“I’m your court-appointed attorney, not your court-appointed friend” – Author Unknown.
There are some conversations or statements that are hard to unhear. To this day I cringe when recalling the conversation through which the above sentiment was relayed to an unknown client by their court-appointed lawyer. They definitely were not friends, counsel had seen to that.
I have some skeletons in my public record closet. I was convicted of a DUI nearly a decade ago and just a few months ago, I had to face a charge of reckless driving for “allegedly” passing a school bus illegally. Each time, I “hired” dear colleagues who helped me navigate, to a conclusion, these embarrassing moments, successfully… despite my shame, denial, and righteous indignation.
These dear colleagues were professional colleagues and friends. I knew they cared about me and I knew that they had good reputations for doing this very work which I needed.
It was so shaming to be a lawyer practicing criminal defense who needed to be helped in this way. I cannot imagine how I would feel about being represented by a lawyer who had told me to my face, we were not friends.
Machine logic has always helped me organize my ideas. I tend to hold on to figures and math and 5:1 is the ratio. 5 good interactions for every 1 bad interaction. This is what it takes to establish, generally, a good relationship. In a profession where there are ample opportunities for bad interactions, lawyers, especially criminal attorneys, need to look to create or manufacture all the good interactions we can.
Here are the usual interactions we have with clients in criminal defense:
“Sorry, the witness that will prove your case doesn’t want to testify and if we force them to, they will likely lie to avoid conflict with the victim.”
“I have your discovery responses and it doesn’t look good.”
“The prosecutor refuses to go below the guidelines and absolutely refuses to lower your charge.”
“Sorry, (client’s family member), you aren’t my client, so I cannot share confidential communications with you.”
“I’m too busy to come see you in jail and there is no change on your case from last we spoke to make it productive.”
“Your spouse is seeking divorce based on the assault and your diagnosis of mental illness you were given.”
The list is endless for the bad news and heartbreaking loss a client experiences throughout the legal process.
A relationship is defined as “the way in which two or more concepts, objects, or people are connected, or the state of being connected” – Oxford Languages Dictionary. How are a client and legal counselor in any way not connected or in the state of being connected? It’s called a client counselor relationship, afterall!
Initially, I would say it’s obvious, we are connected by the legal matter and need for the legal matter to be resolved. Resolve is defined as “settle or find a solution to (a problem, dispute, or contentious matter)” – Oxford Languages Dictionary. Is solving a legal matter the only thing I do as a lawyer?
To this, a resounding “no” is my answer. I am not merely a vessel to focus on issues merely in a legal context. I deal with human beings in all of the they exist. When I try a case, a trial is bifurcated, meaning two parts.
The first part is guilt or innocence regarding whether the facts happened and my client is the one that “did” those facts or actions.
The second part is sentencing where I must put on mitigating evidence and information to help the fact-finder determine the appropriate sentence or consequence to those facts. How can I include mitigation evidence at a sentencing hearing without knowing and sharing important and intimate elements about my client’s struggles and life to adequately educate fact-finders about what an appropriate sentence looks like?
Mitigation begins the moment I’m appointed or hired. Normally in Virginia, sentencing would be delayed 90 days, at least, for there to be a Pre-Sentence Investigation to give background information about my client to the judge. Additionally, that time could be spent getting my client to do community service or take domestic violence classes, or attend AA or whatever to demonstrate to the judge while considering the sentence. Not so for a jury trial.
At the time of my very first jury trial in Virginia, I was caught flat-footed. For many years jury trials in Virginia required jury sentencing and so juries would not assemble 90 days later, sentences were assessed that day.
You pour your heart and soul into preparing the case for trial and if you lose, you put on the sentencing hearing immediately in front of the very group of people who just said your client just broke the law.
Usually, something awful. Now as an attorney I had to pivot and show my client’s redeeming qualities in a desperate effort to convince the jury to be lenient with sentencing. I didn’t realize this until it was too late. Lesson learned.
Time doesn’t allow for mitigation to begin “later on down the road”. And preparing a client for this process is only achievable if you understand the underlying dysregulation, or unresolved trauma that lead to the criminal behavior. In a lot of cases my clients aren’t aware their actions are being driven by dysfunctional, outdated patterns of self-reliance that no longer serve them.
Throughout my career I’ve witnessed countless examples of this very important principle.
A dear friend of mine was in violation by drinking around her minor children while they were in her care. I was not her lawyer, but she called on me for legal/moral support the day she got the summons for violating the terms of alcohol use during her custody.
She was already drunk when I got to her house. It was before lunch and her father left her kitchen table as I arrived, to give her some space to have a discussion with me. She eventually told me that she couldn’t get the taste of her brother’s blood out of her mouth. He had shot himself in the head in front of her almost two decades before and she had given him mouth to mouth resuscitation until EMS arrived … to no avail.
The man sitting at her table upon my arrival, had deserted her family for another woman when she was little. Months of no electricity and other amenities her siblings and mother endured because of the lack of his support.
I was her friend and it broke my heart to hear that story. It made me look differently at the glass of red wine she filled up at least twice as I spoke with her. She wasn’t an alcoholic, she was heartbroken. She had been heartbroken for nearly 18 years. The taste of her brother’s blood, the failed attempt of resuscitation after decades of struggle and abandonment.
Friend, in the Oxford Language dictionary is defined as:
1. A person whom one knows and with whom one has a bond of mutual affection, typically exclusive of sexual or family relations.
– (often as a polite form of address or in ironic reference) an acquaintance or a stranger one comes across.
– a person who acts as a supporter of a cause, organization, or country by giving financial or other help.
– a person who is not an enemy or who is on the same side.
– a familiar or helpful thing.
Yes, I am your legal friend. I don’t know what else could be more appropriate.
I don’t know what comment or request prompted my colleague to say that to their client. I don’t know what my colleague was dealing with to have responded like that. I just know they couldn’t have been more wrong. I also know their client could likely never see a lawyer as helpful without a great deal of care and attention from the next legal friend they require. I hope they find someone up to the task.