Dirty Words: Risk Averse

Lawyers are risk averse. These two words, risk averse, are spit out like epithets. They might as well be saying lawyers are pond scum.  It’s often the rallying cry of  marketers and  futurists, cursing lawyers who resist change, won’t “get on board.”  The complaint is that lawyers won’t try the new things they’re trying to sell.

The upshot is that it’s pushed many lawyers into the position of fighting their aversion to risk, not because they think what they’re doing is right, but because they don’t like being called mean names.  The problem is that there is not only nothing wrong with being risk averse, but that not being risk averse is a flagrant failure of our duty to our clients.  We are not hired to represent people by taking blind shots in the dark, unproven risks on a wing and a prayer because somebody came up with a new, untested idea. 

This came to light in a  string of comments with a young public defender the other day.  He had two points, the first about his disdain for lawyers who were afraid to try cases, and the second about the lawyers who didn’t rush to trial, without consideration of a plea, when the client proclaimed innocence. 

There is no question that a lawyer afraid to try a case has no business being a criminal defense lawyer. It’s not only a critical weapon in our arsenal, but one that affects everything we do. Without the will to go to trial, there is no leverage to negotiate a beneficial plea offer, and the lawyer is left to the mercy of the prosecutor.  I’ve known lawyers who have gone 20 years without trying a case. Prosecutors know them too. 

But does that mean, as the PD suggested, that lawyers should ignore the risk assessment of a trial whenever a client claims innocence or dissatisfaction with a plea?  That’s a different issue entirely.  As any experienced lawyer knows, defendants often proclaim innocence at the beginning of a case, only to later get that peculiar smile on their face when confronted with the evidence against them when they know they’ve been caught.  Are they innocent? Are they as innocent as they say they are? Sometimes yes. Sometimes no.

Even worse, however, is the fact that innocent defendants are naïve about the system and the potential outcomes. Some believe that their innocence guarantees them acquittal, as if handed down by whatever flavor of deity they prefer who would never allow an innocent person to be convicted.  The prisons are filled with people like this.  Do we indulge their beliefs, no matter how naïve? Are we there to enable such defendants to find the road to perdition?

So the defendant says he’s innocent and wants his trial.  Is that the end of discussion, empowering the lawyer to plow forward to trial, damn the torpedoes, full steam ahead?

Experience teaches us that defendants may demand a trial without having a meaningful appreciation of the risks he faces.  It’s not that we are averse to trial, or risk, but that to deny the defendant from making a fully informed decision, weighing the risks realistically, is a flagrant failure of effective assistance of counsel.  It is our duty to make sure that our clients make no decision without understanding the risks.  And after they’ve been fully informed, the choice is theirs. 

So does this make us risk averse?  Absolutely, and for good reason.  While we may be rolling the dice, we pay for the loss with other people’s lives.  Win, lose or draw, we go home to dinner that night. The defendant may not.  To be cavalier with the life of another person is wrong. It’s a violation of our duty to our client, and a disgraceful way to approach the law. 

Lawyers approach what we do with an aversion toward risk because taking unproven, unwarranted chances is irrational.  Other occupations, professions even, may be happy to play the crash dummy, the guinea pig, with new ideas, concepts, gadgets, and prove their worth.  But then, they aren’t responsible for other people’s lives.  If they make a mistake, either no one pays for it or they pay themselves. 

Fair enough. Take a chance and pay the price. If you’re right, you win. If you’re wrong, you lose. No one else suffers for your choice to take a risk. 

Much of what lawyers are being sold is a very long way from being proven and usually fraught with potential for risk.  It’s not about really artful rhetorical sales pitches or explanations, which may sound fabulous but provide no assurance that it will work or that the risks are worth accepting.  Are you justified in risking a trial when your tactic is to use your iPad to show critical evidence to the jury? Maybe not when you can accomplish the same showing can be accomplished with absolute certainty by putting it on a poster board, and the court’s screens only work about ten percent of the time, the wifi even less.

Those futurists and technologists who are dedicated to spreading the religion of new ideas denigrate lawyers for our less than enthusiastic embrace of their beloved changes. Twenty years later, some will talk about how they told us, they warned us, that this was the future. Of course, they will have forgotten about the BetaMaxes, the Apple Newton, QR codes, smell-o-vision, the failures that disappeared in the graveyard of new ideas. They won’t mention the changes that were made to tech and concepts that converted them from wild risks to sound applications. All they will remember was that they were early adopters, and you weren’t. Hah, you old dinosaur, unwilling to hop on the train to the future.

And when new ideas and shiny gadgets reach the stage where they are no longer wild risks with other people lives, their privacy and confidentiality, their utility in the courtroom, their acceptance by judges, lawyers will embrace them. Being risk averse isn’t hating new technology and ideas, but putting our clients’ interests ahead of our fascination with new things.

It’s not that risk aversion is a bad thing, but a great thing.  It’s the way lawyers put their own willingness to throw caution to the wind aside for the benefit of their clients. It’s how we do everything in our power to assure our clients of the best possible outcome without taking unwarranted chances with their lives. It’s what we are obliged to do. Any lawyer who does not weigh the risks against the benefits has failed his client and himself. It cannot be our place to take needless chances with other people’s lives. 

Whenever someone denigrates lawyers as being risk averse, the only thing it proves is that they lack an understanding of our duty to our clients.  Smile and walk away.

9 thoughts on “Dirty Words: Risk Averse

  1. Turk

    The phrase I prefer is risk management, regardless of whether it is a trial decision or a software decision.

  2. SHG

    And a lovely phrase it is, though I’m trying to take on the ad hominem of “risk averse” expressly to address its having been turned into a curse and forcing those who take their duty to the client seriously to come up with euphemisms. 

  3. Jim Majkowski

    Why does the young man’s comment remind me of the cartoon in which the lawyer tells the client he’ll fight the case to the client’s last penny?

  4. SHG

    That’s not fair. He’s a PD. On the other hand, it’s not like he either picks his clients or has to see them again afterward.  Push a defendant to trial and lose, and it’s “oh well, I’ll do better next time,” without the responsibility of having to clean up the mess.

  5. Alex Stalker

    I imagine most people were somewhat overconfident when they were younger.

    Eventually our new PD will have a case where he’s convinced he can win, but the offer is really good, and he takes it to trial only to lose. Then he’ll see his client spend a couple extra years in prison he would not have done under the deal. I hope then the PD realizes that sometimes it makes sense for a person loudly proclaiming innocence to consider a plea deal, as horrible as that may seem to him.

    From reading his comments in the other post, it appears as if a client will probably have to suffer for that knowledge.

  6. SHG

    To the extent an old lawyer disagreeing with him can open his eyes to the possibility that it’s not so simple, maybe that client can be spared.  It’s always a shame that clients pay for lessons lawyers need to learn.

  7. Jim Majkowski

    The reference wasn’t intended to be exact. I know the PD wasn’t doing it for money. Nevertheless, my point was, as in the cartoon, the lawyer seemed more concerned about his interest than his client’s.

    Love your stuff. I hope you don’t get too tired of hearing that from me.

  8. Josh King

    A heightened sense of risk aversion – while important in criminal law for all the reasons you describe – is a problem in other areas of law, including counseling businesses.

    I’ve seen counsel strongly recommend against massive business opportunities because of a minor risk of incurring a non-material lawsuit, or having to answer some questions from regulators. Such risk-averse attorneys aren’t doing their clients any favors, and not just because they slow down the business. By being such pollyannas, they lose credibility – making it harder to prevent business from leaders from making the really serious missteps.

  9. SHG

    Weighing risk and reward, cost and benefit, is something every person does every day of their lives. If a lawyer fails to point out the risk, he hasn’t done his job. If the client (the guy with the massive business opportunity) who appreciates both the reward and his tolerance for risk, follows the lawyers counsel by failing to go into a deal with massive business opportunity because of a minor risk, do you really believe it’s because the lawyer is risk averse? 

    And if the businessperson relies on the lawyers relative assessment of risk/reward, then he ought to consider getting a job as assistant manager at Dairy Queen. Now if the lawyer overstates the risk or materiality, then he’s just a bad lawyer, which is an entirely different problem, and the lawyer ought to see if his old job at Dairy Queen is still available.

    And good to hear from you, Josh. Looking forward to giving my keynote close at Lawyernomics in Vegas.

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