By Collin County Criminal Defense Lawyer Jeremy Rosenthal
My favorite thing to be able to do in my practice is give great news and if I can’t do that — then at least folks can leave my office with hope and optimism. Giving great news, giving people hope and a reason to feel optimistic has to be honest, realistic or based in fact or it’s destructive.
I hear “my last lawyer changed his tune” a lot when I talk with people who either are getting a second opinion about their case or from someone (or their family) who had a bad experience in the legal system.
They tell me their lawyer was really excited at the onset of their case about the prospects for getting a case dismissed, acquitted or charges reduced. At some point later, the lawyer’s attitude and demeanor seemed to change and all the news turns bad. Instead of gallantly fighting — the lawyer is insisting the client plead guilty.
I’m always disappointed to hear this and it does make me reflect a bit about what really went on. I do my best to understand not only from the client’s side but also the lawyer’s side.
Here are some of the reasons this is a recurring problem in my view:
The Lawyer is Afraid of the Courtroom or is Risk Averse
Some lawyers are simply intimidated by the prosecution, by juries, or even by certain judges. They give you a very rosy outlook in the comfortable confines of their conference room, but when the lights get bright or when the prosecutor begins to gnash their teeth — they wilt.
Other lawyers are afraid of risks. Trial is to lawyers what surgery is to doctors. Some always err on the side of playing it safe.
Risk is a part of the practice of law, in my view. Often my clients are less risk averse than I am and other times they want to take risks I try to talk them out of! There are times when a lawyer has to firmly let the client know the risk must be taken. Some lawyers can’t do that.
The Lawyer is Inexperienced
Inexperienced lawyers make a handful of mistakes. First, they fail to see the downside to a case when it walks in the door. When they hear the facts of what happen — they often see great issues but their lack of experience may fail to see how certain issues tend to collapse or be more difficult to handle than they originally thought. They also lack the experience to foresee other developments which might change their outlook on the case.
Some lawyers really do get excited about your case but their mis-evaluation of it causes them to change course which is difficult to understand and can be confounding to the client.
The Lawyer Fails to Set Proper Expectations
Some lawyers do see the pitfalls in your case but over-promise in hopes of getting business. This invariably backfires because when the case does become difficult, the lawyer is forced to retreat from their earlier optimism without any real reason.
The experienced lawyer knows hard truths up front equal a satisfied client at the end of the case. My hope is my client understands that I’ll fight as hard as I can for them regardless of whether my outlook is rosy or bleak at the onset.
Sometimes the Case Really Does Change for the Worse
Every case is it’s own snowflake… unique and distinguishable from anything and everything else. The more and more cases I handle, the less unpredictable developments happen. But unpredictable developments do happen even in the most common types of cases. New and unforeseen facts can arise about an existing case or things unknown to me about my client’s past can crop up and present a bigger hurdle than originally considered, or sometimes just a change in prosecutor can throw things for a loop.
What Your Lawyer Should Have Done…
Lawyers can avoid “changing tune” in the middle of the case by setting a realistic tone from the outset. This is a function of experience of knowing the variables to come in the case and how they typically break, having the discipline to “tell it like it is” to the client up front and temper optimism with appropriate caution, and to show the proper follow-through with risk associated with the case.
I hope this helps anyone in this predicament understand.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is legal advice. For legal advice about any situation you should contact an attorney directly.