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