My Client Gets to Make the Final Decision
One of the hardest parts of being a criminal defense lawyer is helping someone make a decision when there may not be a clearly right answer. I can review the discovery, investigate the case, talk to witnesses, evaluate the law and give my client my opinion about what I think he should do. Sometimes I may feel very strongly about that opinion. But at the end of the day, I’m not the one who has to live with the consequences of the decision. My client is.
I recently had a case where my co-counsel and I thought the offer our client received was a no-brainer. We explained our thinking, but the client decided to turn it down and go to trial. During the trial, he looked at us and told us he had messed up and wished he had taken the deal. That’s a hard moment for everybody involved, but it illustrates something important about criminal defense. A lawyer can give advice. We can explain why we think an offer is good or why we believe a case should be tried. We can talk through the evidence and the possible outcomes. But we don’t have a magic crystal ball, and ultimately it is the client’s life that is affected by that decision.
I have a healthy distrust of trying to predict what a jury will do. That doesn’t mean I don’t believe in jury trials. There are absolutely cases that need to be tried, and if my client wants a trial, we’re going to prepare the case and fight for him. But putting your life in the hands of twelve people who don’t know you is a serious decision. A jury doesn’t know my client the way I do by that point in a case. They don’t know his family, his character or his heart. They don’t necessarily know everything that led to him sitting in that courtroom. They know what they’re permitted to see and hear during the trial, and they’re asked to make a decision from that.
Things can also happen during a trial that change what everybody expected going into it. A witness may testify differently than anticipated. A ruling may affect what evidence the jury hears. Something we thought would be persuasive may not land the way we expected. Something unexpected may become important. That’s why I’m never going to fault a client who looks at those uncertainties and decides he doesn’t want to take the risk of trial. If he understands the case and decides a negotiated outcome is something he can live with, that decision deserves respect too.
Clients ask me some version of “What would you do if you were me?” all the time. I tell them the truth. If I think an offer is a good one, I’m going to tell them. If I think they have a case worth fighting, I’m going to tell them that too. They deserve my actual opinion, not whatever answer I think will make them feel better about hiring me. But there’s something I always have to keep in mind when I’m giving that advice: I’m not serving the sentence if we’re wrong. I can try to put myself in my client’s shoes, but I can never completely be there. I’m going home after the trial. He’s the person who may not be. That reality matters when someone asks me to tell him what he should do.
It works in the other direction too. If a client looks at everything and tells me he wants to accept an offer rather than risk a trial, I’m not going to fault him for that decision simply because I think we have arguments we could make to a jury. He’s the one assuming the risk. The best I can do is make sure he understands the evidence, the strengths and weaknesses of the case, the offer that’s available and the risks of rejecting it. Then I give him my opinion.
Those conversations are much easier when we’ve built trust. By the time we’re making a decision this important, I hope my client knows that I’m not trying to push him toward the easiest resolution for me. We’ve reviewed the evidence together. We’ve talked about the bad facts. We’ve looked at what’s missing from the investigation. I’ve tried to show him how a prosecutor or potential juror may view the case. Hopefully we’ve reached the point where he knows that when I give him advice—even advice he doesn’t want to hear—I’m giving it because I believe it’s in his best interest. If I’ve given him my advice and he still tells me he wants a trial, then we’re going to trial. I’m going to prepare the case and fight for him.
Of course, the client and lawyer usually aren’t the only people with opinions. Moms can be the hardest. Parents, spouses and friends care deeply about the person who’s been charged, and understandably they want to help. Sometimes they’re also the people who hired me in the first place. I have no problem including family members in conversations when my client wants them involved, and sometimes having another person there is helpful, particularly when we’re discussing a complicated decision with serious consequences.
But family and friends can also give some pretty bad advice. They may know the client extremely well, but they usually don’t know the case the way we do. They haven’t reviewed all of the discovery. They may have heard only their loved one’s version of what happened. They may be convinced that no jury would ever convict him because they know what kind of person he is. Or they may be so afraid of trial that they want him to accept an offer when he has legitimate reasons to fight the case. I’ll listen to those concerns and address them, but eventually I have to bring the conversation back to the person I’m representing. His family isn’t going to serve the sentence if he’s convicted, and his friends aren’t going to live with the consequences of accepting a plea. He is.
That’s why one of the most important things I can do as a criminal defense lawyer is help my client get to the point where he can make his own informed decision. Sometimes I strongly agree with that decision and sometimes I don’t. If I disagree, I’m going to tell him. That’s part of what he hired me to do. But there’s a difference between giving somebody your best advice and making the decision for him.
My job is to know my client, understand the evidence, investigate what needs to be investigated, understand the law, explain the risks, and give him my real opinion. His job is to decide what risks he’s willing to live with. Once he makes that decision, my job is to stand beside him and fight for the best outcome we can get.
Brett H. Knight is a partner at Jaffe, Hanle, Whisonant & Knight, P.C. His practice includes criminal defense in Alabama state and federal courts.
This article is provided for general informational purposes only and is not legal advice. Every criminal case is different, and past results do not guarantee a particular outcome.
For more information, contact an experienced Birmingham criminal defense attorney at Jaffe, Hanle, Whisonant & Knight, P.C. for a free consultation.
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Jaffe, Hanle, Whisonant & Knight, P.C.
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