While the vast majority of the work needed to effect the strategy of winning a criminal case falls on the criminal defense lawyer, there are certain things that a defendant or his family are required to do.  Gathering information, for example, or obtaining paperwork from past enterprises. 

The list changes with every case and every charge, but these are simply not things that the attorney can do for the client.  We need a little cooperation from our own guy, and it would hardly seem too much to ask, considering that it’s his life on the line.  Yet, this can prove to be the one of the most difficult aspect of a defense to perform, particularly when the case is complex and requires tactics that have multiple steps.  Indeed, a sophisticated defense can implode when it entails reliance on the client.

Why?  Because clients frequently find it impossible to follow simple instructions.  Tell them to take 5 steps forward, then turn to the right, and they end up 16 blocks away.  There’s some bone in people’s head that compels them to ignore the advice of the person to whom they have paid a substantial amount of money and in whose hands they have entrusted their life.  Strange.

While having a lawyer to represent you may be the first step toward achieving your desired goal of prevailing against criminal accusations, it’s not the last.  In difficult cases, and particularly in white collar cases, a fully-conceived defense requires that all the players on the defense side contribute to the goal.  This means that paying the fee isn’t enough, but making oneself available to do the handful of things asked of you, and then doing them properly, is part of the deal.

And this is where things go astray.  It’s my practice to provide explicit instructions on how something is to be done, based upon my experience of how best to accomplish a particular task, the potential pitfalls of performing the task in other ways and the risk of failure should the task not be adequately or properly performed.  Very detailed.  Very explicit. Very precise.

Yet clients take my instructions and decide that they have a better idea, usually an easier, less burdensome way (for them) to perform the task.  Without further discussion, they go full throttle into performing the task and wreak havoc. 

Afterward, when the damage is done, the task having failed and the sheepish client staring blankly at me, muttering, “but you’re the lawyer…can’t you fix it?” I’m left to bang my head against the conference table.  Of course I’m the lawyer.  I was also the lawyer last week, when we discussed how to perform this small but critical task, and I explained in painful detail why it had to be done a particular way. 

Whether it’s preservation of evidence, or preservation of privilege, or completeness (a perpetual problem, where clients want you to see all the stuff that’s great for him but none of the stuff that’s going to blow the defense out of the water), there are sound reasons why specific instructions are given.  There really are, I swear. 

White collar defendants, in particular, are notoriously bad about following instructions.  The problem, I’ve found, is that they are smart and worldy.  They functioned for much of their life autonomously as best, and in a supervisory position at worst, where they gave directions.  They didn’t take them.  Their personal accomplishment derived from their coming up with a “better way,” and they’ve come to believe that whatever notion pops into their heads is, by definition, a good one.  It’s a perfectly understandable affectation.  It’s also quite a problem. 

Sometimes, problems can be fixed, at least adequately to continue to pursue the desired strategy.  Other times, it’s back the drawing board.  When the failure to follow instructions results in the unfixable problem, a defendant may blow the only viable avenue of defense available.  The consequences are crushing, potentially meaning that a defendant who started with at least a theoretically successful strategy is left without recourse.  This is not a good reason to lose a case.

Understand that at the end of the case, the lawyer goes home either way.  It’s the defendant and his family that pays the price.  But any good criminal defense lawyer wants to win the case, both for himself and for his client.  It matters that we’ve done everything possible to help, explored every possible opportunity and performed every task successfully.  We take no comfort in the fact that it’s the client who screwed it up; it isn’t about blame, but about success.  We want to provide clients with the best possible success.  It’s what makes us get out of bed in the morning.

Help us to do this.  If we give you instructions, follow them.  Even if you think you know better, have a better idea or there’s a hole in your racket, have enough trust in our competence and experience to perform the task the way we tell you.  Let there be no doubt that it’s in your best interest, and that your best interest is paramount.  Please?

When confronted with the problem, the reaction is usually that they meant well.  Ah, “the road to hell” axiom rears its ugly head.  What is misunderstood is that your lawyer isn’t flexing his muscles for fun, or to elevate himself over you.  This isn’t a competition.  This is a duty to defend you as successfully as the law allows, whether you get it or not.