Susan Cartier Liebel asks, “[D]o you really know how to LISTEN to what is being said? This arises in the context of establishing and maintaining solid client relationships, but it is similarly critical to defending our clients.  When we formulate strategy, or put facts down on paper, our precision may ultimately  prove critical to success.  But we can’t be precise if we don’t “hear” what our clients are telling us.

Basic communication has two components:  Messages are sent and messages are received.  Contrary to popular belief, they are not the same.  The easy analogy is the game of “telephone”, where a message is passed from person to person to see if the ultimate listener gets the same message as originally sent.  Personally, I always garbled the message just for fun, which is why my children won’t let me play this game with them anymore.

In criminal defense, as opposed to other areas of practice, we being with a bit of a handicap.  Our clients are not always the most articulate when providing us with information.  Worse still, they aren’t always the most forthright.  Frequently, they tell us what they want us to know, to believe. 

Clients assume that if they give us their exculpatory story, it somehow makes their position real and causes all evidence to the contrary to disappear.  Of course, this can be the death of a viable defense, since their choice of ignoring evidence does nothing to help us in preparing a viable strategy.

Clients also assume that if they make themselves seem innocent, or at least more innocent than they are, criminal defense lawyers will fight harder for them.  This is a natural tendency, since no one wants to make themselves out to be bad people, but it’s another stumbling block for the creation of a viable defense.  As I’ve written in the past, criminal defense lawyers don’t (and shouldn’t) care about guilt or innocence.  We don’t judge, we just fight.  That’s our job and we don’t fight any harder for “innocent” people than anyone else.  I know it’s hard to believe, but that’s just what we do.

The first step in really listening is making sure that the client is conveying what he means to convey.  If we listen hard to the message, but the message is nonsense, then we’re cutting out clients’ throats.  With some experience, smelling a rat in the client’s story comes fairly easily.  It’s not that they are definitely lying to us, but that we need to test the message to make sure that the client is clear that it’s not in his interest to convince us of anything. 

I generally tell clients that if they want their lawyer to be the only guy in the courtroom who doesn’t have a clue what really happened, then they should feel free to spin their story any way they want.  But if I don’t know the truth, I can’t protect them from it, and they’re the one who will suffer.  Win or lose, I still go home to my family at the end of the day.  So it’s entirely up to them if they want me to do what they are paying me to do, and I can only defend if I know what really happened, no matter how ugly.

Once you feel confident that you’re hearing the real story, you still have to overcome the client’s inability to express details fully and clearly.  Probing questions are needed, particularly since clients almost always have a point of the story that they want to emphasize, and tend to leave out significant details so that they can reach that point as quickly as possible.  While that works fine for them, it leaves you with only half a story.

But hearing the story that they’re telling is entirely up to the lawyer.  We have some big issues of our own that we need to overcome to be effective.  The first is the “we’ve heard it all before” attitude, as if this is another garden-variety case and there’s nothing the defendant is going to tell us that we don’t already know.  Maybe it is a garden-variety case, but that doesn’t mean that something didn’t happen in the course of the bust that opens a door that we can drive a Mack truck through.  If you jump to a conclusion without really listening, you’ll never know.  Besides, being a know-it-all does little to instill faith in your client that you’re taking his particular case seriously.  You may well be, but how is the client to know?

The nuance in the clients’ story offers a wealth of clues as to areas of potential collateral attack.  Does the client suffer from cognitive impairment?  What about mental illness or drug addiction?  Chances are no one has ever given the clients’ mental state any thought, even if they’ve been convicted before and subject to supervision.  The system is remarkably poor at recognizing and addressing such issues, but that doesn’t mean that lawyers should be equally oblivious.  While we are not qualified to diagnose anything, we can certainly send clients to appropriate professionals if we are prepared to recognize issues by paying close attention.

Also in the nuance of the clients’ story is the opportunity to understand the clients’ risk tolerance and goals.  Some walk in the door hoping for a quick, easy plea deal.  Others come in ready to fight to the death.  By paying close attention to the way the defendant frames his description of events and goals for representation, we can avoid the enormous problem that comes down the line when we’ve planned the defense strategy along the lines that we think best, or what we believe the client wants, only to find that the sands have shifted and the designed strategy works against the clients’ interests.

For example, the client comes in on day 1 and announces that he will never rat and will fight this to the bitter end.  On the surface, these seems to be a clear enough mandate, but this bravado often masks a defendant’s low risk tolerance and is performed to calm his spouse or family.  Later, once things quiet down, you come to realize that he would much prefer a plea to rolling the dice.  The problem is that the criminal defense lawyer, in the meantime, has taken a “scorched earth” approach with the prosecution in order to prepare for and win the trial.  The prosecutor, who has been put through his paces hard, isn’t in the mood to offer the defendant a sweet plea.  While the lawyer has relied on the client’s words, he may not have really listened to the client and heard the subtext.  Now the client is screwed.

In the context of preparing affidavits in support of motions, the detail is invariably where a failure to hear what the client is saying can wreak havoc.  The tendency to take broad notes, without the detail that distinguishes one case from another, which ultimately end up in an affidavit that is overbroad, inaccurate or unduly vague.  It may not seem like a problem at the time, but bear in mind that there may come a time that inconsequential details become very consequential, and your failure to hear them and incorporate them in the defendant’s affidavit can cause the defendant monumental unanticipated problems later.  And don’t blame the defendant for not telling you when he reviews the papers; a blatant error is one thing, but it’s the nuance of the message that will kill you.

While criminal defense lawyers like to believe that we pay careful attention to our clients, listen to them, and hear what they are telling us, we come to recognize after the fact that we missed something, or got something wrong just a little too late.  Listening to what our clients say, and what our clients mean to say, is a crucial component of our job.  Take the time, put aside the attitude, and pay real attention t
o the client.  We want to go into battle with our weapon fully loaded, and facts are the bullets.  Listen to your client and be well-armed.