A post this morning on “Thinking Like a Lawyer” snapped me to attention. It was perfect in so many ways, but one part in particular told me what I was writing about this morning.
I write this blog for a couple of reasons. The primary reason is that I have things I’m interested in saying, about things that are important to me. So you’ll see posts like the last few which deal with crucial socio-legal issues. Police State issues like Ferguson, for example, or the somewhat related problem with the Criminalization of Everything, police state’s handmaid.
Without specifically making my blog “just another marketing tool,” like too many other lawyers do, I also use my blog to talk to potential clients. To give them an opportunity to know something about me. Because despite over-criminalization, not everyone needing a lawyer is going to know someone who knows enough about a criminal defense lawyer to give a good recommendation. People will say, “Oh, my cousin Vinny is a lawyer,” and, well, okay that might be a good choice. But what about “my cousin Oscar”?
Maybe not so much.
My blog is an opportunity for people who are searching for a lawyer — whether they know someone with a cousin named Vinny, Oscar, or without any cousins at all — to learn a little about me; to get a clue about what type of lawyer I might be. ((And, let’s face it, a blog provides only a clue, and possibly not always the most reliable clue, but it’s more than nothing at all. Of course, this only really works if the blog is actually written by the lawyer, which raises a whole ‘nuther issue.))
Yep. I’m a bit of a hand-holder. I built my practice around it, after learning early that too many attorney-client conflicts occur not because the attorney is a bad lawyer, but because clients are clueless about what was happening with their cases. This is actually the Number One reason that people mistakenly believe their appointed attorneys are “Public Pretenders.”
It’s not because the lawyers aren’t telling them about their cases, either.
Scott notes that,
Some lawyers prefer to handhold clients, catering to their sensitivities at the expense of addressing the relevant legal issues. Others prefer to guides clients to understand why some things matter and others, deeply important perhaps on an emotional level, are of no relevance at all on a legal level.
This, of course, is not a Kierkegaardian Either/Or proposition, where the client is asked to take a leap of faith with the attorney, and forego the need to understand. Too many attorneys, though, act as if that actually is the case. They “tell” the client what is happening sometimes. Maybe they even “tell” them what the plan is, what the expected result might be, and so on.
What they don’t always do is communicate.
I have little doubt, ((I’d say “no doubt,” but I haven’t talked to him about it! I learned a long time ago that I can’t always assume what’s in someone else’s mind. In fact, that’s at least part of what this post is about!)) by the way, that despite the appearance of juxtaposition in the quote from Scott above, Scott actually would agree with what I just said. There’s a third type of lawyer missing from his list, which really delineates points on a continuum, that would clarify the point: “Yet other attorneys simply expect clients to ‘get in, shut up, and hang on.'”
The problem comes in where what really is needed is for “clients to understand why some things matter and others, deeply important perhaps on an emotional level, are of no relevance at all on a legal level.”
It is fairly common among human beings that communication goes awry. Again, Scott’s post recognizes this:
What the law is can be confusing, only because courts tend to be inconsistent at times, where decisions are issues with absolute certainty that are in direct contradiction of another decision, also issue with absolute certainty. Law isn’t always science, with an equation that gives a reliable answer, because words are poor mechanisms to convey very specific messages, and judges don’t always use them well.
Too many lawyers share this failing. In fact, it’s a normal problem with communication, especially between disparate cultures. One of the primary reasons for this has to do with implicature.
Scott talks in “Thinking Like a Lawyer” about the way that law school is supposed to work. Quoting the fictional Professor Kingsfield, of The Paper Chase, he notes:
You come in here with a head full of mush and you leave thinking like a lawyer.
This is an important — if these days neglected — focus of legal education, because as Scott goes on to point out:
When someone walks into a lawyer’s office, they will tell their story. It’s usually a long story, convoluted and filled with extraneous details, all of which matter enormously to the story-teller because they suffered the details. It’s the lawyer’s job to focus, to sift through the details and figure out which are relevant (tends to make a fact more or less probable) and material (bears a logical connection to a fact in issue), and which are simply there, background noise of no consequence to whatever the core issue may be.
After that, Scott says, it’s just a matter of time and memory to learn the law.
While that’s true, it elides an important component of learning the law, and that is learning the language of the law.
Therein lies the problem I see most often in attorney-client communication. And it’s not just attorneys, by the way, but those specialized attorneys-in-the-black-robes seem to suffer the affliction to an even greater degree. Perhaps this is because most jurisdictions require a certain number of years as an attorney — enough to forget that “legal English” and “American English” are not the same thing — before one becomes a judge. ((I realize there are other forms of English, as well, but I am a California lawyer, writing primarily for an American audience.)) It’s further complicated because most judges these days are former prosecutors, whose lives are a world of different from the git-go compared to most of the people hauled before the bench.
The language of the law can be problematic because it frequently uses the same words as American English, but in different ways. (Perhaps this is why, for so long, learning the language of the law meant learning Latin, and certain concepts were expressed in opinions, briefs, and oral arguments, using Latin phrases. Today, nobody learns Latin, even for the study of law, and those concepts are squeezed into ordinary American English.) This accounts for some of the “mushiness” we see in published court opinions.
For an example, take a look at name of this blog: Probable Cause. The noun phrase “probable cause” has a specific meaning in the law which can be confusing to non-lawyers. (It can be confusing to lawyers, too, which is just a sad commentary on the education of lawyers, and the wishy-washyness of the law.) Non-lawyers see the word “probable” as modifying the word “cause.” Their focus is on the word “probable,” which has very little to do with the legal definition of “probable cause.” As I explain this to my clients, I point out that “probable cause” — at least in the context of a preliminary hearing — means “possibility,” or to put it the way I actually explain it in the context of a preliminary hearing:
The judge has to determine that a crime might have been committed, and you might be the person who committed it. It doesn’t even matter if there is an alternative explanation: you could be absolutely 100% innocent of any wrongdoing, and still be “held to answer” (another phrase that has to be explained). Even though you are 100% innocent, if the judge thinks you might still also be someone who might have committed the crime that might have occurred, then we’ll have to think about trial.
Often it takes a little more ‘splaining than that.
Again, though, the problem of attorney-client communication usually comes down to implicature. Lawyers, having learned a new language through years of use within the environment of other lawyers, and judges, writing briefs, and opinions, too often seem not to realize that what makes perfect sense to them makes no sense to non-lawyers. The words are the same; they mean different things. Unlike while reading this article, clients cannot “right click” on an oral conversation to pull up the definition of words they may not recognize.
Which brings us to a second problem: too many clients are human. They have an aversion to feeling as if they “look stupid.” It is therefore not uncommon for clients to nod their heads when asked if they understand, and to not tell you that they do not understand if you don’t expressly ask whether they do, or not. This can lead to anger, and frustration, as the lawyer thinks he’s already explained things, and watched as the client nodded, but the client complains that the lawyer never talks to him about his case. I’ve seen people in court complaining to the judge that their attorney never talks to them, and then agree when the attorney says that he’s met with the client several times “to discuss the case.” The attorney thinks that when they met to discuss the case, that’s what they did. The client thinks that when they met to discuss the case, the attorney didn’t listen to them, and didn’t explain things. The attorney — to paraphrase Scott — focused, sifted through the details, and figured out which were relevant (tending to make a fact more or less probable) and material (bearing a logical connection to a fact in issue), and which were simply there, background noise of no consequence to whatever the core issue is in the client’s case.
So when they met, and the attorney spoke, the client did not understand — and head-nodding, by the way, can sometimes just mean “I’m listening,” without meaning “I’m understanding” — thus, from the client’s point of view, the lawyer never talks to him about the case!
This is where “handholding” comes in. To a certain extent, it’s just recognizing that you are communicating with someone from a different linguistic culture, and, well, taking the time to communicate. ((Implicature problems, incidentally, are an even bigger problem when there is a non-linguistic culture underlying the linguistic one, such as when you are talking to someone born and raised in another country, or even an American subculture.)) But when I hear lawyers — at least where I live — complain about clients who need their hands held, what they’re usually really complaining about is that the client needs more than for the lawyer to say, “Okay, well, the judge held you to answer, so now we need a new contract,” or “The fact that your wife sent you a text message first, and then you responded — that’s why the judge said you’re guilty of violating the court order.” ((The latter situation isn’t so much of a definitional distinction like some I’ve focused on above, but it’s still an implicature problem. The client doesn’t understand why his response to his wife’s text message is sufficient — for most courts in which I practice, anyway — to uphold a finding that he violated the order, without further explanation.))
In other words, clients want more from attorneys than just to have you defend them, and handle their case.
They wanna hold your hand, and have you translate for them. They want to know that you got what they tried to tell you, and to understand what’s happening in their case.
For me, it helps to always remember the words of attorney Vincent Hallinan (1896-1992),
Lawyers make a good living off the misery of others and any lawyer not willing to go to jail for his client has no damned right being in the courtroom.
I have not yet had occasion to go to jail for my clients (although if it were necessary to do so, I would), but I’m the kind of person — and lawyer — who, if I see you in misery, I wanna hold your hand.