“What’s Going to Happen?”
That’s the number one question I get from clients and potential clients. People who are facing a criminal charge are often in that situation for the first time in their lives and want to know how bad it’s going to get. They don’t care about the process, they just want to know what the final result will be. And they call a lawyer to find out.
Well I’ll tell you, I don’t like this question. I understand it, but I don’t like it. Today’s post is about better conversations to have, and why my job isn’t to predict what’s going to happen, but to craft it.
Good and Bad Conversations
The biggest reason I don’t like the question is because of its passive, defeatist quality. Inquiring how it will all end implies that there’s nothing to be done, the person’s destiny is set in stone, and let’s rip the band-aid off quick, etc.
That’s not how I see someone’s situation. Being charged with a crime is unpleasant and scary, but it’s certainly not a death sentence, or any kind of sentence at all. It’s simply a problem, and problems have solutions.
I hear horror stories from people who have had poor experiences with attorneys. Often these stories involve an air of absolutism from the lawyer that things are in fact pre-determined. Here are a couple examples.
Lawyer: “Why don’t you tell me what happened?”
Client: ::Talks about the incident::
Lawyer: Oh, that’s easy. Slam-dunk. You can’t lose, everything’s going to be great.
Really bad conversation:
Lawyer: “Why don’t you tell me what happened, after you pay me some money?”
Client: ::Pays some money, talks about the incident::
Lawyer: “Oh you’re #@%$ed.”
There’s a bunch of problems with these. In the first one, the lawyer is setting the bar impossibly high. “You can’t lose” is a falsehood because no attorney knows the future. Anyone who says otherwise cares more about their own wallet than about being your counselor. How could you trust anyone like that? I can tell someone I have a good feeling about a course of action, but I always have a contingency plan if things don’t go well (more on that later).
The second conversation is just as bad. First of all, I don’t charge for consultations. For some attorneys it might make sense. But for my practice, I’d rather find out if we’re a good fit before I take a person’s cash. I’ve also been called many times by people with problems in areas of law I don’t practice, such as real estate or patents. Why in the world would I take their money just to tell them they called the wrong number? I give them the name of a lawyer who does work in that area, and ask them to give me a call if they ever need a criminal defense or traffic lawyer in Seattle. Sometimes they do.
But more importantly, if I am working with someone, it’s because I believe I can help him or her to achieve a good outcome. If I think a case will be hard I’ll tell them up front, tell them how I plan to approach things, and let them decide if they want to move forward. My clients know the possibilities, and even if they don’t get everything they want, they aren’t surprised about a potential outcome.
Finally, when I talk to a client I know I’m only hearing one side of the event. I tell my clients every time that I need to see the police reports before I can even begin to gauge how strong a case is. It’s quite common for a client to forget a legally significant detail in their story, making their case seem more challenging than it is. It’s equally common for a police officer to royally screw up in a way that greatly improves my client’s case. I can’t put a puzzle together with only half the pieces.
Me: Why don’t you tell me what happened?
Client: ::Talks about the incident::
Me: “Ok, I think I have a sense of how things looked from your perspective. I need to see what the officer wrote, too. But I’m curious, what are you hoping to accomplish here?”
That last question? That is the essence of my role. Figure out the goals of the representation and craft plans to effectuate them.
Yes, people often say they want a complete dismissal, full stop. But I’ve also been told, more than once:
- I want this done with as fast as possible.
- I don’t want to go to jail.
- I don’t want anything on my record.
- I want whatever is least expensive.
- I want my day in court.
These are all very common, very legitimate goals. If I think their goal isn’t actually in their best interest I’ll tell them and give them some alternatives. But make no mistake, the client calls the shots. If a client wants to go to trial or simply get the best plea bargain possible, that’s what I will work towards making happen. That’s my job.
So how does all this communication work in practice? Well, you hire a lawyer to apply their expertise to your problems. So once I know my client’s goals and have more information about the case, I decide on a plan of attack.
After that, it’s time to execute the plan, i.e. draft motions and go to court. Between prosecutors and judges, nothing is guaranteed. I’ve lost motions that I thought were guaranteed winners, and won what I thought were complete Hail Marys. For that alone, I can never definitively answer “What’s going to happen?” But if I’m doing my job I can narrow it down.
So here’s how it works. Before the court date I will craft my goal for the hearing, which will revolve around my client’s goals. Beforehand I tell the client exactly what I’m hoping to achieve and how I’m planning on doing it. I don’t always get what I want, but my client is never confused or surprised about what I’m doing.
In addition to having a primary goal, I’ll have some contingency plans set up (I share these too). One will be in the case of things going well, the other will be in case things going poorly. I really, really hate being surprised in court so I’m a little obsessive about planning things out in advance. I’ll give a couple examples:
I was representing someone charged with assault. The alleged victim (A/V) in the case called the cops, and then after charges were filed, steadfastly refused to speak to either the prosecutor or to me about the incident. And this was a problem since the defense has a right to interview witnesses. Because my client was steadfastly adamant about proving her innocence, we set the case for trial.
The A/V remained incommunicado, even until the final hearing, which was only a week before the trial date. We subpoenaed the A/V to show up to that final hearing, and whether the A/V would come or not was the great unknown. This was the plan:
- If the A/V didn’t show, I was going to ask for dismissal since the A/V clearly wasn’t willing to be a part of the prosecution
- If I got the dismissal granted, I was going to ask for it to be with prejudice, which meant that the prosecution could never, ever file charges against my client for this incident again.
- If the A/V did show I was going to move for a continuance of the trial date so I could properly interview her and prepare my case. (If that wasn’t granted my client would have a very strong appealable issue, so I wasn’t worried on this one).
So what happened? The A/V didn’t show by 9:00 AM, the appointed time for the hearing. “Just give me an hour to get through some other cases,” the prosecutor asked me. “Sure,” I replied and I sat with my client for what I’m sure for her was a stressful hour. The A/V still didn’t show up by ten, so we went in front of the judge. The judge asked if I had any motions, I replied with my motion to dismiss, the judge granted it, I asked for it to be with prejudice, and the judge granted that one too. The client hugged me and thanked me in the courtroom and that was that.
I’ll be the first to admit I didn’t do anything particularly fancy there. But I came prepared and my client got a good result. That’s really what you should be looking for in an attorney.
This client approached me after she had already been convicted. She had a jail sentence but wanted it to be converted to electronic home monitoring so she could care of a sick relative. Whether that kind of action will be granted is extremely discretionary, but I’ve certainly done it before.
My work involved a few things: getting documents, putting the motion on the court calendar, and getting the client’s report-to-jail date delayed until the motion could be heard. The court did grant the hearing, and did delay my client’s report-to-jail date. A good first step.
- If the court granted the motion to convert, I was also planning on asking for the fines to be reduced so the client could better care for her relative.
- If the court denied the motion, I was going to ask that the court delay her reporting date for a few weeks, as I knew the client was very concerned about being incarcerated that day.
Unfortunately, the court did deny the motion, much to my client’s distress. But I was still ready to ask them delay her reporting date out so my client could prepare and get her affairs in order. The court did grant that one and while the situation was unfortunate, it could have been worse.
So what do I do for my clients? I’m not a prophet, I’m not a fortune-teller, and I can’t predict the future. What I can do is work with my clients on finding out their goals for the representation and work like crazy to make it happen. I can’t promise results, but I can promise I’ll work for my clients, advocate for them, and keep them informed every step of the way. That’s my job and I enjoy it very much.