Published in The American Bar Association Litigation Section , Vol. 51, No. 1, Fall 2024, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.”
Representing and Communicating With Clients In Difficult Cases Where Outlook Is Bleak
Bad Facts
Throughout my career as a lawyer, I have never shied away from taking seemingly unwinnable cases. In fact, I thrive on these cases because of the challenge. On multiple occasions, I have been approached by co-defendants in criminal cases or co-respondents in disciplinary cases seeking my representation. In each case, the potential clients required separate attorneys. Often, the facts for one were much better than they were for the other. Conventional wisdom would suggest choosing the client with a better chance of victory and passing the difficult case on to a different lawyer. It makes perfect sense if you are only interested in the easy win. However, I never saw it that way. I have never valued my worth as a lawyer based on the outcome of a particular case. Do not get me wrong, I love winning and despise losing. I played sports growing up and have coached teams for decades. I am competitive, but “winning” is not the end-all be-all for me. I want a client whose character and attitude inspire me. Most of my clients have relatively limited means. They have a second mortgage on their bungalow and four kids in private school. I come from the same background. My father was a Chicago Police Officer who always worked two or three side jobs to pay our tuitions and provide for the family. He was the source of income. I charge reasonable fees; however, it still creates a considerable financial burden on most of my clients. I do not take this lightly, and it stokes the fires within to make certain I earn the fee. Perhaps I need better clients. That is a fair point, but I love being the underdog and battling for the little guy or gal. Embracing the underdog role is not just a challenge; it's an inspiration. I sell hope, but I also ground my clients. This is what I signed up for when I graduated from law school.
There is an old legal adage that holds that “good facts make good lawyers.” I agree with the adage; however, I do not believe the opposite to be true. Bad facts do not make bad lawyers; they make the lawyer better. The challenges presented in challenging cases require the attorney to dive deep into the case and search for less conventional ways to help the client. It is simple to sit back and argue that the other side failed to prove its case; however, when there is little doubt that the prosecution will effectively present compelling evidence, such an argument is a non-starter. The most obvious example is a case in which your client's actions are captured on video. I have found myself in this situation many times during my career defending clients, but none of the videos were ever good for us. I have represented hundreds of police officer, and many of their acts were caught on video. Cases where the client is caught punching and kicking people. I have defended two cases where my clients were captured shooting their entire clips, 16 rounds, striking people. I wrote about one of the cases in a past issue of this publication. It involved the killing of Laquan McDonald, a sixteen-year-old African American. My client was a white police officer named Jason Van Dyke. The case attracted widespread media coverage worldwide, and the video was horrible. By the time the case went to trial, there had been thousands of media stories about the case. We learned that 86% of Cook County residents, the venue for the trial, despite our motion to change venue, were familiar with the case. A shocking 75% of those familiar with the case believed my client was guilty of murder. Moreover, 67% believed my client, “would have a difficult time convincing” them that he was not guilty of murder. The presumption of innocence did not exist. I took on the challenge of pushing a boulder up Mt. Everest, and it helped shape my beliefs and values about being a lawyer. My client was convicted of aggravated battery and second-degree murder. Nonetheless, we won the case. My client was charged with first-degree murder and facing a minimum sentence of 96 years in the penitentiary. It was a death sentence. Outright acquittal was never a possibility. The only path to victory was to escape the death penalty of 96 years. He was out in a little over three years, but he has been reunited with his family and is gainfully employed. We had to redefine the meaning of “victory.” Redefining victory is not just a strategy; it's a source of empowerment. Robust and blunt conversations with the client and his family were necessary. In addition to my lawyer hat, I wore many other hats. I advised and counseled my client and his family, which was not easy but vital. The case was exhausting, and I have no regrets and have never looked back.
In this article, I will discuss why it is vital for lawyers to resist any impulse or reluctance to accept difficult cases. Among the various challenges of tough cases is telling your client things they do not want to hear. Selling hope must be redefined. Outright acquittal may be impossible; however, victory is still attainable. A lawyer's job is not necessarily to win an acquittal. Rather, the job is to properly advise your client and to defend him or her to the best of your ability. Another legal proverb recommends, “If the facts are on your side, pound the facts; if the law is on your side, pound the law; if neither facts nor law are on your side, pound the table.” Get your fists ready. But more importantly, be honest with your client. Honest communication is not just a duty, it's a sign of trustworthiness.
When faced with a case where the facts are bad, a lawyer needs to adopt a different strategy. These cases are not of the “who-done-it” variety. Your client did it. The video clearly shows the client committing homicide or battery. The recordings undoubtedly prove that the client provided a false statement. Accordingly, the case requires a somewhat backward approach. You must concede that the act was done, but look for ways to challenge the lawfulness of the actions. The best approach I have found is to focus on the mens rea elements. The most consequential fact cannot be disputed: your client did it, but did they act with the requisite mental state?
Depending on the charge, the prosecutor must demonstrate beyond a reasonable doubt that your client acted intentionally, knowingly, and/or willfully. Proving this can be challenging since it requires looking into the head of the client at the time the act was committed. Attacking these elements provides fertile ground to sow the seeds of doubt beyond reason. It is imperative to establish how the situation developed and the effects it had on the client. Your opponent will play the last part of the damning clip or recording and sit down and rest its case. The relevant events did not happen in a vacuum, and we must place the trier of fact in the client's shoes the moment they reacted. If your budget allows, animation can be compelling evidence. I have used animation in several cases, and when you incorporate 911 calls or anything mitigating into the animation, it can be amazingly effective.
The unwinnable case requires redefining the word “victory.” In a criminal case, keeping your client out of jail or getting a minimal sentence may be a win despite being convicted. In administrative cases, a suspension in lieu of termination may be the most favorable outcome possible. In a civil suit, obtaining a judgment less than the requested amount is a success. After all, many of the facts are out of our control. We are not magicians. As lawyers, we do not make the facts. Our client's actions happened well before we got involved. The facts are the facts, but it does not mean we cannot provide zealous advocacy for our clients. Sometimes the easy decisions are not the right decisions. Taking on the unwinnable case is never easy. When I see lawyers on television ads claiming that they have never lost a case, my first thought is that they have either never gone to trial or they have tried one case. A smooth sea never made a skilled sailor. Difficult cases make a skilled lawyer, and they should be pursued with passion.
Representing a client when the facts are bad is a reality for countless lawyers, especially criminal defense attorneys. My first job out of law school was as a prosecutor in Chicago, Cook County. In large part, the cases I prosecuted were slam dunks. A team of seasoned police officers and detectives had already put together a solid evidentiary record by the time I got the case. I had virtually unlimited resources and a full support staff at my disposal. A lawyer fresh out of law school could have won these cases. There were countless nights when I celebrated victories with my colleagues, who praised me for a job well done. It was not until I went into private practice that I learned what it meant to be a true advocate. The stage was different, and the arena more challenging. Simply put, in difficult cases, you are forced to work harder and smarter, and therein lies the beauty. A fighter will never reach their potential by sparring with glass-jawed opponents. Our legal system will be compromised without battle-tested lawyers skilled in their craft and willing to climb into the ring, no matter how bleak the lighting.
In a speech delivered to the House of Commons, Winston Churchill proclaimed, “We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender.” To be clear, I am not equating a trial with world war and a threat of invasion by Nazi Germany; but it is one of my favorite quotes and possibly the greatest pep talks ever given, no disrespect to Knute Rockne. As lawyers, we must fight for our clients. We have a duty to pursue matters on behalf of our clients despite opposition, obstruction, or personal inconvenience. We must take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. Finally, lawyers must also act with commitment and dedication to the interests of the client with zeal in advocacy on their behalf. At heart, our system is based on battle, usually called, in the quaint way of the English, "the adversarial system." It works on the premise that conflict and contradiction are the way to truth. The only way this works is by a complete assessment of the evidence at trial. Trials let light into the process. Guilty pleas and deals occur behind closed doors, away from public scrutiny, where, as Lord Acton warned:
"Everything secret degenerates, even the administration of justice." John Emerich Edward Dalberg Acton, Lord Acton and His Circle 166 (Abbot Gasquet, ed., 1968), quoted in U.S. v. Salemme, 91 F.Supp.2d 141, 148 (D. Mass. 1999),
The Model Rules of Professional Conduct, 3.1, instruct: A lawyer should pursue a matter on behalf of a client despite opposition, obstruction, or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy on the client's behalf. The preamble for the Modern Rule admonishes: A lawyer's responsibilities are to ensure that such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous, and civil attitude toward all persons involved in the legal system. Of course, there are limits that must be considered. For example, lawyers are prohibited from making frivolous claims and arguments not made in good faith. Rule 3.1 provides that in criminal proceedings, as well as in civil proceedings that could result in incarceration, a lawyer may defend a client in a way that requires every element of the case to be established. This provision reflects the constitutional principle that due process requires the state to prove every element of a crime charged and prohibits shifting the burden to the defendant by procedural rule or otherwise. See Patterson v. New York, 432 U.S. 197 (1977); Mullaney v. Wilbur, 421 U.S. 684 (1975). Accordingly, the criminal defense lawyer has an ethical obligation to force the government to prove its case. See D.C. Ethics Op. 320 (2003) (lawyer for criminal defendant must require government to bear burden of proof).
Recently, I represented a client in a criminal trial. Once again, I found myself with bad facts. Much of the evidence was recorded and not in dispute. However, there was little evidence of one of the mens rea elements. I hammered this deficiency to the jury, to no avail. To lay jurors, this fact was irrelevant because of the overwhelming evidence of guilt on the remaining elements. I was disappointed by the verdict, but not necessarily surprised that the lay people on the jury failed to attach any meaningful significance to wanting evidence on this element. However, I was surprised when I received a similar response from the trial court judge and subsequently the appeals court. After making a substantive, good-faith argument about the lack of evidence on the mens rea element, I was met with surprise and skepticism. The appellate court judges looked at me as though I had two heads as I zealously argued the facts. They interrupted and referenced the substantial evidence presented on the remaining elements; however, this should not have been relevant. The burden of proof must be met for all elements. The appeal was denied in short order. I respect the court's decision; however, the quick denial was frustrating. Nonetheless, it has not and will not deter me from fighting for my client in good faith. As I mentioned earlier, I played sports growing up, and this was not the first time that I was measured by authoritative figures. Lawyers need to have thick skin and, in some cases, short memories.
Advising the client on an undesirable outcome
Lawyers are responsible for effectively communicating and advising their clients. Nowhere is this more important than in difficult cases with bad facts because it will require many difficult conversations. Model Rule 2.1 defines a lawyer's role as an advisor as follows:
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client's situation.
The client is entitled to straightforward advice expressing the lawyer's honest assessment. This often includes unpleasant facts that a client may be unwilling to confront. Lawyers must advise in a way that is not couched in legal terms because often that will be inadequate. We must be candid with our clients and not sugar-coat realities. In counseling a client, a lawyer may address nonlegal aspects of a proposed course of conduct, including moral, reputational, economic, social, political, and business aspects. See generally Kristen M. Blankley, The Ethics and Practice of Drafting Pre-Dispute Resolution Clauses, 49 Creighton L. Rev. 743 (Sept. 2016)
I have never taken lightly my duty to inform the client of a bleak outcome. Often, I know the challenges will be difficult the minute I see the case. I am honest with the client about the situation, but I tell them there are many paths to victory. A thorough investigation of the evidence can spotlight tainted evidence. Investigation can identify possible errors or misconduct at the charging stage. It can determine any bias or improper motives by the charging party and/or witnesses. Every element must be individually scrutinized by combing through the record with an eye toward dismissal.
Advising the client about a potentially bad outcome involves several steps. First, it is important to understand, and in some cases, redefine the clients' expectations. As I said before, I have represented many law enforcement officers. The nature of their profession makes representation difficult at times. As police officer, they know the law, but often do not understand the legal process. They have strong opinions on issues that may be irrelevant and sometimes obsess over ancillary, irrelevant issues. Some clients have various opinions and suspicions about the genesis behind their becoming a target in the first place. Mostly, these issues are irrelevant and would never be allowed at trial. Once charges are brought, the focus cannot be on why charges were brought; rather, all the attention must be directed to our defense. These can be difficult conversations, but important ones. Things that may seem important to the client are not important to the formidable task at hand. One of the first questions I often get from clients is, “Can we sue the people civilly for bringing these charges?” I explain the difficulties inherent in suing government officials, but more importantly, I emphasize the need to look forward, not backwards. What is done is done and out of our control. Preparing a defense is the job. The stakes are high, and the client needs to understand the magnitude of his fate. Lawyers need to be diligent from beginning to end when so much is looming. In criminal cases, the client is faced with the possibility of losing his or her freedom. In employment administrative cases, clients are looking at termination and a loss of income. It is important to emphasize the degree of the matter and ensure the client is focused on what matters. After all, clients can be a tremendous asset to their defense. Initially, they know their case much better than the lawyer does, and the client can answer a lot of questions. Limits of the legal process must be presented early on in representation so that all the oars are rowing in the same direction. Clients must understand what evidence will and will not be allowed at trial. This is a frequent misunderstanding among clients. Suspicions and innuendos will not be part of the trial. Clients are sometimes determined to seek a pound of flesh and dirty up those suspected in your client's theories of conspiracy. Clients assume we can put anyone we want under oath at trial and prove a conspiracy orchestrated against your client. Clients do not fully understand the rules of evidence, and it is our job to properly inform them of the process and the law. This must happen in the initial stages of representation so that the client remains focused on meaningful topics. I tell my clients that we are wasting time and energy if we devote any efforts to ancillary things irrelevant to the case. We need to tell them how and what is helpful and not waste any time on immaterial things.
Costs must be explained. Flat fee agreements must be clarified as to what services are and are not included. Early on, I can usually expect many of the costs that will be required. I will explain the likely need to hire an expert and/or investigator. I have had cases with tens of thousands of documents, which may require additional costs for processing. I provide the client with a likely timeline for the case and explain what to expect in the coming days, weeks, months, and/or years. I will explain the various paths to success. First, I tell the client about the important steps needed to obtain favorable evidence. This is where the client can be extremely helpful because, at the earliest stages, the attorney will not have any or all of the evidence. The client has information that may identify various sources for potential evidence. Timing is critical, and the lawyer needs to know what, where, and to whom subpoenas should be issued. 911 calls and surveillance videos are often destroyed after a certain period, so you need to promptly serve subpoenas and/or preservation letters. I inform the client of the different legal challenges that are available. First, can we get the case dismissed for any reason? Provide examples of grounds warranting dismissal and scour the evidence for any support. I next explain that if we are unable to dismiss the charges, we will look for facts or circumstances to suppress evidence. Again, the client can help us and should be told what is needed for suppression and where we should look for support. Always attempt to immediately find out what the evidence is and how it was obtained. Your client should have many of these answers before you receive any discovery. It is important to explain what effect evidence suppression could have on the case. Depending on the nature of the evidence, suppression could result in dismissal of charges, acquittal, or strike a significant blow to the strength of the case. If dismissal or suppression are not successful, the final option is trial or plea. Explain the process to the client. Tell them what is needed to win. These conversations must be ongoing and are subject to change as the case develops. Client expectations, like litigation itself, are not static. They need to be constantly monitored and managed. I often meet with my clients in person and review the evidence with them. Since discovery usually trickles in over a period, multiple meetings are required. Finally, plea bargaining should be discussed. I have found this to be an unwelcome conversation with most clients. A typical response is, “I hired you to fight for me, and because you have won these types of cases. Why are you suggesting I plead guilty?” It is a fair point, and I understand the question. However, the client needs to consider all possibilities, including, in some cases, admitting guilt and accepting a plea. If you are faced with bad facts in your case, your opponent may have no interest in offering anything below the maximum punishment. In my experience, confidence begins to wane once discovery nears completion. Of course, this is not always the case, and a plea may never be on the table. However, when a reasonable plea is presented, the client needs to have it explained to them in detail. I always begin by telling the client that they will make the ultimate decision whether to accept a plea or go to trial, but I have a duty to explain the pros and cons and offer my advice on whether to accept or reject the offer. The decision is theirs; however, it must be an informed decision. Accepting a plea deal could have many benefits, such as avoiding the unspoken “trial tax” assessed when a deal is rejected; litigation costs; reputational costs; the avoidance of humiliation at public trial; and sparing loved ones and friends from testifying and/or suffering an ugly trial. These are just a few factors that should be considered. However, the most important question for the client is, “Can we win if we go to trial?” I rarely answer this question until I have reviewed all the evidence and have a thorough understanding of the case.
By the time I give the client my final advice about accepting or rejecting an offer, I know the facts inside and out. I know most of the strengths and weaknesses of the opposition. I know what evidence we can present and how impactful it will be. I have a decent understanding of the attitude of the judge or hearing officer. In some cases, I know what to anticipate from a pool of prospective jurors. Furthermore, I always bounce things off other lawyers that I respect before I advise the client on the ultimate issue. Sometimes an opinion from a lawyer who is not as close to the case as you can be invaluable. After all these steps are complete, I candidly offer my advice on whether we should go to trial or accept the plea. Most of my clients follow my advice, but some do not. I never require an answer on the spot. I give them a reasonable amount of time to make their final decision. It is important to maintain a professional demeanor and to listen actively and empathetically to the client's concerns. Regardless of their decision, we move forward and never look back. If the client wants a trial, step into the ring fully armed with preparation, focus, and the tenacity to vigorously defend your client. In some cases, justice may only be obtained in the fields of battle. Bring the fight!
