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Second-Guessing Your Attorney

Someone — the name does not matter — used my contact form, providing his opinion of his case, including what he believed to be important facts, and indicated he was looking for someone to give him a “second opinion.” From what I could tell, he wasn’t sure he trusted his current attorney and wanted another attorney to tell him whether his attorney was doing the right thing.

Now, I get calls like that from time to time and, frankly, they always make me uncomfortable. Usually it’s someone who has been charged with some rather serious crimes (note the plural) and they’re being given bad news by the attorney who represents them: they’re not going to get off the hook completely scott-free.

But what makes me uncomfortable is that always, they want to tell me their version of events, including what their current attorney has done wrong. Then they want me to agree that their attorney “screwed up.”

I won’t do that.

First of all, the sad truth of the matter is that ninety-nine times out of a hundred, when someone contacts me about a case, they don’t really get all the facts right. I’m not saying potential clients come in and lie to me, although I’m sure that happens sometimes, too. What I’m saying is that they often don’t actually understand the charges against them, don’t understand the facts alleged by the prosecution, don’t understand the evidence and, if they already have an attorney, they frequently don’t understand what their attorney is doing (or why he’s not doing something they think he should be doing).

Secondly, at best I’m only going to get the information the client thinks he knows. I haven’t been part of any discussions that may have occurred between the attorney and the judge, prosecutor, probation officer, or whoever else may be involved in the case. There may be important things that aren’t part of any record (partial or otherwise) the client may have with him, assuming he even has anything other than his memory from which to work. There may be “hypothetical” discussions their attorney has had with other people that have an impact on what he’s telling the client, but the client either won’t know, or won’t remember, anything about that.

Even assuming the client actually has all the information and can correctly communicate it to me, I don’t know what thoughts their attorney has, what strategies he has in mind, etc. I’m not in a position to “second guess” the attorney.

What I can do — what I’m willing to do — if someone wants to consider hiring me, is to get enough information from them about their case to make my own judgment as to how difficult I think the case is going to be, what obvious strategies, motions, or other legal maneuvers come to my mind and, using that inchoate data, quote them a price to take the case.

If the prospective client wants to hire me, we’ll sign a contract. Even thenI’m not going to be in a position to tell the client what I think about their case. I don’t think any honest attorney is going to be. Until I get the discovery, see the charges and the evidence the prosecutor believes that he or she has against them, and run some kind of an investigation myself, I’m not going to know enough to speak with any reliable intelligence about their case.

But even after everything I might do to work up a case, I’ll never be in a position to make predictions about what’s going to happen. Predicting the future is just not one of my magical powers — primarily because I don’t haveany magical powers.

I’m just an attorney. I’ve been to law school. Even prior to that, I’ve worked to develop my natural analytical gifts. I’m fairly good at reading people (although I do tend to be too trusting sometimes and expect people, including officers of the court, are being truthful with me). But this doesn’t give me any special insight into the future. Judges sometimes follow the law. Sometimes, they don’t. For the last few decades, the more likely it is that following the law is going to help the defendant, the more likely the court is not going to follow the law. Show me an intellectually-honest judge and I’ll show you me needing treatment in the emergency room for the concussion after I faint.

(And I’m sorry to say that, judges who read my blog. I really am. Because I actually believe almost all of you mean well and are mostly decent human beings, but the truth is that if following the law is going to either support my argument, or help my client, you’re going to be disinclined to follow the law; you’re going to find some reason that the law doesn’t apply to the case to avoid a result you don’t want. When I see things like this, it’s the only conclusion that makes sense. You aren’t impartial: you’re afraid of prosecutors and afraid to stand up to “your own” deputies. Who knows? Maybe, as we defense attorneys know is true when it comes to John Q. Public, you believe they’ll only help you if they like you, so you can’t afford to upset them.)

But returning to the nameless individual who inspired this post: he was apparently unhappy that I responded to his email by suggesting that I would not second-guess his current attorney, would not give him an opinion (free!) via email and thought he should make an appointment for a (free!) consultation in my office. So naturally, he responded with:

It’s to [sic] bad, because that’s exactly what I was looking for. Won’t bother with you again.

Based on the response and the fact that he did not call my office to set up an appointment for a free consultation, I can only assume he meant “It’s too bad, because a free second opinion via email, telling me that my attorney was screwing me, was exactly what I wanted.”

Sorry. My job is to provide the best defense I can for my paying clients. I can’t do that if I’m busy making you feel good — for free, no less! — by second-guessing other attorneys, with no information, to no end.