What Can a Good Lawyer Promise?
By Andrew Mishlove on April 14, 2015
I recently saw a review of a lawyer from a disgruntled client who was unhappy with the result of the case. He felt that he could have obtained the same result without a lawyer or with a less-expensive lawyer. The client complained that the lawyer had lied about what he could do. That stuck me as strange and got me to thinking about what a good lawyer can and should promise to a prospective client.
People in trouble want answers from their lawyers. The number-one question they want answered is: what is going to happen to me? No honest lawyer can guarantee the outcome of any case. No matter how unfair the charge is, no matter how great the lawyer is, no matter how hard the lawyer works, an honest lawyer cannot tell you what will happen.
There are statistics, which are helpful. Statistics, however, cannot tell you what will happen in your case. Let’s look at these statistics anyway.1
In Wisconsin, about 92% of persons charged with first-offense drunk driving are convicted. Of the remainder, about 6% have their cases dismissed. About 1.2% actually got to a jury trial, and about 1/3 of those people win their case. Of the 92% that are convicted, 91.25% of them pled guilty. Many of those pleas may have occurred after losing a motion – we don’t know. In fact, we do not know people fought their cases at all. But, we do know that about 1/3 of jury trials were successful.
Now let’s look at third-offense Wisconsin drunk-driving cases. Of people charged with third-offense drunk driving, only 77% were convicted. Of those, 76.16% pled guilty. Fully 15% had their charges reduced. We need to examine how that could happen. That's sevenfold the number of first-offense charges that were reduced. This is likely due to lawyers attacking the applicability and validity of prior alleged offenses, and the increased use of blood-tests that come back under the legal limit. A full 6% of charges were dismissed, probably representing favorable blood test results as well as good lawyers challenging the stop and arrest. Of the 1.38% of persons charged with third-offense drunk driving who went to jury trial, more than 1/3 of them were acquitted.
Those are the statistics. Statistics, however, cannot tell us what will happen in any specific case.
So, what can an honest lawyer tell a client when he asks what will happen?
First, a lawyer ought to be skilled and experienced enough to be able to tell the prospective client the range of possibilities. I do NOT mean odds or percentages. Many people want odds, or some kind of percentage of probability of victory, in order to decide whether to spend the money on a higher-priced lawyer. That seems reasonable. After all, why spend many thousands more for a high-end lawyer, when the result of a guilty plea will be the same, no matter what lawyer you have? The problem with odds and statistics is that they do not apply to any specific case, but are just a general statement about all cases. I like to use sports analogies. The greatest baseball hitter of all times was Ted Williams. He hit .400. That means that he did NOT get a hit the majority of the time. Knowing that Ted Williams bats .400 will not tell us whether he will get a hit in any specific at-bat.
How about if we have more information? Who is the pitcher? What kind of pitch will he throw? What is the weather? What month is it, and does that make a statistical difference? If we know all of these things, we can make a better estimate; but, we still cannot say if Ted Williams will get a hit in a specific at-bat.
This is similar to a court case. We can look at the statistics; and we can even go deeper. We can look at the police reports, watch the videos, analyze the laboratory records. Good lawyers do all of this and more. We still cannot guarantee the outcome of a case. Every case is different; and, there are too many unknown factors, and unanswered questions.
The only way to know the outcome of a specific at-bat or a game is to run the play and play the game. Applying that logic to a court case, we must understand that the police reports will not tell us whether the officer is a competent witness, whether the judge will be fair, or whether the jury will listen to us. The only way to know the outcome of a court argument is to have the argument. In fact, talking in terms of odds or percentages implies a level of knowledge that simply does not exist. We just cannot know with certainty whether we will win, even if we think that we have a very good defense.
I do think, however, that a lawyer ought to tell a prospective client what he or she is facing, in general terms. Anyone accused of drunken driving is facing an uphill fight, a fight against the odds. Over 90% of persons charged are convicted, although the vast majority of those do not fight their cases. That much can and should be said. A lawyer who tells a prospective client that a drunken driving case cannot be won because, for example, the blood test is high simply does not know about the ways a blood test can be wrong, and probably does not have a history of winning. On the other hand, a lawyer who tells a prospective client that he or she is probably going to win is not being candid.
Second, a lawyer should be candid with the prospective client about credentials and experience. If the lawyer has never tried a case to a jury, the client should be told. If the lawyer has won many cases, it’s fair to say that to the client. I recently wrote a blog about phony lawyer credentials, so I don’t need to re-hash that. Suffice it to say that there are many phony awards, credentials, best lawyer lists, certifications, and such. Watch out for pay-for-play credentials. There are lots of them. So-called magazine or website “peer-ratings” may be nothing more than paid advertising, and endorsement-swapping schemes. Beware especially of “Top 100” lists, or suchlike. Some of these are downright phony. Please see my blog on the subject for more information.
Finally, I believe that a lawyer should charge enough money to do his best, promise the client that he will do his best, and keep that promise! I frown upon the lawyer who charges too little to do his best work. What’s worse, though, is a lawyer who charges a lot, but does not do the work. What do I mean by that, specifically? On the scale of criminal law cases, some people see drunk driving on the lower end. Compared to a drug case or a homicide, a drunk driving case may seem trivial. So, some lawyers charge only enough to read the police reports and negotiate a plea-bargain. For many people, especially the kind of people who come to our law firm for help, a drunk driving case is just as serious as a major felony. A loss of one’s driver’s license and damage to reputation can destroy a career that has taken a lifetime of hard work to build. For these people, simply plea-bargaining may be unacceptable. Even though faced with daunting odds or at least unfavorable statistics, some people need a lawyer who has the training, experience, knowledge and skill to fight and win a case. It also requires a lawyer who has the will and puts in the work to engage in that fight at the highest level. That includes a much more thorough investigation, legal research, written arguments, and time actually spent in court fighting. In a typical case, that will take many dozens, and very possibly hundreds of hours – as opposed to the handful of hours that a lawyer typically puts in do a plea bargain. So compare 60 hours of a lawyer’s time to fight a case, versus 8 hours to do a plea bargain. It’s no wonder that good lawyers are expensive! It takes a lot more work. At a typical lawyer’s rate of $250.00 per hour, that is the difference between $2000.00 and $15,000.00.
So, I believe that a lawyer should not try to predict the outcome of a case for a prospective client, other than to be candid about the difficulties. A lawyer should talk about his experience and credentials. A lawyer should charge enough to do his best work, and then actually do his best work.
After all of that, it is still possible that the outcome of the case will be no different than if the client had hired an inexpensive lawyer or no lawyer at all. Why, then, should a client spend more money on a higher-priced lawyer if it guarantees nothing? The answer is simple: to have a better chance of winning when the client is in a situation where he or she must fight. If fighting the case is the only way to save a career or avoid a lengthy jail sentence, a client will need the best, most successful lawyer that he or she can afford. It guarantees nothing other than what I promise my own prospective clients:my credentials are real, my winning history is real, and I will do my very best. If you’re facing a drunk driving case, isn't that what you really need?
1These statistics come from Courttracker Data Technologies, LLC, to whom we are grateful.
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