At Popehat, Ken White tells a story to show the distinction between the cynicism of belief that comes from having been told too many lies and taking defendant’s claims seriously enough to go through the effort of finding out whether they’re true.  It’s a curious point:

Just as prosecutors are captured by the system and its culture, so are defense attorneys. It is currently fashionable for defense attorneys to say “clients lie” and “most clients are guilty.” I wouldn’t agree with either proposition. Everybody lies; I don’t think clients lie more than anyone else in terrifying and stressful circumstances. Humans tend to remember a version of events that puts them in the best light, something we normally regard as a mere venal sin. It’s just that criminal defense scenarios require a level of precision and accuracy that most human interactions don’t.

In his anecdote, his client swore he was innocent and set up.  Ken’s initial reaction to his client’s claims was disbelief.

Client swore to me the gun and drugs found in his dorm-room dresser weren’t his. He said that someone — perhaps his roommate? — must have planted them. Sure, I thought. A BPU student acquired a gun and hard drugs and decided to use them to frame some rando — a rando who was, perhaps, not completely unfamiliar with drug culture. That makes perfect sense.

Yet, he took the claims seriously enough to hire an investigator, who ascertained that there was good reason to believe the roommate did exactly that, and there was evidence to back it up. Fortunately for Ken and his client, they had the wherewithal to conduct the investigation.

But Client’s family had money, so I hired an investigator and had the investigator look into the roommate. Would I have found a way to acquire public money for an investigator if the Client hadn’t had money? Good question.

The pieces of the puzzle fit together, so that proves . . . what? That everybody lies, meaning not just defendants, is a truism. The problem isn’t that defendants aren’t the only liars in the neighborhood, but they’re your liars. The problem isn’t that lawyers grow cynical of their own clients, though clients regularly believe that if they lie to their lawyers, get their lawyers to believe the lie, that somehow changes the equation of what happens in court, on trial. It doesn’t. No matter how strongly you believe in your client’s story, you either have the evidence to prove it, or disprove the prosecution’s story, or you don’t.

Like Ken, I have stories too. Stories about chasing wild geese because clients insist they’re real. And at the end of the chase, when either no evidence to support the client’s claims is found, or evidence is found that conclusively proves the client’s story was totally false, they give you a sheepish look and shrug, as if, “well, it was worth a try.”

Except the scarcest of resources for the defense, money, was wasted trying to find evidence that didn’t exist. The second scarcest of resources for the defense, time, was also lost, as we chased shadows instead of finding real witnesses, real evidence, that might not have fit the defendant’s story, but would have given us half a chance to make a viable defense.

And after the limited resources of the defense have been squandered, they’re gone.  There is no Mulligan for time and money.

But then, it’s never been a matter of cultural capture from my remove.  I neither believe nor disbelieve. I don’t care. Clients may want me to be their daddy, may want me to love them like my own child, but that’s what they want. That doesn’t dictate my approach. My only interest is in the evidence. What can I prove or disprove?

One of the “tests” of client veracity is the money talk.  If they want me to chase shadows, fine. It’s their money, and if flushing it down the toilet is what makes them happy, flush I will. But I will explain that if they are telling me a lie, a story that goes nowhere, the investigation will not only fail to unearth evidence to back them up, but will leave them without the resources, money and time, to craft a useful defense.  If they’re willing to give away a viable defense to hunt down a lie, then they have to live with the consequences.

Being an effective and responsible criminal defense attorney doesn’t require believing everything a client says, exactly. The policy could be better described as “trust, but verify.” The key isn’t to build a defense on the premise that everything the client says is perfectly accurate. The key is to take what the client says seriously and follow up on it, rather than dismissing them out of hand. If you don’t, you’re not defending the client — you’re defending your stereotype of the client.

While the distinction may be more rhetorical than real, believing has nothing to do with it. It’s certainly the case that many, perhaps most, defendants want their lawyer to believe them, to commiserate with them about the unfairness, the wrongfulness, the injustice, of it all. And they will love their lawyer for doing so, right up to the moment when they are led off to prison.

Who cares what the lawyer believes? Beliefs are what make a lawyer dedicate resources to chasing shadows or dismissing the client’s story out of hand. Neither is effective or responsible. When the lawyer takes his own beliefs seriously, he misses the point and fails the client. We don’t have to believe. We have to prove or disprove. We have to figure out the most effective way to allocate scarce resources to achieve the desired goal.

A recent post about the fashion trend of implicit bias mirrors Ken’s point about “defending your stereotype of the client.” If your focus is on you, what you believe, rather than on your function, then implicit bias prevents your from doing your job. The key isn’t to overcome your implicit bias or stereotype that clients lie, but to recognize that it’s not about you and your beliefs at all. It’s about the client, and what we can do to achieve the client’s goals. If your beliefs interfere with the performance of your function, you’re doing it wrong.