Sep 12, 2012 To piss off prosecutors and judges or not – That is the question
Clients seek different levels of aggression from their lawyers. A handful express discomfort and disagreement when I kibbitz amicably with prosecutors and cops. I tell them that I will do nothing to try to harm their case, and that my being kind and compassionate to all, including opponents, they are more likely to be open to listening to me, rather than being distracted by fear that i will stab them in the back. Ideally, this is like the pool shark smiling all the way to victory, even when the opponent moves the balls when the shark’s back is turned. (Therefore, never turn your back to your opponent, keep the opponent within arm’s length, but do not be paranoid.)
I can remind clients that all people are connected, that we therefore should be compassionate and empathetic to all (and kind usually), but that we should also remember that humans can be rotten and try to throw sand in our faces. So we need to remain on guard in a powerfully relaxed way, not in a weakly stiff nor collapsed/off guard way. ‘
It is possible and advisable to find things to like in opponents and everyone, no matter how much we disagree with their opinions and actions. The more we find such things to like, the more content and powerful we are, and the more persuasive we are.
One client hired me for his criminal defense in a county over two hours from my office, apparently interested in hiring a lawyer who felt no trepidation about serving the client’s interests alone, rather than trying to keep in the prosecutors’ good graces. When we did not make much progress with settlement negotiations in this case with some ugly allegations, my client told me his concern that perhaps a lawyer seeming to be less high-powered than I might be better for negotiating. That whole scenario was interesting, starting with the reality that I tell all potential clients looking to hire a lawyer who is not “tied to the local old boy network” that it is not necessary to seek an out-of-town lawyer.
A native New Yorker potential criminal defense client once walked into my office, and we identified with each other immediately, possibly in part because he could see that I can identify with the New York state of mind in this south-of-Mason-Dixon place, including after my having grown up sixty miles up the road from Manhattan and having lived and worked there a year before law school.
This client was a teddy bear inside a big grizzly bear body and persona, who implored me a few days before trial: “Are you gonna piss ’em off? Don’t piss ’em off!” If he thought there was something in my swagger or otherwise that tends to piss off people, why did this man hire me in the first place? I ended up getting him a phenomenal settlement for a non-jailable moving violation, where originally he was being prosecuted for a jailable misdemeanors, at all times displaying total calm to the prosecutor.
I needed to grow into my present focus on compassion and calmness in talking with opponents. I came to public defender work in the early 1990’s from a corporate law firm that was very aggressive in its litigation, not seeking buddy-buddy relationships with the opponents. The firm had many litigation successes. That approach did not preclude kindness in dealing with opponents, and was at the service of clients often paying substantial fees. I was an angry human rights activist. I got into fistfights before the age that fists could cause much damage beyond temporary pain but possibly deep psychological wounds.
I started as a public defender seeing the world in stark terms of the angels’ side of indigent criminal defense against the too-often dark side of prosecution. I needed to find a way nevertheless to humanize my opponents regardless of how much I disagreed with the work they did. I have always acknowledged the need for police and prosecutors, but feel that the criminal justice system is so unjust to defendants that it is tough for even the most angelic cop or prosecutor not to contribute to the unfairness of the criminal justice system, even while following the letter of the law to a T.
Not many clients ask me to be a bulldog with my opponents and in court. I suppose that the people who hire me already know that I am ready to do that when necessary, but only when the more gentle approach does not work, followed by incremental increases in firmness. Some clients, though, do not feel confident enough that their lawyer solely has the client’s interests in mind without seeing the lawyer strut his stuff for the defendant. A lawyer can strut his stuff for his client while still being pleasant and without having to weaken the client’s case, starting with being fully prepared, in the moment, and effectively aggressive for the client, never missing an opportunity to strengthen the client’s case and to take advantage of the opponent’s weaknesses and energy.
As former Reagan and Bush I attorney general Dick Thornburgh once emailed me after I emailed him this blog entry about him, he believes in disagreeing agreeably. I agree. If the client wishes otherwise for mere show, s/he is free to hire another lawyer.