The question is really how lawyers should approach their clients when they sense their clients are being driven by emotions and not being realistic regarding their cases.
Even the best lawyer can only present what he believes is the best solution for his client. Unfortunately, many among us are not representatives, but instead we turn out to be salespeople with a forcible attitude toward our clients, trying to convince them to accept our approach. This is not because we are control freaks, but because we have the legal knowledge and the experience our clients don’t have. This is the reason why clients seek lawyers to represent them, isn’t it?
In spite of our good will toward assisting and guiding our clients, we must not force our opinions on them. It’s always a client’s decision in the end.
But what if a client is making a crucial mistake and asks us to embrace his wrong decision? Some of us, and I admit I am one of them, cannot accept when a client enters what I like to call “a Kamikaze approach.” In this case, if we truly believe from a professional point of view that we will be causing losses or any type of damages to our clients, we should use our privilege to quit (the sooner the better) or not take the case in the first place!
Today I would like to bring just one example (out of dozens) of the same mistakes committed by different clients over and over again.
Harry and Sally:
Harry and Sally had already entered into a divorce process. I was representing Harry, who was asking for half of their mutual property. Sally claimed she had paid for most of the property, therefore she should get a bigger chunk.
Harry told me that when they married, Sally’s mother had loaned them some money to be used as a 20% down payment for the purchase of their new home. She gave them the money in cash, but made them sign a loan agreement. The reason for this agreement, as she presented it, was for her taxes purposes in the US. During the past 15 years, the couple (Harry was self employed) had repaid the entire loan amount to Sally’s mother. The money used to repay the loan was from unreported income, or what in Israel is called “black money” – income not declared to the Israeli IRS.
Harry told me he still had the original loan document in his house. I asked him several times to bring it to me, or burn it. I also asked him not to talk about the subject at all with Sally. Of course Harry knew better. He told me, “We’ve been married for 15 years. I’ve helped her mom with many issues and I want to end the marriage on good terms with Sally – there is nothing to hide. She would never use this against me.” Nothing I said made any sense to Harry and did not follow my legal advice, but there was nothing I could do to convince him otherwise.
During our next court hearing, Sally’s lawyer surprised us all, including the Judge. He said that his client had changed her mind and she now agreed to the settlement suggested by Harry, where each side would receive half of the mutual property – provided they both repay Sally’s mother loan! Of course the lawyer presented the honorable Judge with the original loan agreement that Sally had found after what Harry described as a “small lovely night chat with Sally.” I would say “a small and very expensive chat!”
Since Harry had no receipts, he could not fight his claim that the money had in fact been repaid. He had much more to lose and thus could not bring evidence to prove that the loan had been repaid in full.
They cut a deal and the “small chat” cost Harry $50,000 dollars.
The moral:
Neutralizing emotions and focusing on reality is one of the main goals in the relationship a lawyer has with the client. At the same time, the client should remember the main reason for hiring the lawyer – to have an experienced and skilled person on your side who can successfully maneuver through the legal system to win your case.
Trust your lawyer – don’t fight him.
“The trouble with legal thinking is not the mental inadequacies of the lawyers. It is the very nature of law, its role as a father-substitute, that stirs up unconscious attitudes, concealed desires, illusory ideals, which gets in the way of realistic observation of the workings and the significance of law. For law appears to arouse these emotional deterrents to clear thinking in almost all men whenever they direct their attention to legal problems. The lawyers, on the whole, are better able to fight off these deterrents than the laymen. For, notwithstanding the obstructing illusions, the lawyers must daily perform that practical task of adjusting conflicting interests which is the function of the legal profession; the performance of that task compels them to win ponderable victories over those illusions by which the laymen is more likely to be victimized. But if the lawyers are less deluded than the laymen about the character of law, their realism is not vigorous as it might be, else Bealism would be as outmoded among lawyers as Platonisms is among the first-rate scientists.”
Law & The Modern Mind by Jerome Frank
