Posted on
April 28, 2008 in
Young Shawn Matlock, Fort Worth “Republican” criminal defense lawyerattorney, responds to my position that empathy makes us better lawyers and in doing so asks the following:
But what about ruthless? Ruthless to get exactly what you want. Ruthless to not settle for less. Ruthless to take no prisoners, no matter what the cost to others. Ruthless to the point that everything is just collateral damage.
Now, I assume that Young Shawn intends this at least in part as rhetorical puffery for the paying customers. First, “ruthless” doesn’t guarantee you “exactly what you want”; “ruthless” doesn’t mean “not settling for less”, it means “not having compassion” (maybe Shawn here means “relentless”?).
Unless Young Shawn is a sociopath, “no matter what the cost to others” is (how to put this gently?) a lie. That our clients’ wellbeing is our sole concern — to the exclusion of all others — is a popular conceit, but it’s no more true for being popular. The truth is that criminal-defense lawyers take into account other people in defending their clients. Some collateral damage is unavoidable, and some is unacceptable. And rightly so.
Don’t believe me? Here’s a thought experiment: suppose that you, a lawyer, could legally kill an innocent child and free your client. Would you do it? Of course not — again, unless you’re a sociopath. If you agree with me that you wouldn’t execute an innocent child for your client’s sake, then we’re just haggling over the price.
Young Shawn, not content with that sobriquet and realizing that “the Texas Hammer” and “the Tough, Smart Lawyer” are already taken, is apparently marketing himself as “The Ruthless Take-No-Prisoners Lawyer”. For he asks:
Now with those in mind, which should be the dominant character trait for a criminal defense attorney?
If you’re hiring a defense attorney, do you want someone to feel your pain, or someone to take no prisoners in defending you?
I’m sure “take no prisoners” will sell to the customers, as apparently do “aggressive” and “former prosecutor”. The bulk of people hiring a criminal-defense lawyer have never hired a lawyer, much less a criminal-defense lawyer, before, and don’t know what to look for. Sometimes they think they will be best served by an “aggressive” “ruthless” “former prosecutor” “pit bull” lawyer. (I don’t mean to libel the breed; I’m talking about the public perception of pit bull dogs: aggressive and dangerous.)
Take-No-Prisoners Shawn seems to think that you can’t be empathetic toward just one person or category of people — that a lawyer who feels for his clients is also going to feel for the cops, the prosecutors, the judges, and the complainants.
Take-No-Prisoners Shawn is right: an empathetic lawyer has empathy for everyone. A compassionate lawyer has compassion for all.
A ruthless lawyer, on the other hand, is . . . ruthless. No empathy for one means no empathy for any; no compassion for the complainant means no compassion for the client. If a compassionate lawyer helps people to try to minimize their suffering, why does the ruthless lawyer help people?
- Money?
- Ego?
- “Love of the Game“?
I suspect that if I were accused of a crime I would (all else being equal) not want a lawyer who was defending people to turn a buck (speaking of ruthlessness, see Machiavelli, The Prince Ch. XII on mercenaries), to feel better about himself, or because he saw it as a game (I don’t often cite Connecticut criminal-defense lawyer Norm Pattis twice in one post, but see The Sporting Theory of Trial: I). I don’t think I would trust such a person not to turn on me when it suited his financial interests or his ego, or when the game turned.
I would want the lawyer who could best discover and tell the story that would clear my name, and I would want her to be relentless in the pursuit of my freedom. I suspect that this would be a lawyer who cared about me.
Some people equate empathy and compassion with weakness (see Iowa criminal-defense lawyer Chuck Kenville’s Do Criminal Defense Attorneys Need a Heart?). They couldn’t be more wrong.
People decide cases not based on intellect but on emotion. The key to emotion is empathy. In advocacy, empathy is power. Everything else is just an imitation.
Welcome back. I was beginning to fear your laptop was broken.
I don’t know if sociopathy is the right descriptor here, since he was advocating breaking all the rules for the benefit of his client, not himself.
That being said, I can see Matlock’s point in his advertising. Taking “no prisoners” can be interpreted many different ways.
For instance, in a kiddie case, the prosecutor puts an eight-year-old child on the stand who testifies as to sexual abuse. Would a client be served better by a defense attorney that doesn’t have the heart to aggressively cross-examine that child because it would break his heart and moral compass to do so? Or would he be better served by the attorney who goes after the tough questions with the child and then does the typical closing argument line of “If I did anything to offend you during the trial, please don’t take it out on my client”?
Just a thought.
Thanks.
Eight-year-old? D is clearly better off with a compassionate, empathetic lawyer who can put himself into the shoes of the eight-year-old and understand a) what might motivate him to lie; or b) why he might actually believe something that just ain’t so, and who can then gently tell that story to the jury through cross-examination.
How many times have you seen a lawyer help his client by breaking an 8-year-old down on the witness stand? The 8-year-old witness is a perfect example of a witness on whom a “soft” compassionate cross will yield better results than a “hard” ruthless cross.
Agreed (in part)…I was trained as a prosecutor to always ask: “Why should somone care about this case?” “What is it about this case that makes it important?” As a defense lawyer, those same questions, with a keen sense of empathy, can help
“Here’s a thought experiment: suppose that you, a lawyer, could legally kill an innocent child and free your client.”
Here’s slightly less extreme thought experiment: Suppose that your client confesses to you that he committed a crime that someone else is on death row for? You keep your client free by letting an innocent person die.
In a real-life case here in Chicago, some lawyers let an innocent man take 25 years of a life sentence. Their seems to have been their ethical duty, and it may not meet your definition of ruthless, but it’s damned cold and brutal.
You make an important point. I get really put off by the whole “tough, smart lawyer” crap.
Winning cases is great but waking up and looking at yourself in the mirror with a good conscious is priceless.
Mark:
I don’t understand why many just don’t get the empathy thing? It’s such a foundational part of our humanity. It is so basic, so obvious, and so effective, it astounds me more people don’t see it. However, developing empathy for others (including the victims and police) requires vulnerability. Ah yes. Maybe that is what we are afraid of . . . being vulnerable. The more vulnerable we are, the more empathetic we are, the more transparent we are, the more credible we are, the more effective we are. Is my logic flawed, or am I just an idealist?
sg
“The Ruthless Take-No-Prisoners Lawyer”.
Hey, why not just go for and advertise yourself as “The Sepp Dietrich of Litigation”? maybe “The Jürgen Stroop of the Texas Bar”?
They were both “take no prisoners, no matter what the cost to others” kind of guys, and Stroop wasn’t slowed down by concerns about “collateral damage”.
I think you have another candidate for that award you gave out yesterday Mark.
Brendan–
There’s really no need to portray some young lawyer who is perhaps misguided about his legal tactics as a budding Nazi, is there?
sctexas
Hey, HE’s the one who says “no prisoners, no matter what the cost to others” and that “everything is just collateral damage”. I’m just taking him at his word.
If Mr. Matlock wants to emulate the “take no prisoners, win at all costs, who cares about the colateral damage” school…well I’m just showing what a REAL “take no prisoners” guy looks like.
If you object to their political affiliation, well there are also go with plenty of other examples we could use. We could use Col. John Chivington, or Lt. William Calley, or General Antonio de Lopez de Santa Anna, or General Yamashita, if you want to be ecumenical about it.
My point is that a “ruthless, take no prisoners, win at all costs, ruthless to the point that everything is just collateral damage” attitude does not make you “strong” and it does not make you “tough”… it makes you a war criminal.
If this attitude has no place on a battlefield, a place where ethical constraints are somewhat looser than in other areas of human endeavour, how could it possibly be acceptable or praseworthy in a court of law?
Mark,
How do you empathize with an accuser who lies about your client sexually assaulting them? How do you empathize with the cop that invents the probable cause for his traffic stop out of thin air? How do you empathize with the DEA agent that you talked about in one of your posts that shoots your client and then takes the 5th so he can get his story straight with the other crooked cops? The answer is…YOU DON’T!! The only thing you should feel for that person is contempt for trying to pervert justice.
Empathy is not the ultimate goal in this business. If you have it for everyone, great. You don’t NEED it for everyone to be an effective lawyer.
Do you think a surgeon NEEDS compasion or empathy for his patients? Maybe all he cares about is another trip to St. Martin or a bigger house in the Hamptons. If he’s skilled I could give a flying fart if he cares about me as a person or understands my pain. As long as he does his job with skill I am happy.
You seem to think that without this over-arching sense of empathy for everyone you come into contact with you can’t be an effective attorney and that is just plain wrong.
Attitude, a little thing that means a lot. Regardless how one “sells” themselves to get clients, in Court juries can smell bullshit a mile away. Less is more in many aspects of trial. Speaking of surgeons, Id rather have BOTH a qualified and empathetic one. Empathy is probably the greatist human quality. In cross examination you obviously have to know when to “squeeze” and when to “crush” – depending on the circumstances. But it never hurts to get the honey first before you “eat it”.
I think the whole notion of being ruthless, take no prisoners, win at all costs and the like may play well to clients, but it is not an effective way to practice. After all, as lawyers we are in the people business. We only do well if other people (judge, jury, prosecutors, clients, etc.) buy what we have to say. To do that, it’s absolutely necessary to have the ability to look at the case through your client’s eyes, the judge’s eyes, and most importantly, the jurors’ eyes.
How can I convey my client’s story to the jury so that they’ll see his situation exactly like he did when he did X, Y, & Z? How can I get the jury to see that my client is just a defendant in a criminal case, but is a real person who could suffer real consequences because of X allegation? How is that 65 year-old Catholic woman sitting on the jury going to feel about my defense, whatever it is? All of the above require empathy.
There is also the possibility that the jury picks up on a “win at all cost” mentality and that would undoubtedly hurt your client. I’d rather have a juror believe that I am fighting for my client because I believe in him and his case, rather than thinking I am there just to win.