill-equipped to make such a monumentally serious decision.”

The law license says “attorney and counselor at law”. Our clients come to us with problems, and we advise them as well as advocating for them. We try to achieve our clients’ goals, but often those goals are unclear or impossible or not ambitious enough. Clients — almost all clients — need our help understanding what the range of possible outcomes is, which of those outcomes would be best for them, and costs and benefits of seeking each desirable outcome. They need help, in other words, assessing the risks.

It is in helping our clients settle their goals and make the difficult decision of how best to reach them that we criminal-defense lawyers really earn our keep. Correct decisions require judgment, experience (you have to try cases to know what is possible in trial), and understanding.

We don’t substitute our own preferences for those of our clients, but our own preferences inform our advice. For example, those of us who know that good things sometimes happen in trial, and think that we (the criminal defense bar) should try more cases are more likely to guide our clients toward trial than those who believe that “everybody gets convicted anyway“, those who see every client as a government cooperator, and those who are terrified of the ego blow of a trial loss — those lawyers will guide their clients toward plea and cooperation.

This process — guiding the client toward the decision that we, in our considered professional opinion, think is best — is not done clandestinely. If the client wants or needs our opinion, we give it. We don’t make the decision for him, we don’t make him make the decision, and — since the decision is ultimately his alone — we don’t twist his arm or shove him toward the right decision.

We nudge.


0 responses to “In Support of the Nudge”

  1. But we never use our position of trust as attorneys to “nudge” a defendant to overcome his free will or push him to do something that he does not want to do, whether trial or plea.

  2. I completely agree with you. But sometimes, I find that clients almost insist we choose for them, which I adamantly refuse to do. However, I find myself just reviewing once again the pros and cons of the decision, trying to answer questions that they have and may not ask… but ultimately, leaving the decision up to the client.

  3. Mark,
    I really like the new layout of the blog. It looks great.

    One question – if Greenfield is much much older than you, does that mean the photo on his blog is of his graduating law school class, or just of one of his first clients? Just kidding, Scott.

  4. Mark,

    Love the new layout!!! I think you are dead on on this one. Everyday I am disgusted more and more at how afraid or lazy attorney are in trying a case. My local criminal defense bar has become a machine for processing people for the State. I could understand it if everyone was having their cases reduced to misdemeanors or if the State had come out with some new state of the art surveillance system that had everyone on HD from the moment they left their house to the moment of the alleged crime, but instead by not going to trial we are supporting sloppy police work and constitutional violations!!!

    We are to blame when we complain that that our client’s are not getting a fair shake and when we feel that our rights are being violated!!! They only take from us what we give them. Molôn Labé!!!

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