I once stood on the courthouse steps with a man about to go to trial. It was many years ago. "You are confusing me," he told me. "You keep telling me I should settle, but you are willing to fight." When I tried to explain that being both counsellor and advocate was part of the job, be didn't get it. Lawyers are required to play both roles.
The Chronicle of Higher Education reports on a new study that says that lawyers, even experienced lawyers, are often too optimistic about what they can do for a client. It seems that no one is immune to star dust when the attorney-client relationship is formed.
It is a source of constant sorrow to me how often clients do not listen to the good advice of their lawyers. It makes me wonder whether it is, in fact, far easier to lead a client to the courthouse than it is to make them think. But a lawyer wears two hats in representation of a client, whether the case be criminal or civil. Behind closed doors, the lawyer is advisor to the client; before the world at large, a lawyer is an advocate. The roles of counsellor and advocate do not conflict, but they do call upon different skills.
A counsellor should be capable of the necessary detachment to assess the facts at his disposal and then relate those facts to a legal theory capable of providing relief or a defense. All that passing a bar examination means is that a lawyer has become minimally competent in recognizing the most common types of claims. A member of the bar is supposed to be able to spot issues. Notwithstanding the report in the Chronicle, I still think that experience matters in helping a lawyer make judgments about likely outcomes.
The trial of a lawsuit on behalf of another person is a wild, schizophrenic experience. Months and years before trial, a case may take one shape in the mind of a lawyer. As work proceeds, the case changes shape. On the eve of trial, forms change yet again. A common metaphor among lawyers is bargaining in the law's shadow, or reckoning the likely outcome of any marriage between fact and law. I perfer to call trial lawyers shadow masters: We dance in darkness while seeking light.
But there are shadows cast by factors other than the law and facts. The law speaks in terms of reasonable persons. In fact, the very concept is a legal fiction. We are all reeds that bend to silent and secret winds. What may look reasonable to the lawyer may be an insult to the client. That is why, in the end, all a lawyer can do is recommend an outcome. The client always chooses how to resolve a case, whether by settlement or trial. Because this is the case, a lawyer must be prepared to accept decisions he or she regards as plainly irrational. The shadows cast by a client may be dark and impervious to the reasons a lawyer regards as legitimate.
To be effective, a lawyer must recognize his or her own shadow. That takes work and years of experience. Indeed, I once heard it said that a lawyer needs to try 25 cases before having a sense of what trial actually entails. Something like that seems right to me.
I've noticed in both the civil and criminal courts that after a certain number of years of experience the judgments of lawyers about what is reasonable tends to converge. How many years to propose as part of a plea for a given crime, how much money to offer or accept in exchange for a release of a certain claim, these numbers respond to the pressures of an inchoate market in human suffering. Judges pressure lawyers to persuade and educate their clients on the silent consensus of the legal professionals about what is fair, just and reasonable.
But clients govern outcomes. Trial is often inevitable.
Something odd happens to lawyers preparing for trial. A good friend, Jim Nugent, and I coined a term for this transformation. We call it advocatitis. Call it a form of tunnel vision in which the trial lawyer comes to see only that which he believes it is necessary to prove to win. Come trial, I believe a lawyer's shadow looms large. Advising a client about whether to settle a case or go forward means managing their expectations; it also means managing your own. Sure, you know how to fight, and are prepared to do so: But running face first and naked into the treads of an oncoming tank is fatal. Trial is but another form of death.
The Chronicle piece was insightful, but it was really no more than a peak into the darkroom. Trial lawyers know many dark truths. They know that when a client first appears it is difficult to distinguish truth from fiction. They know that once the case is underway and discovery takes place the truth changes shape sometimes day by day. Once trial comes, a trial lawyer knows a more sobering truth: The cost of defeat is unacceptable and all must be mobilized to win. Once a gavel falls a lawyer must remind himself that today is good a day as any to die.
When a verdict comes a trial lawyer soars with joy or crashes in defeat. Yet always his job is to be the good shepherd to the client at his side. We live and die by our verdicts, but we rise again to each new case. Odd how in the course of writing this piece the role of the trial lawyer emerges cloaked in Christ-like images. We pour out our lives for clients, sometimes redeeming them and sometimes suffering crucifixion. The shadows we cast, as the Chronicle observes, often reflects much more about us that we care to acknowledge to ourselves or to our clients.
Note: A variation on this theme by a mind more supple than mine. Gamso. Gideon, of course, got here first.
