The Client's Decisions, the Lawyer's, and Chastisement to Insolent Pups

 Posted on July 28, 2008 in Uncategorized

In a criminal case in Texas, the accused has five decisions to make:

1. Whether to plead guilty or not guilty;

2. Whether to try the case to judge or jury;

3. Whether to ask (in the event of conviction) for probation;

4. Whether to testify or not; and

5. Whether to have judge or jury (in the event of conviction) assess punishment.

The criminal-defense lawyer's job with regard to these five decisions is to advise the accused so that he understands the decisions and the consequences of either choice, ensuring something like informed consent. The lawyer's job is definitively not to make these decisions for the client, though often the choice is so clear that the lawyer's description of the options leaves the client with only one reasonable option. (Try your case to a judge in Harris County? Almost always a no-no.)

Every other decision - how to negotiate, whether to reveal NLSes, what witnesses to call, how to try the case (once the client has decided to try it) is the lawyer's to make. And making those decisions, more than anything else, is how we earn our pay. It's a matter of knowing where (and when) to tap.

Some NLSes, for example, if revealed to the prosecutor before trial, might make the difference between an unreasonable offer and a reasonable one, or between a jury trial and a dismissal. But if we reveal our NLSes before trial, they are no longer NLSes. You can see the dilemma: reveal them early in hopes of some advantage in negotiation, or save them for trial when they will have maximum effect.

To make this decision, the lawyer has to know the terrain of the case - the facts, the law, the court - and how they affect the chances of winning at trial and the appropriate plea range. She also has to know her adversary. Some prosecutors are more reasonable than others, who will respond to The Reveal [I thought Matlock blogged about The Reveal, but I can't find the post; I'll add the link if I can turn it up] by woodshedding their witnesses to neutralize it.

My general position is that I don't reveal any NLSes until I am sure that they will make the difference between an unfavorable resolution and a favorable one.

Some Harris County prosecutors I know that I can trust because I've practiced against them for all or much of my 13 years in the criminal courthouse; some I know that I can't trust for the same reason.

In misdemeanor court, however, all of the prosecutors are newbies with less than three years' experience. How do I know whether to trust them? Prior experience, certainly - if I've had a reasonable experience with a prosecutor the last time I dealt with him, I will probably have another reasonable experience with him the next time. Word of mouth, too - if my colleagues have dealt successfully with a prosecutor, I may be able to do the same.

But what if I haven't had enough experience with a prosecutor to know how she'll respond to The Reveal, and none of the brethren and sistren of the bar has anything positive or negative to share about her?

A necessary skill for the criminal-defense lawyer is the ability to read people - witnesses, judges, prosecutors, and clients (especially clients). If a lawyer doesn't have a Rhodesian Ridgeback's character judgment, he's going to appear to have very bad luck in the criminal courtroom. I will form a judgment of a prosecutor's character in the first few minutes of observing her dealing with other lawyers in the courtroom, and this judgment will inform my treatment of that prosecutor until I see evidence that it should change.

Misdemeanor court is a good place for baby prosecutors to learn from more experienced defense lawyers, and a bad place to make career-long antagonists. A pissant misdemeanor prosecutor who is anything other than courteous to my fellow defenders is presumptively untrustworthy. A misdemeanor 2, 3, or 4 who's working under a rude chief, or a chief who tolerates insolence from his subordinates, is likewise not to be trusted absent proof to the contrary. The chief sets the tone for the court, and a baby prosecutor who comes up under a malevolent chief is likely to turn out malevolent herself.

Because I won't reveal an NLS to anyone I don't trust, the insolent pup's job is made more difficult, while the prosecutor who recognizes that he's not doing the most important job in the world and that (mock trial experience notwithstanding) he's not God's gift to advocacy is going to find a spirit of cooperation even from some of the most obstreperous members of the defense bar (like me).

I suspect that some prosecutors come into the practice (from the high school – college – law school track with no intervening real-world experience) thinking that the State holds all of the cards. This is often true but, with a competent defense lawyer, probably not more than half the time. By the time we get to trial, no matter how much the case looks like a whale (to you and even to me), I guarantee that I've got something up my sleeve that is going to make you sweat.

All things considered, I suspect that any prosecutor would prefer to know my Nasty Little Surprises before trial than to hear them from the witness stand (generally from the State's own witnesses, which is where The Reveal is most effective), when they might make the difference between a one- and a two-word verdict. I suspect also that the reasonable prosecutor would rather settle the case on reasonable terms before trial (or dismiss it, if the evidence I have gathered merits doing so) than take it to a jury and risk a big loss.

A misdemeanor prosecutor emailed me some months ago, suggesting that instead of criticizing baby prosecutors for their misjudgments, I could give them some guidance. I'm happy to oblige.

Here's the first moral of this story: how you treat the least among us is going to affect how you are treated for the rest of your career. You can decide now that you are the biggest badass of a prosecutor ever, and you want everything to be as difficult for you as possible so that you can continue to prove yourself. Do that, and you're going to get beaten more often and more severely than you have to, and you're going to grow up to be unhappy and alone. Approach your public service with humility and attentiveness, however, and you can save your energy to fight the important battles; you will enjoy your job and find friends and allies in the most unlikely places. You will, in other words, get what you deserve.

Here's another moral: fairly or unfairly, you are judged by the company you keep. If your chief is a bitch and you don't distance yourself from him, you're going to be seen as a bitch (probably fairly - it's hard for it not to rub off).

The third moral is this: you are a public servant. It is not necessary for you to treat anyone rudely. Rudeness is the weak person's imitation of strength.