This : “but how CAN you defend a rapist?” is the apocryphal question asked of any lawyer at any dinner party she is daft enough to attend (actually the question is real enough, though I’m reliably informed by those who have a life that one doesn’t have dinner parties any more one has impromptu supper). It is unwise in the extreme to invite me to participate in a legal ethics quiz after more than a glass of red, because you might just get the full length answer. Fortunately for you, this full length answer is in the form of a blog post so I won’t notice or be offended if you turn your attention to someone else in the room and ignore me as I blather on.
Myself and a number of lawyers were involved in a lengthy twitter discussion recently between both lawyers and non-lawyers, which highlighted some of the continuing yet understandable misunderstandings and misperceptions of our role as lawyers and how we approach it – and some of the misperceptions we perhaps have about how well non-lawyers understand us and about how well we explain things to them. We roll our eyes at the “stupidity” of people who don’t get it – but actually it is an indictment of our own powers of explanation and attention to both client signals and public discourse if intelligent people without law degrees are misunderstanding this stuff. In this particular twitter exchange it took some time to unpick that at the root of the confusion was a lay person who’d been told by a criminal lawyer that he only could only represent clients who he believed. Roll your eyes at that if they need the exercise.
Misunderstanding number 1 : it’s part of a lawyer’s job to believe her client
Clients often ask pitifully, “You do believe me, don’t you?” or (if I am inadvertently wearing my skeptical face) “You don’t believe me, do you?”. Lawyers don’t do belief or disbelief. Or if they do, they do suppressed (dis)belief, knowing that it can distort our thinking and assessment of a situation and impair our advice and judgment. We know this, but clients don’t. Unless we explain it.
I cannot pretend never to have had a hunch or indeed a very very strong smell of rat, but every so often the hunch I had at the start (that I have carefully stowed at the bottom of my suitcase with my flat shoes at the start of the trial) turns out to have been plainly and obviously wrong once the witnesses get into the witness box and their evidence is tested through the rigours of a trial. A trial is not very much fun for the participants, but it is quite effective at bottoming out who is talking b*llocks. Sometimes a client who is compelling in conference is a disaster in the box and caught out in a lie. Other times a client who you think will be a disaster in the box is a picture of serenity and reasonableness in front of the judge. And sometimes people say things you never ever expected in the course of a trial – they contradict themselves, admit the thing you thought they denied, or concede a point you thought was contested. And sometimes they just introduce a fact that nobody involved knew anything about and wasn’t mentioned in their statement. And it’s worth remembering, every lawyer learns quickly that even a truthful client will not tell you everything. When assessing a case the lawyer doesn’t have the benefit of hearing what the other party is telling their lawyer – they get a picture which is dominated by the account and perspective of the client. A wise lawyer knows that even an honest client will try their best to present their case in the best light to their lawyer. It is human nature. The first time anyone gets truly to see the whole picture is in the courtroom. The witness statements are but a feint hint at what may be to come and in most cases are not determinative.
Yes, dear dinner party guests, there are good reasons why lawyers don’t “believe”. What we believe in is the trial process – it is imperfect, and it doesn’t always get to the truth (whatever that is) but it is the best approximation we’ve got.
It can of course be difficult to represent a client in whom you have no faith at all (for example a client who has repeatedly told even their own lawyer lies) – but representing dishonest, flaky and unpleasant clients just as well and with as much effort as we represent the fragrant and sympathetic ones is all part of what we signed up for. We can’t mislead the court of course, but our conduct of the case for someone who appears to be a lieing toerag should be as effortful as it would be for the apparent victim of said lieing toerag.
By contrast, it is easy to enthusiastically prepare a case for someone who appears to be a wronged victim, perhaps someone with whom you can identify. But this is precisely the sort of case where great care needs to be taken. Such cases can be very hard on an advocate who does not succeed, and the risks of inadvertent error are higher.
The only person whose job it is to believe or disbelieve a party is the judge (or in a criminal case the jury). At the end of the case having a lawyer who believes you will do you no good at all if the judge / jury thought it was a pack of lies. Don’t look for a lawyer who believes you; look for a lawyer who will make the judge / jury believe you.
…PAUSE for sorbet…
Misunderstanding number 2 : a lawyer needs to believe their client to do the best job for them
In my experience, the cases where things go wrong, or where someone unexpectedly comes a cropper when they thought they were on a dead cert, are often the ones where the lawyer has fallen under the spell of the client a bit too much.
Lawyers who “believe”, who identify too much or become a bit too closely aligned with their clients may not spot the holes in their case, may not spot the train hurtling towards them, may not adequately advise their client of risk or prepare their client for the possibility of an adverse outcome. A good lawyer who finds themselves getting too close to a case knows they need to self-consciously step back and do an objectivity check (noticing yourself huffing in outrage at every step taken or submission made by the other side or having to suppress theatrical eye rolls every five minutes are both pretty reliable warning flags (playing to the jury may be a thing in criminal trials, or possibly its just a thing on tv but its certainly not a good look when there is no jury). In a speech in 2015 Lord Neuberger gave an account of unconscious bias creeping into his decision making when a trial judge, as he realised that his yearning to believe a particular witness arose from the act that the witness unconsciously reminded him of his father – there is the same danger for lawyers who believe their clients. Unlike the unwary lawyer, the judge will probably not be wearing the same rose tinted glasses as the Belieber.
…Cheese anyone? the Brie is lovely …
Misunderstanding number 3 : lawyers are just hired guns then?
It would be easy to think that if lawyers aren’t bothered about believing their clients they are just cold hearted mercenaries who don’t care for their clients. But in fact the best and most passionate lawyers are the ones who understand that to fearlessly represent and to do the best for your client you need to maintain objectivity and professional distance (with a sprinkling of client care). We fight for you by being your lawyer not by being your friend. Hopefully you have friends to do the latter. And they don’t charge you.
It is part of a lawyer’s job to tell you the hard to hear stuff (privately of course). And then, to go out there into the courtroom and fight the best possible fight even if the advice has been that the case is weak. That advice might include that (based on experience), the lawyer doesn’t think the judge or jury are likely to believe the explanation given. To a client that can sound a lot like a lawyer who doesn’t believe, but it is the hallmark of a lawyer doing their job and honestly telling you what they think may happen. I tell my clients “If I’m busy believing you I can’t do my job properly for you”.
Believing a client or stating such belief to a client has no useful function. These may be well received, soothing words, but our client care skills really have to be more sophisticated than telling a client what they want to hear. And our duties to act in the best interests of each client require more.
….gosh is it that time already? I really must be off. The babysitter will be waiting…
Misunderstanding number 4 : lawyers don’t represent clients they don’t believe
Imagine this : your ex has accused you of some of the most awful things imaginable (think of your Room 101 fear). You know they are lying, and that the evidence they have produced is doctored or manufactured – but they’ve done a pretty good job and from the outside it looks pretty bad. If you were a juror you’d think you were guilty as hell… I bet then you would be glad of a system where lawyers are happy to represent both the popular and the unpopular, the clients with strong cases and those with cases that look doomed to failure. When your back is against the wall you don’t want to be having to search for the one lawyer that believes you in spite of the mountain of evidence (you’d have to ask yourself why any lawyer worth their salt would believe you OR disbelieve you without analysing it first). You just want a lawyer who will accept the case and work hard on it to the best of their ability.
The system we have in this country to protect defendants who need representation when their liberty is at stake is the cab rank rule. It doesn’t just apply to criminal cases, but also to other sorts of cases (civil and family) – although there are some exceptions around legal aid.
The cab rank rule means that whatever job comes along first we take it (as long as its in our area of work / expertise and on a day when we are available / have capacity).
It applies to barristers, and it is professional misconduct for a barrister to break that rule – and although it doesn’t apply to other types of lawyers such as solicitors (whose code of conduct says they can accept or decline work at their discretion as long as they don’t discriminate in doing so), it is the way in which most advocates operate most of the time. Lawyers like the lawyer my twitter correspondent mentions who says that they only represent clients they believe (presumably a solicitor because it would be professional misconduct for a barrister) are in my experience in the minority – they are possibly creating unrealistic expectations on the part of their clients, and may not be doing them as many favours as it appears at face value.
None of this means that I dis-believe my clients. I hold in mind two (or more) possibilities). And none of this means I don’t care about my clients. I do my level best to be sympathetic, patient, tolerant, to factor in their emotional as well as their practical needs when advising and representing, but ultimately to tell it like it is when I think their case is pants (sorry for technical jargon). No client should find out how pants their case was through the judge explaining it in her judgment. And how does a lawyer who has worn their “belief” on their sleeve square that with telling them some home truths about their prospects, which is the only human thing to do?
So, by now you should have worked out what the answer to the rapist question is. The hypothetical person asking the question has assumed the “rapist” IS a rapist. The good lawyer assumes no such thing, but objectively assesses the evidence on either side, does her best to disprove the fallacy behind the question – and lets the court decide.
By now I assume you’ve all eaten pudding and retired to the billiard room for cigars whilst the ladies darn your socks and titter in the drawing room. Save me an after eight…