Managing Client Expectations
by Jamison Koehler on March 27, 2012
Indigent criminal defendants often have two simultaneous and potentially irreconcilable opinions of the lawyers who are appointed to represent them.
On the one hand, they have absolutely no respect for the public defender or court-appointed lawyer. You aren’t a real lawyer, they say. You are working with the government. It is easier for you if I just plead guilty. And so on.
On the other hand, these very same clients often seem to believe in the supernatural powers of the lazy and incompetent non-lawyer who is really working for the government to beat a case, no matter how bad that case may be. In fact, during my days as a public defender, I thought I detected a direct correlation between the lousiness of a case and the client’s eagerness to take it to trial.
The police never read me my rights, the clients say. The police report got the name of the cross-street wrong. I pled guilty the last four times I was arrested so the court will have to believe me when I say I am innocent this time. Or one of my all-time favorites – my cellmate tells me this case should be a slam dunk – that also led to one of my all-time favorite responses: If your cellmate is such a legal genius, what is he doing sitting in the cell next to you?
The fact is, as reluctant as we may be to admit this, no lawyer is going to win every time. Bryan Brown and Tom Key are the two best DUI lawyers I have ever seen at trial, and even they lose more often than they win. As a result, the objective is often not to beat the case outright but to mitigate the harmful consequences.
And this is where the issue of client expectations begins to factor in.
Let’s say that you have two clients in identical situations, both of whom blew a 0.16 in a DUI case in Virginia after getting into a two-car accident and then fleeing the scene. This is twice the legal limit in any jurisdiction. In Virginia, it would also result in mandatory jail-time of at least 5 days.
One client has very reasonable expectations. “I made a terrible mistake,” he says. “I never should have driven that night, and I am lucky I didn’t kill anybody. I want to put this whole thing behind me. And I don’t want to go back to jail.”
In this case, it is very possible that you will be able work out a plea deal with the prosecution. The government gets its conviction without the burden and expense of a trial. In exchange, your client avoids the mandatory jail-time. At the very least, you have a clear objective going into the plea negotiations: If the government agrees to drop the jail-time, you accept the plea. If not, you take it to trial.
Your other hypothetical client has far greater – and I would say, unrealistic — expectations. I can’t lose my license, he says. How would I get to work? And no judge is going to order jail-time for a first time offender, no matter the breath test result. That’s absolutely ridiculous.
Unwilling to consider any type of plea deal, this client ends up taking a bad case to trial and losing. The judge not only sentences him to the mandatory five days of jail time, but, annoyed with the defendant for taking up so much court-time and having now heard some of the more egregious facts, tacks on another 5 days for good measure. And, of course, the defendant also loses his driving privileges for a year.
In other words, identical cases in which the client is represented by the same lawyer against the same prosecutor in front of the same judge can nevertheless result in very different outcomes. In one case, the client listened to and trusted his lawyer. In the other, he didn’t. And while I am sorry to keep picking on indigent defendants, it is a simple fact that clients who have shelled out money to hire a lawyer of their own choosing are far more likely to take that lawyer’s advice than the defendants who have had a court-appointed lawyer thrust upon them.