As Sure As Can Be

At Above the Law, Mark Herrmann (the  famous author and curmudgeon) offers another bit of insight from the corner office they give to in-house counsel that  carries over to the well of the courtroom.  After an introduction that makes utterly no sense to me, Mark reaches his point:

The first “Are you sure?” did not arise in a legal context. A guy got off a subway, emerged from under ground, pulled out a map, and told the woman he was with: “We should walk this way.”

She asked, “Are you sure?”

Now look: The guy had a map in his hand; he had just emerged from under ground; and he was considering the situation. I have a creeping suspicion that he wasn’t sure; he was probably giving his best assessment of the situation.

Given that, I don’t think his companion was actually asking whether he was sure; she knew that he was uncertain. Rather, his companion was setting the guy up for a fall: Fifteen minutes from now, when this couple was lost in a bad part of town, she could blame him for having put them in this situation — because “I told you that this was the wrong way!”

Every criminal defendant wants certainty.  Whether the actual words they utter is “are you sure” or “what are the chances,” as if we were Vegas odds-makers, they seek the assurance that what we are doing, and by extension the trust they’ve place in us, is the right call. 

In the worst case scenario, the defendant will ask us to guarantee the outcome, usually before they hand over the legal fee.  This is when they have the greatest leverage, and we are at our most vulnerable, possibly inclined to lapse into idiocy to get our hands on the loot.  A lawyer’s mind goes stupid when he’s staring at a pile of money.

Like the woman emerging from the subway, clients know we’re never truly sure. They know we can’t be sure, there being a million variables that can go wrong, or sideways, or upside down,  When we’re lucky, we can be pretty sure, as we’ve been down this path a hundred times and we know where it leads. Yet, even then we know that occasionally, a fork appears that we didn’t expect and we end up someplace we didn’t want to be.

More often than not, being sure depends on the defendant being honest and accurate.  We can qualify our counsel by responding that our advice is dependent upon the facts, and the only facts we possess are those our client tells us about.  Of course, no defendant has ever been honest and accurate, meaning that we are not responsible for certainty that relies on their information.

It’s not that clients mean to be dishonest or inaccurate, but that their information is colored by their distress.  They feed us the information that they believe will persuade us that they aren’t bad people, whether or not they’re guilty.  There is a bone in the human head that makes people believe that if they can convince their lawyer of something, they will win.

As for accuracy, it’s not their fault. Criminal defendants rarely have a clue what the complaining witness or cops think.  Often, it’s because what the cops think is that they can make stuff up to rid society of a worthless skel, and it’s never easy to guess what a cop will make up to convict someone.  Still, defendants have a tough time relating even their version of events accurately, given the limits of gestalt and metacognitition.

The “are you sure” question, in its various permutations, isn’t a mystery to either corporate or criminal (or both) clients.  They know it’s the wrong question, a question that can’t get a truthful “absolutely.”  As Mark notes, it’s a shifting of responsibility.  The point of the question is to make the decision-maker responsible for failure. If it turns out that it’s not the right choice, then there is someone to blame.

The problem is that decisions must be made, or they make themselves. Just as the couple coming out of the subway has to go somewhere, the litigant has to decide to settle or try, to move in one direction or another.  Of course, when it comes to deciding whether to turn left or right, or go straight, or turn around, there is a correct decision to be had.  In law, the only correct response is “it depends.”  Nobody wants to hear “it depends.” 

What we do is make the best decision we can, based upon our education and experience, our understanding of the limited facts in our possession and detached, rational analysis.  You can tell this to a client all you want, however, and they will take no comfort.  To paraphrase Jack Nicholson, they can’t handle the truth.  Yet, this is the best we can do to help our clients.

Of this, I’m sure.  As sure as I can be, anyway.

2 comments on “As Sure As Can Be

  1. LTMC

    One of the first things they taught us in our Professional Responsibility course was to never guarantee any result. A lawyer’s words, more so than a lay individual, carry legal significance and power. The failure of a lot of new lawyers (it seems) to grasp that concept has led to many an inadvertent attorney-client relationship, or alternatively, a client instruction that ended in a malpractice claim.

    Continuing along the same lines, it’s also a part of a lawyer’s responsibility to manage risk for his or her client. That means that even if you’re reasonably sure that the client’s outcome will be positive, and the risk of an adverse disposition is small, you still have to make sure you don’t forget to tell them about that small risk. If informed consent means anything, it means going into any legal proceeding with both eyes open. You just hope the client wasn’t winking when he was giving you the facts.

  2. SHG

    The practice of law bears very little resemblence to a professional responsibility class. Very, very little. As in, absolutely nothing.

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