LESSON 12

How to deal with a lawyer

 

Section 1.  Who is the star?

 

The general public often think that in a lawsuit the stars are the lawyers of both sides. Actually this is an illusion. This illusion becomes deepened due to television series and movies, because the stars in movies and television shows are the lawyers and not the clients.  But in reality, in true lawsuits, whether they are big or small, civil or criminal cases, we need to remember: although lawyers are important, but the stars are not the lawyers but the clients in the case (plaintiff or defendant). The lawyer is just the director. In the Simpson case which we have mentioned many times, Simpson was not required to testify and he won the case. In the civil case, he testified in court for many days and misspoke many times, losing the trust of the jury. In the end he lost the case. It is clear who is the star in a lawsuit.

 

It is because most people do not understand the law very well, they believe that as long as the case is turned over to the lawyer and legal fees are paid in full, his responsibility is fulfilled.  Whether the case is won is now dependent on the skills of the lawyer. Of course the quality of a lawyer is also a decisive factor determining the outcome of a case; if it is given to a good lawyer, the unfavorable situation the client is in may be turned around. Conversely, even with the most favorable situation, an less than competent or responsible lawyer can lead to a defeat. 

　　

We have to clarify one principle: without the client's effort and cooperation, or if the clients are not sharp enough, even the best lawyer can do nothing. Since the star is the client, there are several points that demand attention:

 

First, one cannot rely too much on the lawyer, believing that by employing a good lawyer all problems can be solved by him. In actual fact, in the course of dealing with the case, many materials must be provided by the client with his cooperation. Many decision are for the client to consider. If he testifies in court and the client cannot become a good witness, then the best lawyer is helpless.

 

Second, even if there is no need to testify, the client remains the star. For example in our previously mentioned Simpson case, every behavior and facial expression of the defendant cannot escape the gaze of the jury, and this behavior and expressions influence the decision of the jury.

 

Third, before the case even begins, an experienced lawyer must objectively evaluate his own client; is he or she going to be a good witness? How are their ability to express themselves? Are they able to express opinions in an orderly fashion? Would their appearance and style of talking going to win the good feeling and sympathy of the judge or jury...the lawyer must obtain answers to these questions before he can objectively evaluate and arrive at a negotiation posture, and if the negotiation fails and the matte goes to court, what are the odds of success?

 

Many Chinese immigrants have limitations of  language, culture and ways of expression and they are usually not the ideal witnesses in court. However, if they meet a good lawyer and the client is willing to listen to the analysis and instructions of the lawyer, the difficulties of language and culture can be overcome. But if the client thinks he knows it all and not willing to accept the instructions of the lawyer, his performance as a witness is problematic. It is ironic that, based on the experience of myself and professional colleagues, the type of clients lawyer fears to handle most are doctors, professors, or persons with high education, because they have confidence in their own high education level and analytical ability, without realizing that in law, many analysis and strategy are different from common matters. Many ways of responding depend on what the opposition is doing and the analysis of the overall case.  For example, a scholar is defrauded in a real property transaction. The lawyer will probably ask him to remain quiet. Completely unexpectedly, when the scholar testifies in court, he naturally wants to show off his smartness and ability to analyze, and talks incessantly. Would the judge or jury believe that such a smart individual can be defrauded? Even if they do not completely disbelieve him, they would think that his being defrauded is not very credible. That is another example of the client being the star.

 

Fourth, what one must not forget is that in many matters the lawyer can only make suggestions;  the final decisions rest with the client. The lawyer will not make the decision on the client's behalf. Of course, the client himself has to be responsible for what happens after the decision. It is a serious mistake not to understand this. Let us take an actual example to illustrate. A husband was accused of beating his wife. The prosecution charged him with a felony, meaning that after conviction the jail sentence could exceed one year. After a preliminary hearing, the defense felt that the evidence against the client was unfavorable. If the matter went to trial, the chance of losing was great. Based on common practice, the lawyer and prosecution would start plea bargain negotiation.

 

The terms proposed by the prosecutor were that if the defendant pleaded guilty at this time, he could charge him with just a misdemeanor and ask the court to give him imprisonment for three months and two years probation. Both sides then discussed with the judge who agreed preliminarily with this resolution. This lawyer had already tried his best to fight for the best terms for his client. But the decision to accept them was to be made by the client himself. He could only have two decisions: one was to plead to a misdemeanor and the consequence was definitely a three month jail sentence. The second was to plead not guilty and ask for a trial. If he chose the latter course, he could be found not guilty or, if convicted, it would be a felony. The jail term could exceed one year.  The lawyer believed that the evidence was against the client and suggested that he pleaded guilty, but whether the client wanted to "gamble" on the small chance of being found not guilty, he had to decide himself and be responsible for the consequences.

 

Here we re-emphasize the point that "plea bargaining" as described above is common place.  Most American cases are resolved in this manner. Unfortunately, the immigrants who do not understand American law often believe that this is the lawyer "taking it easy" and wants to wrap up the case casually and they become dissatisfied psychologically with the lawyer. This is a great misunderstanding. Conversely, in a case where the evidence is unfavorable to the client but the lawyer continues to urge the client to litigate, the client should be wary.

 

Section 2.  The Lawyer Guards the Client's Confidential Information

 

Many friends have asked me an interesting question: if a murder suspect has really committed murder and told the truth to his defense counsel, can the counsel keep it a secret for him?

 

The answer is direct: the lawyer has a right to keep it a secret and professionally is required to keep it a secret. There is a most important element in the relationship between the attorney and his client, and that is the confidentiality between the attorney and the client. Further, this keeping of confidentiality has received a special protection under the law, known as the Attorney-Client Privilege. The attorney is given the special privilege to keep confidence for a simple reason: if the attorney cannot keep a secret, would a suspect tell his lawyer the truth? If the lawyer does not know the truth, how is he going to defend? And if the lawyer's keeping secret is not protected by law and he is summoned by the chief prosecutor or the judge to testify in court, isn't the defendant completely destroyed?

 

Therefore, the maintenance of confidential information for his client is his basic responsibility. If the lawyer violates the principle, he will be given the heaviest disciplinary penalty by the lawyers association, even having the license taken away from him.

 

However, although the lawyer has responsibility and special right to keep confidence, in practice that is not always easy. There is an example in a television show. In the story the accused has kidnapped a young girl. The suspect discloses to his lawyer where the girl is hidden. The lawyer wanted to tell it to the police to save the girl, but he must adhere to the responsibility and restriction for keeping confidentiality. What is the lawyer going to do under these circumstances?

 

Let us cite another example often seen in real life. A newly married young couple meet with the immigration lawyer. The wife depends on her marriage to an American citizen husband to apply for permanent residence (green card). However, they confess frankly to their lawyer, "The marriage is phony". What should the lawyer do after hearing the secret of the clients?

 

In an example as the above, if the clients do not disclose at all the truth about their marriage, the lawyer would not have a conflict. Under those circumstances, the lawyer is "not knowing therefore not guilty". However, if the clients really disclose, the only option for the lawyers in general would be to decline employment by these clients to avoid becoming an accomplice in helping others violate immigration law. However, there are circumstances which are even more difficult: the clients have not disclosed the truth and the lawyer helped them apply for a green card. But just before the interview in the immigration service, the lawyer discovers that the clients' marriage is false. Now the lawyer is stuck between a rock and a hard place. Fortunately applying for a green card is not as serious as a murder case, so the lawyer can still resign immediately and give up representation of these clients. Perhaps it is still not too late. If the lawyer continues to represent them and the immigration service discovered the phony marriage, they surely would believe that the lawyer knows the truth from the very beginning. In that event, this lawyer would have lost all credibility in the eyes of the immigration service. From then on he might as well forget about doing immigration matters smoothly.

 

Section 3. Selecting a Lawyer

 

The rampant litigation, complicated laws, and high legal expenses in the United States have been widely criticized. Even President and Mrs. Clinton have expressed concern. Vice president Gore, himself also a lawyer, has suggested abolishing the "contingency fee" type of legal fees to cut down litigation but it did not succeed. In fact, some American law firms, especially those that serve Wall Street or transnational companies, are charging fees as high as four or five hundred dollars an hour. Even some big corporations feel that the trend cannot be allowed to continue and have commenced using different methods to limit this "inflation".

 

In the last few years the American economy was in recession. The clients who can afford litigation expenses are fewer and fewer in number. The number of lawyers continue to rise. So generally the legal fees are beginning to stabilize. In the general type of cases, the lawyer fees are ranging between $150 to $250 per hour.

 

How to select a good lawyer is a complex subject. There are many points of view.  Besides, cases differ in their nature and circumstances, so it is impossible to have a definitive answer.  Therefore, I shall try to start from the most basics as starting point of the analysis. When the reader really needs to employ a lawyer, he can consider these basic principles.

 

The English name of a lawyer is either lawyer or Attorney. Often the American term for a lawyer is Counsellor. The general meaning of Counsellor is "consultant" or "guidance advisor", but when this term is applied in legal situations the prefect translation is difficult to find. "Legal Consultant" is an acceptable name, but it cannot reflect completely the sense of Advisor or Counsellor. The most accurate translation may be explored further.  

　　

I mention the term Counsellor in order to point out that the basic service of a lawyer is to give his client opinions and advise and from this starting point discuss the basic qualifications for a good lawyer. I shall use my personal experience to illustrate below.

 

Many years ago I was an intern in a law firm. The first case I encountered was a personal injury matter. A client was hit by another car and suffered serious injury. The attorney responsible for this case turned it over to me for research and organization.

 

When I presented my report, as an intern and an novice, I was quite satisfied with the product of my arduous labor. My supervisor was a quite famous lawyers with many years of practice experience. He took the file and my report of several tens of pages. He flipped over for a couple of minutes and then said to me, "There is no need to pursue this case. Please call the client and say that there is no chance this personal injury case receives any compensation".

 

I was filled with confusion and trepidation. I thought perhaps my research work was not of a proper level and the report was not up to standard. So I hesitantly asked the supervisor why the case was abandoned. The supervisor replied impatiently, "Why don't you look at the facts in the file.  The driver on the other side is an old man of 70 and has not assets. He lives off government welfare and has not bought insurance.  Under these circumstances, even if we win the litigation, the result is still zero.  We cannot afford to waste our own time and the money of the client".

 

After being rebuked by the supervisor, of course I felt bad. After I gloomily left his office, I called the client about our conclusion. The client who had sustained serious injury was naturally very disappointed and angrily expressed his dissatisfaction with our law firm.

 

The client might be disappointed and dissatisfied with my supervisor, but after many years of work and learning from experience, I felt that the supervisor had taught me something useful all my life. This small example reflects the fact that, to be a good lawyer, besides being competent and sharp, he needs at least two basic qualifications:

 

First, he needs to work based on the principle of "loyalty". The supervisor lawyer was looking at the facts objectively. Although his conclusion was unfavorable to the client, and led to client's dissatisfaction, and sometimes the client may be thinking wrongfully that he was not trying his best, but he did not relent and advised the client to abandon a case which offered no chance of compensation. Perhaps he might possibly lose a client and lose a chance to collect considerable legal fees, but he acted based on the principle of loyalty.

 

Second, judgment needs to be fast and accurate and not delayed. The earlier an accurate judgment is made, the more the client can save money and energy, and perhaps the inevitable disappointment in the future. Sometimes the ability of a lawyer is not based on verbosity and strong arguments, and not on this report of tens of pages, but on his judgment ability to speak right on point.