How Can a Lawyer Defend a Guilty Person?

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Welcome back, everybody, to the

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Now We Defend podcast. This week we’re going to ask one of the questions that we get asked a lot being criminal defense attorneys. And that is how do you defend a guilty person. Now this is an interesting question because part of that question is how do you defend somebody you know is guilty? That’s a question I actually get a lot from friends, family members, etc..

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How do you morally do it? How do you do it? But the other question is how do you defend somebody who tells you they’re guilty and wants to get your help, but also wants to resolve their case legally? I think there are two distinct questions. And today on our episode, we’re going to try to unpack them for you a little bit.

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So again, the question of how do you defend a person that you know is guilty is kind of a question of morals is really what the person is asking you. And one of the things that I think a lot of people don’t realize is that when we go to law school and we decide, I want to be a lawyer, and we passed the bar and we become licensed attorneys, one of the things you kind of agree to, I wouldn’t say check at the door, but agree to do effectively to be a lawyer is that you’re not going to sit in judgment of your clients, okay.

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That’s what a judge does. And if you want to run for judge and become a judge, you can do that. But if you’re going to be a criminal defense attorney, you need to understand your client’s issue. You need to not sit in judgment of their actions and, you know, discipline them. That is not your role. Your role is to help them.

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So to help them legally, it’s to help them personally. It’s to help them become a better person. Right. So today we’re going to kind of talk about how we try to approach that question. Because to me that’s a very easy question. When somebody asks me that, how do you defend a guilty person? Well, the answer to that is it doesn’t matter to me if that person is guilty.

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Frankly, it doesn’t matter to me exactly what that person did in my role as their attorney. And I don’t internalize it and bring it in to my own psyche and be like, Now I’m going to I’m going to harbor this problem personally for me. Right? I do try to treat a lot of my job in a compassionate way with my clients, and try to create a personal relationship with the individual, but that is very, very different than me internalizing it into my own personal life.

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And that’s where the separation comes. And that’s what I think a good lawyer and lawyers that do this for a very long time are quite good at doing, because we’re able to separate the two and still defend very zealously our clients who we know are guilty or who even tell us they’re guilty and want help. So I’m going to start Tim did our outline for today.

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So Tim, I’m going to go to you first. I guess you get you get first crack at this. Tell me a little bit about your your theory with that and how you kind of internalize that or how you handle that as a lawyer. Well, I haven’t had to answer the question too many times. I have had some friends and some people close to me ask kind of like, how do you do it?

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I’ve never really had anyone be like, well, how do you live with yourself? You know, like that kind of thing. But there are people I think that do that have that kind of attitude about it. Right? Those are the people that I think create the lawyer jokes. Yeah. How do you live with yourself? How do you know all that garbage?

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Yeah. Which, by the way, isn’t all garbage. Some of it is hilarious. Yeah, I think so too. I my philosophy on it just. I mean, I agree with a lot of what you said. The one thing that I would say, and I know you do this too, is like when you say no judgment. There is a caveat to that because as part of advising them, there are judgments we make about the circumstances that are in.

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And I know you’ve you’ve told people because I’ve watched you do intakes with clients where you’ve been like, hey, this is serious. You need to make sure that you don’t do something like this again. You could get hurt, that kind of stuff. So we do make judgments, moral and otherwise, other kinds of judgments about cases that were confronted with.

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But it’s judgment calls. We’re not judging the person individually. Right. And saying, down with you or you’re a horrible person or judging the case itself. Facts, the circumstances. And I’ve told people several times like, hey, you know, like you made a bed for yourself here and what you did is serious. And there are consequences that some of those we cannot escape.

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And the best way out of this for you might be that you kind of have to come to terms with this, and you’re going to have to show a little bit of contrition. Yeah, absolutely. I mean, I just this week I had a circumstance similar to that. I’m not going to give any detail but an active client. But yeah, yeah.

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The bottom line with what you’re saying is you have to be real with people right up front out of the gate first meeting, because if you’re not, you’re giving not only potentially unrealistic or on reasonable expectations, but you’re really kind of selling your client snake oil, right? You know, because that isn’t something that’s really going to work out ultimately.

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And part of our value as attorneys and just and I want to get your take on this, because I think you do also do this very well is the value we have is seeing the chess game play out right through all the moves, seeing every move along the way, and making our judgment calls that we’re making about the circumstances to help us win the chess game or put us in the best position to do so.

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Right. And you’re helping the client come to terms with the reality of their situation. So, so implicit in what we’re doing, there are judgments that we make. And part of that is because one thing that we don’t say often enough, I think it’s easy to forget, is even as defense attorneys, we are members of the community here. So, I mean, we do have an interest in people facing up to things that they’ve done that are not fit for the civil society.

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So, like, our goal is not to absolve people, and it’s not necessarily to get them to escape all consequences for bad things they’ve done. Because obviously that doesn’t help really anyone in society if no one ever has to answer for anything that they did. So like we’re members of the community and we can recognize, okay, like this is a bad situation and what you did is like you’re going to face some criminal liability for this here.

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Here’s what we can do to help you mitigate that. Here’s what we can do to to get to a fair outcome for you. And in order for that to happen, I mean, you are going to potentially have to recognize that you did things that you weren’t supposed to do. And that’s what you said about the reasonable expectations that you’re setting.

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We can make sure that the system works fairly for the client. And that’s we’re going to talk about due process here as well, and making sure the client gets a fair shake, that the rules are applied fairly to both parties. That’s kind of one of the things we as attorneys guard against for our clients. We were kind of the last line of defense when it comes to making sure someone is dealt with fairly, respectfully and appropriately within the entire justice system at every phase of it.

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Because there are so many phases of this justice system where people can get railroaded, people can get swept under the rug, and their rights can be violated, even if it’s not intentionally done just because they don’t know how to operate within the system. So they’re falling into these pitfalls that are causing them to not get the best outcomes, or not be able to go through the process correctly to get to that best point.

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So just again, I want to shift over to you and get your take on this. I feel like we do these podcasts. I always, I always go to you. Second, I don’t know why I do that. One of these days I’m going to go to you first. I’m going to surprise you. But yeah. What’s your take on this with your clients?

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So I recently I’d say within the last couple of weeks was actually talking to somebody about this whole situation. And the way I look at it, and I feel like just overall with my personality and how I operate, like, I feel like I’m a lot different than most criminal defense attorneys, maybe even most attorneys. But, you know, this is our job, right?

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We signed up for this. And like you said earlier, and to echo what Tim said, you know, we’re not just looking to get people off scot free. We want them to recognize what they did was wrong, why it was wrong, and how to avoid doing that wrong again in the future. And there’s a number of ways that we do that.

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You guys kind of covered most of them treatment, counseling, etc. but I think another big part of this for me is, you know, we’re protecting people’s rights. People have certain constitutional rights, and a lot of people get those wrong or think they have more than they do. But the fundamental constitutional rights, you know, that’s what we as defense attorneys are there for our clients to defend their constitutional rights.

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And that sometimes involves getting them really good plea deals, right, or resolving their cases very favorably. But in the same token, if we go to a trial and someone actually is guilty, we as a society trust that the system is going to get it right, whether or not you’re the best defense attorney in the world. If someone’s guilty and 12 people believe that and find them guilty, they are guilty.

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And I think a big role in defending guilty people as a private defense attorney, again, is protecting their constitutional rights and doing everything that we can to the best of our ability and within the bounds, the legal bounds to fight for them. But if they’re guilty, they’re probably going to be found guilty. But if you’re an effective and a good defense attorney, then that person will face the consequences that they’re going to face and it’s not going to come back on appeal.

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People aren’t going to have to be put through the same thing over and over again if there’s, you know, mistakes. I think that’s a big part of for normal, people will say that, don’t do this and don’t really understand it. You know, we’re again, we’re not just out there trying to get everybody off scot free. We’re protecting their rights and making sure that if they are guilty, the Commonwealth or the state did everything that they needed to do legally to convict them.

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And if they did that and we did our job, that’s the end of the line, right? And if there are any violations of their rights along the way that we point at it, we call it out, eyes wide open to the court. It’s made aware to everybody. And then that way sometimes that does result in guilty people getting, you know, their charges dismissed, which is part of the system.

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That’s why the system is built that way. Yes. Because we as Americans all have rights that we have agreed in through society and through government that we’re going to live under. Yes. And everybody’s got to follow that. Right. So I definitely agree with you. I one of the questions I sometimes get a lot is, you know, why should somebody who’s guilty even get a lawyer, right.

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Like they’ve clearly violated the norms of society. Maybe they’ve even done something awful, right? Horrible. Not just your standard. Somebody who’s guilty. Right? Like some horrible, horrific crime. Why should that guy even have a right to, you know, what’s your take on that? Well, I think that goes back to the fundamentals of the the nation that we’re in, right.

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The United States, as far back as you can go when, you know, the justice system was starting to be created, people believe that everybody had these rights. And I think it’s very important, even though there are people that go out and do horrible, horrific things, you know, they do need effective legal representation. And what I’ll say is there are certain crimes, I think all of us here shy away from or that we don’t typically do or don’t do for a certain reason.

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And I’m sure that there’s, you know, a lot of attorneys out there that don’t do criminal law specifically for that reason because they don’t feel comfortable. Right. But when you see these high profile cases of people that have done are accused of horrific things, and you see some of these attorneys that are in there, they get a lot of hate, but they’re very, very good at what they do, and they’re there for a reason.

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And we need people like that in the legal profession that will do those tough cases and will take on those, those, those hard factual scenarios. Because, again, people have rights and it’s it’s pretty fundamental to our nation, you know, in having that. And if we just got rid of that and started all of a sudden saying, well, you don’t get an attorney or you’re not entitled to this, I think it goes to chaos pretty quickly.

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Yeah, I, I think one of the kind of fundamental reversals you can do with people who ask this question, right? Why should a guilty person who committed a horrific crime have a lawyer? Is even that person themselves kind of put it back on them? What if that was you and their response to that is going to be, well, I would never do that, right?

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Well, I’ll tell you, sometimes in society and this has happened to me, you find yourself in situations that you are not expecting and you have to make split second decisions and react. I’ve talked about some of these on podcasts that I’ve been in, and sometimes in a split second you make the wrong decision because for whatever reason, you panic.

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You have to. You’re thinking about something else. You’re not correctly focused on the situation, and you might make a split second decision which could result in a horrible outcome. Somebody could die, somebody could be maimed, somebody could be heard. And while there might be justification for that, which would be the response that they would give you and I would be okay to doing that because of the situation.

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Well, okay. But what if the system charged you and everybody thought you were guilty of doing this? Shouldn’t you get a lawyer? Shouldn’t you get somebody that’s going to help you out and make sure that your rights are affected, and present those defenses that you think are applicable, and you should as should everybody. And for that reason, I think what you’re saying there, Justin, is spot on.

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Now, I also kind of want to ask the question, you know, what would our system be like? Right? If criminal defense attorneys only agreed to represent people that they knew were innocent? You know, that would be a very interesting system. I’d like to get your take on that, Tim. And I think there’s some competing interest here, and I’d like to hear from you on that.

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Well, I think to answer the question directly, to start, that’s another way to kind of flip the question around. Right. Because what what would the system look like if only innocent people got attorneys? And one of the unintended consequences that comes from that is that now, as defense attorneys, we’re in a position where we do almost sit as judges.

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We we now kind of almost usurp the role of the 12 jurors or the judge. And I look at a person and I have to determine, oftentimes based on limited information, this person is guilty. And that is not always easy to do based on an initial conversation with somebody. Right. So really having to do there, Tim, is you’re having to extrapolate out the chess game to the very end.

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Based upon your prior experiences as an attorney, in trial, in the court system, and I’m putting myself in a position where in light, let’s say we had all the information up front and and I’m now in a position where I’m making a judgment about the potential potential defenses or the justifications or whatever about the case. And I am sitting in a place that normally we would not we would not be.

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That’s not our role. And I’m saying, okay, this person qualifies for my services or doesn’t qualify. There are situations where we do things that are similar to that, where the interests of the client are simply something that we either don’t think we can accomplish, or we don’t think it’s that those expectations are reasonable, or we determine that the relationship between us is not going to work.

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For some reason, it may be difficult for us to work together. And for those reasons, sure, we can say, look, I am not going to give you my services in this case. I don’t think it’s going to work. We do that. But to to sit in sort of like a moral or factual judgment of a person and say, yes, you get you get an attorney or no, you don’t get an attorney.

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It elevates us to a position that we’re really not equipped to deal with. We’re not the people who know everything about the case. And those are not judgments that really we should be making. But the two interests that are competing here in some way, to some degree, the interests are due process, which is whatever the procedural requirements are, to get a person to a guilty conviction and to sentencing and the competing interests, there would be the desire of the interest that society has in punishing wrongdoing.

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And we could and those interest him. I mean, I think you would agree with this for different people. Yeah. Very right. I think there’s a lot of people in society that put a very heavy interest on the punishment portion of the criminal justice system. Yeah. And I think a lot of those people have never been in the criminal justice system before.

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Maybe some have, but either way, you’re absolutely right. This is these are very competing interests because due process is how you get to the end result. Right. And that end result might be punishment. It might be, but it might not be. And if it wasn’t done correctly, as Justin was previously saying, it shouldn’t be right. So tell me a little bit about what due process is.

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That’s an interesting thing that I don’t think we maybe use in verbiage in society. Normally we as lawyers talk about it a lot, but for those that don’t know what due process is, what is that? Well, due process does not necessarily mean that the entire process has to take three years and that there’s tons of litigation back and forth, and the whole process is just jammed up with fighting about every little thing.

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Due process might mean a jury trial in some cases, but some cases don’t qualify for jury trials. We talked about that before. It’s kind of circular reasoning. And obviously it’s a no no to use the word in its own definition. But due process is whatever process is due, it’s whatever the appropriate amount of procedure is based on what we’re talking about.

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And depending on the rights in question, depending on how severe the punishment could be, the process is going to be more involved. For very minor traffic tickets, there’s less due process, but for major homicides, there’s going to be more process. And that’s because the person stands to lose more rights, more liberties. They they are facing greater consequences. They’re they’re facing a conviction which is going to have profound consequences for them.

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And as a result of all of those things, the person has to get the full process that is appropriate based on the jeopardy that they’re in. And so, you know, due process is is a difficult thing for a lot of people to wrap their heads around, because if they are in the situation. Well, they want the whole dog and pony show.

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But that’s not necessarily the process that is due to the situation you’re in. Due process is not defined as theater, right? It’s not defined as a show, right? We don’t buy tickets for due process down in the corner. Right. So, you know, due process. If I were to kind of give an idea of what it is, it’s the ability for the system to check and balance the case throughout the different hearings and meetings and things that you have to go through in court.

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So that person gets a due and fair shake. Yeah. So it’s the check and balance really is what due process is. It’s the checks on the system to make sure that the person is getting their rights. As Justin was saying, their constitutional rights appropriately applied and that they’re not getting railroaded. Right. And what it is, you can think about it in terms of like like Judge Dredd, right?

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Like that’s the kind of that’s a situation where, like, if you watch that, that movie, the remake or even the original or, you know, the comics or any of that kind of stuff, that’s that the whole point of that character is to sort of play on this question, because in that case, you’ve got judges that are the police officers, they are the jury, they are the judge.

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And so they dispatch justice instantly. And to your point about people placing different weights on these two concepts, a lot of that ebbs and flows with society because they’re there. People’s opinions are going to be based on what’s going on in society at the current moment. And I think that when people have a very deep seated fixation with the punishment, almost at the expense of due process, that comes from a place, oftentimes I think of sincerity.

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They see that crime is a problem. They see that there are trends emerging where certain groups of people are victimized quite heavily, or there are certain crimes that are kind of not treated all that seriously. And the natural reaction to those kinds of societal problems is, well, the pendulum needs to swim, swing back. And so now we want a system where punishment is meted out quickly, very, very fast, and that it is very ruthless and that we that we’re really sending a strong message here.

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And that has to be balanced by the fact that we all, as you said, have these rights and protections in the law. Those those protections exist for the benefit of society, even though sometimes you may think that that it doesn’t you may think that those things harm harm society in some way, or they drag things out or whatever, but they are there for your your protection and for everyone’s protection.

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And, you know, one of the one of the DA’s offices that I was in, the Da was very appreciative, the elected D.A., he always expressed sort of a reverence for defense attorneys that that are good, that do their job, that do the things that Justin is saying because he recognized that defense attorneys are a necessary part of this.

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They do keep the government honest, and they do help us get to adjust outcome in the end, if they’re doing their job, assuming they’re not like a completely asleep at the wheel, a good defense attorney helps to make the case better in some ways, because it means they are having to jump through the hoops they need to jump through, and that this is justice being carried out.

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People get frustrated when the perception is that justice is being perverted in some way, and whether that’s that criminals are not being punished, or whether it’s that criminals are being punished too harshly, people get very upset about both of those extremes. And so the balancing act between due process and punishment is a delicate one to make sure that we are landing somewhere in the middle at something that is appropriate, and that the people get their chance to go through the system, they have their day in court, and then we can be confident that this is, in fact, justice.

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Yeah. And you you added an interesting quote to our outline for today, and I’m not going to read the whole quote, but a quote by a former president, John Adams. I was at the second president. Okay. And it’s essentially boils down to it is better in society for 100 guilty people to go free than for one innocent people to be wrong, one innocent person to be unlawfully convicted of a crime and you know, their freedom taken away.

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And that really rings true. And I’m sure a lot of you out there that are listening have heard something to that effect. And it it is absolutely one of the bedrock of our system. And in some ways, as Tim was kind of explaining there, the system itself, the due process does in a way take precedence over someone’s or even society’s moral judgment of the act.

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Right? The moral judgment of the act is what happens at the very end of the person is convicted of the crime, but the process has to take precedent to get there. And if it’s done correctly and it’s executed fairly, then the end result should be the moral judgment or the judgment of a judge and sentencing. But maybe you can’t get there because the process cannot fairly get you to that point.

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And that’s why the process has to take precedent, because it has to protect that one innocent person in that, in that quote, I don’t think you want to read the whole quote, do you? Okay, I would say I mean, obviously, you know, I, I, I agree with John Adams with the view that he expressed and we as attorneys in law school, very often you study John Adams because this quote comes from his role, obviously in defending the soldiers that were accused of the Boston Massacre.

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John Adams was was a patriot. He was someone who believed in the cause of independence at the time. And yet here he is offering legal representation to the adversary in that process. And it’s because he felt so strongly about his convictions and about people getting fair representation, fair legal defense, and for the process to to do its job.

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So the only caveat caveat, I would say, is that the system is so important, in fact, that I, I don’t know that I even truly agree with the idea that it’s more important for an innocent person to or for a guilty person to go free than it is for an innocent person to be punished. That’s a sword that cuts both ways, because if the process is correct and if we agree the process is the important part, then you are going to have situations where a an innocent person is found guilty as a part of that process, but that is the process working.

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The process is there for protection. I don’t think we could presume, as we sit here today that jurors don’t get things wrong. People have been convicted, probably when you might look at the facts and think, I would not have voted for a conviction, were they? They’re equated when you think I would have voted for a conviction. But the process is so important that when the jury renders that verdict, that’s important.

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And that’s a system worth preserving, and it is going to it’s going to come with quirks and it is going to get things wrong, whether that’s in favor of guilt or whether that’s in favor of innocent, but that that process is so important that we allow it to play out. And that’s the only way that you can truly have a fair and sort of blind justice system that is that is equal across the board is if that system is applied uniformly everywhere, and it doesn’t mean that the result is going to be the same in every case.

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Yeah. And I would say that the system has evolved, although we have similar bedrock principles to back when John Adams was defending those from the Boston Massacre, it has evolved, some of which through science, frankly. And I think sometimes about like the Innocence Project. Right. And you guys are all familiar with that, and our viewers probably are too.

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It’s that’s the innocent project, if you’re not familiar, is essentially a bunch of extremely sharp attorneys who essentially look at old crimes and convictions, which can essentially be overturned through the use of many times it’s DNA evidence or things like that, or other types of evidence that have come to light since the incident and have actually resulted in multiple cases where people have been released from decades in prison.

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And that is also the justice system at work. Right? And that’s why I say it’s evolved, because it has gotten, in my opinion, better. It’s gotten more detailed and more scientific. That allows us to be more specific in who actually does have to pay a penalty and who doesn’t for a certain action. And I think that’s one of the checks in a way, even though it’s after the fact.

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But it’s a way where we as a society have agreed that we are still going to check it even after the fact, you know, and that’s the appellate process to and we can check those things even after decades, even, and still try to give justice to the people who might have been wrongfully convicted. So I do think there is a huge difference between being guilty factually, being guilty legally and being guilty morally.

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Right. And that’s kind of what we’re talking about here. Justin, I’m going to pop over to you if you can kind of unpack what I just said a little bit there and those, those different ways of being guilty and what that actually means in the justice process. Right. I’d like to hear from you on that. So essentially factually guilty, you committed a crime.

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Basically there’s there’s really nothing else to that. Somebody guilty if they did something wrong. The facts essentially say you’re guilty of the crime, right? Yes. But that doesn’t necessarily mean that you’re legally guilty, right? So what’s kind of maybe we can explain it best by saying, what’s the difference between those two? Yeah. Legally guilty. It’s not about what you know.

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It’s about what you can prove. Right. So in order to be found legally guilty of a crime, the Commonwealth has to present evidence and either convince the judge or the jury, the finder of fact, that essentially, you’re guilty of the crime beyond a reasonable doubt. So there’s a standard there that has to be met in order for someone to be legally guilty.

00:29:37:10 – 00:30:02:23

Ron, what was the other one? Morally guilty? Yeah, the last one would be morally guilty. So actually, kind of like Tim’s outline here where he puts in, there’s a difference between guilt and culpability. So morally guilty I would say is, you know, you had the mental state intent. What is it? Coercion. Well, I guess there’s justification. So there’s a there’s a number of mental states that go into culpability.

00:30:02:25 – 00:30:28:00

But essentially I would I guess it’s it’s kind of like being legally guilty in a sense that, you know, there’s there’s something there that you’re culpable for. So injury damage, something like that. Yeah. Yeah. I think that Justin, that’s a good way of looking at it. I kind of view the morally guilty thing as more of a that is kind of where society is looking at it from that angle.

00:30:28:01 – 00:30:47:01

Right? Somebody did something morally wrong. But that doesn’t mean in many cases they even committed a crime. Correct? Right at all. I mean, something could be viewed in society as bad or wrong, and that doesn’t mean that the legal system is going to intervene at all. You know, so that’s there’s there’s a big difference there. I mean, Tim, do you want to add anything to that?

00:30:47:04 – 00:31:08:04

Yeah. I mean, just to illustrate that last point, I mean, moral guilt would be that you’ve done something. I mean, like like let’s say, you know, like, like cheating on your spouse, right? That’s a great example in the world. Exactly. Right. Like there’s there’s pretty much no moral justification for that. But at least, you know, in current society we do not punish people for that legally anymore.

00:31:08:05 – 00:31:26:25

Right, right. So and whether or not we used to and I did mention how the system has evolved. Yeah. Whether or not we should is a separate question. Right. But but you know, society has a say in the laws that are on the books and what we’re going to actually punish people for. But as it currently stands, adultery is an immoral act, but it is not an illegal act.

00:31:26:25 – 00:31:51:13

And so you could be a bad person and you could be a bad spouse, you could be a bad parent. But that doesn’t mean that you are breaking the law to do those things. You can say a whole bunch of ignorant things online that are not crimes. Yeah, right. So that’s what we’re talking about when we’re talking about moral guilt is that if you choose to be that type of a person, we as a society have said you can.

00:31:51:14 – 00:32:11:11

Now does that mean you’re going to have a whole bunch of friends? No. Maybe not. Yeah. You know, if you want to live in society way, as long as you’re not breaking the law which has been laid out, you can do that. And that’s one of the privileges that you, you know, enjoy. And that’s that touches on a really important question too, which is what is the point of this system?

00:32:11:13 – 00:32:29:04

We talk about, you know, the like how can you be a defense attorney? But the question is really bigger than that, because the question is, what is the point of our system of laws? Is the point of our system of laws to label people morally good or morally bad, or is the purpose of it to enforce the system of rule?

00:32:29:05 – 00:32:46:06

The rule of law? Is that the point that we’re getting at? And that is obviously the point. And so to allow people to live in society in the way they wish to live within the confines of law. So even if they want to be morally bad but not criminal, right, you can do that. And that’s why that that system exists.

00:32:46:06 – 00:33:09:14

It protects that right to just as much as it protects the right to be a moral, upstanding citizen. Yeah. And then it would it protects the implication of that being also that, that the people who choose not to associate with those kind of people are also protected. So yeah. Yeah. And in that sense, you know, society there is a little bit of harmony there because you’re going to you’re going to encounter people that that are just bad people and you’re not going to want to associate with them.

00:33:09:14 – 00:33:28:08

And, and when we’re talking about factual guilt, legal guilt, I mean, there are lots of people who’ve been convicted of crimes who to the very end are saying, I didn’t do anything wrong, right? They may not think factually. They are guilty, but they have been found guilty. And so legally they are guilty. So that’s another important distinction to, you know, you can dispute it all you want.

00:33:28:10 – 00:33:51:00

But when the legal system has weighed in, when it when 12 jurors find you guilty, unless there’s some extraordinary circumstances, that’s the finding. And it takes a lot to overturn that finding. Yeah. So yeah, I mean I think we often do represent people who have done something wrong. And most of the time when they’re charged, as we’ve said before, they’ve done something to draw attention of police.

00:33:51:00 – 00:34:11:23

Maybe it’s not the crime that they’re charged with. Maybe it is. Maybe it’s more than what they’ve been charged with. That’s not the point. That’s not really for us to sift through. I mean, we can use those kinds of of situations to help us negotiate, right? If we know that there was more liability here, maybe it makes sense to resolve the case as charged.

00:34:11:24 – 00:34:32:28

Yeah, maybe I don’t want to touch on that because that brings up a good point. This actually happens frequently where we have people come into our office and, you know, we get the police report from the judge ahead of time to prep the meeting. So we’re ready. They sit down and they tell us what happened. Because again, honesty with your lawyer, as we’ve said before, is extremely important in that first meeting and protected through the attorney client privilege.

00:34:32:28 – 00:34:49:27

But they tell us what happened and we go, wow, if that gets figured out, I’m literally having this discussion every week with people. If they figure that out or they figure out that this actually this crime should be graded higher than what it is, that’s going to completely change the equation for what your outcome is going to be.

00:34:49:28 – 00:35:21:12

Right? Right. So in that scenario, this is where we as defense attorneys can protect our clients ethically because we do not have to, nor do we share that protected information with the other side. And it might be something that they never figure out, or it might be something that they will eventually figure out. But if we can get to a resolution that satisfies the question on the table early enough, then maybe the outcome later that might come about can no longer be prosecuted under the double jeopardy protection.

00:35:21:12 – 00:35:37:15

I think very often they are aware of a lot of the extra facts. You know, not in every case, obviously, but like I have a case right now where I mean, just from a plain reading of the affidavit of probable cause, like, sir, you were under charged. Yeah. Like they have a lot more that they could have put on the table.

00:35:37:15 – 00:35:56:04

And I’ve seen cases like this where they are bringing those extra charges and it amounts to an extra 4 or 5 years in jail, right. For whatever reason, they chose not to bring those charges. And maybe if we come in and we start throwing a fit and making a stink about this, maybe they’re going to add those charges, how you conduct yourself letters in court.

00:35:56:05 – 00:36:21:18

And that’s why, again, having a defense attorney that knows the system you’re in is going to be able to avoid those pitfalls. There are so many people that go into court, either on their own or with attorneys that aren’t local or don’t know the system here, and they end up screwed, you know, because they end up conducting themselves wrong, which sends the wrong message and then puts them in a position where they now have a prosecutor that’s really digging in.

00:36:21:20 – 00:36:44:08

They have a police officer or a victim. It’s really digging in. And it didn’t have to be that way. And once you set that stage for the case, you’re stuck. There’s really almost no going back from that. Yeah. I mean, I tell people all the time we can escalate and start fighting at any point in the process, but once we do that, it’s very hard then to come back and say, oh, by the way, we’d like a deal.

00:36:44:16 – 00:37:00:26

You know, we don’t want to fight anymore. You know, I mean, at that point you’ve kind of set the tone, as you’ve said, and very often those are the cases that they’re going to trial. Yeah. Like it’s just a matter of you just have to yeah. You’re either going to plead guilty or you’re going to trial. And I’m not going to I’m not going to do anything for you.

00:37:00:28 – 00:37:21:18

Yeah. You can’t put the water back under the bridge. Right. And what I say to clients, a lot of times I use kind of this analogy, is that if you’re going to file this or if you want to go about it this way, we can and we better be ready to take the king’s head off, because if we don’t, the outcome after that is exponentially worse.

00:37:21:19 – 00:37:43:19

Whereas if we don’t do that and we decide to go a different route, we probably can still protect a lot of your rights. And yeah, you might have to deal with something, but it’s not going to be near what it would be, right? And that’s a conversation I find myself having very frequently with clients. You, Tim, you touched on something earlier and I wanted to ask Justin, I wanted to ask you about this.

00:37:43:22 – 00:38:06:24

So we as private defense attorneys at a private law firm, you know, not being public defenders, we do, of course, enjoy the privilege of, you know, having a business. Or we can essentially pick and choose who we want to represent, right? I mean, obviously, person has to come in our door and want us to represent them, but we get that that ability to say, you know what, I’m not going to take your case.

00:38:06:26 – 00:38:28:24

And I will say I very rarely do do that. However, I definitely do do it some, and I know you do as well, and I think we all do here. So what kinds of circumstances would you say you kind of find yourself in, where you have to really have that type of like internal discussion with yourself is why I wouldn’t take the case or why I would.

00:38:28:26 – 00:38:54:24

And I do want to touch on one thing before I go to you here, Justin, with that question this week, I mentioned it earlier. I had a case where I met with somebody and I didn’t feel like our goals were aligning as to what needed to be done to fix this situation. Right. And I was very upfront with my client, like we said, I talked to them up front and I told them, like, I don’t think what you’re asking there is going to work.

00:38:54:24 – 00:39:10:29

I think we should go about it a different way. And I told the client that I, you know, I just disagreed with their approach and that I didn’t think it would work. And I thought if they did go that route, that the end result, you know, the end of the chess game would probably be ex and it wouldn’t be good.

00:39:10:29 – 00:39:25:22

And I asked the client to kind of ruminate on that, to think about that. And I said, listen, it’s not that I don’t like you. It’s not that I you’ve rubbed me even the wrong way as a person, and I’m still happy to consider representing you. I just want you to think about what I said to you in our meeting.

00:39:25:23 – 00:39:49:04

Right. And I want you to think about what is important to you about this case. And that client did do that. And this is kind of a rare circumstance, but called me back. We had a second meeting and we talked about a little on the phone. We had a second meeting. We sat down. We kind of reevaluated both of our ideas of how we should approach the case, and we actually found a middle ground that I think we were both very comfortable with.

00:39:49:04 – 00:40:10:18

And I ultimately decided to take the case. That literally happened to me this week. And it’s so interesting because the second meeting that I had with this client, I so much enjoyed the meeting that like, it was almost like a different person that I was meeting with. And I think that person just had the ability to kind of think about this in a way that they hadn’t initially thought of before.

00:40:10:18 – 00:40:36:24

We sat down initially, and they came in with a preconceived idea of how they wanted to do their case, and they were just sure it was going to work. But once we unpacked it, they were able to reconsider that. And honestly, I actually give my client a lot of credit in that case, because that shows a person who is willing to reevaluate their position and kind of humble themselves to that position and rethink through it after they have the knowledge that they did not previously have.

00:40:36:25 – 00:40:51:19

And for that reason, I’m actually super excited about this case. And it’s going to be an interesting case. And there are a lot of things we have to unpack in that case that are unique, but I’m pretty excited about it. I know my client is, and I thought the end result was so much better and it was so great.

00:40:51:19 – 00:41:11:18

So in any event, off topic a little bit, but but again, I’d like to know kind of your thoughts on this just because you said earlier that you, you kind of practice differently. And I think a lot of lawyers do it because of your personality. Right? And honestly, man, that’s one thing I love about you. You have such a neat personality that I think just connects with people.

00:41:11:18 – 00:41:28:24

Well, you actually kind of remind me of my brother a little bit. He’s like, my brother’s a car salesman, right? What they say about car salesman, right? Yeah. You’re a car sale. We all know that, right? But the thing about my brother is he sells cars for a living. He does it at a very high level. He’s actually been the top salesman for multiple years now.

00:41:28:24 – 00:41:51:28

And one of the reasons he’s so good at it is because his personality is not that he’s a car salesman, his personality is that he connects with people personally, and I think is very good at just having that engagement that allows that trust to flow pretty regularly and easily. And he’s not to type a guy who’s going to go out and harass people and be a snake oil salesman.

00:41:51:29 – 00:42:08:20

Like a lot of car salesman we think of are, you’re similar to that, you know, and not to blow your head up or anything, but I think you’re very good at kind of having those judgments. And I’d like to know how you approach that when you’re in that type of situation. This is definitely a unique situation that we have.

00:42:08:26 – 00:42:41:07

Being private defense attorneys and being able to meet with people before agreeing to take their case. I would agree that most of the people that walk in here or call in here do it for a reason, in that they are familiar with how we operate, kind of our process and how we handle cases. But not everyone. For me, like I said, there are a few charges or a few different types of cases that I generally would shy away from and just not be interested in taking for my own personal reasons.

00:42:41:13 – 00:42:58:17

But when it comes to you mean like certain factual scenarios? Yeah, certain certain sex crimes and things like that. I’m just not interested in doing right there. You know, there could be really any factual scenario if I read into it and it rubbed me the wrong way, or there was something that I, you know, didn’t agree with and I would, you know, turn that down.

00:42:58:24 – 00:43:18:26

But I would say that’s the minority, though. Absolutely agree about that. Absolutely. It’s not very often I can’t even think of the last time I actually turned a case down for feeling so morally rubbed the wrong way by it. I don’t know that I ever have, but if it came down to it, you know, I would. Yeah, I mean, you have you can’t do violence to your own personal conscience in doing it.

00:43:18:28 – 00:43:34:25

Yeah. And I think, you know, again, personally for me, and I’m sure it’s the same for you guys and other defense attorneys as well. Sometimes when you meet a person for the first time, you can just tell that they’re not going to like, vibe with you or how you operate. And kind of like that same token that you were just talking about.

00:43:34:26 – 00:43:50:14

You know, somebody comes in here and, you know, we sit down and they explain what’s going on, and we have a copy of the complaint or the affidavit or police report, and it’s completely different. You know, that’s not a that’s not a great place to start. You basically just lied to me. And I know you’re lying to me because I read what they are alleging.

00:43:50:17 – 00:44:05:10

Now, again, every time that somebody put something in an affidavit or police report doesn’t make it true. Yeah. But I think and you bring up a good point, I do want to point this out for those of you that come into our law firm, like we don’t like to like, I think some lawyers will literally just sit down coal with you.

00:44:05:11 – 00:44:20:23

They don’t know what the hell is going on with your case. They just come in and we’ll meet and tell me what you want to tell me. Throw up on my desk and give me what your facts are. That, to me, is a pointless way to practice law, because I think it is not thorough what I do. And I know you guys do.

00:44:20:23 – 00:44:37:28

This too, is before you ever walk into my office when you call to schedule the initial consulate, I would like to meet with you guys. I’d like to talk to you on my case. Great. I’m going to get some information from you. Initially over the phone. I’d like to hear a little bit about your case. We’re going to unpack it in major detail on my meet, but I’m getting the police report from the judge before we’re ever sitting down.

00:44:38:02 – 00:44:57:23

I want to know the background of what the other side is saying, too. Absolutely. So then when I sit down with you, I’m not sitting down cold, and I can have a far more thorough meeting with you, right? I mean, I know you do it the same way, but I think people sometimes come in here and think that whatever they’re going to tell us is just the gospel, and we’re just going to accept it is like, we’ve been doing this long enough to not, like, do it that way.

00:44:57:24 – 00:45:21:29

Yeah, yeah. And I have a meeting this afternoon with somebody that, you know, what they told me compared to what’s written in the police report, I think generally matches up. But definitely this person’s perspective versus what the police’s perspective is, is definitely different. And there’s details that only she would know prior to police arriving. But having that affidavit to actually read through and see what they’re alleging was so helpful because it’s kind of a convoluted case.

00:45:22:00 – 00:45:41:24

Yeah. And don’t get me wrong, I’m not saying like the police are always right. Diana means, in fact, a lot of times we’re able to hear what you’re saying. Look at the report later, get video and decide that there’s things in there that were not said correct. Yeah. You know, that happens a lot, but it is very valuable from a just a knowledge standpoint to know what each side is saying.

00:45:41:25 – 00:46:02:13

Right. And if it is disparate, different, like absolutely different, you got to have the kind of the come to Jesus talk with your client and be like, is this really what it’s going to be? You know, like, come on. Yeah. And so again, I think the important part is just kind of weeding out those people as best as possible and determining, you know, is this person actually going to listen to me?

00:46:02:13 – 00:46:19:19

And I know that you guys have dealt with this. I know, Tim, especially recently, there’s been 3 or 4 people, you know, that they come in, they pay us and then they never we never hear from you again. Right. So like, it’s it’s a weird dynamic and trying to figure out who is going to be a good client versus who may not be the best client.

00:46:19:19 – 00:46:38:29

But if you’re going to come in here and lie to me and, you know, come in here and say, basically, you’re not going to listen to anything I say, or I get the impression that you’re just going to be super, super difficult to work with and, you know, nothing’s going to make you happy. Those are the types of cases that, you know in the back of my mind.

00:46:39:00 – 00:46:56:26

Am I going to, you know, maybe quote them a little bit higher just because I know that there’s going to be a lot more time and effort I need to put into it, or is it going to be something where I just tell them I’m not interested? I’d say those are the normal ones. And then recently you had sent me somebody who actually had another attorney and was looking for a specific result that this attorney didn’t get.

00:46:57:00 – 00:47:17:01

And I spoke to this individual on the phone for probably a good half hour and basically told him, hey, I can take your money, but I can tell you right now what you’re asking for. It’s never going to happen. I can’t make that happen. There’s no one in this world that can make what you’re asking for happen. So basically what I suggest to him, I was like, you know, if you’re truly not happy with your representation, I will give you a quote.

00:47:17:01 – 00:47:40:22

And I’m here, but I’m just going to be straight up with you. Like, I, I can’t make anything better than what it already is. And I really and I would much rather you do that. And I would hope that the person, although they very rarely do, would appreciate that honest assessment. Right. Because that is you gave him or her like an hour or half hour of your time to go over this, to tell them you’re honest assessment.

00:47:40:23 – 00:48:02:08

And you didn’t build them for that, right? I mean, that was that was free. And I hope that they took that for the grain of salt that it was worth and actually did make a decision that was beneficial. Now, again, if they are truly just unhappy with the attorney, that’s a whole different issue. Absolutely right. Absolutely. If they want something that’s not feasible and not possible, then that is a whole nother issue that they need to be aware of upfront.

00:48:02:08 – 00:48:22:08

And for those of you that want to, you know, come in and tell us that we don’t know what we’re talking about, just don’t commit. You know, like if you if you think that you’re know how to do this best, then do it and go do it the best that you think is going to work the way you think it’s going to work.

00:48:22:08 – 00:48:48:26

And I recently had a phone call and Justin just kind of on this topic. I recently had a phone call with a guy who I ultimately didn’t meet with, that he it was very similar to what you were saying. He was literally trying to tell me what needed to happen with his case. Right. And it kind of turned into the whole thing where the the system’s all corrupt and everybody’s against me and like, why would you not, like, push back and just yell at everybody and say, everybody’s corrupt.

00:48:48:26 – 00:49:05:22

And and my bottom line to him was that is not going to work. That is not going to get you the result you want. Right? And I basically had to end the conversation with him after about 45 minutes on the phone telling him, like, I just don’t agree with what you’re asking. I’m not going to do that. I don’t think we’re a match.

00:49:05:22 – 00:49:28:07

You need to go somewhere else, right? And he was pissed off about that and for all. And you know, he’s like, well, I’m going to leave a review and all this garbage. And I’m like, well, I mean, for one, you’re not even a client of mine. You’re going to leave a review. Like, I mean, come on, like, but at the same time, like, I just gave you 45 free minutes of my day to tell you what my legal advice was, and you were just pissed because it wasn’t what you wanted to hear.

00:49:28:08 – 00:49:44:22

Yeah. And I think I’ll get nasty about that kind of stuff. And they really like, I’ve had people get very nasty with me, and that is, I think, a quick way to shut the door. Like if you’re, if you’re going to get condescending with me about my assessment, I’ve had people lecture me about, you’re an attorney, you should know this.

00:49:44:23 – 00:50:04:17

Yeah. That’s instant like you’re done. That’s crazy. I’m I’m not going to put up with that. One thing that I would add to what Justin said is another big tip off for me. A red flag is if I get the sense that the person’s not really serious about their case. I mean, you part of our job and we take it very seriously, is we are going to be invested in your case.

00:50:04:17 – 00:50:23:11

We’re going to take the case seriously. But if that energy is not matched by you, then there’s nothing I can do for you. I tell you, not all the case more seriously than you are, right like that. That if I am far more invested in serious about this than you are, and you’re just blasé about the whole thing, that that’s not a good relationship.

00:50:23:12 – 00:50:42:02

I tell people all the time after we’ve we’ve had our day in court and we get a really good result and we’re all happy with it. I tell them what I’ve been telling people a lot recently, because I’ve had a lot of really good clients that took their case into their own hands. They followed my advice. They did what I told them they should do, and they got great results as a result of that.

00:50:42:04 – 00:50:59:20

And what I tell those people is, you did this. You’re the reason I can give you advice, I can advocate for you, and I think we’re good at what we do here. But at the end of the day, it’s you who gives me the ammunition to go to bat for you and explain that to a judge or to a prosecutor or to a police officer.

00:50:59:20 – 00:51:14:25

And if you don’t do that, then it doesn’t matter what I say. There are certain types of proceedings where the judge or whoever doesn’t even care what I say. I can say all kinds of nice things about you. That’s not going to move the needle. It’s what did you do? And what do you say to the judge that matters?

00:51:14:25 – 00:51:33:25

And so I often tell those people, you know, I certainly appreciate that you’re happy with me and my representation, but I want you to know that you were the architect of this. You followed the instructions. You did what you were supposed to do. You are a large part of why we got this result. That was you. And you can be confident.

00:51:33:25 – 00:51:50:06

You can hold your head up high. You can move past this. You can have closure now. And hopefully you feel like the result is fair. But if you’re not serious about it, I’m not going to waste my time. And because I don’t have to be a party to your train wreck. We talk about human wreckage all the time.

00:51:50:08 – 00:52:07:02

I don’t have to be a party to your self-destruction. So if you’re going to come in and you’re going to make a mess of the system and you’re going to make your case worse, I don’t have to sit as a passenger into that situation. You know, I loved what you just said there, Tim, about the client doing the work.

00:52:07:04 – 00:52:28:19

Right? The client doing really the heavy lifting. Right. I say almost that identical thing to a lot of my clients at the end of cases, as you just said, you know, because it is so, so true. And frankly, I actually am very proud of my clients who do that. I’m proud for them. I’m proud of them. And they should be proud of themselves.

00:52:28:19 – 00:52:49:24

Because you are right. I mean, we are a conduit to a result. We are not the one who is creating the the ammunition. Do we use it and do we know how to use it and use it effectively? Yes, that is our job and that’s what we do. But you, the client, are the one that actually is in a lot of control about the outcome of your case.

00:52:49:26 – 00:53:16:06

Gosh, I can’t tell you how many times I say that even in initial meetings, like control the controllable control what you’re doing, you’re here early. Take advantage of that, you know, control the situation and give me the ammunition to be most effective for you. And if the clients who are willing to follow through with that and are willing to be the superstar and do the work that we lay out for them to get the result, I can’t think.

00:53:16:07 – 00:53:34:01

I don’t know about you guys, but I can’t think of a single case I’ve ever had. Whereas I told someone, this is what we need to do x, Y, and z. You need to kind of own this or earn it and learn. I say earn and learn all the time. Or learn and earn. You learn. You show and demonstrate that you’re learning from it.

00:53:34:01 – 00:53:50:10

You’re making amends and you’re trying to fix it. And then you earn the result that you get because of what you did. I can’t think of a single case where I had a client that adopted that methodology and then got just totally screwed at the end of the case. I can’t think of a single one. You have you ever had one?

00:53:50:11 – 00:54:06:14

No. Maybe 1 or 2. But that’s because the situation was really, really bad, right? Like there really like we were facing an uphill battle. But there’s a mantra here to live, but you’re still you’re not hurting yourself, right? I mean, you’re absolutely doing no damage. There’s a mantra here. It comes from a poem. It’s called Invictus by William Ernest Henley.

00:54:06:14 – 00:54:25:02

And the the end result of the poem is it matters not how straight the gate, how charged with punishments the scroll. Jesus, I am the master of my fate. I am the captain of my soul. So I mean, you ultimately are the one who stands in judgment. I am not the one who’s going to go in, I get you.

00:54:25:04 – 00:54:40:22

We get yelled at by judges all the time for stuff that’s happening in court. But I am not the one who’s facing penalties for whatever happened, right? I’m not going down on the ship here, and I think most good clients appreciate that. And they recognize that and they recognize we’re there trying to help them and they’re going to help themselves.

00:54:40:25 – 00:55:08:06

And guys, a lot of what we’re talking about with the problem issues that we sometimes deal with, I want to be clear, it is the minority. It is absolutely not the majority of what we deal with or see on a regular basis. I would say most people that come in here are interested and very actively engaged in their own case, in their own defense, as they should be, and they’re very communicative, which communication is absolutely so important when the attorney client relationship.

00:55:08:08 – 00:55:28:20

I can’t tell you, by the way, talking about communication, how many clients that I get that call in that say I need to change attorneys because I never hear from my lawyer. I mean that that is a problem, you know, and I, I preach to you guys all the time and I do it at try to, you know, apply it to my own advocacy and representation of clients.

00:55:28:23 – 00:55:55:25

Communication is literally, in my opinion, one of the number one things in the attorney client relationship. And I think communication sometimes loses or wins cases. I really do strongly believe that, because if you are not communicating with your client and your client is not communicating with you, then you are not able to have a fluid dialog about what is happening.

00:55:55:25 – 00:56:20:01

What is the client engaging in, how are they doing? And then you, as the attorney, cannot advocate that position to the Da and to the court. So you have to have that communication. And I mean, I’m not going to get too much into legal fees here. But one of the reasons a lot of times in this law firm, we do flat fees for cases is because and I say this to clients, that level of communication, I don’t want it to be stifled in the slightest.

00:56:20:01 – 00:56:38:06

I want you to know that you have full access to me as your attorney. You should call me and I will call you back in the same day. And if I call you, I expect the same thing. You call me back in the same day. Because if that’s not happening, we’re screwing up as a relationship and as an attorney client relationship here.

00:56:38:06 – 00:57:03:02

And I think I say that in the very first meeting, I tell them this is like a commitment between the two of us. This is a partnership, and that communication is part of that commitment. And most times people are like, absolutely yes. And it’s also a gauge for me, because if somebody’s also kind of like, well, I don’t know, I’m pretty busy or I don’t always pick up my phone, that might not be the guy who’s invested in his own defense, and that might not be a case I want to take.

00:57:03:05 – 00:57:24:28

So I think that’s why that commitment is pretty important. And I also think it’s important for the client to hear that from their attorney. In the beginning, attorneys who, you know, are out there and not calling their clients back, you’re screwing up. You are get back to your clients. And that’s also one of the number one reasons lawyers get into ethical problems with the disciplinary port, by the way.

00:57:24:28 – 00:57:51:28

So, you know, for another day. But all right. Well, I think that that kind of touched on a lot a lot of good issues there. Well, here’s a question for you related to all of this. And that is how many times has a person been staring down the barrel of a really, really bad resolution for a case where they’ve been able to stand in front of the court and say, but my attorney said this, how many times does that work, right?

00:57:52:00 – 00:58:11:06

You know, never, never. Because the attorney is not the one who’s charged with the crime. That’s the point, right? So, I mean, you know, I, I can tell you all the things that I think are positive about the case. And if you don’t do them, you know, you’re not going to be able to stand in front of the judge and make a bunch of excuses for why you didn’t do what you did.

00:58:11:07 – 00:58:32:05

I mean, I I’ve been in that position many times with people where I’ve had to try to explain, why didn’t we do certain things, why didn’t we get, you know, letters of recommendation or those kinds of things? And the answer is because the person just didn’t really think it was important to do that. And so, I mean, if that what are you going to say to a judge in that situation?

00:58:32:12 – 00:59:01:20

And, you know, you you’re not going to be able to say, well, my attorney told me to do it, but I didn’t think that was legitimate. So I just didn’t do it. Yeah. Yeah. I think one of the big questions to is like, along the same vein is like, what do we do when the client’s interests and this would be a client is a client of ours directly conflicts with what the rule of law is going to require or what we believe justice, how justice is going to be applied to their situation.

00:59:01:23 – 00:59:23:29

I’d like to get your take on that, Justin, because I think that is a client management question, you know. So again, what do we do when the client’s interests beliefs directly conflict with what justice requires or what justice is ultimately going to require? I think, to start.

00:59:24:01 – 00:59:43:23

As their attorney, I think obviously we need to have a conversation with them, or at least try to about why essentially they’re wrong. You know, we’ve said it before on this podcast, and I mean, I’ll probably be saying this till the day I die. But, you know, obviously we’re we’re I would consider as all nice people were friendly.

00:59:43:24 – 01:00:12:23

We’re easy to talk to when people come in. We’re polite, cordial, friendly even. But we’re not their friends. We’re not clients friends. We may represent people we know, but that happens frequently, actually. But when we’re in that role, is they returnee? Yeah. We’re not their friend. We’re there to counsel them and provide them legal advice and essentially tell them, in our opinion or a professional opinion, what we think is the best way to get the best result, what the best outcome is.

01:00:12:24 – 01:00:33:05

Is this a good plea deal? Is this not a good plea deal? If it gets to the point where they are so far gone and just do not listen to us, you know won’t won’t call us back, won’t engage with us, then I think at that point, if the relationship is so broken, then we have to file to withdraw as their attorney.

01:00:33:07 – 01:00:57:29

That’s not something most attorneys ever try to do. Yeah, there’s probably, you know, certain attorneys out there and everybody at some point will have a client. I think that just pushes you to the edge and doesn’t do what you’re asking them to do. And really just kind of, we’ll say falls off the deep end. But at that point, I think we have to legally, morally and ethically withdraw from their case.

01:00:58:00 – 01:01:16:28

Yeah. And I mean, I think you’re right though, like that, if that you get to that point in a case, it does start to unpack the end part of that. It does start with trying to have an engagement with the client privately and individually. Right. And I would say probably best performed in person if you can accomplish that.

01:01:16:29 – 01:01:37:01

However, a lot of times when you’re in that situation, in case you find yourself where the client like, isn’t even communicating with you at that point, right? So how do you get them into a meeting to actually try to get it back on the rails, right. If you can, that’s what you should do, because you should always try to ethically repair that relationship if you can, as you said.

01:01:37:07 – 01:01:58:02

But again, sometimes you just can’t. I have had a few cases over the years where I literally just the client, just like I don’t even know, like what happens to them. They just like stop communicating. They don’t respond to emails, they don’t call back. And again, we’re dealing here usually with flat fee cases where there’s no reason for that to be happening and that you literally just have to file a motion with the court.

01:01:58:02 – 01:02:19:14

And a lot of times I say in that motion, like I’ve done X, Y, and Z to try to find my client and communicate with them and they will not communicate with me. I cannot advocate advocate properly for them anymore, you know, and for that reason, I have to withdraw. And sometimes I think the judges that do this well is they, of course, permit you to withdraw, but they set a hearing to do this in court to see if the person shows up.

01:02:19:16 – 01:02:32:24

Yeah. And make the person show up a court put some fire under their butt, and if they show up a court, maybe you can meet with them there. Yeah. You know, and if they don’t show up in court, well, I mean, then they can get a warrant and then they’re going to have to answer to the judge. So I mean, there’s going to be some comeuppance there.

01:02:32:24 – 01:02:49:25

It’s going to happen. It’s just how you want it to happen as the client. Right. And then I think too, if you can talk with them and kind of get them to come around and, you know, repair the relationship a little bit and then they’re still, you know, on you about why you need to file this motion or you need to argue this.

01:02:50:00 – 01:03:24:10

What a lot of people, I would say don’t understand, but also don’t want to accept is the lawyer or the attorney. I should say for whoever the defendant is, is the one that’s making those calls, strategy, defenses, etc. and you can have a client that completely disagrees with you and wants you to do all this. But if you can still effectively represent them even though they disagree with everything you’re doing, which I’ve seen before, you know, people especially going into a trial picking 12 people, then it’s like, well, I don’t like my attorney.

01:03:24:10 – 01:03:43:29

They’re not doing what I want. And the judge is like, do you have another one lined up? No. Okay, we’re going to trial. That’s something I think that a lot of people maybe misunderstand or just don’t again, want to accept. Is that just because you want us to do something or ask us to file some motion, etc., if there’s no legal basis to do that, we ethically cannot file it?

01:03:44:00 – 01:04:05:14

Yeah, that’s a great point too. I mean, yeah, you’re absolutely right. We’re not going to we said it before. We are not going to file non meritorious motions just because a client demands it. Not only is that a piss poor way to practice law, but it’s unethical right. So and we are officers of the court as lawyers and our clients I don’t think always understand this.

01:04:05:14 – 01:04:27:07

Some people, I think when they go hire a lawyer, think that’s just like my legal slave that’s going to do whatever I demand they do right. And it’s just going to follow every whim, every drop of the hat that I demand. And that is not how it works. And frankly, if that’s your take on what your lawyer should be, don’t come to our office, please.

01:04:27:13 – 01:04:45:14

You know, you know, but that is not how you should you should act as a client and really, you’re just doing yourself a disservice. But you’re absolutely right. I mean, and it begs another question. I’ll put this out to both of you guys. I mean, as lawyers, there are certain things that we absolutely can not do. So what are those things?

01:04:45:14 – 01:05:02:28

What are some things that we cannot do as lawyers? Well, I’ll back it up even in light of this discussion. And the question is something that’s, I think, even more basic, which is, I mean, it’s it is not my job, nor do I have the power to make a guilty person innocent. So what do I do with cases?

01:05:02:28 – 01:05:24:28

Well, we challenge sufficiency of evidence. We challenge whether the evidence was obtained lawfully. We we can challenge the legal and support the legal and factual support for charges. We can negotiate what we think are fair resolutions. To Justin’s point, and you’re talking about due process there. Yeah, that’s that’s all part of what we do to Justin’s point. I mean, you know, it’s kind of harsh to say.

01:05:24:28 – 01:05:45:16

And certainly I’m not trying to sound condescending, but a lot of times what we’re confronted with where where people want us to do something like that, that isn’t meritorious. The the thing that’s in the back of our mind is you don’t know the law, you know, where did you go to law school? Most of these people did not go to law school.

01:05:45:16 – 01:06:02:24

And they’re feeding us something that they heard from somebody in prison, or they’re feeding us something that they researched on Google and they got an AI response on. And they think this is meritorious law is a lot more complicated than that. And there’s a reason that we have to go to school for a long time to be lawyers.

01:06:02:24 – 01:06:24:20

There’s a reason that we have to take the bar. There’s a reason there are practice requirements and continuing legal education. So I mean, to answer the question specifically, we cannot, as you’ve already said, file motions for which there is no legal basis. And judges, I think, have to respect that as well as and as defendants. And I want to tell a story here, Tim.

01:06:24:20 – 01:06:44:18

And then I’m going to come back to you. Your this happened to me in a federal case many years ago, and the assistant United States Attorney, who was a prosecutor on the case still to this day talks about it. I think he actually recently told you this story, Justin, when you were with him on a different case. But this brings up this example, and I think this is a great example to use.

01:06:44:18 – 01:07:08:05

I had a client who was a federal drug case, a massive federal drug case, very significant amounts of drugs, serious drugs, etc. this client had been I got her out on bail, so she was out on bail conditions. And when you’re on bail conditions, you’re out and you’re free. But while your case is pending, however, you are required to follow certain things.

01:07:08:05 – 01:07:25:24

For instance, you can’t be using drugs, you can’t be running around with guns and firearms and weapons and all sorts of different conditions the judge can put on you as your bail conditions. One of these individuals bail conditions were that she was not to be using drugs. It was a drug case, right. And we had her out for a number of months.

01:07:25:24 – 01:07:48:18

And all of a sudden all these violations started cropping up. And I probably went to about 3 or 4 different violation hearings. So these got to the points where we were being called back into court and having to explain to the judge what happened and tell them how we’re going to fix it and that type of thing. And we did that successfully about 3 to 4 times.

01:07:48:18 – 01:08:11:21

And then a number five comes up and I get another bail violation. And we’re going back to court now for yet another hot drug urine test. And I as I always do, I go to my client and I say, hey, listen, I just got the probation violation report. This is what it says says you’re hot for cocaine. Why is it saying that we’ve been through this already four times?

01:08:11:21 – 01:08:54:16

Why are we back here again? And that individuals response to me at the time and what she wanted me to present to the judge, was that she had looked up on Yahoo, that you can actually have a positive drug test essentially transmitted to you through sexual intercourse, that she was essentially saying to me that the only reason I’m hot for cocaine is because I had sex with somebody who uses cocaine, and I seems legit, paused and then had a had a kind of discussion with her about Yahoo is not correct on this issue.

01:08:54:17 – 01:09:13:21

That is not how science works, it’s not accurate, etc. but she was dead set that Yahoo was correct. Right? So and again this is before AI. This was a number of years ago. So people were still searching on Yahoo I guess at that time. So what did Ask Jeeves say Ask Jeeves? Yeah. Oh gosh, you remember that one?

01:09:13:29 – 01:09:30:16

Is that still exist? I don’t know. Okay. Anyway, that’s the paperclip on Microsoft. Oh. The paper. Yeah. So anyway, so we go to we got to go to hearing again. Judge is calling us back in for another hearing where she’s going to consider revoking her bail. We go back into court and I’m trying to convince my client that it’s not the argument we want to make.

01:09:30:16 – 01:09:53:19

It’s not going to work. Okay. And this is again to all your points, guys, this doesn’t have merit. This is not a meritorious argument. So I’m stuck between this rock and a hard place. I have this major serious, you know, federal drug case. I’m back before the judge. I have a duty to the court as an officer of the court, not to put forth non meritorious arguments, but I have a client who’s insisting that that’s our argument.

01:09:53:20 – 01:10:18:02

So you know what I thought in my mind I said you know what. Sometimes people need to get a dose of their own medicine. They need to be taught a lesson if they’re not willing to accept reality, you know? But I’m also the lawyer. So ethically, I’m going to, you know, I’m going to go in there and I’m going to present a case and I’m going to, you know, try to advocate that my client should yet again stay out of jail, okay, because she won’t use drugs.

01:10:18:02 – 01:10:44:23

We promise. So what I did, and in that case is I said to the judge in our when it was time for us to argue, I said, and this was kind of a a way of saying it without saying it. I said, Your Honor, my client would like to tell you that the reason she is positive for cocaine is that Yahoo has advised her that she it is because she had sex with somebody who uses cocaine.

01:10:44:25 – 01:11:08:04

So the caveat to that was my client would like to tell you, okay, that’s that’s speak for what I’m about to say is bullshit essentially is are not my words. I disagree with this. Right. Wasn’t my argument. Yeah. It’s like was it a Cousin Vinny? Everything that guy just said is bullshit. You remember that? Fair. Yeah. So in any event, I, I that’s what I said to the judge.

01:11:08:04 – 01:11:14:26

And it was. So I’ll never forget this. Like the judge, he does one of these.

01:11:14:29 – 01:11:38:18

And he just. It was this awkward, like, minute pause where he just sat back, put his hands on his chest and just kind of like, took it in. And I think what he was doing there was he was trying to show my client that he completely doesn’t believe that. Right. And he was giving that that kind of pregnant pause to like anything else you want to add that might actually make sense here, but nope, that was our argument.

01:11:38:19 – 01:12:00:06

Right. So all right, so of course it failed. And my client went, you know, did not pass go and went straight to jail. And it was it was interesting because after my client goes to jail or packing up for the hearing, I’m about to leave, which again, this is what you said earlier, the lawyers leaving. You know, if you want to make some failing argument, you’re still leaving as the lawyer.

01:12:00:06 – 01:12:16:23

So it’s kind of your funeral in a way. Right? But the judge calls me up to sidebar. He goes, Attorney Kearney. After the client had left and hauled out by the marshals. Attorney Kearney, I’d like to talk to you in my chambers. And I had kind of like an oh, shit moment. Like, I’m like, oh, is he going to, like, remount?

01:12:16:24 – 01:12:37:11

Like, did I do something wrong? Whatever. And so he motions to the assistant U.S. attorney and says, come on back to my chambers, fellas. So we go back to his chambers. And this judge, he was the president of federal judge at the time. He’s now retired. He breaks out this big book. And he had been practicing for probably, I don’t know, 50, 60 years.

01:12:37:16 – 01:13:01:23

He breaks out this big book from under his desk, and he plops it on his desk back in chambers, and he goes, Turney, Kearney, I’ve been keeping this book my entire career. And today you made my book, and he started writing, kind of like the little story about what happened. And I just thought that was so interesting because it kind of it was something that he was essentially saying, I have never seen this crazy argument before.

01:13:01:25 – 01:13:19:07

And we we kind of were jovial back there. And, you know, he he acknowledged he’s like, I knew this wasn’t coming from you the way that I was phrased. And I felt a lot better as an attorney about that because I was almost like forced to kind of say what wasn’t even true. Right? So it was just an interesting story.

01:13:19:07 – 01:13:42:00

But, Tim, I want to give you a chance to go back to what you were saying, because I kind of cut you off. No, but that’s that what I was going to say, I think, ties into that perfectly. Because, you know, you do have these conversations with clients where you, like you said earlier, you’re kind of like really like, you know, and the judge, you, the attorneys were all kind of like, it almost feels like at this point, I’m no longer your attorney.

01:13:42:01 – 01:14:00:14

Now I have to step into the role as like your parent or your teacher, or I have to explain how the world works to you. I mean, if you’re making this kind of an argument, you just whether it’s through lack of intelligence or life experience or ignorance or whatever, like you just don’t get how the world works. Yeah.

01:14:00:17 – 01:14:19:11

And like, now I made it this far, right? Do you really still believe that? Now I have to have a conversation with you where I’m like, do you understand what we’re doing? You know, I’m not serious about, like, there being a competency issue, but, like, do you understand what we’re what what’s going on here? I mean, do you like, what is your opinion?

01:14:19:11 – 01:14:39:11

What is your belief about all this? But but that’s kind of the point about what we are not supposed to do. I’m not your parent. I’m not your teacher. I’m not in a position where I can take you by the hand and force you to do anything. So, no, I mean, that’s one thing we can’t do. I can’t force you to not be stupid in court.

01:14:39:12 – 01:14:58:10

I can’t force you to agree with me that what you’re saying does not make sense. Factually. It doesn’t. It’s not in accordance with the laws of nature and science. It’s certainly not a legal argument. I can’t force you to believe any of those things anymore than I can magically make you not guilty of what they’re accusing you of.

01:14:58:12 – 01:15:22:01

I also can’t present false evidence. I also can’t mislead the court deliberately, and if I do accidentally mislead the court, I’m obligated to correct that misapprehension as quickly as I become aware of it. And I certainly cannot fabricate defenses for you. So, you know, your story touches on a very, I think, an intersection of all of those points that I am not your parent.

01:15:22:01 – 01:15:48:20

I am not your caretaker, I’m not your teacher. It is not my job to make you smarter, or to go along with every harebrained scheme that you come up with, especially if it’s going to cause me to do something that is not permitted by the rules of evidence or by the rules of professional conduct. My zealous advocacy for you ends when where we’re going is now outside the bounds of the law.

01:15:48:20 – 01:16:09:22

And there are some attorneys, I think, that don’t really respect that boundary all that well. They will go into the gray areas for their client and they’ll kind of they’ll do things that are a little bit I’ve seen it where attorneys are saying things that they’re not true. Well, I mean, again, as all of us haven’t been former prosecutors, I think we have an interesting audience standpoint there where we’ve seen it from the other side.

01:16:09:23 – 01:16:38:00

Right, right. And that is something that I do believe that the attorneys who regularly practice this way, it is a known commodity. Right? Right. It’s something that’s known by the judges. It’s something that’s known by the prosecutors. And I do think it does play into the results that those individuals get for their clients. Right? Because it’s not just when you’re a known commodity and you’re going to do this over and over and over again, you’re not going to get the respect that you’re going to.

01:16:38:01 – 01:17:00:05

You should get on maybe a different case, right? Because the preconceived notion of that prosecutor or of that judge is going to be one that is not going to put you on a level playing field with them, because they’re not going to have that respect. So I do think having that level of the way that you practice needs to be in line with that is the way to do it, right.

01:17:00:06 – 01:17:20:02

And there are lots of like I think Chief Justice Warren has a quote out there, and I think it comes from some opinions that he wrote or some speeches he gave where he and it’s not he’s not the only one who said this where zealous advocacy for client. There are some defense attorneys who think that is the number one priority, but it’s not.

01:17:20:06 – 01:17:40:10

The number one priority is to obey the law because we are officers of the court. So I have a duty of candor. I have a duty to make legal arguments that have a foundation in the law. I can’t just make it up as I go. So the zealous advocacy is actually a second order priority. It’s a second order objective.

01:17:40:12 – 01:18:02:17

That objective does not trump my obligation to the law, my loyalty to the law. And I, as a prosecutor, saw defense attorneys where like one situation I was in and I did tell the defense attorney, I think that that was dishonest, what you did, because what was happening was we had a big, long hearing. The judge crafted an order as a result of that hearing.

01:18:02:17 – 01:18:24:06

The judge made her intentions plain on the record. We all knew when we left that courtroom what the the purpose of this order was. But when the written order came out, there were certain aspects of the judge’s order and intent that were not fully captured on that written order. And so probation and some people at the prison were saying, hey, this needs to be reworded.

01:18:24:08 – 01:18:47:25

And the response from the defense attorney was, I’m not going to agree to have it reworded the order says what? It says. It can’t be enforced. Well, that’s not the right attitude because you were there in the courtroom. You heard the words from the judge’s mouth. You know that this was a mistake on the written order, and you know that the judge should be made aware of this, because the judge is going to want to reformulate this order.

01:18:47:26 – 01:19:06:04

Judge must be made. So, I mean, the defense judge react to that. Well, to be honest with you, there was a three way conversation that had occurred between me probation and this defense attorney. And probation was saying essentially the same thing, like, hey, we need to redo this order. Defense attorney was like, nope, can’t be redone. It’s done.

01:19:06:06 – 01:19:27:14

And my approach was, we are notifying chambers and that’s nonnegotiable. You have to I’m doing do that. And so that’s what I did. I see seed everybody on it. And the defense attorneys view kind of just faded to the wayside, which is rightly where it belonged. Once you got called to the table. Yeah. What he was doing when the judge became aware of it, the judge took action because the judge knew this does not reflect what we said in court.

01:19:27:16 – 01:19:47:01

Yeah, that’s a pretty blatant like violation. I would see that kind of stuff kind of often actually, and sometimes. But that’s the problem with with that’s how defense attorneys can go astray because they are they’re playing games. And that’s not a position you want to be in if you really care about the best interests of your client. Yeah.

01:19:47:02 – 01:20:02:02

And that’s not how you’re going to get good results for your other clients throughout the rest of your career as a defense attorney, either if you’re going to die on one hill like that in a dishonest, yeah, you’re going to throw your credibility away for a single client and just not care about the rest of your practice after that.

01:20:02:04 – 01:20:30:11

Yeah. Good. Well, guys, I think this was a great episode. And just kind of to wrap it up here, I mean, the initial question we asked was, how do you defend a guilty person and how do you do it? Well, and I think the short answer to that, and I hope you’ve gleaned that from this, this episode, is that you defend them with them as partners in a common goal for success, and you do it with a plan together, and that’s how you do it.

01:20:30:11 – 01:21:00:18

It’s not we, again, are not morally making decisions on we’re not defending somebody because we are. This is morally violent to my soul. Like, and if we are going to decide that we do that out of the gate and we don’t get involved with the case. But again, that is the extreme minority. I mean, almost any case will take as long as the client is willing to be a part of that, and they are willing to have a plan, and they’re willing to be partners with us in that common goal for success.

01:21:00:20 – 01:21:30:22

Of course, keeping in mind that one of the biggest arrows in our quiver is that ability to make sure that due process is affected properly. So we hope you enjoyed this episode. We hope you got a lot out of it. I do want to again remind everybody continue to check us out on TikTok and Instagram and Facebook. I think a lot of our viewers actually only see our shorts that we put on on those social media websites, but I hope everybody does know that we also have an entire podcast.

01:21:30:23 – 01:21:51:04

It’s a no. They they’re like an hour and a half long every time. But and who has time for that these days with the attention spans of human beings. But it is there. And if you get time or you’re mowing the grass or you have an hour and a half, check it out, because I think you’re going to glean some things from that podcast episode that aren’t on the different shorts that we put out.

01:21:51:04 – 01:22:01:19

So again, it’s been a pleasure, guys. I hope everybody has a great week and we’ll look forward to seeing you again next week. Free audio post-production by our.