Over at Above the Law, (which, incidentally, has added  Eric Turkewitz to its stable of columnists, along with  Brian Tannebaum) my fellow curmudgeon, Mark Herrmann, raised an interesting point.  After regaling us with a story that reeks of omission of critical detail, the absence of mention of donut or bacon being the obvious, Mark gets to the punchline.

“Because you can tell good from bad. You worked in private practice for 25 years, and you’ve labored in my field. I suspect that, back when you were playing the game, you could write a pretty good brief. When an outside lawyer sends a bad brief to you, you may criticize it, but at least when a lawyer sends a good brief to you, you’ll recognize that it’s good. I work with an awful lot of clients who can’t distinguish good work from bad.”

Yet another dirty little lawyer secret revealed.  And in Mark’s story, it was about civil litigators trying to pass off crappy legal work to inside counsel at corporations, because though they were lawyers, their lack of practice experience left them easy prey. In the scheme of clueless clients, inside counsel is at the very top rung.

Criminal defendants are not so high on the ladder.

Many defendants are barely literate, if at all.  Put papers before them with page after page of black marks on white and they are overwhelmed with your legal brilliance. They haven’t got the slightest clue what the words mean, whether your caselaw is relevant or whether your argument holds any water at all, but they feel the weight of the paper, the see the exhibit tabs, they fondle the heft and are impressed.  You produced all these pages just for them. You must be a good lawyer.

We know better. Even before the days of computers, a great many lawyers did nothing more than change the names when they had to produce motions.  But now, with every word every written stores on a hard drive, cranking out papers, with wordy paragraphs and string cites of utterly no relevance to the case or consequence to the client, is a button-push away. 

Only the lawyers too lazy or stupid to make sure that he hasn’t left in the name or charge of some former client gets caught, and then only occasionally.  Otherwise, the client basks in the warm glow of believing you did all of this just for him. He’s elated. He’s impressed. He thinks he got his money’s worth. 

Are you proud of this?  You fooled your client.  You tricked the person who has entrusted his life to you, who you know to be wholly unsophisticated in the ways of the law.  Aren’t you special.

While Mark speaks to a clientele who is far more capable of distinguishing good from bad that most criminal defendants, his “rules” still apply:

First, produce precisely the same quality legal work, no matter the skill set of the client. As a matter of ethics (or perhaps it’s “morals”), you should not produce lower-quality work simply because you can get away with it. And, as a matter of reality, if you file bad briefs or generate crappy deal documents, the proof will ultimately come out in the pudding. You’ll win fewer cases, or see your corporate transactions explode, if you produce poor quality work. Whether or not you can get away with it, you must still produce top-notch work.

But, you say, the “proof” rarely comes out in criminal cases. The likelihood is the case will end with a plea and no one will be the wiser.  True, but there remains that “ethics” thing, the part where you get to sleep at night knowing that you aren’t a sleazeball.

And then, there are other ways for the proof to “come out in the pudding.”  The judge reads your papers, Co-counsel read your papers. An appellate court may read your papers. They will see what sort of lawyer you are. 

Second, be kind to your less-knowledgeable clients. If those clients don’t understand a strategy, a process, a word, or a contingency, do some tutoring. Most clients will appreciate the education and many, once educated, will also hold your legal work in higher regard.

Some clients, especially those who spend hours pouring over law books in the jail house library, care about their lives to the extent they want to participate in the strategy. Yes, they can be a royal pain, harping on irrelevant technicalities (“it doesn’t say “In God We Trust” over the bench, so they can’t convict me!”). It may not be your job to teach them to be a lawyer, but it is your job to explain to them why decisions are made in their case, and how those decisions are executed.  And they will appreciate the actual thought you’ve put into their lives, which is likely more thought than anyone else has ever put into them.

Third, if you’re working with less legally sophisticated clients, then personal relationships may take on added significance. (I’m a little odd in that regard: I’ll retain the right litigator for a case, whether or not I like the person. Then again, I’ve been heard to say: “Attila the Hun? The guy’s got a mean streak, but he’s pretty darn good at his job. Hire him.”) If a client can’t distinguish good legal work from bad, then the client will necessarily be judging lawyers by some other metric. That metric may be cost (which appears to be easy to assess), or it may be results (which isn’t a crazy metric), or it may be personal presence (“Smith is a very impressive guy; let’s use him”), or it may be pure personality (“I interviewed six lawyers. I’m hiring the guy I’d most like to have a beer with.”). Once pure legal skill is no longer the focal point, be acutely sensitive to other aspects of your relationship with your client.

It is painfully common in criminal defense that clients stick with the lawyer they like, the ones who makes them feel comfortable and special.  These may not be the best lawyers (and are often some of the worst around), but the unsophisticated client wouldn’t know quality if it bit him in the butt.  He does, however, know trust, even if misplaced. 

This is one place where the marketers know what they’re talking about, that any blithering idiot lawyer who can pass himself off as friendly and trustworthy can overcome gross incompetence without breaking a sweat. But this can be overcome by educating the client about the difference between the lawyer whose sole skill is hand-holding and sweet-talking, as opposed to the lawyer who can provide excellent legal representation.

And there is nothing about providing great representation that precludes being otherwise trustworthy and caring toward your client.  While there are times when a conflict arises between these purposes, in which case friendliness gives way to fulfilling the hard obligations of lawyer, there need be no reason the client ever believes you are placing his interests first.  And indeed, the client’s interest is always paramount.

The criminal defendant may not be capable of appreciating the thought and effort you put into his defense, particularly since it doesn’t guarantee a win and may ultimately mean nothing at to outcome, but it doesn’t mean you don’t try. Do it for the judge and your co-counsel.  Do it for your client. Do it for yourself. Just do it.