Advocates, Counsellors, Masters of Shadows

I once stood on the courthouse steps with a man about to go to trial. It was many years ago. "You are confusing me," he told me. "You keep telling me I should settle, but you are willing to fight." When I tried to explain that being both counsellor and advocate was part of the job, be didn't get it. Lawyers are required to play both roles.

The Chronicle of Higher Education reports on a new study that says that lawyers, even experienced lawyers, are often too optimistic about what they can do for a client. It seems that no one is immune to star dust when the attorney-client relationship is formed.

It is a source of constant sorrow to me how often clients do not listen to the good advice of their lawyers. It makes me wonder whether it is, in fact, far easier to lead a client to the courthouse than it is to make them think. But a lawyer wears two hats in representation of a client, whether the case be criminal or civil. Behind closed doors, the lawyer is advisor to the client; before the world at large, a lawyer is an advocate. The roles of counsellor and advocate do not conflict, but they do call upon different skills.

A counsellor should be capable of the necessary detachment to assess the facts at his disposal and then relate those facts to a legal theory capable of providing relief or a defense. All that passing a bar examination means is that a lawyer has become minimally competent in recognizing the most common types of claims. A member of the bar is supposed to be able to spot issues. Notwithstanding the report in the Chronicle, I still think that experience matters in helping a lawyer make judgments about likely outcomes.

The trial of a lawsuit on behalf of another person is a wild, schizophrenic experience. Months and years before trial, a case may take one shape in the mind of a lawyer. As work proceeds, the case changes shape. On the eve of trial, forms change yet again. A common metaphor among lawyers is bargaining in the law's shadow, or reckoning the likely outcome of any marriage between fact and law. I perfer to call trial lawyers shadow masters: We dance in darkness while seeking light.

But there are shadows cast by factors other than the law and facts. The law speaks in terms of reasonable persons. In fact, the very concept is a legal fiction. We are all reeds that bend to silent and secret winds. What may look reasonable to the lawyer may be an insult to the client. That is why, in the end, all a lawyer can do is recommend an outcome. The client always chooses how to resolve a case, whether by settlement or trial. Because this is the case, a lawyer must be prepared to accept decisions he or she regards as plainly irrational. The shadows cast by a client may be dark and impervious to the reasons a lawyer regards as legitimate.

To be effective, a lawyer must recognize his or her own shadow. That takes work and years of experience. Indeed, I once heard it said that a lawyer needs to try 25 cases before having a sense of what trial actually entails. Something like that seems right to me.

I've noticed in both the civil and criminal courts that after a certain number of years of experience the judgments of lawyers about what is reasonable tends to converge. How many years to propose as part of a plea for a given crime, how much money to offer or accept in exchange for a release of a certain claim, these numbers respond to the pressures of an inchoate market in human suffering. Judges pressure lawyers to persuade and educate their clients on the silent consensus of the legal professionals about what is fair, just and reasonable.

But clients govern outcomes. Trial is often inevitable.

Something odd happens to lawyers preparing for trial. A good friend, Jim Nugent, and I coined a term for this transformation. We call it advocatitis. Call it a form of tunnel vision in which the trial lawyer comes to see only that which he believes it is necessary to prove to win. Come trial, I believe a lawyer's shadow looms large. Advising a client about whether to settle a case or go forward means managing their expectations; it also means managing your own. Sure, you know how to fight, and are prepared to do so: But running face first and naked into the treads of an oncoming tank is fatal. Trial is but another form of death.

The Chronicle piece was insightful, but it was really no more than a peak into the darkroom. Trial lawyers know many dark truths. They know that when a client first appears it is difficult to distinguish truth from fiction. They know that once the case is underway and discovery takes place the truth changes shape sometimes day by day. Once trial comes, a trial lawyer knows a more sobering truth: The cost of defeat is unacceptable and all must be mobilized to win. Once a gavel falls a lawyer must remind himself that today is good a day as any to die.

When a verdict comes a trial lawyer soars with joy or crashes in defeat. Yet always his job is to be the good shepherd to the client at his side. We live and die by our verdicts, but we rise again to each new case. Odd how in the course of writing this piece the role of the trial lawyer emerges cloaked in Christ-like images. We pour out our lives for clients, sometimes redeeming them and sometimes suffering crucifixion. The shadows we cast, as the Chronicle observes, often reflects much more about us that we care to acknowledge to ourselves or to our clients.

Note: A variation on this theme by a mind more supple than mine. Gamso. Gideon, of course, got here first.

Comments: (11)

  • I've been waiting with bated-breath for your respo...
    I've been waiting with bated-breath for your response. Lee, I knew you could do it! Actually, after doing a little research, I discovered you're a P.D. in CauliFornia, that you are actually a woman and not in CT. None of which I knew when I wrote the above. Consider yourself fortunate?!? You may therefore take this an an apologia.
    Well, so now we know you are an 'over-worked and underpaid' defense counselor for the State. Let me say this about that,... Actually, this is probably not the proper time for me to get into THAT. But trust it, I do have some personal experiences and insights to relate. That is for sure. (Most of which are already up there on various forums.)
    "The way in which I deliver my message,..." I'll have to take that under advisement. Here's how the lady judge delivered her message at Sentencing, Nov. 2002: "Mr. Doriss is a difficult person. He put the State to ITS test. But it is NOT about accountability which Mr. Doriss should be be held to... [yes, she said 'not'] But Mr. Doriss is not showing any SIGNIFICANT remorse..." [My emphases; I do not know how to italicize.]
    Where is the law which says I must show 'significant' remorse for crimes I did not commit? Crimes which were 'manufactured' by the State itself and shoved down my throat, illegally, unlawfully and, last but not least, UnKonstitutionally? That is not a 'rhetorical' question; that is a REAL question which no one has been willing to tackle.
    Anyway, food for thought. Hey look, I have the right to come into court and declare my Innocence to the Bitter End, and admit to nothing (5th Amendment, right?), especially when the Sate is orchestrating an outrageously bogus case against me,...and my family, friends, associates and--most importantly--the so-called press are absent, even when invited.
    I leave you with the following: No crime worthy of mentioning was ever committed in 58 years by William H. Doriss, Jr., son of Lt. Commander William H. Doriss, Greenwich, CT and Arlington National Cemetery. If that were the case, they would have been all over the press and newspapers. I challenge you to find ONE press report of the crimes allegedly committed by WHD Jr. in CT. Come on WHD Jr. was facing 69 years, and that's not chopped-liver. That is in fact, three 'life sentences'. Demonstrable crimes WERE in fact committed against him by the City of New Haven and the State of Connecticut in bringing him to 'justice'.
    Saddam Hussein got more justice in Baghdad than WHD Jr. in New Haven at GA 23, and that is affirmative!?!
    I am perfectly entitled to express my outrage in any way I see fit, wherever I can and as often as I can in order to correct the erroneous records and achieve a complete and total exoneration of all bogus charges thrown against me by the incompetent State of CT. My cases in CT are extremely important, but no one will have a look-see. Everybody apparently thinks its OK to charge someone with bogus, trumped-up, piled-upon false charges, and then 'engineer' two completely bogus misdemeanor convictions so as to cover their a$$es and protect themselves from a major civil rights lawsuit if I were to have been let off 'Scot-free'.
    Not only that, but I took my 42 U.S. Code 1983 lawsuit all the way to the U.S. Supreme Court, without the help of any attorney. One, two, three; now everybody yawn. That got zero press as well. Who cares? Answer: Nobody!
    Good luck, and keep up the good work. Don't let the boys' club of legalistic bloviator-blawgers get you and Mirriam down. Also, as an old dog now, and don't take kindly to picking up new tricks, if you catch my drift? I like myself just the way I am. My philosophical and personality characteristics, such as they are, are v. much in alignment with Norm's--which he has been v. generous in sharing with us.
    People want me to change??? I want other people to change more to my liking. I don't care if it's the Prez or my senator!
    Posted on June 13, 2010 at 8:25 am by William Doriss
  • Fair enough, Mr. Doriss. The point I was making wa...
    Fair enough, Mr. Doriss. The point I was making was that perhaps the way in which you deliver your message turns people off before they can even hear the message.
    Posted on June 13, 2010 at 5:57 am by Lee Stonum
  • Well, yes and no, Lee. However, I'm not going to b...
    Well, yes and no, Lee. However, I'm not going to bless you with the benefit of my insights other than what's been posted here or what's been posted for free in the press.
    That's the bad news. The good new is, I do live in the 'real world', not the world of make-believe. And I have a book on my desk now which you might want to have a look at: You and the Law, by Henry V. Poor, Associate Dean, Yale University Law School, Reader's Digest, 1971.
    Hint: It is a p00r excuse for a law book, my opinion of course. Hey look, I can double-talk as good as the best of you. My IQ is a little higher than speed-limit. Just because I did not go to law school, that does not make me a 'bad' guy!?!
    Let me just say this: For the most part, I've not had enough resources to hire you expensive CT attorneys. Another fact is the unwillingness of the courts to 'entertain' 42 Civil Rights Chapter 1983 lawsuits, as recently posted by Norm. I was gratified to hear that from the horse's mouth, so to speak, as Norm is most definitely part of the legal establishment, whether he knows it or not, whether he admits it or not. (Not a criticism, just an observation.)
    Also, when I turned 62 three years ago, I was entitled to retire. So I retired, even though I had no intention of retiring so early. Nothin wrong with that! I live in an area with plenty of retirees, and I don't mind associating with them. However, I actually like to work. I've always liked working, REALLY working--even though I have a service-connected disability--not talking on the telephone, pushing a pencil or standing next to a broken Xerox machine. I had my own legal and lawfully registered business in CT for over ten years. But that was before.... You know the rest, if you've been reading my comments, or you can google me. There's plenty up there. I'm on YOuTube also. Not very good, but it is me.
    I'd like to see the look on your face if YOU walked into GA23, and they told YOU, you were facing 69 years prison? I don't think you'd be sleeping too good either. Think about it. Think about it reeeel hard!?!
    P.S., Though officially retired, my job description now reads 'Activist for Criminal Justice and Corrections Reform'. I do quite a bit of that for ten years now, and nobody pays me. I am well-known in the New Haven activist community. I have spoken publicly more than once. Thanx for asking and thanks for tunin' in.
    Posted on June 11, 2010 at 1:38 am by William Doriss
  • Mr. Doriss, have you ever paused to reflect on why...
    Mr. Doriss, have you ever paused to reflect on why you've been out of work for three years and no attorney wants to be hired by you?
    Posted on June 10, 2010 at 4:24 pm by Lee Stonum
  • And now you have definitively proven that you don'...
    And now you have definitively proven that you don't read my blog. I am sad.
    Posted on June 8, 2010 at 1:43 pm by Gideon
  • No DumDum, the first and most important thing you ...
    No DumDum, the first and most important thing you learn in law school is how to ask for THE MONEY up front. In no other profession do you ask for ALL the money up front. Now, how comes I know this when I never stepped foot inside any law school anywhere?
    I hear you can still become a lawyer in Maine by merely passing 'the bar'. I like that. That is the spirit! So far, the only bar I pass is the one on the way home from work. Oops, I'm out of work for three years, and there's no love lost between me and you out-of-work, or overworked attorneys. Twiddle your thumbs, blog, agonize over your choice of professions. Contemplate why the public-at-large hates you attorneys so much?
    Attorneys, attorneys everywhere, but when you really need one, where are they? You attorneys have more excuses not to take a case than Carter has Little Liver Pills.
    I knew I was in trouble during my trial when not only did the State's attorney lady give me side-long glances but my lead public defender lady gave me exactly the same glances. I wonder if Mr. Pattis gives his Great-Expectation-but-Low-Reality-Based clients side-long glances? All professional gamblers know to look for the 'Tell'. The apparently legal profession of obfuscation, lying, misrepresentation, fibs, white lies, misleading statements and outright fabrications is alive in well in the new millenium.
    There's a breaking news story out of New Hampshire today regarding another apparent overreaction in what is rapidly becoming the premier police state in New England. It looks as if CT is about to be eclipsed. Stay tuned.
    P.S., And how comes the most important laws in the world are not taught in 'law school'? The Law of Unintended Consequences, for example, which I assume you attorneys learn on-the-job! I learned more from actually attending three criminal trials than I learned from reading 30 books about the law, criminal justice and the (misnomer) Supreme Court!?! I don't need twenty-five. If you've seen one, you've seen them all. Trust it!
    Posted on June 8, 2010 at 10:30 am by William Doriss
  • Too gracious. Too modest. And you're right: I l...
    Too gracious. Too modest. And you're right: I learn a tremendous amount by reading Gamso.
    But I have to disagree on how much you can learn from someone reacting to the law. Anyone can read a case. Isn't the most important thing we learn in law school how to react to a case we've read?
    Posted on June 8, 2010 at 7:44 am by jamison
  • JG
    That's all any of us can do: stitch legal doct...
    That's all any of us can do: stitch legal doctrines into something looking like a blanket sufficient to cover a client's wounds.
    Posted on June 8, 2010 at 7:41 am by Norm Pattis
  • Mostly, I just make shit up. The trick is in maki...
    Mostly, I just make shit up. The trick is in making it sound good. You know, verisimilitude beats truth because the truth is unbelievable.
    Posted on June 8, 2010 at 7:39 am by Jeff Gamso
  • J
    Don't confuse me with Gamso. You learn law read...
    Don't confuse me with Gamso. You learn law reading him. I just react to the law.
    Posted on June 8, 2010 at 7:30 am by Norm Pattis
  • I'm thinking you should be awarded a law degree ju...
    I'm thinking you should be awarded a law degree just by proving that you are a regular reader of this site. I'm thinking I am going to put this on my resume: "Regular reader of Norm Pattis' blog."
    I have the exact same feeling reading these entries as I do reading Henrik Hertzberg of The New Yorker. He knows what I think before I do.
    Posted on June 8, 2010 at 7:27 am by Jamison

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