People used to come in for their initial interview at the Philadelphia public defender’s office in a panic: “I am so afraid of going to jail,” they would say before we were even seated. “I will do anything, anything at all, if you can just prevent me from serving any time.”
Such fears were often unnecessary. Maybe the person was a first-time offender. Maybe he/she was charged with a minor misdemeanor. In those cases you could re-assure the client that, even in the worst case scenario in which the case went to trial and the client was found guilty, it was still unlikely he/she would be sentenced to anything more than probation.
Thus re-assured, the client also re-assessed. But I have kids, the client said. Or I have a job. I can’t be worrying about coming into the city to see a probation officer.
In other words, over the course of a 30-minute interview, the client would have gone from “please no jail time, I will do anything” to “my life is too busy to be bothered with probation.” This is really unfair. Is that the best you can do for me?
That is how quickly client expectations can change.
A big part of our job is to manage these expectations. Specifically, we need to make sure these expectations are both informed and realistic.
I usually begin communications with a client with a discussion of trial strategy: How can we beat this case? This puts the emphasis where it should be: fighting versus surrendering. It also signals to the client that I am on his/her side.
When I go out to the jail to see a client, I usually bring along my laptop so we can together review the body worn camera (BWC) files, any surveillance recordings, etc.
While watching the witness’s statements to police, for example, I will point out potential inconsistencies and other weaknesses. I may also point out problems with the way the interview was conducted.
But I have to be careful not to oversell the strength of our potential defense. For example, that police officers interviewed witnesses in the presence of other witnesses, thereby potentially contaminating their testimony, is a possible area of cross-examination that may or may not resonate with the jury.
But that, in and of itself, will not prove fatal to the government’s case. It is possible that, despite these problems, the jury will still believe the testimony.
It is a delicate balance. On the one hand, we cannot be too optimistic. We do not want to give the client unrealistic expectations about the chances of prevailing at trial. At the same time, we do not want to present too grim a picture either.
I have trouble any time a client asks me for my recommendation. You are the lawyer, they say. What do you think?
In those cases, I find myself using –reluctantly — that most lawyerly of phrases: It depends.
This is your life, I respond. I can only lay out the options – the pros and cons – for you to decide what is best for you.