Criminal law is about as serious as it gets. Our clients’ liberty, reputations, freedoms, rights, opportunities, property — and even their lives — are at risk. What we do affects not just our clients, but their children, their parents, the victims, and the community at large. What we do is not a game.
So why do so many defense lawyers play games? Cute little tactics, essentially dishonest, which never work. All it seems to do is hurt their clients. And yet they persist. Boggles the mind.
Our job is to minimize the penalty our clients must suffer — preferably none whatsoever. We do that by giving prosecutors new ways of looking at the situation, by challenging the legality of evidence, by showing juries that the evidence doesn’t mean what the government says it meant, and by skillful negotiation.
We do not accomplish that by, for example, routinely filing cross-grand-jury notice in NYC without having discussed with our clients whether they’d even consider testifying in the grand jury, doing so solely for the purpose of getting a prosecutor to call, or just to jam up the prosecutor to make their life difficult. At the very least, it pisses off the prosecutor, who is less likely to give a decent offer as a result. An offer might be taken off the table entirely, on the grounds that nobody who thinks they’re innocent should plead to anything. The lawyer loses credibility, is seen as basically dishonest, and so it’s harder for him to negotiate a better deal or persuade the prosecution that they might have it wrong in this case.
We do not accomplish that by making cute little arguments in court that have no chance of success, and only serve to piss off the judge. Once again, the lawyer loses credibility, comes to be seen as dishonest, and so it’s harder to win legal arguments that actually have merit down the road. It only does the client a disservice.
We’re not going to give a laundry list of examples. Every courthouse has its own idiosyncrasies. But you get the point. There’s nothing wrong with taking advantage of rules and procedures to the client’s best advantage, but nothing is gained if that’s done in a dishonest manner. The client actually loses.
The better practice is to be straight with everyone. You don’t have to tell anyone all your facts or strategies. In most cases, you’d be a fool to do so. But you must be honest with what you do say. Don’t make a claim if you don’t mean it. Don’t make an argument that you know doesn’t apply. Don’t pull stunts. Speak as an authority, nothing less.
When you’re telling a prosecutor that the facts aren’t quite what the government thinks, you want to be taken seriously. When you’re giving the prosecutor reasons why they shouldn’t bring charges, you want to be taken seriously. When you’re giving the prosecutor reasons why your client should get a better disposition, you want to be believed. Playing games kills your ability to do that.
When you’re making a tricky legal argument in court, you want the judge to respect your argument. You want to be perceived as generally knowing what you’re talking about. You want to be taken seriously. Playing games kills that. It does a disservice not only to this client here right now, but every client unlucky enough to be represented by you down the road.
It also affects the rest of us, believe it or not. Whenever the rest of us appear in front of a judge whose career has been spent dealing with smartasses and game-players, we all have to work that much harder to demonstrate that we’re not like the others. That we really do know what we’re talking about, and should be taken seriously.
Victories are not won by playing games. They come from preparation and insight and skill. And even the best preparation and skill will do you no good if nobody’s listening in the first place. Ultimately, victory comes from being the voice of authority, not the voice of insincerity.
This seems like fairly common sense. So why do so many lawyers keep doing stuff like that? It’s not a case of “hey, whatever works, man,” because it doesn’t work.
Boggles the mind.