Saturday, September 27, 2014

Representing People

With his characteristic ability to be simultaneously right and utterly wrong, Greenfield posted this where he juxtaposed an interesting ruling that shows where the rubber hits the road in lawyer decision-making with something stupid Volokh had to do for a client this one time.

Sometimes you have to go crack open your dictionary.  These are from Merriam-Webster.

Goal: noun \ˈgōl, chiefly Northern especially in 1b & 3a also ˈgül\

        : something that you are trying to do or achieve

        : an area or object into which a ball or puck must be hit, kicked, etc., to score points in
          various games (such as soccer and hockey)

        : the act of hitting, kicking, etc., a ball or puck into a goal or the score that results from
          doing this

Strategic: adjective \strə-ˈtē-jik\

               : of or relating to a general plan that is created to achieve a goal in war, politics,
                 etc., usually over a long period of time

               : useful or important in achieving a plan or strategy

Strategy: noun \-jē\

              : a careful plan or method for achieving a particular goal usually over a long period
                of time

              : the skill of making or carrying out plans to achieve a goal

Tactics: noun plural but singular or plural in construction \ˈtak-tiks\

            :the science and art of disposing and maneuvering forces in combat
            :the art or skill of employing available means to accomplish an end

            :a system or mode of procedure
            :the study of the grammatical relations within a language including morphology
              and syntax

So the story of Volokh is one most attorneys know pretty well.  Client is kind of crazy, has a goal you can achieve but you're pretty sure it's not a good one.  I was referring to the same situation in the Tenacity post I just did the other day.  You plead with your client not to get you to try to do it, it's not worth it, it will probably backfire, etc.  But the client insists, so you go to work.  And you turn out to be right.

Now, there are times where the line between a goal and tactical decisions get blurred.  In the decision cited by Greenfield, for example, one might have thought that having the codefendant's plea read into the record was a goal.  Maybe it sort of is, but assuming the client still wanted to be found innocent at the end of the trial, and assuming that having it read was, in the client's mind, for the purpose of accomplishing that, it was rather clearly a strategic decision and thus up to the lawyer.

There are a few examples of this that come up a lot.  First is insanity cases or cases involving your client's disability.  You need to use it, the client says no.  It's rather difficult to force a person to submit to evaluations, but strictly speaking, you could do this by getting the court to appoint a guardian after convincing the court your client can't make this decision due to whatever incapacity, then have the court threaten your client with jail till they concede.  I can't imagine anyone ever doing that.  Generally what winds up happening is either the lawyer resigns or he tries to get what he wants without the client's cooperation.  It's ugly and leaves a bad taste in everyone's mouth.  Textbook example: the Unabomber.  As I recall, his lawyers gave up and he pled guilty with an agreement that the government would not seek the death penalty.

 The next is where your client wants to testify and you think that's a horrible idea.  Well, he has an absolute right to do that, so you can at best try to not ask him the questions he wants you to and hope it all works out.  I don't know of any famous examples, but I know a few attorneys who can tell you stories about clients taking the stand and simply admitting they did it.  Or turning out to be awful at testifying and wrecking a perfectly good case.

The last is the scenario Greenfield was thinking of when he's ranting about attorneys as mouthpieces.  Where the client has some crazy belief system they want you to argue.  First, as a PD, because my client did not pick me, I think I have to at least sift the arguments and see what if anything I can do with what they are saying, much as a court has to do (see the Law Day post and the Bristol decision).  Anyway, a textbook example of this was McVeigh, the Oklahoma City bomber.  His attorney, by the way, said no.

Of course, McVeigh lost and was executed.  I haven't read enough about the trial to know how utterly out of the process McVeigh was, but I do know he hated his attorney.  You have to wonder, in a loser of a situation like that, whether it's worth it to also reject your client to the point that they get nothing out of it at all, so they feel like they're just being dragged through it and eventually killed.  Anyway, interestingly, the Ruby Ridge debacle which was very similar and ended the opposite way involved a defense that was related to what the defendant wanted to say.  But trying to do that for McVeigh would have been difficult if not impossible.  Perhaps during the sentencing phase?  Again I don't know what the lawyer did, other than he tried to reduce McVeigh's culpability by portraying him as a pawn.

Back to Volokh.  He wins a decision with a sentence in it that his client apparently found offensive and insisted he ask to have it removed.  Greenfield says this is a strategic decision.  How is it strategic?  How is the removal of the sentence related to winning the decision?  Decision was already won.  The sentence didn't change the outcome of the legal battle, except for the offensive part.  The sentence simply is not subordinate to the goal of winning the case, it's a separate issue.

But these are interesting questions that attorneys get to ask themselves constantly.  Your hope is that you form a relationship with your client where they trust you enough to believe you when you tell them what is up and go along with your plans to get them what you think is the best outcome possible.  But when you deal with people that commit really terrible crimes, that can be tough.  Reality is there are no easy answers.  If you wanted an easy job, you shouldn't have joined the criminal defense bar.

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