Monday, April 4, 2011

When The Client Becomes Co-Counsel

Every now and then, I will get a client that finds his way to the law library inside the Cook County Jail. I've never been inside this library. I don't even know where it is. But I will assume it's like most law libraries. There's books of case law. Statutes. Treatises. Digests.

I have had a couple of clients that found case law that helped me prior to a motion hearing. I am not afraid to admit I don't know everything or have read every case on any given topic. Thus, in a few instances, the extra help was appreciated.

On the other hand, more often than not, the client begins to think he is also a lawyer. This causes a lot of problems. It forces me to spend huge amounts of time explaining why they are wrong about issues pertaining to their case. I sometimes get letters from clients laying out some legal theory that has no basis in the law. And then I have to spend an hour writing a reply letter correcting them. I suppose it's part of the job.

Clients do not know the rules of evidence. They don't seem to understand why an affidavit from a third person explaining that the client is innocent, cannot pry the jail doors open. They don't understand that lying is one thing, but proving the lie is something all together different. They assume people will testify truthfully. Only we in the business know perjury is as common in the courtroom as snow is in Alaska. You can't seem to have one without the other.

I can only imagine how frustrating it must be sitting in the county jail for months on end fighting a case. Is it unreasonable for a client to think they might be able to help their plight by a few trips to the law library? I guess not, though it's incredibly naive. If all it took was going to a law library to become a lawyer, most lawyers would be terrible in practice.

Of course, when the client creates a litigation plan, it's typically shared with the family too. Mothers and wives call me to find out when I will be putting this new plan in to action. Now not only do I have to correct the client, I have to correct the family as well. In some of my cases, I have spent more time teaching the law than actually practicing it. And it's very frustrating. No one seems to understand that credible testimony alone can be enough to prove up an entire case.

But no gun was found on my husband when arrested, so how can he be charged with armed robbery with a firearm? If there's no gun, there's no case. You can beat this, right? This one comes up a lot. Very few armed robbers are caught in the act or immediately afterwards. Most are taken into custody weeks or months later. It's hard for some to understand that if the jury or judge finds there was a gun, there was a gun. End of story.

I once had a client who wasn't being allowed to access the library. When he and I were before the judge, I mentioned the problem. I asked the judge to sign an order that I would draft mandating my client's access to the library. The judge looked up at me, smiled and said "Is Mr. Defendant now your co-counsel?" I smiled back, "no, judge. He is not."

The client clearly had other ideas. By the next court date he had assembled an impressive collection of legal nonsense and had crafted a defense that wasn't a defense. It was suicide. His well-crafted plan for trying his case was sure to end him with a 12-15 year prison sentence. The case was a dog. Absolute dog.

In the end I was able to convince him to take a negotiated plea deal and a 3 year prison sentence, of which he would serve about 13 months. Apparently, this client must have also studied for the Bar exam too because was able to craft a civil complaint and sue me for malpractice while in prison. This man had the worst criminal background of anyone I have represented. That is saying a lot. On this 13th felony, he got 13 months in prison and still sued me for malpractice. No good deed goes unpunished.

Fortunately, unlike most criminal defense lawyers, I carry malpractice insurance. My carrier hired a civil attorney to represent me and the case has been dismissed. This whole ordeal left a really foul taste in my mouth. It cost time and money. I am sure my insurance premium will go up next year. And for what?

Because a non-lawyer thought he knew the law better than his lawyer. From here on out, I am going to cringe when a client informs me he's been to the law library. Rarely does anything good come from it. Please let the lawyers be the lawyers.

When we need co-counsel, we'll ask.



  1. Heh. Been there done that. Last year, I had a court-appointed client so convinced of the rightness of his plan that he fired me and conducted his own defense. He did, however, let the court know I could be his "standby counsel." So I got to sit behind him for a week and watch him go down in flames as he ignored every piece of advice I gave him. He then objected to my being paid.

    I don't like seeing anyone go off for a long jail sentence, but sometimes I dislike it less than others.

    Glad to find your blog. I've bookmarked it.

  2. Thank you for a very thoughtful and candid post.

    I am wondering if you have noticed any difference between court-appointed clients and retained ones when it comes to self-lawyering. I experienced many of the same problems you described when I was a public defender. (The craziest trial strategy – which I heard again and again – went something like this: I pled guilty every other time I was arrested. The fact that I want to challenge this case proves I must be innocent this time.) But I rarely have a problem with it when it comes to retained clients, even with clients who are themselves lawyers. I think it is a function of both sophistication and the tendency to value something you pay for.

  3. Dear Mr. Schantz,
    I will respectfully disagree with your ideas of discouraging co-counsel as clients. First, lawyers and clients have conflicting interests. The lawyers look for more cases and more money in the process, the client wants to be properly represented for his financial sacrifices. When the client is jailed, the lawyer feels less inclined to spend time and research for the client. We all know the adage, out of sight, out of mind.
    I've personally experienced this because I've spent 20 months in jail for a class 4 felony. We went to trial and we got a hung jury. Strangely though, the lawyer wanted to go back to trial right away the next month. I had to stop this nonsense, fired the lawyer, got out of bond for having spent the maximum time requested for the guilty sentence ( 18 months for a class 4 felony ) I'm currently fighting my case at the comfort of my own house with a pending motion to dismiss that the state is dragging on responding. If you doubt about this, I'm willing to give you the case number and you can check the case file at 26th california ave.
    Each case is very differ from one attorney to another, but I sincerely think that a client should know the basics of his defense and not rely totally on a complete strange who might be in the case for other motives than defending his client. That's my intake.

  4. I respect your opinion but take issue with your comment that attorneys and clients have conflicting interests. From what you wrote, I assume you had a bad experience with your former attorney. But I don't think you can lump all of us together and assume we are all like your attorney was.

    My clients and myself always have the same interest: the best possible disposition of the case. Money never plays a role in my practice, other than that I expect to be paid for my work. I also do not delay cases and let clients rot in the county jail.

    I agree that the client should know the basics of his defense. All of my clients are told exactly the position they are in and what the options are. My clients make decisions for themselves after I've given them my recommendation. Most of the time they agree with me, but every now and then they disagree.

    The purpose of this post was to express my frustration with clients who think they know the law but actually do not. There are a lot of jail-house lawyers who sound like know it alls. Impressionable, young defendants often listen to these people and assume what they're being told is correct. And it rarely ever is. I have spent a lot of time explaining in detail why something they were told in the jail is incorrect. I have had clients that were so hooked on something someone in the jail said that they actually challenge my knowledge of the law. That is extremely frustrating and largely, a waste of time.

    The other thing that can happen is a client goes to the law library, reads parts of a couple of books, reads a case or two and then believes they legally know their case inside and out. This is also rarely true. I have had clients that have showed me cases that ultimately assisted me. But this has only happened two or three times at most.

    To address your motives comment, my motivation is to get the best disposition possible. I defend the cases that have a defense. I file suppression motions on cases where the client is guilty under the law, but had 4th Amendment rights violated by the police in obtaining the evidence. Some cases are bad. It was good police work and the person is guilty. Those cases usually require a negotiated plea. Like most lawyers, I am only as good as my case. I can't weave gold from trash. But I will fight zealously for any client whose case calls for litigation via motion or trial. I don't sell out my clients and those that have plead guilty made that choice themselves. This decision often follows my opinion that we have little hope of prevailing at trial and there's no grounds for a motion. This is where I do my clients the most service. I tell them exactly what their situation is. I tell them the evidence against and for the case.

    But I have never once, nor will I ever, make a client believe the case is solid and we should go to trial so I can get paid for trial fees, when I know the case is a loser at trial. That's not how I operate. I value my integrity and the service I give my clients.

    Thanks for taking time to comment.

    1. I will add one recent case. Three people were arrested for a Home Invasion which is a Class X felony. There were also armed robbery counts, which is also a Class X felony and if a firearm was used, it's an automatic extra 15 years added to the sentence under the Class X. Thus the minimum you can get if convicted of armed robbery with a firearm is 21 years.

      All three defendants had private attorneys. One defendant even had two. After I reviewed all of the discovery, I went to the county jail. I sat down with my client and told him the State's case. I explained the evidence, etc. And I told him we would probably lose at trial. The attorneys for the other two defendants convinced their clients their cases were winners at trial. Now the two co-defendants are telling my client that I am a bad attorney and don't know what I am doing.

      The complaining witnesses moved the California. My client insisted there was no way they would come back to testify. I didn't buy it. His two co-defendants set their cases for trial. I told my client we should wait to see if these witnesses actually showed up.

      One of the co-defendants decided last minute not to go to trial. I think his attorney, who I never spoke to once, saw the wisdom of what I was doing, which was letting someone else test the waters first.

      The defendant with the two attorney did go to trial. The witnesses did show up and he was convicted. He's yet to be sentenced but because of his criminal back ground, I expect a sentence close to 30 years.

      After that trial and the next time I saw my client, he thanked me for keeping it real with him. He accepted a 15 years in prison offer and was glad he got it.

      Of all three of the defendants, that one whose been convicted had the best case, but that's relative. So the question is: did that person's lawyers just squeeze him for trial fees or did they just misjudge the case? Either is indicative of horrible lawyering. Honestly, the case was solid. It was going to be easy convictions for all three. I told my client, who to his credit took my advice, even though his co-defendants were whispering in his ear that I didn't know what I was talking about.

      This is an example of an attorney really looking out for his client's best interest. All of my clients get the same treatment.


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