Always . . . Except.


Arizona criminal-defense lawyer Matt Brown writes about judging a “client counseling competition,” (!) and advising a struggling competitor who was concerned about asking the mock client too many questions, because he “didn’t want to know too much.

Matt gave a nuanced answer:

To know what to ask and what not to ask, you need intimate knowledge of the area of law in general and of the issues that come up in that type of case in particular. You must understand the ethics rules. You want to get as much as you can to avoid any nasty surprises, but at the same time, you can get yourself in a legal or ethical mess if you don’t know what you’re doing.

Another of the judges had a clear answer:

The transactional lawyer also seemed dissatisfied with my response. He explained to the competitor, “all of the hot-shots downtown always want to know very little so they can keep their options open.”

Like Matt, I guess I don’t qualify as a downtown hot-shot (though once in Deep East Texas I got called a “slick big-city lawyer who uses the rules to his advantage”); since I’m downtown (and can look out of the windows of my new office at the Criminal Justice Center), it must be that I’m lacking some element of hotshotness. I always want to know everything the client knows about the case. . . except when I don’t. Because “always” is almost never accurate.

I don’t believe in lying to juries—cops do enough of that for all of us. Rather than making something up, I prefer to find the part of the truth that is most helpful, and tell it. I never know where that truth is going to come from—sometimes it comes from my independent investigation, occasionally it comes from the police report, and often it comes from the client. I’ve cracked really tough cases by listening to my client’s harebrained theories, which turned out to be entirely correct, so I always want to hear everything the client wants to tell me. . . except when I don’t.

Most laypeople would be surprised, I think, at how often the accused’s story is entirely irrelevant to the successful defense of a criminal case. Most of the time, what the accused tells his lawyer doesn’t help his case, and it never—assuming a zealous lawyer behaving appropriately—hurts it. We’re not going to have to use all of the facts at trial, but it’s better to have them all and not reveal them than to have gaps in our understanding of the case. I always want to know all of the facts. . . except when I don’t.

When I don’t want to hear everything the client might have to say, it’s not because I’m concerned about getting into legal or ethical messes by knowing too much. I never feel tied to the first story the client tells me. Potential and new clients usually don’t know (didn’t observe or don’t remember) exactly what happened; often they lie to me, for whatever reason. While I would prefer that they didn’t, they are forgiven for doing so. But I prefer not to be lied to, and I’d rather that the client not feel he’s tied to a particular story until we know what the facts beyond change are, as well as the law applicable to the case.

So when, early in the case, I’m talking to the client about the facts, I’ll usually start out asking him for the story from someone else’s point of view: “What do the police think happened?” “What do you think the complainant told them?” “Your cousin was there; what do you think he’ll have to say?” The answers to these questions give me a good idea of the client’s grasp of the situation, as well as an outline of some of the facts. Whether I want to delve immediately into the client’s own observations and memories, or to leave that until after discovery and investigation and possibly The Lecture. Or until never—if I can beat a case by getting the Government’s evidence tossed out or by convincing a prosecutor that his evidence is insufficient, there’s no reason to complicate matters by exploring the facts.

I’m all over the field here because Matt’s answer to the struggling student was just about right. There are no hard-and-fast rules. You’ve got to know the law and understand the issues. Mostly, though, you’ve got to read the person who is your client, and recognize what will be most helpful to him.

Simple.


3 responses to “Always . . . Except.”

  1. It drives non-lawyers crazy when they ask me whether something or other is legal or want to know whether the law allows this or that or seek some other bit of information about what the law is or what I’d do under some set of circumstances and I give them what I describe, not quite accurately, as “the correct answer to all legal questions.”
    I tell them, “It depends.”

  2. I agree with you Mark. Since we are given discovery early in the courts I practice I like to wait until I can review the discovery with the Client before we discuss his memory of what happened. I usually just get a quick overview before that.

  3. I always ask my clients to tell me what the police are probably going to say about the case. That lets them know that I am not judging them. It doesn’t put them “on the spot.” More times than not my clients are dead-ass guilty and are ashamed to admit it to a person they just met. Only after the client starts to trust me do I delve deeper. There is no hard and fast rule to apply—it depends on the client and the case. It’s as simple as that.
    A prosecutor once told a North Texas jury, “and we’re not afraid of no big bad lawyer from San Antonio,” to which my objection was overruled!!!

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