I’m supposed to start a trial on Thursday.  In anticipation, I had a chat with my client yesterday, who asked me that same question that every client asks in anticipation of trial.  “What’s gonna happen?”

This is great question.  It covers many subjects, such as:

1.  Will we really go to trial, or will this be just another false start?
2.  Will the prosecutor cave in and offer me some sweet deal to avoid trial with you?
3.  Will we go to trial and beat the living daylights out of them?
4.  Will I be going to prison for the rest of my natural life?

Unfortunately, I am not Madam Esmerelda, capable of predicting the future.  Naturally, I understand the anxiety felt by the client, and the desire to have firm answers to all pressing questions.  But I just cannot provide answers, and any attempt to do so would mislead my client.  I do not mislead clients.  More to the point, any attempt to provide context tends to create further confusion and, more often than not, further anxiety.

When I speak to my clients, I try to be precise.  But my sending information is only half the communication process.  The other half is what the client hears.  Experience tells me that clients have the uncanny ability to pick out those words and phrases that they want to hear, and construct an entirely different message than the one sent.  For example, if I say “We have strong witnesses and are well prepared, but you never know what a jury is going to do,” they hear “We have strong witnesses and are well prepared, so I guarantee we’re going to win.”

The problem is bad enough when discussing the past.  It is horrible when predicting the future.  Honest lawyers don’t predict the future. 

When we tell clients that we cannot predict the future, the next question is invariably, “But what are my chances?”  To this, I always respond that I’m not Jimmy the Greek.  I don’t handicap trials.  They persist.  I continue to refuse.  They are unsatisfied with my response.  Clients want lawyers who can provide answers with certainty, no matter what.

As clients walk into the great unknown, afraid, unfamiliar and desperate to have something to cling to like a life-preserver, they look to their lawyer to comfort them.  The criminal defense lawyer becomes the focal point of their insecurity, and he shoulders the blame for a system that offers very little comfort and absolutely no assurance.  Suddenly, we are to blame for this terrible system, unfair and unyielding, because we cannot tell them that when the trial is over, they will prevail.  Mind you, certain details have been long forgotten, such as the fact that we didn’t arrest them, or that they engaged in conduct that may have something to do with their current situation.  We are now the nexus between the client and this mass of future uncertainty.

Often, the client will default to the position that “I paid you all this money, so you have to tell me.”  It doesn’t matter how many times you’ve discussed with the client that the legal fee is for the work and effort that you’ve put into their defense, not for a guarantee of outcome.  Lawyers aren’t plumbers:  We can’t guarantee at the end of the case that the pipes won’t leak.  Of course, we don’t charge as much either.  (See lawyer joke at bottom.)

I wish I could provide honest, accurate responses to perfectly reasonable questions, but the fact remains that this is a game for people with a very high tolerance for ambiguity.  There are so many variables outside our control that we cannot possibly predict the future.  Even when we have a fairly good estimate of what will happen, we are reluctant to share it because it becomes written in concrete to the client.  If you predict (this is just an example) that there is a 90% chance we will win, that doesn’t mean the client won’t fall into that 10% losing group.  And what do you say when the jury foreman utters the word “guilty” after you’ve said this to a client?  Nothing will take away the pain of that word, and the client will blame you for not only having failed him, but for misleading him into a false sense of security.  And the client would be right.

This is a good point to make one thing perfectly clear.  There is no criminal defense lawyer who tries cases who has not lost.  No matter how good you are, you lose some.  Any defense lawyer who says he hasn’t lost a trial doesn’t try cases (and there are a lot of those type lawyers around). 

I wish I knew what will happen next Thursday, but like my client, I’m just going to have to wait to find out.  Until then, I will prepare and prepare and prepare for trial.  If we go, I will be ready.  If not, I will be ready the next time.  That’s how it goes.

LAWYER/PLUMBER JOKE:   Plumber is called in to fix a stuffed drain at a lawyer’s house,  When he’s done, he present the lawyer with a bill. 

The lawyer screams, “That’s outrageous!  Even I don’t charge that much!”

The plumber responds, “Neither did I when I was a lawyer.”