To err is human.  Lawyers are human.  Lawyers err.  Or so you would think, but getting a criminal defense lawyer to admit that he or she might have been less than perfect can be a difficult thing.

I’m in the middle of two appeals at the moment.  In one, the defendant decided mere moments after the guilty verdict came in that the fault lied with his trial counsel.  This is hardly uncommon.  Many defendants believe that if they pay a lawyer, and he does the job he’s paid to do, the client must therefore win.  It never sinks in that there are a few other things to factor into the equation, like the facts and the law.

On the other hand, it may well be that the lawyer could have done better.  Whether a failing constitutes ineffective assistance is another matter, though the minimal level of representation is so low as to reduce ineffective assistance of counsel to a fare and mockery of justice.

In the case I’m working on, the client had retained a very well-known and exceptionally good attorney to try his case.  Unfortunately, that’s not the attorney who showed up.  In his place was his son, a younger lawyer who dad wanted to set up to take over his practice one day soon.  Sonny lawyer was pretty good, but not dad.  The younger had an inexplicable attitude of self-importance that would have suited the father, but the son had yet to earn.  Still, he did a yeoman’s job, far above that of ineffective assistance.  Just not good enough to pull the chestnuts out of the fire.

So based on the client’s insistence, I had a talk with the son about the client’s issue.  To be honest, I was not of the view that the lawyer had made a mistake, but felt compelled to discuss it with the trial lawyer anyway.  The reaction was, to be blunt, quite funny.  The lawyer son immediately, utterly and unequivocally rejected the idea that he could conceivably have made a mistake.  Nope, not possible.  Couldn’t happen.  This young lawyer doesn’t err, so he told me.

In contrast, the other case involved a well-known, experienced lawyer.  While the client didn’t suggest that the lawyer was at fault, I considered the possibility given the complexity of the case.  When I ran into the lawyer and queried, his response was, “Well, if there’s anything I did that you can make an argument out of, go for it.  I’d be happy to sign an affidavit.”

Juxtapose those reactions.  The latter, from the experienced lawyer, demonstrated the strength of his belief that despite his many years of successful practice, he was always capable of error and that he was desirous of doing whatever was needed to help his client, even if it meant putting himself in the line of fire.  The former lacked both the recognition, as well as the self-esteem, necessary to admit that he was not perfect.  His fragile ego prevented him from helping his client if it meant the slightest taint to his sainthood.

There are many more young, or inexperienced, or fragile ego’d lawyers than there are lawyers who are secure enough in their skills, and certain enough in their focus to help their clients, that they will happily aid an ineffective assistance argument if at all possible.

Personally, I’ve done so a number of times.  In one instance, I made the motion against myself, where following trial I realized that I had made a serious preservation mistake as a by-product of a tactical decision.  I told the judge that I had been ineffective; I screwed up.  I sought a new trial.  While the motion was denied, the Court’s ruling allowed the defendant to overcome the preservation issue and thereby vitiate my mistake.

Another example comes from a recent appeal I did.  During oral argument, one of the judges tried to shoot down my argument by noting that, as strong as my rationale might be, the jury rejected my client’s testimony as to his innocence as proven by the guilty verdict.  I disagreed, I told the judge.  The verdict was “hardly a demonstration that the jury didn’t believe my client, but was a product of poor defense-lawyers.”  The entire panel groaned, but within a month I received the decision.  Unanimously reversed, and indictment dismissed.  Not too shabby.

The point is simple.  We can afford to take a little heat, especially if we deserve it.  And the truth is that we are human, and sometimes we make mistakes.  If so, even if only arguably so, and it will serve to help your client, why would you possibly fight it?  To err is human.  You’ll get over it.