Why I Don’t Make the Big Decisions


By all rights, I should be in trial today. My client was arrested in his brother-in-law’s house, which contained 12 kilos of cocaine in the attic, a pound of marijuana, and two guns. Mere presence is not a crime, but the Government claimed that he had made harmful admissions to agents.

He maintained his innocence. I thought the client had a better-than-even chance of acquittal and a chance of a 10-plus year sentence.

The government offered him a plea to misprision of a felony — a federal felony with a three-year maximum.

He rejected it. He had faith in God and me.

I thought that was a terrible decision, not because I disbelieved his protestations of innocence (I didn’t), but rather because I believe that there are times when principle must give way to pragmatism (if he was convicted of the drug crime, he faced at least ten years in prison). My experience has been that God’s plan for the accused is often not what the accused thinks it should be.

But the decision was not mine to make. We express our preferences as lawyers through the cases we choose to take rather than through the manner in which we handle them. If a client wants a trial, he gets a trial. If he wants to plead guilty, he gets to plead guilty. If he wants to testify at trial, he gets to do that. These strategic decisions are his. He might consider what I think he should do, or what I would like him to do, or what I think would be better for him or anyone else, but none of those things are determinative. Once he’s decided what the goal is, it’s my job to try to make it work.

It is a strange trade, that of advocacy. Your intellect, your highest heavenly gift, hung up in the shop window like a loaded pistol for sale, will either blow out a pestilent scoundrel’s brains, or the scoundrel’s salutary sheriff’s officer’s (in a sense), as you please to choose for your guinea.

Thomas Carlyle, Lord Jeffrey, 1867.

So I buckled down and prepared for trial. Because, at the end of the day, I am nothing more than the client’s legal hired gun.

The first step of my trial preparation, once trial was inevitable, was to convince myself that I would win the case. Being realistic is all well and good when there are plea offers to consider and strategic decisions to be made, but there’s no point going into trial believing that any outcome other than victory is possible. I knew what every piece of paper in the case said, knew how it all fit together, had some ideas of how the testimony would go in trial, and had an answer to everything. I predicted on Sunday that, at the end of the trial, the client would be telling me, “I told you so.”

That last bit, at least, I got right: we went to court for our pretrial conference on Monday, and the Government announced that it was dismissing the case.

I’ve never been happier to hear “I told you so.”

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0 responses to “Why I Don’t Make the Big Decisions”

    • Well, since our host is too modest . . . the discussion went like this:

      “This isn’t the perp you’re looking for.”

      “You know . . .this isn’t the perp we’re looking for.”

      “He can go about his business.”

      “He can go about his business.”

      “Move along, now.”

      “Move along, now.”

  1. Unrelated to your particular story, but a favorite hypo of my PR prof in law school: What do you do if you know your client intends to lie, but insists on testifying?

  2. Great story, congrats to you and your client.

    I love this profession. Can’t think of anything I’d rather be doing, or anything more gratifying than getting results like what you described above.

  3. Fan-fing-tastic. So much of winning is good preparation. That is everybit as good as a NG from the jury.

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