Not about the clients this time, but the lawyers.  Most attorneys feel an unnatural compulsion to have sound emit from their mouths.  It’s just what they do.  Sometimes, it’s what they should do, but not always.

Clients love to watch as their lawyers stand up and seize control of the courtroom.  With a calm stateliness, the lawyer speaks and the din of the room suddenly quiets to the point where you can hear a pin drop.  All eyes turn to the lawyer and no one, not even the judge, would dare to interrupt.  The lawyer’s oratory captivates the room.  The jury wakes up and every eye is on the lawyer.  The client feels very, very good.  And the lawyer feels that he has fulfilled his promise. 

But this dreamy scenario, while satisfying, may prove to be the absolutely wrong tact to take.  There are times when the lawyer best serves his client by remaining silent.  This is a hard lesson for some lawyers.  In my experience, it tends to come with maturity, though many older, more experienced lawyers fail to recognize those moments when the best thing they can do is…nothing.

For example, good times to remain are silent are:

1.  When the judge is ripping your adversaries head off for some error, whether real or perceived
2.  When your adversary has apparently forgotten to do/say something, and is about to walk off a cliff
3.  When your adversary has made an argument that is so patently frivolous that it is destined to undermine his position
4.  When the judge is about to address a situation in your favor, even though she’s absolutely wrong
5.  When a prosecution witness has just lied through his teeth about some significant fact, but the lie works in your favor

Every trial lawyer is familiar with the last example.  It’s the one where your client grips your arm with such force that you wonder if circulation will ever return, and whispers in your ear. “He’s LYING!”  And you calmly turn toward your client and respond, “Yes, but he’s lying FOR you.”  It’s uncanny how some clients have a sudden hankering for the truth.

Similarly, there are times when the use of silence is your best friend prior to coming anywhere near trial.  For example, I represented a young woman who should have been charged with a felony assault, but the arresting officer took pity on her and wrote the initial charge as a misdemeanor assault so he could give her a desk appearance ticket and avoid putting her through system.  The young woman was having a psychotic episode at the time, and would have had a great deal of difficulty in a holding cell.  The officer was very kind.

When we appeared for arraignment on the appearance ticket, the prosecution had neglected to file an accusatory instrument, and so our appearance was noted and we went home.  The parents of the young woman were distraught, and wanted (perhaps better described as demanded) forward motion so that this matter would reach closure.  The apple never falls far from the tree, if you get my drift.

After calming down the parents, I told them that they would have to leave strategy to me and bear with the situation.  After a period of quiet time, I received a call from the assistant who told me that she was going to present the case to the Grand Jury.  I asked her to give it some time to see if we could work out a disposition, as the young woman was receiving treatment and there was no need to saddle her with a felony.  We spoke nicely to each other, and the assistant agreed. 

I promised to call her in two weeks with an update, and I did.  She wasn’t around, so I left a message.  No call back.  This was the critical moment.  Do I pursue the assistant, or leave it alone.  I knew she had a case, but the only benefit to another call would be to remind her of that fact.  I also knew that, in the meantime, other cases would come across her desk.  Other defendants.  Other cops.  Other parents.  Other lawyers.  So I opted to lay low.  If she ever called me, I was in the clear as I had called her as promised.

And so I went silent.  Six months later, not a word.  And so the case died, a slow, lingering, quiet death, and was never heard about again.  The defendant had neither case nor record.  It never happened.  The parents were dissatisfied by the absence of closure.  They wanted a piece of paper that said their baby was innocent, and were unhappy that there is no disposition when there is no case.  But there was no such animal to give.  At the end, there was a black hole of nothingness, but that nothingness included no charge and no conviction, a very successful outcome.  Silence can be golden.