Three Enemies of a Criminal Defense Attorney

I have a serious bone to pick with what are three huge enemies of a criminal defense attorney:  (1) TV; (2) Movies; and (3) a great number of other lawyers.

The first two enemies go together. I call it the “TV effect.”  Clients often think that criminal defense work is like what they see on TV and in the movies.  They think that, by hiring a privately retained criminal attorney, money changes hands between defense lawyers and judges or between defense lawyers and prosecutors.  They think that simply because they hired a privately retained attorney, their case will “just go away.”  This is not particularly the client’s fault.  We live in a media-saturated culture, and our thinking is saturated with media images.  If a client has seen several movies (we all have) where money has changed hands and, in classic cinema style, a case has “just gone away,” or if a client has heard the old wives’ tale about, “Yeah, if you hire this guy or gal, they can just make a phone call . . .,” what can we as defense lawyers expect?

The last enemy of defense lawyers are often the many other (but certainly not all) lawyers out there who make guarantees, promises, or statements which gives a potential or current client the impression that, by hiring that given lawyer, the case will “just go away,” or that a very difficult case to defend is a walk in the park.  Frankly, this issue is much more real, and much more difficult to contend with as a practicing criminal attorney, than the TV effect.  On a virtual daily basis, I have clients, or potential clients, ask me:  “Mark, you can easily beat this, right?”  Or they’ll say, “Yeah, since I hired you, you can just make a phone call, right?”  Or here’s the worst one of all:  “You know, before hiring you, I talked to this other lawyer, and he (or she) told me that they could get my case totally dismissed.”  Man, I’m upset just writing that last one.  All of these statements, though, are unbelievable, and they do nothing for criminal defense attorneys who want to provide a great defense while also having an ethical and honest relationship with their clients.

As I sit here and write this blog, I think of the scene in “A Few Good Men” (see . . .there I go, thinking about movies myself!), where Jack Nicholson screams, in the courtroom finale:  “You can’t handle the truth!”  When you tell clients the truth, oftentimes they don’t like it — at all.  This is also unbelievable to me.  When you tell a client in a multiple life term case that there are some really bad facts or issues which a jury might have a hard time dealing with, or when you tell them, “No, I can’t get the DA’s office to offer less time,” clients will sometimes become irate.  Indeed, I recently had a client in an extremely difficult, multiple life case say, “Man, Mark, I just wish you would tell me that this case is no big deal.”  I am encountering this phenomenon more and more as a criminal attorney — a client’s desire not to believe what juries sometimes really think, or hear their case has some weak points.  This phenomenon is getting worse each day, and it’s in proportion, it seems to me, to the state of the economy.  When the economy is bad (sound familiar?), more lawyers will make more outlandish promises, and clients and potential clients will expect the attorney they eventually hire to act likewise.

But that’s alright.  That’s part of the job as a criminal lawyer.  If a lawyer doesn’t have thick skin, and if a lawyer can’t resist making false promises to a client, they have no business defending serious felony cases.  As Alan Dershowitz once remarked about the amazing, but incredibly honest, Clarence Darrow:  “Remember:  he wasn’t revered until after his death.”

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