You're Just Working Against Me

It happens now and then. As I was leaving the courtroom, just after some small victory on some everyday case, a person comes up to me.

"Hey, can you be my lawyer?"
"Oh, I'm sorry, it doesn't work that way. I can only take the cases that are assigned to me."
"Well, how do I get assigned to you? 'Cause you real good."


"Well, how can I get my case assigned to you? Because my lawyer's real bad. She never shows up..." or "...she never calls me back..." or "...I don't even know who she is."

I try to make peace. I say, "She's probably stuck in another courtroom, just like I'm stuck here right now and my other clients are wondering where I am. We have a lot of clients and it's hard to be in more than one place at once."

Or, I say, "Well, do you have her phone number? Have you tried calling her? Do you leave messages? Do you include a phone number so she can call you back?"

Or, I say, "Come with me, I'll show you how to find out your lawyer's name and phone number."

Today, though, one of them said one of the most annoying lines I hear, "My lawyer, she doesn't even want to hear what I'm trying to say. She's against me."

And of course, I've heard it before. In fact, I've been accused of being "against" a few of my clients.

But what does this mean? From everything that I've heard, I've figured out that it can mean anything from "my lawyer doesn't believe my story" to "my lawyer has bad news for me."

So, I had to ask. "What does that mean?"

"Well, I tell her I want to go to trial, and she starts telling me all the evidence they're going to put against me."

"I would do the same thing if I was your lawyer. You can't go into battle without knowing what kind of weapons your opponent has. You don't want to bring a knife to a gunfight. So, you need to know what kind of evidence they're going to have to know whether or not you have a good chance to fight it."

"But it's all lies!"

It amuses me that clients think that means something. Sure, people are going to lie in court. Or be mistaken. In fact, if you have two sides presenting contrary evidence, one side has to be lying or mistaken. Sometimes it's possible to "prove" that someone is lying, but this usually requires having more information than the liar. Which is hard to do when your client won't or can't tell you what happened.

But would you really want to go to trial without your lawyer first telling you what kind of evidence is going to be used against you? Is it just going to be testimony? Is there going to be some kind of scientific evidence too?

Buit it happens a lot, not just in the trial context. I give my client bad news, such as "Unless you've got a few thousand for bail, you're not getting released," and they say, "Why you working against me?"

But bad news is just bad news sometimes. Don't shoot the messenger.

If you went to the doctor and he said, "I'm sorry, but if you don't get this surgery, you'll die," you wouldn't say, "You're just working against me!" You'd engage in a conversation. You'd say, "Ok, why?" "What's wrong?" or maybe even, "Are there other doctors that would be able to cure me without surgery?"

So, how do I convince my clients of this? How do I convince them that when I give them bad news (you're not getting released, you don't have a good shot at trial), I'm not just working against them?

Because I think what happens is that once I give them the bad news, they shut down and stop listening. And then I can pose all the doctor analogies I want, but they're just not listening. I suppose I could start the other way, before I even mention bad news I could say, "When a doctor gives a patient bad news, it doesn't mean the doctor doesn't like the patient or doesn't want the patient to get better..." But I think most of my clients would stop listening at the words "bad news" and start shouting "You're just working against me!" And some of my clients don't need the analogy, some of them know them know the bad news is coming, and know that it's not my fault. So, it would be a waste of time to start every piece of bad news (and believe me, I deliver plenty of it) with a little "don't blame the messenger" preface.

But what about the other ones? Anyone have any suggestions? Yes, I realize it comes with the territory, and I should get used to it (I already have, basically) but I'd like to hear if anyone else, particularly more experienced criminal defense attorneys, have a tack they like to take.


  1. Some of our clients don’t go to the doctor unless they absolutely have to go (a gunshot wound to something major, for example, but not if it’s controllable bleeding and manageable pain), so the doctor analogy may not mean anything. I once had a client who got angry with his buddies because they took him to the emergency room after he was stabbed and passed out. If he hadn’t passed out he wouldn’t have gone. A better analogy might be: “If your girlfriend told you she couldn’t get the drugs because the dealer got busted, you might be tempted to blame her, but eventually you’d get around to blaming the cops and the snitch who wore the wire. Now, since I’m not your girlfriend, can we just skip to the part where you put the blame where it belongs?”

    I like to tell clients something like, “We got a new statement from John Doe that scares the hell out of me, and we’ve got to figure out how the jurors are going to react to it and what we can do about it.” By starting with how worried I am, and then trying to focus the client’s attention on solving the problem (which includes the possibility of a plea), it decreases the chances of him identifying me as the enemy. Good doctors do this as well: “There’s a spot on your x-ray that concerns me, and we need to talk about what it means and what we can do about it.” It certainly beats the doctor who says, “Well, stupid, all those years of smoking finally caught up to you,” before telling me what he’s going to do. Both statements are equally valid, but feeling helpless and judged just makes me defensive and not very inclined to listen.

  2. (Sorry, no attorney here, just me.)

    So your clients think you're the enemy? Yet they sure were friendly with the cops who interrogated them, weren't they? Put themselves at the scene, said they did it, and told the cops where to find more evidence.

    This is probably a crazy idea, but maybe you could learn something from police interrogation techniques? Obviously, a lot of that stuff would be impossible or inappropriate to the lawyer-client relationship, but maybe some of the teaming and "I'm-trying-to-help-you" techniques would be useful.

  3. I'm not very experienced, but I agree with Greg and WindyP. Its all about the presentation (bedside manner), trying to get them to understand that you are on their side so they'll listen. Sometimes it is easy, say, if they've already seen you fighting in court for them or others. Other times it is hard. But this often involves simply listening, letting them say everything they want to say, and then gradually educating them on the problems with the case. I always put it in the sense that "the jury could think that" or "who do you think that the judge will believe at the suppression motion when the police report says that you reached furtively for your waist but you say that you didn't and we don't have any witnesses other than more cops?" Of course, there are always times when I'm overworked, tired, or impatient that it is hard to implement these suggestions, but whenever I'm in a bind about client trust, even with some of the most mentally ill clients, listening and patience wins out.

  4. Re ACS' comment:

    "who do you think that the judge will believe at the suppression motion when the police report says that you reached furtively for your waist but you say that you didn't and we don't have any witnesses other than more cops?"

    Sure the cop says that, but it's fairly obvious it didn't happen that way otherwise your client would be a corpse instead of a suspect. Esp. if there were more police in the vicinity.

  5. I have a job that involves interviewing people who want to file criminal charges.

    I often have to tell them that the attorneys do not think their case rises to the level of probable cause, and that we cannot pursue their allegations. However, they should contact the police if they have any further trouble with the suspect, and file another police report. Perhaps there will be enough evidence in that incident to take into court.

    One of the more frequent responses I get is, "Why bother if you ain't gonna believe me anyway?" Or, "If this is how I gonna be treated, what's the point?" Or, "If you ain't gonna listen, what's another report gonna do?"

    At first I thought these people didn't get it. There wasn't enough proof for the report they filed, but maybe if something else happens, there will be. The fact that this report was rejected has no bearing on what happens with the next report.

    But I've started to think that what's really going on is that they know darn well what I'm saying.

    They just want me to stop saying it.

    So, they're refocusing the conversation away from evidentiary questions (what I want to talk about) towards emotional questions and an attempt to guilt trip me into doing what they want (what they want to talk about).

    I don't really have a resolution for this. If its a strategic behavior, resolving it may not be possible. What am I going to do, explain to them again why we won't file charges? They know that. They just want me to do it anyways, and don't realize that their request is impossible.

  6. To AF: there are many more cases of furtive gesturing, real or imagined, and searches from that than shooting. Luckily, 41 shots is the exception rather than the rule. Police have a hard job, knowing when someone is reaching for a gun rather than trying to toss a crack pipe (or just holding a comb). I wouldn't want to do it because you start worrying about everybody. But remember that the shootings make headlines more than the searches, which we see in court, but not on TV.

  7. The biggest problem I found when I was a Legal aid lawyer was that clients where afraid that I was giving up when I told them they should consider a plea. I would not ever tell a client that a part of a case "frightens the heck" out of me. My client wants me to be his Merlin and his Arthur and while I may have "concerns" and face "challenges" we never have worries or problems.
    The next problem is also endemic to dedicated lawyers for the indigent. We care about our clients too much. What I mean by that is many of our clients have no one and I mean NO ONE to go to or count on. Our relationships become tight. We want to help them knowing that often they have never gotten any decent advise or anyone to care about them. We cross a line from being a concerned professional to being a Parent. I never tell a client what I would do if I were him (I am not him and could not know exactly where he is coming from)nor do I tell him what he should do other than to say he should do what is best for him.
    I explain all options to him and tell him percentages based on my experience for success. Then I tell him that no matter what he choses to do I will fight like hell for him and that I won't stop for any reason. I mean it and they know it. That helps them from Identifying me as the enemy. My favorite analogy, "I am like a bullet in their gun, when they fire the gun I will hit whatever they aim at as hard as I can. I may not bring down the target, but I will put a big dent in it."

  8. Blonde,
    Give them a choice.
    Tell them straight up you can sugar coat the shit or you can give to them straight even if they might not like what they hear. Take them seriously--almost all of them will ask that you give it to them straight in which case you can ask them if they're sure, explain to them that being direct doesn't mean you're not going to fight for them or do whatever they want... And if they say sugar coat it, then do that. They'll change their minds eventually.