April 2015

cc: Rudolf Vlček
cc: Rudolf Vlček

Recently Scott Greenfield wrote about David Aylor’s rather noisy departure from accused murderer, Michael Slager’s case. So much went wrong and was analyzed in the post. But there’s one piece of it that I want to emphasize here. Mr. Greenfield writes:

It’s hard to blame Aylor for being sucked in by Slager’s lie. Clients lie sometimes. And just as a more experienced lawyer might ask the client whether he really wants his lawyer to be the stupidest guy in the room, the less experienced lawyer might not question whether his client is being forthright. He may rely on his client’s denials. But then, he might also take those denials and do the one thing that commits them to posterity: shoot off his mouth.

When the New York Times broke the video, Aylor’s world spun on its axis. Two critical things happened simultaneously. The first was that Aylor realized that he had gone out on a limb for Slager, and the limb just broke.

Overall, I love representing clients. On most days, I love being a lawyer. I like winning cases, whether the “win” comes in the form of an acquittal, a dismissal, a reversal, or simple damage control. But I long ago took the advice of a colleague who is now on the bench.

As a young lawyer, I asked this older criminal defense lawyer how he handles situations where the client insists on knowing whether the lawyer believes the client’s story. That lawyer told me that he tells the client that he is completely “agnostic” about the truth of anything that anybody says in a case. He would tell his clients that he does not believe anybody. He doesn’t believe the client. He does not believe the cops. He does not believe the witnesses who claim that they have information. He enters the case with a neutral believe about everybody’s version of the events. He explained to the client that he was most effective by not getting attached to anybody’s version of the events, even the client’s.

I adopted this approach, and it has served me well. It has prevented me from saying things to a judge or opposing counsel that I may later regret (I haven’t been perfect on this point. And I have said things I regretted for other reasons from time to time). I have had the flexibility to change defenses as the discovery comes in and as my investigation has unfolded. I have been in a position to put the client on the stand one day or to refrain from doing so. And, there have been times when I have spared myself the embarrassment of making a really ridiculous declaration to a client that we both would have known was ridiculous.

Take this approach and you also avoid finding yourself where David Aylor found himself. In law, when dealing with the media, opposing counsel, or a judge, there is more danger in saying too much than there is in saying too little. Think of it like a reporter. Generally, reporters will not publish something unless they can get that fact from more than one source. This rule of thumb is perfect. Before telling judge at a bond hearing that your client has no arrests or prior felony convictions, ask the client for her criminal history. But also go the next step to obtain the client’s criminal history. Clients sometimes don’t know or don’t quite remember what their criminal history is. Never tell the media that your client will be vindicated. I assume that you already do not make promises like that to the client, right? Tell the media that you are going to work hard and complete your own investigation of the facts and that it is premature to comment on how this will all turn out. If you make a claim regarding a legal principle in court, have a highlighted case to show the judge.

You never have to extricate yourself from a limb that you never climb. And there is no reason to take what your client says and run with it. Mark Bennett wrote an excellent post about this business of clients who want you to believe them. His words are well worth repeating.

You have told me repeatedly that you are innocent. You don’t mean “legally innocent”—that is, unconvicted—but “factually innocent.” I don’t know whether you’re telling me the truth or not (people lie to me all the time), but please know that it doesn’t matter to me. It won’t decrease my fee, and it won’t make me do any better job.

You might wonder whether I believe your protestations of innocence. Don’t wonder. At this point, I listen without judgment. I neither believe nor (unless your story is bad to the point of incredibility) disbelieve. You don’t want a dumb lawyer, so if you are factually guilty, you don’t want a lawyer who is dumb enough to believe you when you lie to him. And you don’t want a lawyer who thinks it’s his job to judge you, so if you are factually innocent, you don’t want a lawyer who is judgmental enough to care.

Take my opinion for what it is. And there may be wildly successful lawyers who take a different approach. I am an agnostic when it comes to the facts (and also when it comes to what “the law” is). I tend to listen to all the facts without necessarily committing to any. As the case progresses, a theme or theory will emerge. I will do everything ethically within my power to see that my theory defeats the State’s. Which is why the classic cocktail party question that lawyers get “how can you defend the guilty?” is not a particularly interesting one. It isn’t interesting because it is the wrong question to ask an agnostic.

Over the weekend, I received a package from my undergraduate school, Mercer University. Generally, when I receive correspondence from Mercer, Georgia State, or Emory, it’s alumni spam. This was in a hand-addressed manilla envelope. I have a recurring dream where a school I attended figures out I’m a credit short and revokes my degree. I also keep waiting for the Bar to rescore my exam to tell me that I didn’t make it after all.

I opened the envelope to find a small paperweight sort of a trophy. The date of the giving of the trophy was May 24, 1993, for service as a Mercer Ambassador in the 1992–1993 school year. Mercer Ambassadors function as young smiling faces for alumni events and certain school functions. I recall being involved in it my sophomore and possibly my freshman year. There must have been some sort of trophy presentation — perhaps at an awards day — that I missed.Trophy

There was a nice card enclosed from the Coordinator of Alumni Programs, a lady named Anneliese Newberry. The hand-written card said,

The enclosed award was found whle cleaning out an area of the office, and
we wanted to make certain it reached your hands. Being an Ambassador is
an honor, and you deserve the accolade!
Best Wishes,
Anneliese Newberry

I don’t remember much about being in that program. I recall that we wore Maytag Repairman looking blue blazers with a crest. The Mercer website shows that the bunch these days dress much more tastefully.

Nice NoteBut, all that aside, Ms. Newberry did, in a simple gesture, something more valuable than all of the slick alumni magazines I receive every few months could ever do. She made a connection with me. How easy would it have been simply to throw away the “award”? It’s likely that I would have done precisely that had I been cleaning out a closet and found it. After all, some person from 1993 must be in a retirement home by now or too out of it to comprehend the correspondence.

I’m sure that Ms. Newberry will raise a zillion dollars for the school, and I will take from this kind gesture a very valuable lesson in customer service.

A few days ago, Seth Godin wrot about referrals and their true meaning in a profession. When they work well, a referral comes with it a high degree of trust. When you refer a client to another person, you stake some of your reputation on the person to whom you made the

imagereferral. In addition, the person to whom you made the referral will hold you at least somewhat responsible if the client turns into a pain in the neck or is a waste of time.

My best clients come from referrals. Good clients have found me through Avvo, this blog, or someplace on the internet, but most of my good clients have come from other lawyers, from judges, or from former clients. Where does my internet presence come in handiest? It helps the most when clients who have been referred to me start doing research.

But there is a dark side to referrals. Sometimes, a lawyer refers a potential client because the two lawyers have a special arrangement worked out as in “send me all of your personal injury cases, and I will send you all of my criminal defense calls.” Even worse, lawyers have arrangement to along the lines of “I’ll refer you every criminal case, but I expect you to send me 10% of every fee you get.”

At worst, those sorts of arrangements violate ethics rules. When a client pays a fee, the client should know if a portion of that money is going to a third party. And those funds should go to a person who is working on the case.

But even at best, referrals based upon an agreement between counsel shortchanges the client. After all, a referral is a lawyer’s way of saying that, while I am not the particular person for the particular matter and client right now, my colleague may well be the perfect person. The focus should be on getting the client the right lawyer, not just on securing business for a buddy and particularly not on securing a kickback.

When referrals work well, they are a wonderful thing. Referrals get a client access to the right professional and the professional a client who is a good fit for the practice. Referrals are  about trust. When they are solely about money, they do not work well at all. There is much to think about when it comes to referrals.

 

Are you an attorney looking for inspiration? Are you a client who disagrees with your criminal defense lawyer’s tactics even though you see she’s working hard on your case? Run, don’t walk to pick up a copy of Vanity Fair, or read online Mark Bowden’s piece on death penalty defense lawyer Judy Clarke. It was just the motivation I needed for the middle of a tough week doing this job.