Attorney-Client Relationship - Scott Key & Associates

When Opposing Counsel Tries to Bully You

September 30, 2015/by J. Scott Key

Flickr CC

Part of the fun of doing appeals and post-conviction work is hearing from colleagues with questions about things that arise in cases. Recently, I spoke with an attorney with an unusual situation. The lawyer was defense counsel on a serious child abuse matter. The prosecutor, when she supplied statutory discovery, told the lawyer that he was not allowed to show the discovery to the client, upon possible risk of prosecution. The prosecutor is obviously wrong, but this was a dangerous situation, at least from my perspective as a risk averse person.

Here’s what made it tricky. At first blush, my thought was to tell the lawyer to tell the prosecutor to go kick sand or simply to ignore the warning. The prosecutor was more wrong than a football bat. But there’s nothing more dangerous in a quasi law enforcement agent (these folks have badges) than a zealous belief combined with an unsound opinion. The prosecutor was either being a bully, actually believed that it is against the law to provide the client with discovery, or both. In either event, this person has the right to take pretty much anything to a grand jury, seek an indictment, and place the colleague’s career and life in jeopardy. The colleague would likely prevail in the end, but the journey would not be a fun one. So, I didn’t advise ignoring the prosecutor or giving the prosecutor a well-deserved middle finger. Here’s what I advised.

Get the prosecutor to commit the threat to writing. I advised that the lawyer send an email to the prosecutor to confirm that the prosecutor actually held that position. Something along the lines of “Dear Eliot Ness. I’m just following up on our conversation about the Smith case. I want to see if it is still your position that you believe I am not allowed to share the discovery with Mr. Smith. Do you still believe that I cannot share it with my client? Do you still believe that I would break the law if I did so? In the event that I shared the discovery with my client, what would the State’s position about what should happen to me? I will assume that if I do not hear from you within 5 days, that you are holding course on what you told me, which is ‘_________.'” With any luck, the prosecutor will change course at this point and say so in writing. However, if the prosecutor maintains the same position, you have a statement in writing, which will be useful in point two.
File a Motion. I advised that the lawyer then take the issue to the judge. The lawyer said what many lawyers say when I suggest filing a motion, which was “there’s a motion for this?” And I said, “yes, you can move for anything. Draft a motion entitled ‘Motion to Allow Defense Counsel to Provide Discovery to His Client.'” I suggested that the motion be constitutionalized, with a particular emphasis on the right to effective assistance of counsel under the Sixth Amendment and due process under the Fifth and Fourteenth Amendment. Remember the email that I advised the lawyer to get from the prosecutor? Attach it as Exhibit A. This email will prevent the DA from coming to court and saying, “I don’t know what Mr. Defense attorney is talking about. I never told him he couldn’t share discovery with his client.” The filing of the motion may force the DA to change course. If not, have a hearing.
The Hearing. Hearings end one of two ways. You win or you lose. I told the lawyer that either is really good for his client. If the lawyer wins, further bullying from this DA might stop. The DA will likely be embarrassed. And the lawyer will come out of the hearing as the one with more credibility than his opposing counsel. If there are further discovery disputes, the defense attorney will likely be presumed right, and the DA will be operating under a cloud.
If the Judge Rules with the DA, Oh What Fun! However, if the lawyer loses, then oh the fun that will be had as things unfold in the case. First, the lawyer will have planted reversible error in the record. Secondly, the lawyer will have a fun little tool to use at various stages as the case progresses. At the calendar call, if there’s some deadline to have decided whether to accept the State’s offer, the lawyer can say something like “Your honor, I understand that today is the deadline. However, I cannot advise my client whether to take the plea. Since he can’t view his discovery, he cannot assess whether this is a good offer or not.” If you get to trial, announce, “Judge, I cannot advise the client whether to testify. He is not allowed to see his discovery, and he cannot exercise this decision.” Even if the client takes a plea, the lawyer can say, “He feels hamstrung, judge. He’s taking this plea because he is afraid of facing a trial where he cannot know what is in his discovery.”
Stop Subsequent Non-Written Communications with this DA. I advised this course for future cases. There are few DAs with whom I do not get along. However, for those, I limit person to person contact and conduct plea negotiations in writing. It actually makes life much more easy. I get what I need for the Court. And anything hinky can just get an exhibit sticker on it one day.
A Kind Voice Turneth Away Wrath. So goes the Proverb. The louder, angrier, and less reasonable the DA is, the softer, happier, and more reasonable shall the defense attorney be. Don’t get in a spat with a DA in court. Efficiently and calmly make your record. Also, if the DA makes you mad, wait at least a day before deciding whether you will respond in kind. As Warren Buffett recently advised a young author, you can always tell them to go to Hell tomorrow. In other words, if you are going to take a harsh track, wait a day to see if you aren’t caught up in the emotion of the moment. You probably are.

Client Intake to Build the Team

September 8, 2015/by J. Scott Key

Hiring a criminal defense attorney, whether at the trial court or appellate level, is a pretty complex thing. No matter how life-altering the case might be, the lawyer decision is huge. For the lawyer, taking on a client, whether at the trial court or appellate level, is a big decision, also. The client literally puts her life in the hands of the attorney. And the attorney makes a decision on taking the client that will have a significant impact on the lawyer’s life over the next few months to years. Not all clients and lawyers are a good fit for one another. I’ve learned that there are no small legal matters.

Any lawyer who has represented a client bound and determined to demonstrate that he was not, in fact, speeding, can attest that misdemeanors often mean as much to the client as the person that they are representing for murder. For both the attorney and the client, the decision to retain and to be retained is a big one. For that reason, I put a great deal of attention into the first client meeting.

The first meeting with the client is too important to waste any part of it. When I sit down with a client, I already know the charges or the essential facts about the conviction. I already know the client and family’s contact information. I generally have already obtained many of the important needed additional documents. From the moment that the client is seated in my conference room or office, we start talking about possible legal strategy and the next procedural steps. I do not like to spend the first 15-30 minutes getting background information such as DOB, phone number, and address. Our time is too valuable. And I strive to have a certain sense of mastery over the case before I meet with a client.
Our first contact usually involves me giving the client a homework assignment. Usually, I want, in writing, a narrative of the client’s basic bio, including criminal history, educational history, and work history. I want to know basic family information. I want to know how bond was made if it was not made yet. I want to know the identity of lawyers who have worked on the case before me. I want to hear the matter described in the client’s own words. If there’s a conviction, I want to know “what went wrong.” I will sometimes want to gather documents. Before we meet, I will want to know as much as I can about the client and the case. This process also give me an opportunity to see what it will be like to work with the client and for the client to see what it will be like to work with me.
Things I generally will not tell you on the phone.
- What the cost will be. No lawyer can really know what it will cost to represent you within seconds of talking to you on the phone. Cost is connected to complexity and experience. If a lawyer quickly tells you what something will cost over the telephone, he is either guessing or is trying to get you off the phone.
- Whether I can “beat this.” First, we will not know the answer to this question until the case is over. And I will not be able to make even a rough assessment until I know something about this case. If a lawyers ever tells you that he “can beat this,” particularly on the first phone call, then run quickly away from this lawyer.
- Whether I believe a certain set of things to be true. I don’t make guilt/innocence decisions within seconds. I don’t commit to any belief that anything either is or is not true. I commit to keeping an open mind about anything I might here, whether from the client, the person who made the arrest decision, or any witness. But I’m not going to lie to a client or pretend to have committed to any belief in anything within seconds of speaking on the phone. Clients probably do not want a lawyer who is either that gullible or dishonest.
By the time we meet, I will have thought about your case. When you hire me, we will have some momentum going. Or, if you don’t hire me, you will walk away with a better understanding of what will come next. I put more into an initial meeting than many lawyers. But I also recognize that my decision to take your case and your decision to retain me is a huge one.

I’m learning to fly. And the process of finding an instructor is about as close as I have come to what it must be like to be looking to hire an attorney. I interviewed four different prospective flight instructors before committing to the one who is putting up with me now as we go up in a plane that is about the size of a Volkswagen. The teacher I chose came to our first meeting prepared. He had a syllabus, and he took the time to explain the process. He then introduced me to another flight instructor because he was concerned with me finding somebody who was the right fit, even if he was not that person. He was the flight instructor version of me as a a lawyer. I also got the very real sense that he was sizing me up as a prospective student.

I am not sure what other lawyers do, but this is my process. I field more calls from prospective clients than clients who hire me. I meet with more clients than clients who hire me. Some clients want to hire a lawyer as fast as possible. Some clients are looking to pay as little as possible. Some clients are not a good fit for me. I also have gotten into the process and learned that the client is not the client for me. But I am deliberate about the process because I know that I’m not the lawyer for every client and not ever client is the right client for me. I also know that it is easier to put some work in to find the right fit than it is to get into an attorney-client relationship where we are not.

The Importance of Lawyerly Agnosticism

April 11, 2015/by J. Scott Key

cc: Rudolf Vlček

Recently Scott Greenfield wrote about David Aylor’s rather noisy departure from accused murderer, Michael Slager’s case. So much went wrong and was analyzed in the post. But there’s one piece of it that I want to emphasize here. Mr. Greenfield writes:

It’s hard to blame Aylor for being sucked in by Slager’s lie. Clients lie sometimes. And just as a more experienced lawyer might ask the client whether he really wants his lawyer to be the stupidest guy in the room, the less experienced lawyer might not question whether his client is being forthright. He may rely on his client’s denials. But then, he might also take those denials and do the one thing that commits them to posterity: shoot off his mouth.

When the New York Times broke the video, Aylor’s world spun on its axis. Two critical things happened simultaneously. The first was that Aylor realized that he had gone out on a limb for Slager, and the limb just broke.

Overall, I love representing clients. On most days, I love being a lawyer. I like winning cases, whether the “win” comes in the form of an acquittal, a dismissal, a reversal, or simple damage control. But I long ago took the advice of a colleague who is now on the bench.

As a young lawyer, I asked this older criminal defense lawyer how he handles situations where the client insists on knowing whether the lawyer believes the client’s story. That lawyer told me that he tells the client that he is completely “agnostic” about the truth of anything that anybody says in a case. He would tell his clients that he does not believe anybody. He doesn’t believe the client. He does not believe the cops. He does not believe the witnesses who claim that they have information. He enters the case with a neutral believe about everybody’s version of the events. He explained to the client that he was most effective by not getting attached to anybody’s version of the events, even the client’s.

I adopted this approach, and it has served me well. It has prevented me from saying things to a judge or opposing counsel that I may later regret (I haven’t been perfect on this point. And I have said things I regretted for other reasons from time to time). I have had the flexibility to change defenses as the discovery comes in and as my investigation has unfolded. I have been in a position to put the client on the stand one day or to refrain from doing so. And, there have been times when I have spared myself the embarrassment of making a really ridiculous declaration to a client that we both would have known was ridiculous.

Take this approach and you also avoid finding yourself where David Aylor found himself. In law, when dealing with the media, opposing counsel, or a judge, there is more danger in saying too much than there is in saying too little. Think of it like a reporter. Generally, reporters will not publish something unless they can get that fact from more than one source. This rule of thumb is perfect. Before telling judge at a bond hearing that your client has no arrests or prior felony convictions, ask the client for her criminal history. But also go the next step to obtain the client’s criminal history. Clients sometimes don’t know or don’t quite remember what their criminal history is. Never tell the media that your client will be vindicated. I assume that you already do not make promises like that to the client, right? Tell the media that you are going to work hard and complete your own investigation of the facts and that it is premature to comment on how this will all turn out. If you make a claim regarding a legal principle in court, have a highlighted case to show the judge.

You never have to extricate yourself from a limb that you never climb. And there is no reason to take what your client says and run with it. Mark Bennett wrote an excellent post about this business of clients who want you to believe them. His words are well worth repeating.

You have told me repeatedly that you are innocent. You don’t mean “legally innocent”—that is, unconvicted—but “factually innocent.” I don’t know whether you’re telling me the truth or not (people lie to me all the time), but please know that it doesn’t matter to me. It won’t decrease my fee, and it won’t make me do any better job.

You might wonder whether I believe your protestations of innocence. Don’t wonder. At this point, I listen without judgment. I neither believe nor (unless your story is bad to the point of incredibility) disbelieve. You don’t want a dumb lawyer, so if you are factually guilty, you don’t want a lawyer who is dumb enough to believe you when you lie to him. And you don’t want a lawyer who thinks it’s his job to judge you, so if you are factually innocent, you don’t want a lawyer who is judgmental enough to care.

Take my opinion for what it is. And there may be wildly successful lawyers who take a different approach. I am an agnostic when it comes to the facts (and also when it comes to what “the law” is). I tend to listen to all the facts without necessarily committing to any. As the case progresses, a theme or theory will emerge. I will do everything ethically within my power to see that my theory defeats the State’s. Which is why the classic cocktail party question that lawyers get “how can you defend the guilty?” is not a particularly interesting one. It isn’t interesting because it is the wrong question to ask an agnostic.

A Connection and Valuable Lesson from the Alma Mater

April 8, 2015/by J. Scott Key

Over the weekend, I received a package from my undergraduate school, Mercer University. Generally, when I receive correspondence from Mercer, Georgia State, or Emory, it’s alumni spam. This was in a hand-addressed manilla envelope. I have a recurring dream where a school I attended figures out I’m a credit short and revokes my degree. I also keep waiting for the Bar to rescore my exam to tell me that I didn’t make it after all.

I opened the envelope to find a small paperweight sort of a trophy. The date of the giving of the trophy was May 24, 1993, for service as a Mercer Ambassador in the 1992–1993 school year. Mercer Ambassadors function as young smiling faces for alumni events and certain school functions. I recall being involved in it my sophomore and possibly my freshman year. There must have been some sort of trophy presentation — perhaps at an awards day — that I missed.

There was a nice card enclosed from the Coordinator of Alumni Programs, a lady named Anneliese Newberry. The hand-written card said,

The enclosed award was found whle cleaning out an area of the office, and
we wanted to make certain it reached your hands. Being an Ambassador is
an honor, and you deserve the accolade!
Best Wishes,
Anneliese Newberry

I don’t remember much about being in that program. I recall that we wore Maytag Repairman looking blue blazers with a crest. The Mercer website shows that the bunch these days dress much more tastefully.

But, all that aside, Ms. Newberry did, in a simple gesture, something more valuable than all of the slick alumni magazines I receive every few months could ever do. She made a connection with me. How easy would it have been simply to throw away the “award”? It’s likely that I would have done precisely that had I been cleaning out a closet and found it. After all, some person from 1993 must be in a retirement home by now or too out of it to comprehend the correspondence.

I’m sure that Ms. Newberry will raise a zillion dollars for the school, and I will take from this kind gesture a very valuable lesson in customer service.

The Dark Side of Referrals

April 6, 2015/by J. Scott Key

A few days ago, Seth Godin wrot about referrals and their true meaning in a profession. When they work well, a referral comes with it a high degree of trust. When you refer a client to another person, you stake some of your reputation on the person to whom you made the

referral. In addition, the person to whom you made the referral will hold you at least somewhat responsible if the client turns into a pain in the neck or is a waste of time.

My best clients come from referrals. Good clients have found me through Avvo, this blog, or someplace on the internet, but most of my good clients have come from other lawyers, from judges, or from former clients. Where does my internet presence come in handiest? It helps the most when clients who have been referred to me start doing research.

But there is a dark side to referrals. Sometimes, a lawyer refers a potential client because the two lawyers have a special arrangement worked out as in “send me all of your personal injury cases, and I will send you all of my criminal defense calls.” Even worse, lawyers have arrangement to along the lines of “I’ll refer you every criminal case, but I expect you to send me 10% of every fee you get.”

At worst, those sorts of arrangements violate ethics rules. When a client pays a fee, the client should know if a portion of that money is going to a third party. And those funds should go to a person who is working on the case.

But even at best, referrals based upon an agreement between counsel shortchanges the client. After all, a referral is a lawyer’s way of saying that, while I am not the particular person for the particular matter and client right now, my colleague may well be the perfect person. The focus should be on getting the client the right lawyer, not just on securing business for a buddy and particularly not on securing a kickback.

When referrals work well, they are a wonderful thing. Referrals get a client access to the right professional and the professional a client who is a good fit for the practice. Referrals are about trust. When they are solely about money, they do not work well at all. There is much to think about when it comes to referrals.

Study Shows that Few Have Counsel for Bond Hearings

March 23, 2015/by J. Scott Key

Moby’s Photo – Flickr Creative Commons

It’s a scene I have witnessed hundreds, if not thousands, of times. At a first appearance hearing, a magistrate judge calls the calendar as twenty or so inmates in orange or green jumpsuits are brought out chained to one another. The look on their faces is one of shock or of last night’s drugs or alcohol. The judge reads out a list of basic rights and criminal charges. The group is then taken back to a holding cell. Some will get bond immediately. Others will remain in jail another week or more for a lawyer to be assigned or retained. Generally, if I am on the case at the first appearance stage, I am the only retained lawyer in the room. Most lawyers are not retained yet at this stage. The arrest came unexpectedly and there wasn’t time to get the lawyer arranged yet. If I’m retained before first appearance it is because I was retained when my client learned that he was the target of a criminal investigation or because I was reached late the afternoon or night before. Invariably, I will have some ducks in a row, which means that I will likely get a better bond than the folks in jumpsuits who stand before the judge alone trying to fend for themselves. Those who don’t get a bond or for whom bond is set in an unattainable amount may be stuck with what happens to them. Weeks down the road, the Superior Court judge will be reluctant to second guess what the earlier judge did, even if the earlier judge didn’t have the benefit of a thorough presentation.

In a post titled “Bail me out, bro,” A Public Defender discusses a report from The Constitution Project. The findings confirm what I have witnessed from an anecdotal perspective my entire career. As reported by A Public Defender, “very few people have the benefit of counsel, which leads to high bail amounts, greater incarceration and increased numbers of people pleading guilty simply to get out of jail.”

Though not discussed in the blog post, the problems likely do not end there. Often, the defendant who takes a plea just to get out of jail sets himself up for failure by taking on sentencing conditions that he is not prepared to meet (for instance, the addict who signs up for random urine tests or the homeless person who now must register as a sex offender).

Bond hearings are tricky and can be complicated. The lawyer who appears for a bond hearing needs to know things like the amount of equity in a home (and we are coming out of a period of history where equity is at an all time low), the number of character witnesses who can vouch for the defendant, or enough about the defendant’s background to demonstrate that she has sufficient ties to the community not to pose a significant flight risk. Sometimes the smart thing to do is advise the client to remain locked up a few more days so that a defense can be presented at the bond hearing. On complicated or serious cases, a bond hearing can be every bit as tricky as a suppression hearing or pretrial motion in limine.

Bond has a trickle-down effect to other portions of the case.

It is easier to defend a client on bond. The client can come to the office to review discovery without the risk of a potential snitch reading it in prison.
Trial preparation is smoother with a bonded client. The client is free to come to the office to meet with counsel and prepare for testimony.
A client on bond can get mental health or addiction treatment in a way that a client in jail cannot.
A client on bond can maintain contact with family and can continue to work, while an incarcerated client may have his life literally fall apart while in jail awaiting trial.

Access to counsel at a bond hearing is every bit as important as having a lawyer at trial and at sentencing. The fact that representation by counsel at bond is an exception rather than the rule is disturbing. When a client loses a bond hearing, he is likely to lose other critical components of his case as the matter unfolds.

Lawyer Who Let Client Write Brief Faces Sanctions from SCOTUS

March 12, 2015/by J. Scott Key

I just read at Bitter Lawyer and The Lawyerist about a show cause order issued by the United States Supreme Court for the submission of a certiorari petition that was hard to read and which departed significantly from the Supreme Court rules. What happened? The lawyer allowed the client to draft the certiorari petition.

I don’t know the back story, but I can imagine what it is. I don’t assume the lawyer was being lazy. Rather, I imagine that the lawyer was “beaten down” and just gave up. Appellate clients can have strong opinions about what should be included in the brief, what arguments should be raised, and what facts should be emphasized. These views are often reinforced through limitless time with little else to do, the influence of fellow inmates with optimistic views of various statutes and precedent, and access to out of date legal materials. Imagine what it would be like for a conscious patient to have access to a medical library during a surgical procedure and a voice to advise on procedural components as the case unfolds. Or imagine if a passenger in row 15C of a plane had a microphone connected to the pilot’s headset. That’s what criminal appellate practice can be like.

The United States Supreme Court is clear how it should work. The lawyer makes decisions on which issues to raise on appeal, the order in which they should be raised, and even which potentially meritorious issue to leave out. The client has the right to be consulted and to have the client’s input considered. It sounds simple on paper, but it plays out in complicated ways as the appeal progresses and can be a true sense of frustration for the lawyer and likely for the client as well.

If the lawyer was retained, rather than appointed, the client is technically the customer. In that circumstance, it can be easy for the client to imagine the lawyer as a scribe with a law degree, whose job it is to write down, in lawyerly prose and with a lawyer’s signature the arguments the client wants to raise.
If the lawyer was appointed, the client and lawyer may be stuck on this boat together. The judge will be hesitant to support the client’s inclination to represent himself and will not want to appoint a different lawyer. The client will often try to bait the judge into allowing the lawyer off the case to create an appellate issue.
Often, it can be tempting to simply paste the client’s language into the brief as a way of buckling the pressure.

This problem is even more difficult in Georgia. The issue you opt to leave out of your brief can come back to haunt you in a habeas petition. However, if you fold in the wake of pressure to include the client’s pet issues, you are open to attack for failing to exercise professional judgment: “You listened to me. Therefore, you were ineffective.”

The lesson from the recent development in the United States Supreme Court is that you cannot abdicate your responsibility as the appellate lawyer. As tempting as it might get to say, “Okay, since you don’t like my ideas, I’ll just put your stuff in the brief.” If you do, you will be held responsible.

To Be a Better Listener / To Ask for Advice Better

January 18, 2015/by J. Scott Key

It’s been a long holiday season, and January’s been a busy time. I’m hoping to re-develop the blogging habit. And I find that I am much better at writing posts when I’m reading posts. Toward that end, I opened up the RSS app and caught back up on my favorite blogs, Simple Justice and Defending People. Scott Greenfield is as prolific as ever. He writes more blog posts before 8:00 a.m. than some people write all year. Mark Bennett is doing some sort of thing where he is numbering his blog posts.

Two of their posts caught my attention. One post is about listening and the other is about asking for advice. To be in a helping profession, lawyers are pretty bad at both. Law school doesn’t help us in the listening department. After all, we are trained to spot issues, to separate wheat from chaff, and to separate the most pertinent components of the fact patterns from the fluff. Clients need us to have that skill. But clients often have other needs — namely to “vent” or have somebody hear their story. A tension exists between those two needs. So, sometimes it’s good to just let the client go. Sometimes, it’s best to direct the story to the most pertinent facts. It’s not always easy to know when to do which. Moreover, sometimes lawyers get so busy that some of us avoid communicating with the client at all (under-communication is a common source of bar complaints). Scott Greenfield quotes Bennett:

Listening is vital to trial lawyers. It’s probably more important than any other single skill, but it is less studied, less trained, and less practiced. Lawyers often don’t listen very well. I’ve seen egregiously bad examples from all sides of the criminal bar; many times I’ve wanted to shake a lawyer or judge by the collar and shout, did you not hear what that person just said?

But the listener is not the only party to the conversation who needs to step up his game. The person asking for advice needs to do some work as well. I very often get calls from colleagues with tough legal issues who want to “pick my brain.” It’s often an honor to be a person whom other professionals might want to turn for advice on how to think about things. It is also an honor to be a person whom a potential client seeks out for help. The best “seekers” of advice do their homework before coming to me. The worst have no real sense of what their problem is and look to you to define it for them. He has three pointers for asking for advice:

before you ask for advice do whatever legal research you can yourself. You’d better have spent some time on the problem before bringing it to mentors. Not doing so is lazy and disrespectful—if your mentors thought your time was more valuable than theirs, you would be the mentors and they would be the proteges. If you haven’t already done a bunch of online research, their advice is probably going to be “get back with us after you’ve spent some time on Westlaw” or Lexis or CaseMaker … or even Google Scholar.

Secondly, you should know the facts inside out and be prepared to answer questions about them before you go to another person for advice.

Third, be able to explain succinctly the problem and be able to explain the work you have done before coming to the person for advice.

* From other lawyers, it can be difficult when a person calls to say, “I’m doing an appeal, and I’m not sure what to do. How do you do a criminal appeal?” I have gotten those calls. They’re maddening.
* From potential clients, it can be difficult if the client does not know whether or how many times she has been convicted in the past, does not know exactly what her charges are, and is not all that certain what the status of the case is.

How to ask for advice and how to listen to a person who needs advice are two great topics for a new year. On this blog, I’m hoping to “listen” more to other bloggers, to courts, and to clients to make this website more valuable. I also hope to use this more of a forum to seek the wisdom of others in a more deliberate way. I hope to get better at these things in my practice as well.

Breaking Bad News

June 5, 2013/by J. Scott Key

I found some good lawyering advice today in, of all places,The Annals of Oncology. There’s an article titled Breaking bad news in oncology: like a walk in the twilight. I’m not trying to be glib in making a comparison. Oncologists are oncologists, and lawyers are lawyers. But what we have in common is that we both must sometimes break horrible news to people. I’ve never thought myself to be good at this part of the job. And it is sometimes helpful to look to other disciplines to learn hard lessons.

Until I read this article I didn’t realize that I haven’t even thought about it very well. After all, what is bad news? “The expression ‘bad news,’ used to describe difficult communications, is open to interepretation and misunderstanding since it seems to refer to a one off communication instead of a process and because it evokes the idea of an impersonal transmission of information.” Did you hear that? Bad news is part of a process. We are not the anchorman on the nightly news?

Moving toward a better definition, “Bad news is defined as any information that produces a negative alteration to a person’s expectations about their present and future.”

The writer notes that communicating bad news is a matter of dialogue and not monologue. And choices must be made. “Does one give all the details of a clinical case or explain most of the case while holding back some details or be vague while at the same time not hiding the seriousness of the [matter]? Each of these approaches can reveal the truth; each can represent the way, the form, and the opportunity to communicate bad news.”

Which way do you go? All of that depends upon the case, the gravity of the situation, and “the patient’s [client’s] capacity to understand and sustain a conversation of this kind with his or her doctor [lawyer.].”

And yet, much also depends upon the lawyer.

Is he or she aware that in our finite condition it is not always possible to have an abolutely truthful exchange, that it is not always possible to tell everything? Absolute honesty is probably not even part of our relative, imperfect and unfinished human condition and it would therefore be a mistake to think that we can see and make others see everything clearly. However, a [lawyer] must at least try to say everything that can be said given the circumstance and so this becomes our everything.

Disclosure should be individualized, and it must put the client in a position to to make informed choices. A doctor’s and a lawyer’s world is made up of “two planets; one is epistemological and is therefore based on [law] and connected to his or her professional competency. The other is defined by the [lawyer’s] values, convictions, choices, and emotions.” The first step is to examine those two planets and face your own fears and not to confuse one with the other.

For the writer, “it is an extremely difficult task but if done properly it leads the [lawyer] to construct the therapeutic alliance which allows the [client] to listen to bad news without being overcome by it; to hear a possible truth, said with delicacy, without being dismissive or brutal and without shame.”

There’s a bit of practical as well as philsophical advice.

Find the appropriate time and place to have the dialogue. Cell phone off or on silent. Figure out, with the client, whether to communicate with family or alone? Allow time and space to process.
Use appropriate language that can be understood.
Communicating bad news is as much about listening as it is about telling.
Explain all options and the advantages and disadvantages of each.
Summarize the conversation “mentioning again the agreements which have been reached” and outline the next steps.

This is never an easy thing, but it is best managed with a view toward forming an alliance with the client to work through the painful process together.

Ray Lewis, Facebook, and the Justice System

February 4, 2013/by J. Scott Key

Ray Lewis’s retirement has made for an interesting time to be a criminal defense lawyer.

Many of us who defend people for a living lead two lives. In one, we are in and out of jails, explaining things to clients. We are in the hallway huddled with families after a loved one was led out of the courtroom in handcuffs. We engage in dark humor with colleagues because it’s the only way to maintain a sense of sanity. We nod and smile politely as judges yell at us or the folks we represent.

In the other life, we spend time with our friends and family, for whom the inside of a jail or a courtroom are as foreign as Timbuktu.

For me, those two lives also involve working in Decatur, a blue-state island within red-state Georgia, and living in my little neighborhood in Griffin. My neighborhood is a ~~white Republican~~ red-state enclave within a blue-state city.

The same Facebook that freaked me out about the political process last October is now freaking me out about the criminal justice system. The Court of Facebook is even harsher than the Court of public opinion. I’ve seen Lewis tried by status update and comment. The Facebook environment encourages participants to do something they’d never do in public — shout uninformed opinion over a megaphone. The system of “likes” is the modern-day amen corner. For weeks I’ve been thinking of deactivating my account. Yesterday, the straw broke the camel’s back.

While I agree that the acclaim that Ray Lewis has been getting is overblown, I watched a lot of that trial when it happened. The lawyers on that case (even the assistant D.A.) were true all stars to me, and I wanted to learn from them. I set my VCR every morning and watched the trial at night when I came in from my summer law job. It didn’t take long for an interested viewer to learn that this case should never have gone to trial.

The case had some real problems. Ultimately, Lewis was offered a plea to a misdemeanor. The trial continued against his less celebrity co-defendants, who were all acquitted. The sequel to this trial being played out around watercoolers and online is a different animal entirely. There, the evidence doesn’t matter. The strength of the case doesn’t matter. He must have done it, or they’d have never arrested him. Who does he think he is with his emotional behavior before and after the game?

I’d be willing to bet that the “prosecutors” in this new trial couldn’t name the victims or Lewis’s co-defendants. Details don’t matter, when you’ve made up your mind about something from a 30-second news blip on ESPN.

Bill Rankin, at the AJC, did a great story on the case and its many problems. Over on Facebook, this case and the world are much more simple. But here is what the former lead homicide detective from that case has to say about it today:

The investigation remains raw with Ken Allen, who had just been promoted to his dream job as an Atlanta homicide detective. Allen was put in charge of the investigation but saw it hijacked by political forces, which ultimately caused the case to collapse at trial.

“The focus of the case was Ray Lewis, not necessarily because of the evidence but because he was a celebrity,” said Allen. “It was like they were star struck and saw this as a case that could make a career.”

In my line of work, I’ve had the misfortune of defending folks whose cases have attracted media coverage. Inevitably, the court of public opinion convicts people instantly. And I’ve represented people who were acquitted or who had their charges dropped only to call me later when a potential employer chose not to hire them simply because of the arrest (“he must have done something wrong or he’d never have been arrested”). They ask me what I can do to help, and I soon find myself running out of answers early in the conversation.

One day I’d like to buy my friends and my “friends” a beer and tell them some stories about how some of the judges treat me and my clients and about some past jury selections that have begun with rural jurors presuming my client to be anything but innocent.

I enjoy my job very much, but it’s not always a picnic. The Nancy Graces of the world don’t help things.

At the end of the day, I choose to keep my faith in the system even when I know that the same weak prosecution case would likely have worked against a poor defendant without the means to hire the very best defense counsel and investigators.

The invective I’ve heard at barbecues, at cocktail parties, and over Facebook reminds me of how fragile this system is. It’s a wonder that the State ever loses.

Recently, I completed the new biography on Thomas Jefferson. We are very lucky he was born in Virginia in the 18th century. He’d have never been elected today. We’re equally lucky that the Constitution was ratified then. A modern-day Bill of Rights would likely have only the Second Amendment in it.

I’d miss this system if it changed significantly. But I don’t think I’ll miss Facebook.