While it’s true that it’s all about the client, it’s not an absolute. Jamie Koehler writes about clients withholding information from their lawyer.
The withholding of information can occasionally lead to that cringe-inducing moment at trial in which you are caught completely off-guard by something the government’s witness says on the stand. Although I always tried my best to maintain my poker face when this happened, I could feel my client squirming in the seat next to me. And it often led to an angry exchange afterward: Really? You didn’t think that was something I might want to know? The defendant was usually sheepish about this. I don’t know, one of them might say. I thought you would try harder if you thought I was innocent.
To withhold information is to deceive. Sometimes it’s by omission, as Jamison notes, and other times it’s by commission, where the client will tell you something, with his sincere eyes looking at you for belief, that is just an outright lie.
There’s a spiel I tell clients, that they don’t want their lawyer to be the stupidest guy in the room, and if everyone else in the room knows something I don’t know, or knows something different than I do, I’m that stupidest guy.
“Do you really want me to be the stupidest guy in the room?”
No
“Do you really want me to be unable to defend you because I don’t have a critical piece of information?”
No.
“Do you understand that by lying to me, you take away my ability to do my best for you?”
Yes.
“Have you told me any lies? Have you left anything out that I need to know?”
No.
And sometimes, they’re lying through their teeth. I tell the client, “I’m going to believe you, because it’s your life, and if you lied to me, you’re the guy who will pay for it. I go home either way.” And still they lie.
I tell clients that I couldn’t care less if they did it or not. Every competent criminal defense lawyer feels the same way. If anything, we prefer guilty clients to innocent; they know more about what happened and are far better equipped to help us to be effective. But we take our clients as they come.
Sophisticated clients get this. Unsophisticated clients do not. As Jamison says:
I thought you would try harder if you thought I was innocent.
A good lawyer will do everything within his power, within the scope of the law, to win the case.
But the nature of the relationship changes when a client lies to his lawyer. No lawyer wants to walk into court to be the stupidest person in the room. No lawyer wants to lose because his client, genius that he is, has tried to game him because the client thinks that’s going to somehow help his cause. Once you’re a liar, you’re a liar. I can’t trust you.
It’s not that we stop trying to do our job, but that you have removed yourself from the mix of things upon which we can rely. The next time you give me that puppy-dog-eyes-look, I’m not going to give a damn. If I can’t believe you, then you’ve reduced yourself to a warm body in the chair and nothing more. Don’t beg me to care deeply about you.
The only person who can make the client cease to matter is the client. What comes of it is somewhat harder to appreciate than the straightforward “it’s all about the client.” It’s still about the client, in the sense that there is only one goal. That never changes.
But there is a holistic aspect of what every criminal defense lawyers does, whether they admit it or not, where the client is a human being to us while he’s nothing more than the warm body seated in the defendant’s chair to everyone else. To his lawyer, the client matters as a human being apart from his mattering as a defendant. That’s the part at stake when the client lies.
We don’t have to love you. We don’t have to like you. We have to represent you zealously. But if the client tries very hard, he can make us dislike him, even despise him. No, this doesn’t alter the duty undertaken when we accept your representation, but it surely affects the relationship between lawyer and client. Now, you’re just a client.
Jamie offers one explanation for this phenomenon, “I thought you would try harder if you thought I was innocent,” but there are others. Some clients say, “I was embarrassed.” Some say, “I didn’t realize that it mattered.” Once in a while, a client claims they forgot. After all, it’s hard to remember that you pulled the trigger. Or confessed.
Some prefer to embellish their stories by emphasizing the things they think show their innocence. Some tell you all the things they believe the cops did wrong, or their legal analysis of the situation, omitting the details of their own conduct that don’t serve their ends as well. Their purpose is to persuade the lawyer, without realizing that it’s not their lawyer who needs persuading.
Ironically, every effort to control the lawyer by controlling the flow of information serves to make the lawyer’s job more difficult, if not impossible. Of all the arrows in the lawyer’s quiver, the most important one is knowledge. Without a clear and accurate understanding of what he’s to defend against, the lawyer cannot do his job. At least not well.
Not only does lying to your lawyer undermine the personal relationship that clients, and their lawyers, desperately need, but it leaves your lawyer as the stupidest guy in the room. No one wants to be made a fool when he’s proven to be the courtroom idiot. This isn’t a problem that ever has to happen. The solution is easy. Don’t play your lawyer. Don’t lie to your lawyer. Don’t make your lawyer look like a fool. Just tell him the truth.
Hard to believe that your paying I’m sure good amounts of money and than do your best by lying to ruin what your paying for. Strange.
People aren’t entirely clear on what they’re paying for, and what lawyers actually do. Regardless of intelligence or education, they still harbor a belief that this is magic, and if they only convince the lawyer of their innocence, he will utter the magic spell that gets them off.
Say a client admits guilt to you, but takes the stand and denies it when you ask him. Doesn’t this make you guilty of suborning perjury?
That’s not suborning perjury, but it is unethical to put a witness on the stand knowing that he will testify falsely. But the reality is that defendants almost never take the stand for a variety of reasons, not the least of which is that they are far more likely to hang themselves than help due to the nature of cross-examination.
That said, the decision to craft a defense that requires putting a defendant on the stand is based upon the information provided by the defendant. I had a case where the defendant neglected to tell me that he admitted guilt to his boss, who happened to be a retired homicide detective. This didn’t have to be disclosed, as only statements to police need to be noticed and the boss was, by then, a civilian.
When the boss took the stand, it crushed the defense. I turned to my client and asked him, “did you really say that?” He turned sheepish, and said, “yeah.” I had no clue until I heard it from the witness stand.
Fairly early in my career as a defense lawyer I had a client in jail who gave me a detailed account of who did what during our first meeting. I wrote copious notes and began talking to his witnesses and taking depositions. almost nothing made sense with what he had told me. When I saw him again, I told him the problems I was finding. He then told me a very different story, insisting that I had “misunderstood” what he told me earlier and that nothing had changed in his story. I showed him my notes from the first meeting but he said I wrote it down wrong. His unwillingness to give me the truth, even with my detailed notes as proof of his radically changed story, was a valuable lesson to a new lawyer. Clients lie. Hi
And no doubt told you both conflicting stories with the same, deeply sincere look on his face, as if “how could you possibly doubt me?”
For what it’s worth, I always try to get a copy of the complaint/information with the probable cause statement to the defendant before the initial interview following a situation where I zealously and speedily hurried to the jail to talk a defendant and taking extensive notes. When I got – and provided – the charging documents and shortly thereafter the discovery and wanted to talk about the inconsistencies as to what the State’s witnesses would say, I was accused of “working against him, not for him.”
The client was not only indigent but a prior and persistent felony offender.
Getting the charging documents to the client up front doesn’t stop the lies, but it gives a bit more control over the discussion. Until it doesn’t, of course.
It’s not worth much. Actually, nothing. Things work differently in different jurisdictions, and different types of cases. Your story will serve to confuse non-lawyers, who don’t realize this, while leaving lawyers to wonder why I allowed your comment to post since it’s pretty damned worthless to anyone else and obvious otherwise. Does this help?
A simple ‘wrong’ would have done just fine…
You would think, but it never is.
My concern, though no one else ever gives a shit about it, is that non-lawyers read stuff, process it through their lens, and then use it to their detriment. I feel responsible to make sure no one confuses how things happen in one small piece of one jurisdiction with how things may work for them. Commenters take no responsibility for screwing up other people. I do.
Scott, I shamelessly lifted this spiel from you about two years ago, though I imagine my delivery is a bit different. (Imitation is the sincerest form of flattery, right?)
Like Jamison noted, there seems to me to be a different between my court-appointed clients and my privately retained clients. I still struggle with more with my CA clients. I want them to trust me and understand that no, I’m not friends with the prosecutor, and no, I am not trying to plead them out and go on to the next client. This trust often continues to elude me.
I’ll let you know once I find the magic solution. Can you do the same for me?
Heh. Yup, you’ve watched me give that talk. And of course it’s yours for the taking.
It happens with retained clients as well, though they tend to trust their lawyer far more than court-appointed clients who feel as if some loser/government lackey lawyer is foisted upon them. My experience is that it has to do with the client’s level of sophistication.
As for the magic solution, I’m 32 years in now, and I’ve yet to find it. But if I do, I’ll certainly share it.
Friends who are social workers have a saying, that seems to apply here word for word:
“You can’t care more than the client.”
The ‘You wouldn’t lie to your doctor, why your lawyer” analogy is overused and complete bullshit.’
Koehler and you,via this post to follow up, are down the rabbit hole stuck inside your bubble bemoaning the “lying” client.
Koehler especially so with the “The doctor’s diagnosis will only be as good as the information it is based on.” line followed up with his observations that this is somehow more true with indigent clients. Then he rolls with “There is a trust issue. It can also be a question of education and sophistication.”
No shit Sherlock.
Fuck the reasons… people lie all the time.
Use your sixth sense and keep whacking on the “patient” with hammer and chisel if need be until there is no failure to communicate. It’s amazing what tales a simple figurative blood test will tell as well. Besides it is fun to play pin the tail on the donkey. Tails are like tales they are always ending up where they shouldn’t have been. But sometimes that not only makes the puzzle it is the puzzle. Whatever it takes goes a long way towards not “being the stupidest person in the room”.
In the mean time enjoy the ride and don’t worry that “trust” thingy Koehler speaketh of is only systematic legitimacy sneaking up in the mirrors.
Floor it and hold on!
Yeehaw….
Whacking the defendant gets tiresome after a while. There’s only so much of my time I’m willing to waste arguing with a client over whether he’s lying to me or not. It isn’t nearly as fascinating for me as it is for the client.
LOL. So true. All guilds are cursed with explaining what is usually obvious in the end.
It is what it is.
Cheer up next time you are feeling a bit burned out invite your friends over for some pin the tale on the donkey via six wheeler, broom stick, and hay bales.
Friends must provide their own whiskey and photos of their favorite donkey. Helmets optional for those over fifty.
P.S. If you can get your hands on a classic three wheeler (the ones civil lawyers stole from the world) the game is much more realistic and enjoyable and that’s no lie.
I’ve heard it called “the Tao of House”…
“Everybody lies.”
Its always fun when you need to conduct discovery on your own client.
One of the best interviewing questions I ever learned was to ask your client what’s the worst thing the other side will say about you.
For some reason, they suddenly remember being incarcerated due to trumped up charges that always involves a corrupt judge and a paid off jury.
JD
I don’t know if I can take another person explaining to me how they were denied their dew process.
Some interesting comments. “You can’t care more than the client”. Actually, yes, you can. Happens every day. I represent a lot of guys who have given up and just expect to get hammered by the system. They are adversarial with me almost every step of the way. Those are the most fun to win. Then there is the comment about asking your client the worst thing the prosecution will say about you and that “they” all seem to remember “being incarcerated due to trumped up charges that always involve a corrupt judge and a paid off jury”. I would suggest if you’re that cynical about all your clients, it may be time to move on. Sorry, SHG, this wasn’t about the post, per se, so I get it if it doesn’t make the cut, but those responses struck a nerve.
Let’s not let the hyperbole cloud too much. These aren’t all clients, just examples of things we all hear regularly.
I have a question about the relationship aspect to the lawyer and the complications of being human. This isn’t only for the CDLs, but any lawyer.
It’s understandable that a client lie or deliberate omission can critically change a lawyers relationship, but what happens when it falls under one of those areas where the client is just so embarrassed about it, or it’s so private, they can’t bring themselves to talk about it? Alternatively, what if they just honestly forgot?
I’m taking about the kinds of things that many if not most people would find so embarrassing/private they’d lie about it. As for memory I’m just talking about things a person might in the stress of dealing with law, might forget. If you asked me what I ate for breakfast three days ago I’d probably give a look similar to that of a village idiot. That’s not to mention something important that might have entirely slipped my mind. Something critically important. (I’ve unfortunately seen that happen with an expert witness of all things)
How does that affect the relationship? At least to your minds? Either horrifying to the client personally, or they just simply forgot?
A great deal of what is discussed is “so embarrassing/private they’d lie about it.” That’s the nature of what we do. We make that very clear to clients, but if they can’t get past it, can’t tell us the truth, then there’s a problem.
Sometimes clients forget pedestrian things; nobody forgets that they pulled the trigger. It’s not same as what you had for breakfast three days ago. We understand why a person would forget some things, but not others.
I get the first part, and I’m assuming you make that very very clear to the clients that that’s the nature of what you do.
As for pulling the trigger, no, you don’t forget that. (If you’re client actually did I’d assume you’d be trying to commit him for brain trauma, etc.) I’m talking about the kinds of things that an attorney on the other side could try to ruin credibility with, but that someone just forgot (and you believed they forgot).
Specifically, I don’t want this to be a discussion about whether any particular attorney asked the “right,” questions, but rather when the shit hits the fan, and a client (believably) says they forgot, does that change the relationship?
Where the line is drawn depends on specific instances, so using examples (breakfast 3 days ago) can muddy your question. If someone was shot during breakfast, then yeah, they need to remember it.
But the answer otherwise is no, clients are expected to be human, to forget the normal things that humans have no reason to remember, just like anyone else. That has no impact on the relationship, and in fact, it’s the sort of thing they should be prepped for if they testify. People forget the mundane. That’s how we roll.
Thanks for the answer.
I imagine, like so many other answers, “It depends.”
And yes, I’ve given that kind of answer to several attorneys, who didn’t like the answer anymore than anyone else.
And thanks for telling me my irrelevant examples muddy the question. I’ll remember that next time. No that’s sarcasm. I didn’t know they did that.
That’s NOT sarcasm. See, this is what I get for trying to comment.
That was not sarcasm. I clearly should stop.
I have absolutely no clue what you’re trying to say at this point. But since I’ve tried to answer your question, that’s about as far as it goes.
I lost my last trial because the client lied about some property in his possession at the time of his arrest. Without boring you to death with all the details, his statements about his property made it seem important to get his property bag brought from the jail to the courtroom. It was a tough decision since I’d not seen what was in the bag, and I did not make the decision alone, but after consulting with a respected defense attorney with 35 years experience.
So on the first day of evidence, the property bag is brought over, and what’s in it? The missing hotel key of the victim the client claimed to have never met. That wasn’t the only evidence against him, but it certainly sealed the deal.
The rest of the trial was just a great deal of fun. Jury was out for less than 15 minutes. We never even made it out of the courthouse.
We’re not even sure how they managed to get the forms filled out so quickly.
It would have been a great idea, if only he didn’t lie about it.
Here’s one of the things people don’t realize about the structural impossibility of a fair capital punishment system. The adversary system whatever its failings in showing the What is completely incapable of showing the Who that an “individualized moral judgment”. Half the time the defense isn’t even trying to come up with an accurate portrait of the defendant (because that would get him croaked) but when the defense is, the defendant is naturally concealing all sorts of things, often things that might be helpful, but are humiliating.
This is one of those comments that gives the sense of saying something worthwhile, but doesn’t quite get there.
This sounds like one of those frustrating “will never be solved” problems criminal defense lawyers (and maybe lawyers in general, I don’t know) will always have.
As a still “baby lawyer,” I vividly remember the first time my client lied to be when it actually mattered and affected the outcome of the case. With it comes the inevitable blame game where I thought if only I had done something more, something different, something better, it wouldn’t have happened; either I wouldn’t have been lied to or it wouldn’t have affected the outcome like it did.
Thanks for letting us know it happens to everyone.
Over time, you get better at the spiel and clients may come to trust you more. But it never disappears.
My favourite was the client who asked me to lie to him. “Please tell me I’m a chance in this appeal. Lie to me if you have to!”
Heh. Been there too. Then afterward, but you promised we would win.