We just ended a bad week for experts. I was in Athens, Georgia, Saturday for a football game. Auburn was a 10.5 point favorite to win. It turns out that they did not even score 10 points, losing 13-7. Earlier last week, the presidential candidate whom most experts predicted to have somewhere between a 66% to 75% chance to win the election, lost the election. Experts are having a rough go.
Yet, we lawyers work with experts all of the time. In fact, we are experts. The State calls experts for everything from child interviewing to cause of death. And we call our own experts who testify to different conclusions. Maybe those types of experts are different. After all, while pollsters and oddsmakers claim to be experts on what while happen in the future, the sorts of experts we call a trial tells us their opinion of why or how something happened in the past.
Lawyers, however, are often called upon to do what the pollsters and the bookies do. We are called upon to advise a client about the odds that something will happen in the future based upon a decision. We sit with clients and advise them of the potential outcome of a trial that would take place if they turn down a plea bargain. Or we tell clients that we believe that they should turn down a plea bargain because their chances at trial seem better than the offer that has been extended. We advise on the efficacy of a potential motion versus the problems that might arise by pressing it. We are the sort of expert who predicts the future, interestingly enough, based upon how powerfully we believe we can use our expertise to explained what happened with a set of facts based in the past. That is almost a definition of what plea bargaining is.
Plea bargaining is essentially what criminal defense lawyer do. The United States Supreme Court recognizes it. In Missouri v. Frye, Justice Kennedy, writing for the majority said, “In to-day’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.” And trials are quite rare compared to the total of criminal cases formally accused or indicted.
How, then, do lawyers properly act as experts in this arena? We have to recognize that we are not fortune tellers. But our role is to make sure that we understand the law and facts in each case. We must engage in plea bargaining. And when we sit with a client, we have an obligation to make sure that they have what they need to make an informed decision. And when the client is fully informed, we cannot claim to predict the future. And it is not our job to make the ultimate decision of whether to take a plea or go for trial or whether to testify or not testify. And just as we cannot abdicate our role to work for the best possible offer, to communicate it, and to inform the client’s decision, we should not allow the client to abdicate the choosing to us. This process is not always clean, and the lines often blur.
But this week has taught me, if nothing else, that there is no science to predict the future. No expertise tells us how it will unfold. But the real work is in assessing the reality of the present choice based upon what we think can be proved about past events. We can only research, describe, and be present with clients. The big decisions are theirs.