A good attorney is one who can maintain “client control.”
In a lawsuit, the authority is divided between the client and the attorney. Certain things are the absolute authority of the client—in a criminal case, for example, whether to plead guilty or to waive a jury trial—while strategic issues are the realm of the attorney.
Whether civil or criminal, it’s important to discuss these matters beforehand. When it comes to exercising discretion on strategy issues, it is exceedingly worthwhile to explain the reasons why something is going to be done. If the client hears it for the first time in court, without the reasons for it, expect fireworks.
The same goes in those areas where the client has the right to decide. I emphasize to clients that one of the things I hate most is being blindsided. Let me know before the other side knows of what you’ve done, or what you’re planning to do.
Disagree out of court, but once in court or in public, the attorney and client need to present a united front. The attorney needs to know whether the client will balk at taking a certain step. Balk and talk as much as you want, but do so privately.
A big part of achieving client control is trust, based on the client’s belief that the attorney is one smart cookie. But trust requires more: for the client to also believe that the attorney is working for the client’s best interest. That doesn’t necessarily happen easily, in civil or criminal forums. In civil cases, with the cost of legal services, clients may be fearful, in part, of being ripped off by their own attorney “churning” the file.
The same can be true in criminal cases, but even with an “institutional” defender, client fears are manifold: if the attorney is selling the client short, working with the prosecutor, or not attending to the client’s case, as well as the client questioning the attorney’s competence. One appellate client second-guessed every decision I made. Having gone through four attorneys before me in this litigation, he explained that he suffered from “battered client syndrome.”
Part of achieving trust is spending time mastering the case as well as spending time with the client. It may require both quantity time and quality time.
This article is an edited excerpt from The Education of a Lawyer by Gary Muldoon, published by the American Bar Association. It is available at a discount to ABA Young Lawyers Division members.
