Sacred Duty [Updated]

I have tried a bunch of cases, and pled more. Win or lose, clients whose cases I’ve tried have almost universally been happy afterwards. Clients whose cases I’ve pled are often unhappy afterwards.

The client who pleaded guilty has chosen a plea over a trial, and has agreed to the result; he should be happy. The client who went to trial may have been forced to trial (the system’s default condition) by the lack of a meaningful plea offer, and—if he loses—didn’t get the result he hoped for.

So why is the trial client happier than the plea client?

I think it’s because most people have never seen someone fighting for them. The trial client has seen it, and that’s a new experience to him, he likes it. It is liberating.

Even the career criminal has probably never seen someone fighting for him. Most cases plead and most lawyers, most of the time, just don’t fight. Not, at least, in any way that the client can see.

But this thing for which our clients thank us, win or lose—showing them that there is someone who will fight for them when they cannot fight for themselves—is more than just our job; it is a sacred duty. Do it not just for your client, and not for yourself. Do it for freedom.

[Update: Pope Francis has reminded me that part of this sacred duty—and surely a reason that the client is grateful for the fight—is that we fight for those who have done wrong.]

6 responses to “Sacred Duty [Updated]”

  1. You are absolutely right. Even though I took a plea and it kept me out of prison, I feel guilty I didn’t fight the charges. If my attorney had been the least bit optimistic or encouraging, I would taken my chances before the jury. As it was, I waited about 30 seconds when facing the judge before saying “Guilty.” Fighting, when there is an ally, is more satisfying than surrendering.

  2. This is a very real phenomenon. Even the most unhappy and hard-to-please clients seem satisfied after trial, regardless of result. They want to see you stand up for them, and if you do, they respect the effort.

  3. I recall very little of the last 27 years, but I remember vividly a case I tried with Bill Stradley in 1996. He had been appointed by Hannah Chow to a client charged with Burglary of a Motor Vehicle. The case was open and shut. He had all kinds of priors, and Bill was appointed because it was a particularly difficult situation and he was the go-to guy for that. The client had been found inside the van with tools and speakers in his hand when the cops arrived. I think he had already been in jail for four months… but he wanted his trial. Bill and I knew the end of the trial before we started it, and I think I got involved just to make it a little more bearable for Bill. The client was difficult before the trial started, but throughout the trial he sat and said nothing. He did not take the stand – naturally. I don’t remember who did closing, but I do remember what the client said afterwards. He looked over at me and Bill as the jury was brought out and with as much earnest as he could muster, he said, “Thanks for fighting for me”. He was sentenced by Chow to the predicable jail time, and the crazy son of a bitch took it with a smile on his face. I guess he figured he had won this one.

  4. Mark,

    You know I am not an atty, but here is my perspective, as someone who spent a handful of time in the criminal courts system when I was 16-21, and even based on my experiences in the family court and traffic court systems in the 15 years since I was 21:

    Sadly, I think this is very rare. While I have never hired you, I know that your level of commitment is rare in the law industry. So many attorneys, both in my experience, and anecdotally, seem to prefer pleading out a case, because it is less work – which has always seemed backwards to me, because I would think an atty would get tired of never actually getting a chance to do what they are trained for – actually arguing cases. Granted, there are a number of reasons to recommend your client take a plea, but rarely have I seen that be based even 51% in the clients best interest.

    I think there is also a lot of hindsight bias involved. When you take a plea, you look back and think, “Man I could have beaten that case!” or similar. I also think people (clients) tend to get nervous and feel like they cant take time to consider a plea. While I’m sure there are limited time offers on the table, especially if it is a case with multiple offenders charged, and if you don’t take that plea first it may hurt you, however I don’t think a lot of attorneys do a good job advising a client on taking the time to think, and really discussing what that plea will mean to them. Many people don’t fully understand the terms of a plea, or what can go wrong if they mess up a deferred or plea with other contingencies, etc – and often this is the failure of counsel to properly take the time to advise the client. I have experienced this even in family cases, where counsel pushes you to take a settlement / agreed judgement, without fully discussing why, and what the options are. Generally the explanations are short, and involve some sort of short “or else” explanation of what happens if you don’t take a plea / settle, and you lose, that tend to come off as a push, rather than an informed explanation on how the case currently sits and the odds of a more favorable outcome taking it through trial.

    I fully agree on why people feel satisfied after even losing a tried case, but I think there is a lot more to why people are unhappy with a case that involves a plea. I also think it has a lot to do with your commitment, willingness to spend time, and the importance you place on having an informed client vs the majority of others that don’t value that as highly as you.

    Off-Topic: If a case had a plea, was the case “pled” out? “Pleaded” out? Or is really the only proper way to say, “The case ended in a plea” vs “The case was pled / pleaded out.”?

    As always, love the blog Mark, hope to see it pick back up in postings like is has as of late.

  5. “I think it’s because most people have never seen someone fighting for them. The trial client has seen it, and that’s a new experience to him, he likes it. It is liberating.”

    Exactly. This right here. People are happier knowing you did everything you could to help them and lost than they are thinking there is something more you might have done.

    On the other hand, I always tell people that the reason I don’t get to do more trials is because, often times, it takes a lot to convince the client that the risk is worth it.

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