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LYING TO YOUR LAWYER
IS LYING TO YOURSELF
I was waiting to go
to trial that Thursday afternoon, my client pacing up and down the hall
muttering to himself, none of our witnesses there since in the two days
before the weekend we would not get to testimony but be lucky to finish
picking the jury. Our judge and court room were finishing up a two week
trial behind those mahogany doors and we could just hear the murmurings
from within. I presumed a verdict was being read but was more interested
in going over my list of prospective jurors with my law clerk whispering
to me what he thought would be good preemptive challenges as we sat
there on the hard bench.
Then the door of the
court room exploded open and an overweight and sputtering man in a
rumpled business suit stormed out, a large pile of papers clutched in
his hands, followed closely by Jerry X, one of the old war horse
litigators that haunted the Court rooms and was an old friend of my now
retired father. He didn’t see me. He wasn’t looking. His eyes were on
his client who was trying to maintain hold of the pile of documents in
his hands. Several slipped to the floor. He started to lean forward to
pick them up then saw Jerry glaring at him. For a moment they just
stared at each other.
The client ignored
the papers on the floor and straightened up, eyes narrowing. “You lost,”
he snapped.
Jerry’s face became
even redder. “No. You lost. I go home and have a drink and look at my
next file. You pay big bucks to that jerk in there who won.”
That caused a bit of
a pause while they glared. The client tried again. “You said we would
win…you said our case was strong…”
Jerry stepped closer
to the man. “You are worse than a fool. You are a hypocrite. You are a
conceited, bellicose, blind, self defeating moron who committed the
worst sin known to civilized man. You lied to me. You damned well lied
to me and you lied to me about the most important piece of evidence…”
“It wasn’t a lie. I
simply forgot the entire document…”
“Don’t shilly
shalley with me,” Jerry now bellowed. “You held back. You decided to
edit the evidence I would know about. You took my case…”
“It’s my case…”
“It is not your case
when I stand up before a jury and a judge I have known since Adam. It is
my case that I honed and prepared and mulled over and carved into a work
of art and you, you bloody fool, took my marble and made it into mud…”
By then I was
pulling Jerry back since his face was three inches from his client’s and
his client, who was six inches taller than him, had dropped the papers
on the floor and was balling his fists. Jerry didn’t notice me, didn’t
notice anything, kept leaning towards his client. “You fool, don’t you
get it? Don’t you understand what you have done?! You’ve lied to your
own lawyer, you idiot! Your own lawyer! The man who is supposed to
protect you, the man you tell everything to so he can save your sorry
ass? You set me up in there and let me be blown away, you complete
idiot…”
By then the bailiff
was in the hall way, pushed me aside and firmly pulled Jerry back.
“You’d better leave, “ he said to the client who was breathing heavily,
beginning to sweat. “Now,” the bailiff added.
The client, still
glaring at Jerry, slowly leaned forward and picked up the papers,
glanced at his opposing party who was grinning in the doorway to the
Court room, and stiffly walked to the Court house door, intentionally
taking his time. The bailiff kept a firm hold on Jerry’s arm while they
both watched his client leave.
“You’re too old for
this nonsense,” he snapped at Jerry.
“He's too old to
work for fools,” said John Y, his opposing counsel, coming out of the
Court room. He stepped between Jerry and the bailiff, smoothly
separating them, putting his arm around Jerry’s shoulder and pulling him
towards the bench I had been sitting on. He winked at me as he passed.
He felt expansive. He had won.
He sat Jerry down,
patted him on the shoulder. “You did a great job in there, Jerry. Great.
You did the best you can do when a client torpedoes you…”
“Crap.” Jerry was
not about to be mollified.
“Hey, what were you
supposed to do? He stabbed you in the back. That happens…”
In Chambers with the
Judge an hour later, the subject came up. We had just decided to voir
dire the Jury starting the next day and were rising to leave when the
judge signaled to me to stay behind.
“You know Jerry,
right? You’re friends?”
“My father and he
knew each other forever. Yeah, I guess so.”
“Well, tell him I’m
not going to report any of this to the Bar. I know he had nothing to do
with that false document. I may report his client…but not him. I saw his
face when the expert testified about that signature. And the missing
document…”
“He was still pretty
upset in the hallway.”
“Clients…” he
shrugged. “You know, the document didn’t matter much. I think Jerry had
the case wrapped up. Then his client pulls that nonsense…” He picked up
a piece of paper on his desk, dismissing me. Then he looked up. “They
hire lawyers to put on their case, then decide they will manipulate
their own lawyers…makes no sense. Why hire someone you figure you have
to manipulate…?”
“They think they are
doing us a favor.”
“If they’re so smart
they know how to do that favor, why bother with a lawyer?…Put on your
own case yourself…” he shook his head and began to read.
Out in the court
room my client was most nervous. He held a crumbled list in his hand.
“I’ve been thinking that maybe I didn’t tell you about the letters sent
in March…”
“Yeah, you did, they
don’t matter…”
“But did you see the
March tenth reply?” He pulled from his file some correspondence.
“You showed me
that…glad you are being careful, but don’t worry. You’re smart enough to
know what I do and what I need…we both know that. We’re a team and we
work together.”
“Yeah, but I don’t
want you surprised…”
“Trials are made up
of surprises. That’s their nature. As long as I am not surprised by you,
I’m just fine…”
And I was.
But fifteen years
before that in a criminal trial I was not. My first real jury trial, a
“duce” which meant driving under the influence, and I was still in law
school. Our law school allowed third year students who were certified by
the School to actually try criminal cases if the client was indigent and
consented. By then I had tried a dozen cases, but none before a jury and
this was a big deal for me, my very first one. When the jury sat after
being empanelled I was ready and raring to go.
A day later, after
retiring to consider their possible verdict for what seemed thirty
seconds, the jury came back with a guilty verdict. As I stood in the
hallway most of the jury came over to commiserate with me and one of the
jurors actually went up to my client and told him he was a fool “…not to
let that nice young man know what really happened.” My client, a middle
aged unemployed carpenter, stood there and hung his head while all
vilified him and I finally pulled him aside.
“Why didn’t you tell
me? How could you have left out what happened at the bar before you
started driving? How could you do that…?” I had a hard time not raising
my voice. He wouldn’t look at me, waited until I was done, then smiled
sadly.
“Didn’t want to
upset you, son. No need for you to know what was going to hurt you.
That’s what I figure. Hey, I was doing you a favor…”
“Did you really
think the DA wouldn’t figure out he would need to check out what
happened in the bar? The fight? Did you think something like that would
be forgotten?!”
“Hey, we made our
throw. We lost.”
“I could have
prepared for it…could have figured if there was some way to handle it…”
“Yeah? Well,
maybe…but then maybe you’d figure no point in trying and I wouldn’t even
get a trial. That’s happened to me before. You guys always want to win.
If you think you won’t win, you won’t try. Better to keep you
enthusiastic, I figure…”
“Well, you figured
wrong. We lost in ten seconds…”
“But I had my trial,
didn’t I? I had my day in court.” He patted my arm. “And I thought you
did great, son, Just great. It was worth it…”
“You thought I
wouldn’t fight for you if you gave me the whole story? My job is to
fight for you. I can’t do it if you don’t tell me everything….”
But he had already
closed the conversation and, after offering me a lunch at the local bar,
sauntered off, happy to have had his day in court.
I looked up and the
Judge and DA were watching us, smiling. The Judge came over. “Come to
lunch, son. You did just fine.”
I had not…I had
frozen up when the witness on the stand had testified about a drunken
brawl that had occurred an hour before my client was stopped and had
stood there with my mouth open, convinced he was lying. After all, my
client had indicated he had come straight from a meeting with his
brother discussing a job site problem. I hurried back to the counsel
table, leaning over to ask my client why the stranger on the stand was
lying about him and my client whispered back, “Him lying? We’ll…not
really. And that fight…Yeah, I guess that’s pretty much what happened.
But he hit me first…I didn’t pick the fight…”
I felt my face
flush. “Fight? What do you mean fight? You said you were nowhere near a
bar before the cop stopped you…”
“Yeah, well, maybe I
left that part out…”
We were whispering
furiously at one another, the jury looking on, the DA smiling and
looking at the ceiling, the judge trying not to smile. And I knew I had
to stand up and cross examine this witness who my client had just told
me was telling the truth…except for who swung first.
If I had known he
might testify I could have found out about the witnesses’ own
background.
I could perhaps have
found out what my client had actually drunk and the amount of time it
would stay in his blood system.
I could have found a
witness, perhaps, in the bar who would have testified my client was not
that drunk or had not begun to drunk when the fight broke out…
But all that did not
matter because the jury was looking at me and I had to either ask
questions that moment or lose the case and they and I knew it. If I
said, “no questions,” it was over.
Since then I have
engaged in perhaps two thousand cross examinations and have been
surprised a dozen times…but with all that experience I STILL cannot
think of what I would do now that would make a difference…for once
ambushed by your own client’s failure to be truthful, standing before a
jury, to crawl back to a winning strategy is nearly impossible. That day
it went as badly as could be expected…
“You say you were in
a fight with my client…?”
“Yep.”
“But you didn’t
report that to the police, did you? It was not in the police report was
it?”
“Hey, I won. He was
too drunk to fight…why report it to the police?” I hesitated but kept
going.
“You say this man
attacked you yet you did not bother to report it to the police? And we
are to believe you?”
“Hell, if I reported
every time Jim there gets in a fight with someone at the bar, the cops
would have to set up an office in the back room of the bar.” (Laughter
in the audience and everyone staring behind me at my client. I turn
around and he is grinning and nodding.)
Grimly, I plodded
on. “But you didn’t actually see my client take a drink, did you? You
came in the bar after him, right?”
“Well, yeah…”
“So, he might have
been sitting there not drinking…” (tittering in the Court room) “or just
arrived before he had a chance to get a drink…”
“I doubt that…”
“But you weren’t
there, were you…?”
“But I know he drank
at least a full bottle…”
“Even if you weren’t
there?”
“You bet. It’s why I
ain’t in the hospital.”
I knew I should shut
up then and today I would. But I was young. My first jury trial. So, I
made the error that new attorneys make…I asked one question too many.
“Why would you be in the hospital?”
“He hit me with the
empty bottle. If it had been full, it would have crushed my skull.” The
court room exploded in laughter and I muttered “No more questions” and
sat down. Collapsed down was more accurate.
I dreamt about that
sad moment for a month after the trial. In all the dreams I failed to
find the right question to win.
Because there wasn’t
any, of course. By the time I stood up, surprised and disoriented, we
had already lost the case.
The judge and the DA
paid for my lunch, kindly telling me, as a third year law student, that
I had just received the best education a fellow could want. The judge
leaned forward in the diner, poking his finger on the table:
“I’ve seen it a
thousand times. Lawyers undercut by their own clients, finding out
disastrous truths as the jury sits there and watches. And half the time
the client then blames the lawyer for losing…”
The DA broke in.
“And cops do the same thing to me. Make up evidence, lie about searches
and seizures, exaggerate what was said. All to help my case. And usually
it blows up in both of our faces.”
The judge waved his
fork in the air. “I threaten them with perjury charges. I tell them this
is not a white lie…it is perjury. Their lawyers warn them. The law warns
them. But they figure they know better than all of us how to win the
case and figure it’s worth a try.”
I was feeling a
little better. “So how do I stop it? How do I make the client understand
that without knowing the full truth I am at an incredible disadvantage?”
The DA just
shrugged, but the judge, who had practiced law for decades before
becoming a judge leaned forward. “I’ll tell you what I used to tell my
clients. I told them that we already have a paid enemy. It’s called the
opposing counsel. And the job of the opposing counsel is to find every
weakness in our case, every way he can undermine us, anything he can do
to make us look like liars. That’s all he does for months, for
years…tries to find out how to beat us. That he is paid…well back then
it was hundreds of dollars an hour…to do just that. I know you boys get
more now…”
“Not me,” said the
DA.
“Not me,” I said,
“still a student.”
“Well, you will be.
In any event, I tell them we only have one chance in confronting a paid
professional on the other side seeking to investigate our case and find
out our weaknesses…that I have to know our weaknesses before he does or
I will find them out, all right…in front of a jury and looking like a
fool. Tell me now, I would say, or wait until opposing counsel tells me
and the jury at the same time later.”
“Did that work?”
He leaned back.
“More often than not. Clients want to trust their lawyer if they can.
Too many lawyers just take what is said to them and don’t cross examine
their own clients. Don’t investigate on their own. Maybe they don’t want
to know the full truth…”
“A lot of the
clients know nothing about the
Attorney Client Privilege”
the DA explained. “They don’t know about it and most lawyers don’t
explain it to them. Frankly, I’m not sure lawyers spend that much time
pushing their clients for the truth…”
“I just assumed he’d
tell me the truth…”
They both smiled at
that and looked at each other. The judge was the one who answered. “My
first criminal defendant lied to me up and down…and when I confronted
him with the truth that I found out by investigating the hell out of the
case, interviewing all the witnesses, the cops, the victim…the client
shook my hand and said I had passed his test. He wanted to see if I
cared enough to find out what really happened.”
I shook my head. “He
took a real chance there. It was his case and he was testing you.”
The judge shrugged.
“He went away, anyway. Guilty as sin. But what I knew then you now
know…find the truth either from your client or your own efforts…or you
may be very, very sorry...You think you had it bad today…well, let me
tell you some more stories…”
And we spent the
next two hours hearing about how lawyers saw the cases evaporate as they
discovered what their clients did not tell them. Again and again, the
client would hold something back only to have it explode in deposition
or in the trial to the utter destruction of the case.
That was close to
thirty years ago but the lesson remains clear in my mind. My absolute
rule now at the beginning of any case is get at the truth… make sure the
client understands that the
privilege
still applies and the lawyer cannot tell third parties what is said
absent consent of the client…BUT without the lawyer knowing each and
every unpleasant fact, the case will be at greater risk. There can be no
secrets…all must come out or your lawyer is crippled. And if you don’t
trust your lawyer enough to tell him or her the truth…get another
lawyer. You cannot fight the fights we fight worrying about whether your
own team is trustworthy. If we fear that the truth is not fully known,
we take the time to investigate as necessary so that the only parties
who are going to be surprised…are the other side.
So our rule
applies…We may not always know all that happened that led to the
case…but it won’t be due to failure to try to find out. Because if we
don’t know it…the other side might and at that point we face losing all.
One of our doctor
clients put it well when we were chatting about his own problems with
his patients holding back facts.
“Yeah, it happens
quite a lot. Embarrassed or they don’t want their wife or husband to
find out. The fools seem to forget that bacteria or viruses don’t much
care about the feelings of your spouse…and keep coming and faster if you
hold back vital information from your doctor. But we have one advantage
over you lawyers…we run tests until we find out what is happening…”
I leaned back and
smiled. “Well, so do we. So do we…” |
