I had to do the ‘it’s not my job to believe you’ talk to a client recently. I thought it might be a useful topic to discuss on the blog, because it is so often a source of worry and confusion for people unfamiliar with taking advice from a barrister.
Q : ‘You do believe me don’t you?’
A : ‘It’s not my job to believe you’.
I get a lot of enquiries from potential clients who want to instruct me because something they have seen makes them think I will see their case as they do, that I will have sympathy for it and understand where they are coming from. That may be so – a good lawyer tries to see their case from the client’s perspective and to understand their actions and objectives in order to do their best for that client. And of course will protect that client’s interests. But a really good lawyer knows that protecting the clients interests requires them to also try and see the case from other angles too. And to do that properly you need to steer clear of believing your client.
If I say I’m not here to be your friend it may make me sound like a cold fish. But it really is critical that a lawyer maintains a certain professional distance. Not only for her own sake (the job would be emotionally too hard if you got too close to every case), but for the sake of the client.
Any client wants a lawyer who will fight hard for them. And understandably they often think that requires the lawyer to believe their story. It really doesn’t. Believing doesn’t make weak evidence stronger. And believing can make it harder to do that rounded job I’ve begun to describe above.
A lawyer who believes ‘butters no parsnips’ (as they say) – what you need is a jury or a judge who believe you. The lawyer’s job is to get the jury or judge to believe you (if such a thing is possible – lawyers are not magicians).
Think of your case like one of those sets for a cowboy film. From the front the Saloon looks convincing and sturdy. From the rear it’s just a facade and it’s easy to see that a good nudge will topple it right over leaving nothing but dust. Cue tumbleweeds and scuttling lizards…
A client will typically tell their lawyer all about the front of the building, about how fine and grand it is. They won’t mention it’s made of plywood and can’t withstand a gust of wind. Usually that’s not because they are intentionally misleading – they just haven’t noticed. Sometimes a client will emphasise certain points and finesse away others because the they think they need to persuade the lawyer – but to get the most out of a lawyer you need to equip them with information so they can advise you and persuade someone else. You don’t need to persuade your lawyer. If you don’t tell your lawyer the less good bits of your case you are giving them a pistol but blindfolding them before they’ve worked out where the sheriff’s men are hiding.
Now a lawyer would listen to your tale of the mighty fine building, take your dollars and say ‘Yessir that sure is a mighty fine saloon’ would truly be a ‘cowboy’ in the pejorative sense. A lawyer should say ‘Would you mind if I take a look inside your saloon?’ and when they step across the threshold into burning hot desert rather than the expected dark room full of liquor bottles, they should politely point this out to the client and advise that there is a problem.
You don’t want the sort of lawyer who accepts your blind spots and who doesn’t even peek inside the swing doors.
Heck, I wish I hadn’t started this darned metaphor now…
As a rule of thumb your lawyer should be challenging you and asking irksome, irritating, mildly offensive questions. Because if they don’t ask them the other side’s lawyer will sure as hell ask ’em at trial.
There are two kinds of lawyers who don’t ask questions : the lazy kind who can’t be bothered to find out, and the kind who are easily drawn in and believe too easily. Actually there is a third – the lawyer who has too much on to have time to probe.
Let’s begin at the beginning.
Sometimes when I’m giving some tough advice a client will question whether I’m on their side or ask ‘You are my lawyer, right?’ as if I perhaps they have accidentally walked into the wrong conference room. That’s a sign I haven’t explained my role well enough : When I’m giving you advice it’s private – privileged. What goes on in conference stays in conference (except that one time when a client threatened to shoot someone but that’s another story). What I say to you in conference is not what I will say to the judge. Lawyers can’t mislead the court – if you tell me the building is made of plywood I can’t then say it’s made of brick. But if your case is the house is in fact made of brick and it’s just an optical illusion, or that it is in fact made of super strong plywood that is as good as brick – that is the case I will argue. Even if in the privacy of our conference room I have told you that this is a position that is frankly never gonna fly. I operate on the basis that if your case is pants you would prefer to know that before i go in and crash and burn on your behalf. I advise. You decide.
We all have cases and clients who are more or less persuasive, engaging, sympathetic… Some clients are hard to like and even harder to believe. Some are completely convincing and apparently lovely. It is easy to go with the flow – sometimes very hard to resist the pull of the likeable client or the case where it is ‘obvious’ whodunnit – but in the course of a career most lawyers will encounter persuasive clients who were absolutely shocking in the witness box and caught out in a lie, of unsympathetic clients who turned out to be innocent, of unwinnable cases surprisingly won, of strong cases destroyed at trial and of cases where the science points to an explanation that is very hard to accept on a human level. The truth is lawyers have no magical ability to divine the truth, any more than judges do. All that lawyers can do is assess the evidence and attempt to predict the outcome. All that judges can do is get as close to truth as possible, knowing sometimes they will get it wrong. There is always an element of unpredictability. So lawyers learn to put their hunches and emerging beliefs to one side, because they are a distraction.
Lawyers should always be acutely aware that however much their client tells them, and however much the client thinks they are providing all relevant information – they don’t know what the other side is telling their lawyer. Believing your client instead of challenging, exploring, warning your client means you aren’t asking ‘What would I do if I was acting for the other side?’, ‘Where are the weak spots?’, ‘Why haven’t they mentioned this particular thing?’.
A witness statement drawn by a lawyer who has not walked around the back of the building, will describe the facade and will fail to shore up the building. A trial lawyer who has not walked around the back of the building will not spot these weaknesses. I have seen advocates sucked into their client’s world view miss critical points. I have been instructed by solicitors whose briefs are all about how lovely the client is and which fail to mention the gaping hole in the evidence, leaving me to explain to an entirely unsuspecting client on first meeting that there is a teensy bit of a problem. It happens to all of us – some cases catch you unawares and you find you are too close. Some clients leave you cold and it is difficult to muster enthusiasm or find a creative way to press the case. But we do the same for all those clients, because what we do believe is that the system itself is the best way at getting close to the truth and to fairness (imperfect though it is). Because we know that until you hear both sides of the argument, and hear both sides being tested and challenged, it is difficult to form an accurate view of where the truth lies.
And so I tell my clients – If I believe you I can’t be objective. If I can’t be objective I can’t give you sound advice – I can’t help you make the call to change course before it’s too late, and I can’t argue your case to it’s best if we do get to trial. Of course my advice is not always negative – but I can’t confidently tell you your case is likely to be a winner unless I’ve given it a good old shake first.
Instruct a lawyer who believes you if you like – pay someone to tell you what you want to hear – but far better to have advice from someone who will tell it like it is before you get to the gunfight at the (not) OK Corral and find there are no bullets in your gun.
…I REALLY wish I hadn’t started this metaphor…It was the wobbly buildings which attracted me to it not the guns and combat. In case I have inadvertently made lawyers sound like mercenary soldiers enthusiastically invested in some form of warfare, I should point out that part of our function is to try and steer client’s away from the ‘combat’ of trial if that is in their interests. If we have to fight it is our job to do so fearlessly, but often our advice is ‘let’s find another way to sort this out. Here is what I suggest…’.
Feature pic : tombstone by Johnny Silvercloud on Flickr (creative commons – thanks!)