What We Are vs. How We Act

 Posted on April 30,2008 in Uncategorized

Fort Worth criminal-defense lawyer Shawn "No Prisoners" Matlock asked a simple question:

If you're hiring a defense attorney, do you want someone to feel your pain, or someone to take no prisoners in defending you?

Given that choice, I argued that a person is better off with a person who has compassion than one who is ruthless. My argument must have been pretty compelling, because "No Prisoners" got his panties in a twist, responding not once but twice.

Austin criminal-defense lawyer Jamie "It's Spencer-With-a-C, Scott" Spencer equates ruthlessness with aggressiveness, and does his part to save the environment by recycling part of an old post on aggressive lawyers.

New York criminal-defense lawyer Scott Greenfield chimes in, declaring that we can be both compassionate and ruthless. While we can behave at some times as though we are one and at some times as though we are the other, the two words are antonyms and we can't be both at once. So Scott's playing the metagame (playing games with the rules) rather than the game that Shawn proposed by Shawn.

To sum up, Shawn hit on an interesting topic. But he's still wrong.

Iowa criminal-defense lawyer Chuck Kenville (who says "me too!" to Scott) left a comment to my post equating lawyers with surgeons. The "surgeon" metaphor has its place, but it's not in this context. Surgeons aren't known for their social skills; they don't have to get people to agree with them in order to make the patient better. Trial lawyering is all about social skills, and getting human beings to do what is in your client's best interest. When we try a case, we're not operating on our client.

Chuck also asks,

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?

Chuck's answer is "YOU DON'T!!"; he suggests "contempt" for the lying witness as a superior strategy.

It has been my observation that contempt for a witness isn't a particularly productive strategy. The sound and fury of a ruthless lawyer who has nothing but contempt for the lying witness is undoubtedly impressive to the client, to non-lawyers, and to inexperienced lawyers. Contempt for him is easy. It's made-for-TV lawyering. But your contempt for the lying witness is never going to magically convince the jury that the witness is lying, so until the jury knows that the witness is a liar, though, the sound and fury signify nothing.

Unless you do something very special on cross-examination the jury is probably going to believe the accuser, the cop, or the DEA agent. (If the jury weren't going to believe the witness, you wouldn't have a problem in the first place.) Your best bet - assuming that, as is usually the case, you don't have proof of the lie - is to get inside the witness's skin, figure out why he would lie, and then step out and use that information to cross-examine him.

We can't get the state's witnesses to submit to psychological evaluations before trial. So my response to Chuck is: you must empathize with the lying witness.

An empathetic lawyer can be unrelenting. Relentless, even. He might appear in certain situations and to certain people to be ruthless. It is a great shame of Western culture that empathy is seen as weakness. Empathy is not weakness but a source of tremendous strength.

A ruthless lawyer might imitate empathy, blunder into the truth, and fool some of the people some of the time. When we try a case, we are surgeons operating on the emotions of the participants. A lawyer without empathy is like a surgeon who hasn't studied anatomy.