An Emotional Decision

Over at Crime & Federalism, Mike makes a fascinating connection between the five stages of grief and the experience of the inadvertent criminal defendant:

A person charged with a crime may go to prison. He may be raped. He won’t know his children. He will be, for the rest of his life, a convicted felon. One part of his life is indeed over. He is dying.

Yet we often don’t treat clients as people facing terminal illnesses. Instead we become frustrated when they won’t follow our advice. Yet no matter how sage the advice is, the deaf cannot hear – and a client in denial may as well be deaf and blind.

Kübler-Ross model for client counselling

As its name suggests, there are five stages of grief – denial, anger, bargaining, depression, acceptance.

This doesn’t apply as well to the pro defendant, who enters into criminal conduct aware of the consequences but makes a deliberate decision to take the chance of getting caught and paying the price.  Some are shocked to learn that it actually happened to them, but most take it in stride.

The inadvertent criminal defendant, however, is very much like the dying man, at least as far as the psychological impact of arrest and prosecution.  And the five stages of grief are, as Mike suggests, quite evident.

Further, Mike notes how ill-equipped lawyers are to deal with defendants going through grief.

Consider, for example, the requirements one must meet to become a licensed Marital and Family Therapist:

Experience Requirements

104 weeks of supervision

3,000 hours of supervised work experience.

Yet any new law graduate is expected to competently handle divorces and criminal cases. Divorce, as my good friend Norm Pattis told me, “is one-part homicide, one-part suicide.” Even the spouse who wants the divorce feels somewhat dead inside, since hurting someone you once loved is damaging to all but the sociopathic.

Lawyers, on the other hand, get a piece of paper and are let out on the street to deal with people’s lives.  Worse still, the ones least prepared to handle the grief of clients are the ones with the most limited life experiences themselves, and the least metacognitive ability to realize their own limitations.  And yet they are every bit as much lawyers as any other. 

Many lawyers believe that playing therapist is part of the job.  I don’t agree.  It’s not that clients don’t desperately need therapeutic help, but that we are particularly incapable of giving them what they need.  We are not therapists.  Not only do we lack any training, but it directly interferes with the core of our role as lawyer, to provide a detached perspective in crafting and dealing with the prosecution.  Rather than embrace our client’s emotions, we serve the purpose for which we’re retained best when we don’t let emotion cloud our vision of the harsh reality of criminal prosecution.

This isn’t to say that we shouldn’t feel empathy, or shouldn’t be generally sensitive to our clients’ needs, but that we can’t allow emotion to prevail over hard, cold reason.  We’re there to do a job, to defend.  To do that job, we need to focus on what’s real and how to deal with it rather than on how defendants feel about it. 

This may make us appear harsh to clients, who value hand-holding over lawyering as they pass through the stages of grief.  Many lawyers greatly prefer to have their clients love them as they go through the motions, and are only too happy to do things that bring the clients transitory comfort at the expense of ultimate success.  Everybody hugs and kisses during the representation, then waves good-bye sadly as the client is shipped off to prison. 

My question has long been whether the defendant would rather love you during the representation or afterward. 

I’ve sent many a client to therapy during the course of representation.  They needed it, and I couldn’t provide it.  I told a few to get a dog if they need someone to keep them company because they’re sad and lonely.  This rarely goes over well, but there is no way I can fulfill their emotional needs while remaining wholly unemotional in my representation. 

Much of what I see in the blawgosphere and on twitter from criminal defense lawyer exudes emotion toward criminal defendants, often to the point of irrationality.  It reflects the disconnect between thinking and feeling, overwrought sympathy for our side.  Not only does this reflect muddled thinking, ideas clouded by emotion that renders the lawyer blind to the flaws of their logic and ineffectiveness of their persuasion, but it precludes them from seeing that they are destroying their clients chances of success in the process. If you really care about your clients, do the best for them rather than feel as they do.

By providing a paradigm to explain the emotional stages the inadvertent defendant goes through on the road of prosecution, Mike clarifies to the rational mind both the problem and the solution.  Clients are going through an emotional journey that impairs their ability to think clearly and make sound decisions.  Some will need psychological help to make it through the process.  Lawyers are not qualified to provide that help.

We are, however, theoretically qualified to provide legal representation, if only we don’t let our desire to be beloved during the process interfere with our ability to do our job.  Our job is to defend our clients, not make them feel better before getting sent to prison.

3 comments on “An Emotional Decision

  1. Bad Lawyer

    Superb post. As you might imagine having spent the last year going through this process as a defendant after nearly 30 years as an attorney (albeit not a CDL) I strongly relate on all cylinders. I’ve been blawging about this at some length and my posts reflect the Kubler-Ross “stages of grief”–it’s a remarkable experience to go through.

    But your post this morning brings to mind a situation that arose while I was at FCI, Morgantown. I currently work at a prominent law firm in OurTown as a “paralegal” under extraordinary limitations imposed by the Supreme Court–I worked here before my incarceration all last year.

    When I got to Morgantown one of the inmates in my residential unit, let’s call him “Fayeed” looked real familiar. Turns out Fayeed and his wife were clients of the CDL that’s of counsel with the firm I worked at and all last year he and his wife would appear early in the AM to meet with the CDL. Fayeed and wife were charged and ultimately convicted of bribery related to Fayeed’s job as an engineer with one of the OurTown area political subdivisions (the bribery scheme involved proceeds laundered through the family supermarket operated by the wife.)

    Oh, joy, you can imagine how thrilled I was to now be living with a former client of my employer who was: angry, betrayed, in denial…. Of course Fayeed blamed his CDL, and now I had to hear about it–and, be asked constantly for help on his various efforts at post-conviction relief. The thing is, Fayeed and his wife walked away from a plea bargain for a year+day for Fayeed and no prosecution of his wife negotiated by his “awful” lawyer. Now Fayeed is doing 8 years and his wife is doing 5 years.

    When I was a “prominent” OurTown lawyer I represented hundreds of victims of rape and incest. I, personally, learned the painful lesson of the importance of boundaries as it relates to lawyer versus mental health counselor. I think young attorneys take far too seriously “attorney and counselor.” Counselor relates to the law, not mental and emotional health.

  2. SHG

    Thanks, BL. What I’m seeing (and have been for quite a while now) is that lawyers who might otherwise come to realize that they aren’t therapists and, if they want to play therapist, do so at the expense of being lawyer, are getting encouragement in going down the wrong path by those who see it as a good marketing technique and those experienced lawyers who want to justify their choice to play to emotions over lawyering.

    In other words, no matter how bad an idea presents itself, there will be someone on the internet to support it and bolster those who are at the crossroads of deciding which path to take, and steer them down the wrong one.

  3. Bob

    Over the years I’ve realized that referring clients to a mental health professional is just plain good advice. As you note, and as I will tell clients, I’m a lawyer, not a psychiatrist or psychologist or social worker…they’re the person equipped to help you with your divorce etc. As always, you make an excellent point.

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