Lawyering v. brain surgery; Texas strike one week from today (Keller)

I don’t doubt that Scott Greenfield and Mark Bennett give their clients “excellent representation”.  I also don’t doubt that many times, if not most of the time, that doesn’t significantly affect the outcome of the cases they work on.

Of course they don’t control the outcome.  They are only one player in the system, and no matter how good a job they do they are the weakest.  It’s not fair to hold them accountable for something they can’t control.

Yet when their clients come in and pay a usually substantial fee, the clients are trying to affect the outcome.  They are not particularly interested in “excellent representation” unless it produces results.  “Results” means an outcome more favorable to them than it would otherwise be.

But that’s not the deal.  Lawyers specifically disclaim any guarantee regarding results.

To the layman this is double-talk.  If he pays out $50,000 he expects to get something in return.  A car, for instance.

What he’s really, actually getting when he pays that $50K to a lawyer is a ring side seat from which he watches his lawyer employ his skill and knowledge on his behalf.  And the truth is, the lawyer could be nearly incompetent and achieve a good result; and he could be brilliant and achieve a poor one.

I’ve known some brain surgeons.  Talk about a grueling profession.  Nobody calls in the brain surgeon unless things are really, really bad.  You don’t cut into or invade someone’s brain unless and until it’s the better alternative.  But how bad do things have to be before that’s true?  Brain surgeons lose a lot of patients.

Hiring a criminal defense lawyer is like calling in the brain surgeon:  you’d rather not, but the circumstances are dire.

Here’s one difference between a brain surgeon and a lawyer:  the success of the brain surgeon in achieving a good result is very tightly correlated with the brain surgeon’s skill.

Here’s another big difference between the brain surgeon and the criminal defense lawyer:  the brain surgeon deals with natural phenomena.  The medulloblastoma just is.  It isn’t consciously trying to kill your patient.  But the government is trying to kill the CDL’s client.  Or imprison or ruin him.  It’s a heavily calculated, deliberate act. The blastoma will not listen to reason; but there’s always hope that the government will.  Or if not the government, then at least a jury.

But why should a jury listen to reason when the government won’t?

I don’t have to cite examples of the government’s obstinate refusal to listen to reason.  There’s a litany, as any perusal of the blog roll will indicate.

The system allows a lawyer to fight the government, but only with the weapons of “law” and reason.  This is because the goal of the government is not mindless, malevolent destruction.  The government is not an unreasoning force of nature, like a malignant blastoma.  That’s the theory, anyway.

But the reality is different.  And being different, confining oneself to law, reason and argument would be like a brain surgeon attacking the blastoma by talking to it.

Greenfield and Bennett have rejected the strike idea.  They have proposed nothing  in its stead.  They continue to claim, implicitly, that the remedy for what ails the system is more lawyers like them.  Lawyers with honesty, integrity, skill, intelligence, compassion, experience.

Of course, I’m in favor of lawyers who possess all those qualities too.  And I believe Bennett and Greenfield have them.  But they are also aware that that these qualities, fine though they may be, don’t guarantee their clients an outcome.  And they disclaim responsibility for the outcome.  And they know that their clients hire them hoping for, and to some extent believing in their ability to affect the outcome despite the disclaimer.

There’s more than a little ethical ambiguity there.  Are Bennett and Greenfield misleading their clients?  No.  But are they, aware that their clients may be under a false impression, doing everything they could do to correct it?  No.

When it comes to outcomes, we deal with the unknown and the unknowable.  Or do we?  We know what the odds are, at least in a general way.

I don’t think, under the circumstances, that Bennett and Greenfield have the right to cavalierly dismiss an untried method to improve those odds.  But that’s what they’ve done.  And I have to fault them for it, whatever merit they may have otherwise.

For my part, I think continuing with business as usual in the Texas court system after the Sharon Keller fiasco is wrong.  I think the lawyers of Texas have a special responsibility to act, and they have an opportunity to do just that one week from today.  It matters little that I personally think so, of course.

But that doesn’t make me wrong, or Bennett and Greenfield right.


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