Collegiality, Professionalism, and Burt’s Lie Detector
Published to: 000111, 000112, 000113, 000114, 000115, 000116, 000117, A Small Town Lawyer's Perspective, Perspectives of a Small Town Lawyer, West Virginia Lawyer - Tips and Techniques
on November 18, 2011 11:05 pm
Recently, I needed some letters of support from friends and colleagues, and I got them. It was an uplifting experience to receive such support, but a few of the letters contained a qualification or two that concerned me. Over the years I have heard the suggestion that I can be overzealous in representing my clients, and, “You always believe your client!” These crept into the letters of support, and were a wake-up call that some of my colleagues still do not understand me.
Allowing for the fact, as George W. Bush once famously said, or was it Bill Clinton? “When I was young and foolish I was young and foolish.”, it has been decades since either of the criticisms above were valid for me. But some labels, once affixed, stick, and these are two that I have to bear.
I have no way to convey to someone who has not been there, what it is like to handle @ 3000 cases on one subject, or 50,000 + hours in one endeavor. Some people could do this and keep doing the same things over and over without learning new and better ways. That is not me.
Faced with a new challenge, I take it head on. If it’s a new subject, I read a book or manual. If a new technology or method comes out, I am likely to try it. I consider it a special challenge to figure out how to do something in a different way from others.
It is not my lot in life to come up with a new cure for cancer, to discover calculus, become rich and famous, or found a new religious movement, but that does not mean I want only to take up space in my journey through life.
My job is to complete tasks and solve problems, my family’s, my friends’, my clients’ and my own. Each on is a puzzle to be solved. In my professional life, I MUST gather accurate facts, so being a cheerleader for the client makes no sense. And, I must be an advocate for the best interests of their children and guide them away from hurtful behavior.
And, how do I convince other lawyers that I have an unusual ability to figure out who is telling the truth? They are smart people, and they think THEY have that special skill.
First, I suggest that after you read this, you go to my blog article, May 5, 2010, “Something Constructive; How to Organize the Facts in Your Case.” Read it and watch the video. They describe my method, in every case, taken from the Casesoft suite of software products, to investigate and organize the facts of the case. I first help my client identify the documents, people and things that populate their particular case. I need to know each such person, address, phone, relationship to the parties, and what they know.
I need the photos, the Facebook postings, text messages, tax returns, deeds, titles, account balances, medical bills, medical records, and the other evidence that will be presented at trial (even though with this stuff, we usually avoid the need for a trial.)
I then need lists, LOTS of lists, of my clients concerns, of complaints against the other party, of facts in my client’s favor, or problems they want to serve. FINALLY, after I make them collect these building blocks, we work on the structure itself. They can write or tell me a detailed chronology, and I can put our allegations into something called a pleading, a complaint, a petition, or a motion. When the client cannot provide these things in sufficient numbers, or of sufficient quality, I already have part of my “lie detector” in operation.
I recall the very nasty fellow who claimed to have been the primary care provider of his children who prepared no meals for them, had no cancelled checks to Krogers, no box of recipes, no favorite meals he liked to prepare. His position, “We eat lots of fast food!”. Some care provider! He and I parted ways not long after that, and Burt’s lie detector worked perfectly.
I sometimes use imaginary lie detectors or drug tests to get to the truth. I had a client charged with raping his 70 year old land-lady. Not a pretty picture, but neither was the case of my client charged with committing the same act with his 85 year old grandmother.
I explained to the first fellow that it would be good for me to be able to present to the prosecutor a clear lie detector result, but warned him that if he were lying to me, he would fail the test. He was not a mental giant. He gave me a sly look and said, “I beat one in Clarksburg!” Nuff’ said. I had the results of my test. We worked out a plea agreement.
That raises the interesting question of whether criminal defense lawyers even want the truth from their clients? When I finally realized the answer is often “no”, I worked to stop doing criminal defense.
And, of course, when I ask my client if he/she is a drug user, and I see wide-eyed innocence in the denial, I simply say, “Great, please go down to the Day Report Center to get us a clean drug screen”, or as the Judge says, “Go piddle”. The look in the client’s eye tells me what I need to know. And, for the ones who are confident they can pass, sometimes I just wanted to know for my own information, but other times, I go ahead and send them, and attach the clean report to the pleadings, or bring it with me to the first hearing as a trump card.
Because they are not making it up as they go along, their stories have a rhythm. People lie all the time, but most like to tie their tail to some core truths. Little qualifications or hesitancies speak volumes to someone who has done 10,000 – 20,000 interviews.
Lawyers need to learn how to read my written replies to their letters of concern or complaint. I may say, “Mr. Jones adamantly denies using the F-word against and flipping the bird against Ms. Jones last week-end., but I have stressed to him the need for courtesy and respect. He has promised me there will be no such behavior in the future.
This paragraph can be interpreted, “I realize my client may have acted like an idiot, but he is not going to admit it. I raised a lot of Cain with him, made sure he understands that no court will consider this behavior consistent with the best interests of the children, and if proven, can cost him some of his parenting rights.”
The receiving lawyer simply needs to consider the context of my writing and give me the benefit of not being as stupid as he or she assumes I am.
As for being overzealous, filing pleadings on time, following up discovery with reminders of overdue responses, refusing to accept an answer that no witnesses have been identified six months into the case, complaining when transfer times for the children or child support payments are late, may be zealous, but they are not overzealous.
Accepting client’s e-mails at all hours and forwarding their concerns and responses are zealous, not overzealous.
Filing a pleading knowing it is false, piling on discovery just to wear the other party out, calling names such as liar or thief, giving false or incomplete offers of proof (proffers) to the court, and filing frivolous motions are overzealous.
Taking on the persona of your abusive client. That’s overzealous. Walking around the other parties’ residence without advance notice to her counsel, communicating directly with a represented party, or sending your client to the other party with a settlement proposal to get around the other counsel, NOW THAT’S OVERZEALOUS!
And all of these things have happened to me and my clients. I do not engage in such behavior. Never have, never will, period.
So, call me opinionated, occasionally tactless, bull-headed, and vain. I have been guilty of all of these. Do not call me a liar. Expect me to keep my word and require my clients to keep theirs. If my client repudiates an agreement made in good faith, without good reason, I will probably withdraw from representing them.
And, please use your own skills to gather accurate facts, probe your client’s complaint, do not fire off unsupported accusations, and measure your words. Finally, I know the rules for professional behavior and follow them, and I have my own strict standards and follow them too. If you give me the benefit of the doubt, I shall accord the same to you.
This post was written by Burton Hunter