Little Jack Horner

One of the sad truths of being a criminal defense attorney is that we are dealing with people during times of high stress. I don’t get very many people walking through my door who say,

Hi. I’ve been charged with committing a crime. I’m not very worried about it, but I thought it would be a good idea to come hire you, anyway. ^[1]The only place I’ve even heard of such a thing happening was in Franz Kafka’s book, The Trial, when Josef K. finally went with his uncle to hire an attorney.

On the contrary, most — if not nearly all — the people who come through the door of my office (and even more of those I have to go visit in jails because they cannot get out to come to my office) are quite upset. Disturbed. Emotional. Tearful.

Some are near basket cases. 

A great deal of their distress is caused by the fact that, for more than a few of them, this is their first encounter with the criminal “justice” system. They are understandably lacking in knowledge of the most basic information about “what’s going to happen,” by which they don’t just mean “am I going to prison?,” but the more simple question of “what’s going to happen at the next court hearing?”

I spend a great deal of time going over procedure, and trying to set client expectations, not just for their case, but for that “next hearing.” I take very seriously the fact that aside from being called a “lawyer,” or an “attorney,” I am also frequently called “counselor.”

Yes, I am a counselor-at-law, meaning that I advise people with respect to the legal issues in their cases. But I cannot do my job unless, to some extent, I am also a counselor in the sense of “a person trained to give guidance on personal, social, or psychological problems.”

No, I’m not a psychologist. I’m not even a social worker. But, as the opening paragraphs of a book I’ve become particularly fond of state,

Most lawyers would benefit greatly from knowing more about psychology, that is, the science of how people think, feel, and behave. After all, the typical lawyer spends much of his time interacting with people: clients, other lawyers, staff, witnesses, mediators, arbitrators, insurers, experts, judges, and jurors.

Lawyers who can harness the insights of psychology will be more effective interviewers and counselors, engage in more successful negotiations, conduct more efficient and useful discovery, more effectively persuade judges and others through their written words, better identify and avoid ethical problems, and even be more productive and happier. ^[2]Jennifer K. Robbenholt and Jean R. Sternlight, Psychology for Lawyers: Understanding the Human Factors in Negotiation, Litigation and Decision Making, 1 (2012). I’ve always been interested in psychology, and read quite a lot of it because I’ve always felt it was particularly important in my job as a lawyer. This book is one of my favorites right now because it’s oriented towards lawyers. So it’s not just a good introduction to psychology, but an introduction to psychology that’s directly on point for the things I encounter on a day-to-day basis. If you’re a lawyer, you absolutely should read this book.

Understanding psychology is not just a matter of making one a better lawyer. Without a good understanding of psychology, I could not help the people who are my clients as well. ^[3]So my point isn’t missed, let me be more explicit: sometimes, attorneys think of “clients,” and recognize “clients” are important, but actually forget that “clients” are people. And people have feelings, are driven by those feelings, within the constraints of their histories, cultures, and current situations. To discuss this further would put me into a whole ‘nuther post. Understanding what they are going through, and that they will not always be rational, makes it easier to be patient with them, and for me to remember that despite my best efforts, they will forget things.

That said, clients really do need to understand that attorneys are not magicians. Not even the best of attorneys. Certainly not me. I can’t even pull a dime from behind your ear. ^[4]If I could, maybe I wouldn’t end up working pro bono so much!

Clients — especially those who have never been in trouble with the law before — expect everything to happen yesterday. Or at least right away. At best, tomorrow.

The more anxious, and the less their prior experience with the courts, the sooner they expect things to be done, and the more they call to get updates on their cases if they don’t hear from me frequently. With some clients, I kid you not, this can happen more than once a day.

I write this for everyone who has a court case, is anxious about it, and may occasionally become upset because they “haven’t heard anything” from their attorney in a day or two.

Your attorney — whether me, or someone else — should have the training, knowledge, experience, and commitment to handle your case. But, as I said, we don’t — we can’t — perform magic. In fact, I don’t know what special powers other attorneys will, right or wrongly, claim for themselves, but about the closest thing I have to Expelliarmus with which to disarm the prosecutors is neither a spell, nor a potion, but a motion.

And motions — heck, even potions — take time to prepare.

This is where the anxiety of my clients can become a problem. Despite my understanding of the anxiety of my clients, I still have to be able to actually work. This is why sometimes when you call me, my office manager is the person who is going to speak to you, and she may tell you that there have been no new developments in your case. This is why sometimes, even though I know you’re sitting over there in the jail, wanting to hear from me, I’m not going to make it as quickly as you would like.

I’ve made a commitment to my clients — and if you’re my client, I’ve told you this at the beginning of your case, and it’s part of my written contract — that I will keep you updated as to any new development in your case. And that will always be done. Even when nothing new happens in your case, if you are in jail, I nearly always, with very, very, very rare exceptions, visit between court appearances. Even when you are in another county. ^[5]As I write this, I have cases in four different counties. Clients in three of those counties are in jails. Some counties, like Tulare County, and Fresno County, have more than one jail, in different locations. I visit clients in all of those jails between court appearances to discuss their cases, any investigation, motions, etc.

But here’s the problem…here’s why I’m writing this post…those visits unfortunately have to happen when I can make them fit into the calendar. Aside from the fact that I will travel a couple hundred miles in moving from one jail to the next if I tried to do them all on one day, there is the waiting time while you are brought from your cell. It is not unusual for me to have to wait anywhere from 30 minutes to even an hour sometimes for the jailers to bring you from your cells to meet with me. Then I have to factor in the time of our visit. If you are my client, you know that I don’t rush my visits. I have a rule that I don’t leave until you tell me I can leave. So far, I’ve never broken that rule. ^[6]The purpose of the rule is to ensure that I never leave someone with the feeling that they didn’t get to ask all the questions they might have. If someone were completely unreasonable and tried to keep me for hours, when we really had concluded our business after a much shorter time, I’m sorry to say that I would break my rule. But not without first trying to get you to stop being unreasonable, and not without trying to get you to agree. Not long ago, a young man kept me four hours. I was close to breaking my rule with him, but I didn’t.

I know you’re anxious. I know you may be scared. I know you are desperate to get out of jail, or to have your case dismissed, or resolved, or in some other (preferably favorable) way come to an end.

But my primary commitment to you is to fight your case. I cannot do that, and fight the cases of my other clients, ^[7]No lawyer can live by defending only one person, so you know I have to have other clients. and show up for court for my various cases, and do the legal research for your case (and, again, other cases). And so I might not immediately drop everything the minute you call, and either take your call, or high-tail it to the jail to visit you when your relative calls on your behalf.

That does not mean that I’ve lost all concern for you. It’s not that at all.

Quite the contrary: actually working on a case takes time. There are only so many hours in a day. And I can spend them visiting you, talking to you on the phone, or working on the case. I cannot very often do all those things at once.

But, know this: when I’m not with you, that does not mean that I’m off somewhere sitting in a corner with a pie, like Little Jack Horner.

And, unfortunately, that also means I’m not going to be able to stick in my thumb, and pull out a plum, or a dismissal, or a resolution, if you only just keep calling me often enough.

Besides, if you knew the real story of Little Jack Horner, you wouldn’t want that anyway.