Wednesday, February 25, 2009

Try an ounce of skepticism

As a young, inexperienced lawyer, I represented a fellow who had a bench warrant for failing to pay Child Support. The client told a truly moving tale of his attempts to find work, his current living situation, and his inability to pay.

I agreed to represent him for free, because such an injustice seemed to be happening. He had asked for a reduction in Child support, which appeared to be unreasonably denied. And it sure looked as if he could go to jail, based upon how the case was developing.

On the day of the hearing (as typical) I met with the prosecutor and the judge in chambers prior to court. The Judge indicated, based upon what he saw, that he was going to throw my client in jail for 90 days. Bond to be set at $20,000.

I begged, I cajoled, I explained how patently wrong and unfair that was. How this guy couldn’t put enough money together to buy a cup of coffee, let alone the outrageous amount the judge was thinking. How we are throwing a guy in jail, when he could be out looking for work, and perhaps coming up with the means to pay some support.

The judge ignored my pleas. He insisted he would be putting my client in jail. I remember being physically angry at the judge for refusing to listen.

After the meeting, I asked if my client had any resources to borrow the funds, or come up with something to prevent jail. He said he had nothing, and started to quietly cry.

“I don’t want to go to jail.”

We went through the hearing, and despite my best efforts, the Judge ordered my client to 90 days of jail; he could get out if he came up with $20,000. Might as well tell him to jump over the moon. They led him away in handcuffs as he just shook his head.

I started planning my appeal. I was furious at how the system had failed.

Later that day, I called the jail to contact my client regarding his options on appeal. He wasn’t there. He had come up with the money and been released. Total time in jail: 4 hours.

This was a large life lesson for me. Don’t always believe your client.

Sounds like a terrible thing, eh? Sounds like a breach of trust. Sounds as if one’s lawyer is somehow not part of the plan; not “on your side” if they don’t believe you. But here’s the thing—the only way we can do our job and do it most effectively is if we are FULLY informed. If my client had told me he had access to $20,000, I could have prevented even those four hours in jail. I could have possibly avoided court altogether.

It is counter-intuitive. You can tell the client wants you to like them; wants you to believe them. Wants you to be assured of their innocence; or--if not complete innocence--then 98% purity. You can see the fear that if we think they are guilty, we won’t work as hard. We won’t try and get the best deal for them. We will be spending our energy protecting other people we think are “more” innocent.

So we hear phrases like:

“I had never done this before…”
“If it wasn’t for my friends…”
“I always get a written agreement. But this time…”
“I only had two beers…maybe three…”

Yet if we don’t know the actual truth, we end up being less able to help the client. This conversation occurs too often to be humorous:

Judge: Has your client ever been convicted of a crime?
Me: [whispering to client] Any crimes?
Client: [whispering back] Nope.
Me: No, Your Honor.

Judge: What about this conviction two years ago for _____?
Client: [whispering to me] I didn’t think they would find out about it.

Find out? And these aren’t forgotten shoplifting cases as a teenager. I have represented clients who had spent years in prison and “forgot” about the conviction. Or didn’t think they would find out about it.

Again, if I am informed of it, I can actually turn it into a positive spin. How they had encountered the justice system before with no issues on bond, had previously appeared timely, etc. But by not knowing and then being “caught”—we are in a far worse position because we look like liars. (Good reason for that…)

It is not that clients want to lie to their own attorney. They just want to present the most favorable position. Put a positive “spin” on each fact. A more favorable nuance on each supposition.

“I only took one CD” turns into one CD and a bunch of memory cards.
“I forgot about the memory cards” turns into 2-3 trips back to the rack to have grabbed some more.
“They were only small items” turns into $2-400 worth of small items.

So one thing we learn as lawyers (at least the good ones) is to take our client’s story with a small cupful of salt. Perhaps we haven’t heard it all. We learn to start looking at the case with independent eyes. Look at it as to how others would see it, not as how our client would like us to see it.

The reason I bring this up, is that I have had the distinct unpleasure of dealing with two (2) different attorneys who passionately and whole-heartedly believed their client. Even when the facts demonstrated demonstrably otherwise. (I have changed the facts slightly to protect the innocent. But I can assure you, the essence is the same.)

In the first situation, the attorney insisted her client had never received the contract. Thus, there was no contract (in her mind) because her client insisted he had never received a copy. I pointed out how her client had transferred a $200,000 piece of property, exactly on the same terms as this “non-existent” contract.

Didn’t matter. Since she believed he never got it; she continued to argue he didn’t.

The problem was the documents didn’t support her. There were e-mails about the contract. There were signatures on the contract (including her client’s.) There was a closing on the contract whereby the Seller listed in the contract sold the property listed in the contract to the Buyer in the contract at the price listed in the contract. In the time outlined in the contract.

She believed her client and couldn’t see it. The court ruled against her. The Judge could see it; I could see it; the entire courtroom of lawyers could see it.

The second situation was another contract where the other side admitted her client signed the contract, but stated she didn’t read it because she believed it was for something else. We had the following conversation. (And after having cases where forgeries are claimed—such as will disputes—we obtain a general knowledge of how to compare signatures.)

Me: Here is the contract with your client’s signature.
Other Attorney: Mmmm…

Me: Here is an additional contract with your client’s signature.
Other Attorney: That’s not her signature.
Me: How do you know? It looks the same to me.
Other Attorney: Because she told me.
Me: But she is not here; how do you know?
Other Attorney: I believe her.

We then entered a fun-filled two minutes of:

Me: Here is an addendum to the contract with your client’s signature.
Other Attorney: That’s not her signature.

Me: Here is an additional clause with your client’s signature.
Other Attorney: That’s not her signature.

Me: Here is the application of credit with your client’s signature.
Other Attorney: That’s not her signature.

Me: Here is closing statement with your client’s signature.
Other Attorney: Wait, wait, wait, wait. THAT one is REALLY not her signature. See how the capital letters are different, and the “e” is not smashed, and the crossing on the “t” is not complete? THAT is not her signature.

I agreed. I do not think it is her signature either. Because the documents speak for themselves and show it to be so different from the other 8 signatures I have. I didn’t let on (the case may still go to trial) that the attorney’s own actions demonstrated how she was merely saying “Not her signature” by rote until we actually came across a signature that was not her client’s, and the attorney’s brain kicked in.

I’d make some dashedly clever comparison to growing up as a Christian, and believing what they taught me, but I don’t think I need to.


  1. Brilliant, and an interesting insiders view of the legal profession as well.

  2. This is slightly off topic but there are some similarities. A friend of mine was to train me in a Martial Art. I thought, great, I will be able to do this for free. On our first day he asked for a sum of money before we started. I asked, why?, seeing as we were friends. He stated, "You will take me much more seriously when I ask or tell you what to do". Very wise words indeed.