In Support of the Nudge

 Posted on January 11,2009 in Uncategorized

New York criminal-defense lawyer Scott Greenfield and I usually agree on things, and he's a lot older and somewhat wiser than me (though still spry), so when he seems to disagree with me I take a careful look to see if maybe I'm wrong.

The client charged with a crime has three (in Texas, four) decisions that only he can make: whether to plead guilty (more broadly, the objectives of the representation, including whether to seek a lesser included offense), whether to try the case to judge or jury, whether to testify, and (in Texas) whether to ask that the judge or jury set punishment.

None of these are decisions to be taken lightly. And, as Scott says of the trial/plea decision, "many defendants are poorly educated, harbor disturbing misconceptions about the system and are ill-equipped to make such a monumentally serious decision."

The law license says "attorney and counselor at law". Our clients come to us with problems, and we advise them as well as advocating for them. We try to achieve our clients' goals, but often those goals are unclear or impossible or not ambitious enough. Clients - almost all clients - need our help understanding what the range of possible outcomes is, which of those outcomes would be best for them, and costs and benefits of seeking each desirable outcome. They need help, in other words, assessing the risks.

It is in helping our clients settle their goals and make the difficult decision of how best to reach them that we criminal-defense lawyers really earn our keep. Correct decisions require judgment, experience (you have to try cases to know what is possible in trial), and understanding.

We don't substitute our own preferences for those of our clients, but our own preferences inform our advice. For example, those of us who know that good things sometimes happen in trial, and think that we (the criminal defense bar) should try more cases are more likely to guide our clients toward trial than those who believe that "everybody gets convicted anyway", those who see every client as a government cooperator, and those who are terrified of the ego blow of a trial loss - those lawyers will guide their clients toward plea and cooperation.

This process - guiding the client toward the decision that we, in our considered professional opinion, think is best - is not done clandestinely. If the client wants or needs our opinion, we give it. We don't make the decision for him, we don't make him make the decision, and - since the decision is ultimately his alone - we don't twist his arm or shove him toward the right decision.

We nudge.