How hard should a defense lawyer push his client to take a plea-bargain when the client resists? Does it make sense to try a case you’re not likely to win? These are just some of the questions banging around my head after a couple of weeks of hard work and then some time perusing this here blawgosphere on the world wide web.
Both Scott Greenfield and Mark Bennett have penned posts about competence–Scott commenting on how a lawyer’s ego can get him or her into trouble and we should all be careful what we wish for, and Mark making the point about about the need for both general & specific competence. Scott Greenfield writes in another post about the need for a specific kind of competence when it comes to plea bargaining. Scott tells of a case where he was trying to help a client who had been convinced to plead guilty by a lawyer who didn’t really consider any other alternative:
Some years ago, I did an evidentiary hearing before Judge Kimba Wood in the Southern District of New York on a habeas motion, where the defendant had a great defense but was pushed into a plea in a New Jersey case with the lawyer misstating the consequence on his federal parole. The Jersey lawyer took the stand. On cross, I asked him whether he told his client that he was a very experienced criminal defense lawyer. With his chest puffed outward, he proclaimed that he was indeed a very experienced lawyer.
I then asked him to tell the judge how many felony cases he had tried to verdict before a jury as a defense lawyer. He hemmed. He hawed. I asked whether he had a problem, and he muttered that he was thinking. Judge Wood grew impatient, and finally, said, “So how many?”
His answer was spoken so softly that if could barely be heard, “None”. Of course, he never informed his client that he was highly experienced in pleading his clients guilty, but nothing more.
Anyone who’s practiced criminal defense for more than a few years can point to at least one lawyer just like the one Scott Greenfield describes. It doesn’t take long for both prosecutors and criminal defense lawyers to figure out who will actually go to trial and who will avoid it–even if that means giving a case away or convincing a client to take an less than favorable deal.
The problem for clients–as Scott Greenfield’s client illustrates–is that it can be difficult for the uninitiated to determine if the lawyer they’re about to hire is someone who goes to trial or not. Most clients don’t even know it’s an issue they should worry about. When hiring a criminal defense lawyer–if they think about a lawyer’s trial skills at all–clients just assume that all lawyers (a) go to trial regularly and (b) are comfortable in the courtroom and (c) know how to try a case. The truth is that lawyers who fit into all three of these categories are the exception, not the rule.
We are not all Perry Masons.
Nor should we be. Many, if not most, legal issues a typical person confronts don’t require an experienced trial lawyer. But it’s hard to think of a criminal defendant who wouldn’t benefit from someone who can and has actually tried a number of cases and who has more than a little experience picking a jury.
(OK. I’ve probably dated myself with the Perry Mason reference, so I provide that last Wikipedia link for anyone under 30 who may have somehow wandered onto this blawg. (Welcome!) I use Perry–although I can barely remember when he was on TV–because a client’s mother recently brought him to my attention. She had asked me what a “transactional lawyer” (shudder) is, and I gave a very long-winded lawyerly answer, comparing and contrasting what I do and what a “transactional lawyer” does. So I might have faked the “what a transactional lawyer does” part a little, but I’m pretty sure I guessed right. Anyway, when I was done, she responded, “So you mean you’re like Perry Mason and this other lawyer isn’t?” I leave to you, Dear Reader, to imagine how I modestly demurred.)
But there’s also a flip-side to worry about: while its rare, what if a criminal defense lawyer is foolhardy about going to trial when it’s not in the client’s best interests? One of the things we defense lawyers get paid to do is to know when our clients should take a deal and how to convince them to do so. Believe it or not, sometimes criminal defendants have a serious lack of judgment, reason and/or common sense. Some even possess what might be considered a reckless disregard for what’s in their best interests. (Not my clients, mind you, but I’ve noticed that other criminal defense lawyers seem to represent people who are a mess.)
I’m sure anyone who’s been practicing for more than a few months can tell you about the client who insisted at the first meeting that the case was going to trial–no matter what the plea offer is or how great the stakes if they are unlucky enough to get convicted. Sometimes this approach–what my former partner Frank Henderson liked to call the “Millions for defense, sir, but not one cent for tribute!” approach–is the correct one. But usually it isn’t.
Still, it’s always the client’s decision–not the lawyer’s–whether to accept a plea-bargain or not. Sometimes a case calls for the lawyer to push and cajole a client hard to take a plea-bargain; sometimes to do so in a case would be an irresponsible abuse of the trust the client has placed in the lawyer. The hard part, of course, and where experience and good judgment are indispensible, is knowing which case you’re facing. Among what seems like a cajillion factors to consider, when it comes to plea bargaining or going to trial, you best know where your ego is.
Two of my recent cases reminded me of why it’s so important to keep my ego in check when helping clients decide whether to plea bargain or not. A few weeks ago I tried a case I was pretty sure would result in a guilty verdict. But my client was adamant in not taking the s0-s0 plea-bargain on the table and I was unable to persuade the prosecutor to do better. The problem is I’ve been on a pretty good run and I had yet to lose a jury trial this year. The truth is I didn’t want to “spoil” my record. But my client had made the decision to stand on his constitutional rights–and eventually even my ego had to agree that my client’s rights trumped my silly record (they were mostly misdemeanor jury trials anyway). For reasons I can’t go into here, and even though my client was found guilty, I believe my client made the right decision to reject the plea offer. Sometimes clients need to go through a trial for reasons other than whether they can do better than a plea offer.
Which brings me to my other case. This week I was supposed to be in another jury trial. My client had been offered a very favorable plea bargain in this case, which he rejected, even though I didn’t think the expense of going to trial was worth the risk of possible conviction–and especially in light of how favorable the DA was willing to resolve the case. I typically judge my success or failure in a trial by whether my client got a better result than the best plea offer made, so I had to work hard in this case to obtain an acquittal–the only result that would be better than the plea offer my client had rejected.
My hard work paid off, and a few days before the trial was to begin, I had the pleasure of calling my client to inform him that the DA was dismissing the case. We had achieved Sun Tzu’s ideal: “To subdue the enemy without fighting is the acme of skill.” I couldn’t wait to dial his number and hear how impressed my client was going to be with the result. Instead, he was pissed. He wanted his day-in-court! I had robbed him of his opportunity to show that jury–and the world!–just how innocent he is and how horribly mistaken the statements and charges against him had been. Instead of triumph, I got an earful of disappointment.
Just another weekly reminder to check my ego at the office door.
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