Cramped Views

I represented a boy on a personal injury case one time.  It’s the only time I have represented a child.  The case went to trial with a jury.  We won a verdict in our favor.

The boy was about 8 years old when the injury occurred.  He was 11-12 by the time we had the trial.  As usually happens when you have a case that is going to trial, the attorney client relationship acquires a good deal of intensity and depth, because preparing for trial is difficult and stressful, both for the attorney and the client.  I have likened the process to the bond that forms between shipmates from the Navy, a relationship with which I am also quite familiar.

There’s something about shared hardship, strife and uncertainty while being involved in an open conflict that engenders strong attachments between the participants.  This is a well known phenomenon in the Navy.  I have friends from varying stages of life like everyone else; but many of the guys I went to sea with are more like brothers than mere friends.  This feeling among shipmates was very common.  Universal, even.

Representing a child in a personal injury case is more difficult than representing an adult, precisely because the attorney client relationship is complicated by that very fact.  The attorney client relationship always requires quite a bit of thought and effort and management, a reality that is increasingly lost on others in the system – like the majority of judges – who have never represented an individual human being in their lives.  It’s a big part of the picture.

Every lawyer who represents individuals at a trial has probably had the experience of having to explain procedures and evidence and relevance and burdens of proof and strategies and the law and potential outcomes, and really the list goes on and on.  Even most adults find all this dizzying and mystifying for the simple reason that they lack any legal education, training or experience.  The thing to do – or at least, the thing I have usually done – is to explain up to the point where the client seems to have an acceptable comfort level with what is going on.  Some basic understanding of what is taking place and why you are doing what you are doing.

Or maybe in the end you just try to impart some kind of ill defined faith.  No real understanding, because that is beyond them, but watching you work and the act of explaining itself perhaps instills enough confidence in you, or the “system”, or both.

And this applies even more when the client is a child.

It’s important to note that I am not faulting clients, whether adults or children, for being incapable of understanding all the aspects of trying a case that I do as their lawyer.  If they were capable of understanding it like I do, they wouldn’t need me.  Like every other lawyer, I have gone through a fairly rigorous education and screening process to put me in that position, and the clients haven’t.  This isn’t anyone’s fault; it’s just the nature of the situation.

The impression I had of the boy I was representing in the personal injury case was that he was very bright, and curious about everything that was happening, and appreciative of the attention that was being paid to it all, impressed by the seeming importance of it, while at the same time of course his understanding of everything that went into it was quite limited.

That said, I got to know him quite well and I liked him a lot, and I was very glad it worked out well and we won and I figured he would have a very interesting, positive and unusual childhood experience to look back on.

So a few years go by and I have gone on to other things and am quite busy practicing law and representing other clients and one day I get a call from this boy.  He was now almost 18.

Without going into any detail over what he wanted to see me about, he had dropped out of school, and had a couple of run-ins with the police that he hadn’t told me about.  I met with him and there he was, all grown up now, but still having some of those qualities I liked about him as a younger boy.

There wasn’t anything I was in a position to do for him legally at that point, at least not on the subject he wanted to discuss, but it was obvious that he was otherwise moving in a bad direction and I had a strong inclination to renew our relationship to see what I could do.  Nothing major, I thought.  Just meet with him maybe once a week for lunch.  No fees involved.  Just kind of like a continuation of our previous attorney client relationship, but somewhat expanded from closely defined or rigidly defined boundaries, perhaps.

But it was never more than a thought.  He walked out of my office and I never called him and he never called me or came back.  Part of it was that I was too busy and had too many other things to worry about, and this was frankly driven primarily by financial pressures, which are a daily if not constant concern of small law practices like the one I had.  From that standpoint, spending time and effort on a client from long ago with no prospect of compensation seemed ridiculous.

And indeed, another thought I had that was really an impediment to doing anything was precisely that partners and associates would find the unpaid effort not only not laudable, but questionable judgment on my part.  When you are dealing with day to day financial pressures you should not work for free.  And as a general rule I agreed with that.

So I just dropped the whole idea and more or less forgot about it, although not without at least a twinge of regret even as I did so.  That bond was still there.  I don’t know quite how to describe it other than to say I still cared about the boy, more than I would about some other random person, or even another client with whom the attorney client experience had not been so intense and dramatic, as trials always are.

Within a year or so the former boy-client was criminally charged and then later convicted in connection with a fatal car accident in which another teenage boy had been killed.  He was sent off to prison.

Now, to me there are some unavoidable questions that need asking in connection with this little story.

First, if I had made a different decision and started meeting with the boy as I had thought to do, would the fatal accident never have happened as a result?

And the obvious answer to that question is, I don’t know and neither does anyone else.  Let’s stipulate to that.  But then let’s rephrase the question:

If I had made a different decision and started meeting with the boy as I intended, is it possible that the fatal accident would never have happened as a result?

And the answer to that question is equally clear:  yes, it is possible that as a result, the fatal accident would never have happened.  In fact, to draw an analogy to parenting or teaching, it is almost universally acknowledged that the love, support and guidance provided by parents and teachers are key ingredients in producing well adjusted adults who do not engage in the kind of conduct likely to cause fatal car accidents.  It is hardly a stretch to conclude that the same could be said of some other influential individual in a person’s life, such as a lawyer who had actually tried a case on their behalf when they were a child.  And the fact that this boy had looked me up and called me out of the blue almost six years later marked me as an influential person in his life.

So in retrospect, given what I now know has happened, my decision to do nothing was a mistake.  It is not the kind of mistake that can result in civil or criminal liability, or even overwhelming feelings of guilt aside from that:  I don’t lose sleep over it, for example.  But whenever I think about it, I regret that I had not taken the time and done what my gut told me I should take the time and do.  And this regret is not only for the sake of my own client; I also think about the family of the boy who was killed in the accident, the inconsolable sadness they must have, the lost luster of a life just barely lived.  An opportunity to avoid all that was perhaps presented to me, and I missed it.  It doesn’t make any of it my “fault”, as that is usually understood, and of course I might have done everything I thought of doing and it all might have gone south anyway.  But it’s cause for sorrow nevertheless.  I had won the client’s case but overall, as his attorney, I may have failed him.

Anyway.  Leave all that aside because there’s a more subtle and interesting question to ponder, and that is:  what if I had done what my gut told me to do?  What if I took an active role right then, like my instincts told me, and I had provided the guidance and support and love that the situation demanded and – as a result – the fatal car accident never happened and the other boy wasn’t killed and the client never wound up in so much trouble?

How would you know?

Of course, you wouldn’t.  You would have prevented this terrible tragedy and made the world a significantly better place, but you wouldn’t know precisely how you had done that, or even that you had done that, and neither would anyone else.  In fact, the only reward you would be likely to receive is carping and criticism from partners, colleagues and others that you were wasting a lot of time and effort for no money and no apparent reason.  And it would be difficult to argue otherwise.

I bring this up because there was a post over at Simple Justice the other day called “Client Relations”, which had to do with lawyers in Florida sending strippers in to visit clients, disguised as “legal assistants”, as a means of securing business from accused drug dealing defendants, a business tactic which of course Scott Greenfield eschews, as do I and other rational people, along with things like having sexual relations with clients and entering outside business arrangements with them, and a relatively short list of bright line no-no’s that attorneys have to avoid without question.

But it wasn’t the post so much as some comments that prompted me to respond because, yet again, I thought Scott was just so far off.  Commenter Derek, who may be a young lawyer, says:

While I agree with you that there will undoubtedly be instances where a defendant does have some dirt on their lawyer, I wholeheartedly disagree with ONLY talking to the client about his case.

Lawyers, as advocates and educators, need to take it upon themselves to address the underpinnings of their clients actions. Why did he act this way? How can I ensure he does not act this way in the future?

Simply dealing with the facts of the case and nothing else is to only touch the tip of the iceberg in serving your client.

To which Scott reacts rather harshly, given the relatively restrained and modest tone of the comment he was responding to:

Lawyers are not social workers, psychologists or moralists. We are advocates whose only duty is to zealously defend our clients. Your view of our responsibility has been discussed ad naseum in the past. You are absolutely, dead, completely, utterly wrong.

He forgot to say “totally”.

Which of course is one of those signals.  You know, over-defensiveness.  Unprovoked vituperation.

The attorney client relationship is subtle and complicated.  And often difficult.  And sometimes very difficult.  It varies from client to client, and situation to situation.  As a general rule, a certain professional distance from a client is a good idea, although even then it’s pretty much impossible to define how this should be maintained in this or that particular case.  It depends on the lawyer, the client, and the situation, among other things.

But general rules have exceptions, and it’s a grave mistake to elevate a general and pragmatic rule into some kind of dogma.  There are situations in which maintaining the usual distance or too much formality with a client is a profound error, and jeopardizes not only the client’s best interests but the goal of the representation.  These are matters of judgment best left to the lawyer, at least in the first instance.

I think I understand, though, why Scott Greenfield feels it is necessary to draw such bright lines where none are called for, and forcefully shouts down any contrary view.  There is a concern underlying the general rule that is at the heart of the matter:  the lawyer must maintain objectivity, and the client is always ill served if he doesn’t.  It’s more or less the essence of the attorney’s job to be able to see the client’s legal problems objectively.

Some people have a lot of trouble maintaining their objectivity and I suspect Scott is one of them.  And I don’t really mean this in a derogatory way, because the bottom line is that he gives a shit.  That is an important and good quality.  The captain I most enjoyed serving under in the Navy was very attuned to this quality and wanted to see it in his officers, and I’m in complete agreement that it’s an important virtue.  There are too many people who don’t give a shit.

Thus, if you’re an attorney who needs to draw really bright lines and compartmentalize rigidly and avoid any emotional involvement with the client or the issues in a case at all in order to remain objective then that is what you should do.  And there may be many circumstances where that makes you the best lawyer to handle a particular client or a particular case.

But there are other clients and other cases where this is not only not required, but can be harmful.  And there are lawyers who can remain objective without all of those precautions, and maybe in those instances the clients are better served by that kind of lawyer and not lawyers like Scott Greenfield.

I’ve never tried a case where I wasn’t emotionally affected by my involvement with the client, or some other aspects of the case, or both.  That doesn’t mean I lost my objectivity, and in fact I never have.  In my case, at least, and also other attorneys I know, the trick is to harness the emotion and properly channel it for the best presentation of the case to the jury.  But I also know attorneys like Scott who are very emotionally guarded.  That can be quite effective as well, depending on a lot of things, although in general I would say it’s a lot better to be able to transcend your emotional reactions rather than be encumbered by them.

Reducing complex situations to a few limited rules is often a mistake.  Where there is room for disagreement, people should feel free to disagree.  There are pitfalls when you get close to people, but that doesn’t really differentiate lawyering from a lot of other things.  There are also pitfalls when you don’t.

Lawyers should respect other lawyers’ professional judgments, even when they disagree.

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4 Comments

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4 responses to “Cramped Views

  1. matt

    I recall having a client who got a good settlement for, 40-50k and offering to go to a bank with him to set up a bank account. He said no, he’d give the money to his (very new) wife. He ended up getting arrested and she took his money. You do as much as you can.

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  2. Of course. I don’t beat myself up over it too much, but I do take the episode as a lesson that attorney client relations are not easily defined or executed. And one thing that really does concern me is that judges increasingly are lawyers who have never had actual human being type clients. Their opinions on the subject are facile, uninformed and shallow; and lawyers shouldn’t encourage that by adopting similarly simplistic dogmas that are then thoughtlessly applied across the board.

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  3. Pingback: Other Contenders in the Criminal Justice Category for the 2011 ABA Journal Blawg 100 | People v. State

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