Crime & Federalism

Newsflash! The education of lawyers does not prepare them for what awaits them in their professional lives. No kidding.

The Carnegie Foundation for the Advancement of Teaching actually seems to believe that lawyers can be trained for what lies ahead. That is, perhaps, the conceit of a foundation that believes in the efficacy of teaching.More teachers?

The foundation wants better training on legal ethics. But there is nothing about the classroom that prepares lawyers for the human dimension of lawyering. Not can there be.

The third and fourth year of a medical school education focuses largely on clinical practice. Disease is made manifest in people. Doctors in training set aside theory for the grimy reality of practice. Law schools would do well to require clinical practice.

The emphasis in legal education on such things as law reviews is a telling sign of why lawyers aren't educated well. Law review articles are fun to read, and law school professors are necessary. But the law is not reason made manifest in the world. The ife of the law, Holmes once reminded, is experience. And in the case of the life of a practicing lawyer, that experience often comes in the form of need that is impervious to reason.

Want better trained lawyers? Spend the third year of legal education outside the classroom. Require all lawyers to intern for a month or so in the local emergency room so that they can see the ordinary chaos that many folks call day-to-day living. Then send the lawyers for a month or so to a drug or alcohol rehabilitation clinic, where they can rub elbows with life-destroying need. Then send the lawyers to a psychiatric facility or two. Top off the year with work in a soup kitchen or homeless shelter.

In each of these settings, assign the would-be lawyers the task of interviewing people. Let the lawyers identify one area of the interviewee's life in which legal advice is needed. Then let the would-be lawyers provide counsel.

That is the reality of the law the small firm practitioner.

Nothing prepares lawyers for the need they face in their clients. And no classroom experience undertaken in the cool light of reason can prepare a lawyer for the emotional travail of a client in fear, terror or anger.

So let's change lawyering education, but not by creating another breed of teachers who can pontificate about what they haven't done, and perhaps cannot do. Remember: Practice conceived isn't theory relieved.

I hung up on a client yesterday, and in the dead of night I wondered whether this will yield a grievance. Sure, it was uncivil of me to do so. But civility is a two-way street. What rule requires a lawyer to answer the same question five times? And what training have we as lawyers to deal with folks who only hear what suits them?

Every litigation firm has a handful of clients whose needs overwhelm paralegals and lawyers alike. New ethics rules on client communications create a quandary for litigators. Increasingly, we are called upon to serve as social workers. The role of counselor now encompasses more than mere advice on legal options. We are wedded now to the sorrows of strangers who need help we do not know how to give.

In personal injury firms, nurses are often hired to help sort through the paper work and to manage files. I am wondering whether any firms have experimented with hiring a psychologist to handle difficult clients.

I am sorely tempted to hire a psychologist. Most often clients find themselves, or have placed themselves, at crisis-laden crossroads. The legal signposts are clear enough. But accepting the reality of what the law provides is often traumatic. Who better than a psychologist to understand and cope with a client in crisis?

Anyone out there aware of any case law on this topic? I am not proposing a joint venture in which clients come to a law firm for analysis or psychotherapy. I am simply looking for a way to meet client needs while actually engaging in the practice of law. Increasingly, my firm is turning away cases in which clients are simply too needy, most often in employment cases. I wonder where those clients go to address their woes.

We all know the Latin term, caveat emptor -- buyer beware. But when it comes time to selling your services as a legal professional, heed the following: Lawyer beware!

Consider the following: A recent ethics seminar sponsored by the Connecticut Bar Association recommended that a lawyer return each and every telephone call from a client. The same panel then went on to say it is a lawyer's duty to send a copy of each pleading to the client. Question? When did the duty to keep a client reasonably informed of the status of their litigation become a duty to service every whim?  Every call? Every pleading? Why?

Do we as a profession think so little of ourselves that we are prepared to sacrifice our professional independence to the lowest common denominator in the community? Experienced lawyers know what "sticky" clients are. They are clients who can never get enough of your attention. Ask them to answer a question, and they pepper you with three new requests, often far afield from the cause of action at hand. Do you answer each new request, thereby getting sucked into a vortex of infinite need? Or do you do your job, and advance the material issues as best you can? These days, you better jump right into the arms of your client, regardless of whether their demands suffocate.

Lawyer cops among us appear to demand that the client be coddled at all costs. I recently put the following question to an ethics panel: Suppose in a case you come to believe that a certain issue is without merit. Are you obliged to obtain your client's consent before withdrawing the claim? The unanimous decision was "yes." If a client insists on pursuing a meritless claim, then you must do what the client wants, whether it makes sense or not.

That's not law. That's little more that intellectual pinball. Of course, these same ethics experts remind us that we can move to withdraw when a client insists on an unreasonable objective. So I guess that is the answer in the brave new world of legal ethics. Worship the client, and then beg to be relieved by the Court when you learn that you should perhaps have had the client consent to an independent medical examination at the same time they signed the retainer.

Oh, don't get me wrong. Most clients are not a problem, and it is a privilege to represent people in need. But any lawyer with more than a smattering of gray hair will tell you that amid the sheep are clients with howling needs that can never be satisfied.

Lawyer beware. An unhinged client can cost you a bundle in terms of time, expense and professional reputation when they decide that you are next target in their lifelong parade of horribles. Advice to the new lawyer: When it comes to a new client follow your gut. When in doubt, don't sell your services. Trust your gut.

I am not a personal injury lawyer, so I have never been in the business of sheer speculation over the suffering of another. Contingency fees are the norm among the "PI" crowd. I litigate criminal cases and plaintiff's federal civil rights cases. From time to time, and increasingly, I defend civilly. Here is something I have learned that may be of value: Be sure to charge adequate, even high, fees.

I see eyes rolling. Let me explain.

Filing an appearance or a lawsuit on behalf of a client is an act carrying consequences. Call it something akin to a marriage vow. You can only be let out of a case with permission of the Court. Have you a retainer agreement that will protect you from a client with infinite and irrational needs?

Persons accused of crimes or seeking access to the civil justice system are people in trouble, people in need. Sometimes the needs are simple and easy to meet. In some cases, lingering just beneath a benign smile there lurks a hollow and angry heart. The needs of this latter class of clients approach infinity. All lawyers blunder into the path of sociopaths and borderline personalities.

The Rules of Professional Conduct require that we keep our clients reasonably informed about the status of their case. But some clients can't help but obsess, and cannot avoid telling you how to do your job. Nothing requires us to give law-school tutorials to our clients, and we are no more required to explain each step we take than is a surgeon to justify each cut. These clients will call, cavil, quibble, and write one thing after another, taking time most lawyers don't have. How many lawyers have made the mistake of charging a flat fee only to hear the client want one impossible thing after another. Ever hear a client say "What have we got to lose," when all he is spending is your time?

Lawyers speak of client control. Wary litigators are aware that it is far easier to lead a client to the courthouse than it is to make them think. Fees, hourly fees, impose discipline on a client, and, if the client insists on wasting time, a lawyer is at least compensated for the time spent.

Failure to charge fees often yields the inevitable and most often frivolous grievances when a client feels neglected. That, too, takes time to defend. And then there is all the staff time spent copying documents, answering endless calls responding to questions that are not really questions, but are really just pleas for attention.

As lawyers we are all free to give our time away as often as we like. Indeed, it is our obligation to serve and to offer pro bono service. But we get to choose the person to whom we give.

My advice to young practitioners? Don't scramble so for cases that you fail to charge enough. I've spoken to more than one young lawyer in the past month who is at wits end over the impossible demands of impossible clients. Protect yourself and your firm by charging fees sufficient to permit you to get the job done, and fees high enough to let clients know that if they insist on wasting your time, they, and not you, will pay for it.

A federal jury returned a verdict of $250,000 against a Corrections Officer in Connecticut the other day. His offense? The guard abused a prisoner who was shackled in four point restraints. It was an important vindication of the civil rights of prisoners. And the lawyers for the prisoner should be proud of their work.

It is difficult to win an Eighth Amendment claim. One need prove not merely that the force used was excessive, but that it was administered for the very purpose of causing pain.

But how deeply and quickly we fall in love with the sound of our own voices. Is it a species of sociopathy -- a lawyer's inability to see beyond his own shadow?

On the courthouse steps after the verdict, one of the plaintiff's lawyers had this to say: "This might be the most significant verdict against the [state] Department of Correction ever, because of the effect it should have on guards and other staff members who might be tempted to mistreat inmates," Antonio Ponvert said. "It sends a loud message that no one is immune from the law and the Constitution is fully alive within the prison facilities of this state." Mirror, Mirror on the Page Indeed, the verdict was not against the DOC at all. The defendant's conduct was so egregious, the DOC cut him loose.

Ponvert is one of the species of lawyers who calls his own press conferences. He should spend a little more time reading something other than his own clippings.

In 1999, another Connecticut jury returned a verdict of $2.1 million against two Department of Corrections officers for their mistreatment of a prisoner. The case was King v. Verdone, et al., a case I tried. Unlike Ponvert's case, the Department of Corrections both defended the tortfeasors and paid the remiited verdict. In Ponvert's case, the defendant had to defend himself. Whether the defendant has anything to pay the verdict remains to be seen.

The King verdict changed nothing in the DOC, as witnessed by the need for this latest case. It feels great to win a case, and the illusion of efficacy transports. But the grim reality remains: litigation changes little.

Does anyone really doubt the fact that some people are, at least some of the time, mentally ill?

I start with this tentative question as a means of tip-toeing to the brink of a larger question: Does philosophic skepticism and a commitment to pluralism require that we abandon common sense?

This morning's New York Times reports on a debate in New Mexico about legislation to require the mentally ill to undergo treatment even if they have not committed a crime. Not surprisingly, opinion is sharply divided. Some fear violation of the civil rights of the mentally ill; others contend it is cruel to ignore the needs of those in obvious pain.

But here is the rub: Who decides whether a person requires mental-health treatment?

In the 1960s, we set about a deinstitutionalizing persons from mental-health institutions. Commuity-based care was deemed more humane. But we have never funded community based care. Releasing people from institutions has often resulted in the cruuelty of homelessness.

Some argued at the time that there was no such thing as mental illness. Influenced by the likes of Michael Foucault, the mental health profession was regarded as a means of social control, imposing a vision or view point of sanity on raw humanity. The hidden assumption? There is no mental illness, simply different means of expressing one's humanity.

There is a superficial appeal to this claim. Indeed, pluralism and skepticism about larger truths counsel equal respect for all points of view. These views are often under attack by moral absolutists of one sort or another. Thus the war of the worlds taking shape between Muslim fundamentalists and the West; thus even our own cultural wars pitting Bible-bangers against secularists.

Can skepticism and pluralism be squared with a commitment to aggressive medical treatment of the mentally ill? I think the answer is yes. A person patently unable to care for themself is not expressing a commitment to freedom. And a person torn from within is not Walt Whitman singing himself in transcendant autonomy.

It is cruel and irresponsible to turn our back on the need to treat the mentally ill simply because doing otherwise would require us to make clear our philosophic and moral commitments about what is and is not consistent with a good life.

On balance, I weigh in on the side of compulsory treatment of the mentally ill. This can be done without tipping the scales in favor of an authoritarian state filled with Stepford Wives. Of course, the danger is that the merely deviant will be regarded as ill and forced into the mainstream. Yet refusing to recognize the line between mere deviance and suffering is an abdication of responsibility both to those who suffer, and to our communities.

Deinstitutionalization failed. It failed in part because it was based on a faulty philosophic premise: That in a skeptical world we cannot draw distinctions between better and worse. Common sense requires that we do so, and each of us draws such distinctions daily in our own lives. We kid ourselves by saying a commitment to civil liberties requires ignoring the obvious.

Not long ago, a newspaper requested permission to reprint one of the blogs appearing on this page. The post was one appearing in the series we have labelled "The Sociopathy Project." It was playfully entitled the "Hee-Bee Gee-Bee Test," and it was about how to spot clients who need medication more than they need litigation.

Of course, I was flattered to have the essay reprinted. But the comments that have flowed on the Connecticut Trial Lawyers Association listserve during the past week have not been quite so flattering.

I am not a member of the listserve. Generally, I dislike the devices. They are very distracting, yielding plenty of email smoke, but little more. A few friends have been shooting over the comments on the blog. Let me preface what follows by thanking all for reading.

The Connecticut Trial Lawyers Association is a plaintiff-oriented club. I've really never understood why lawyers form clubs for those representing only one side of an aisle. I represent civil plaintiffs and civil defendants -- although over the years I have represented far more plaintiffs. It seems sort of silly to say, as does a famed Trial Lawyers College in Wyoming, that prosecutors and insurance defense lawyers need not apply. We are all officers of the court, serving clients with the doctrine at hand. Neither side of the aisle has a monopoly on virtue, or truth.

Did I unfairly characterize all plaintiffs? No, I did not even write about all plaintiffs. I wrote about the wolves-in-sheep's-clothing sociopaths whose smiles and facile demeanors are masks for rage and the mere destructive desire for revenge. Nothing I wrote, and nothing I believe, suggests that the doors of the courts should be closed to those injured by the acts and omissions of another. All I am saying is that a significant percentage of plaintiffs bring deep-seated psychological injury to their cases that is not caused by a defendant's misconduct, and these clients transfer all their anger and disappointment onto the first available target, whether it be defendant or lawyer. I suspect any lawyer practicing more than a couple of years can draw this distinction with ease.

Was I suggesting that defendants are somehow devoid of the same sociopathy? Not at all. I suspect many defendants are disturbed as well. But there is a crucial difference -- the defendant did not choose to be in court. Sue my client, and I must defend; but I am not required to bring suit in response to every phantasm shaking my plaintiff's soul.

Finally, why did I not speak out against outrageously stupid and wasteful defense conduct? The filing, let's say, of baseless motions for change of venue, or the stupid stonewalling of the white shoe firm on discovery? Can't sociopaths also wear the lawyer's suit?

There is no doubt that a lot of lawyers are practicing law without moral compass. And I do not doubt that many of them are on the defense side of the aisle in civil litigation. I stand rightly rebuked for not having paid enough attention to them in "The Sociopathy Project," which is, I remind you, just gathering steam.

So thanks to all the good folks at the Connecticut Trial Lawyers Association for reading. I haven't lost the will and zeal to fight, far from it. But I do get to choose not to become more than the blunt instrument of those client's whose cases lack merit, and whose psyches bring nothing but hatred and rage to a courtroom.

"Am I sorry? If that's what you mean -- I'm not. I don't feel anything about it. I wish I did. But nothing about it bothers me a bit. Half an hour after it happened, Dick was making jokes and I was laughing at them. Maybe we're not human. I'm human enough to feel sorry for myself. Sorry I can't walk out of here when you walk out. But that's all."

The words are those of Perry Smith, convicted and sentenced to death for the murder of four people, the Clutter family, in Holcomb, Kansas, in 1959. They are reported by Truman Capote's In Cold Blood, originally published in 1965.

I was moved to reread this work not long ago while researching sociopathy and borderline personalities. One scholar in the field noted the work's power at portraying the two dimensional world of the sociopath. Utterly lacking in conscience, a sociopath can kill without remorse. The sight of human suffering yields no empathy. It is as though an emotional keel is missing, and the sociopath is drawn along on primitive currents the rest of us can keep in check.

Perry Smith's words leapt off the page, and not because Capote wrote with grace. I am assuming the words themselves were Smith's, and that Capote reported what he heard.

Richard Hickock and Perry Smith were two ex-convicts in search of the good life in November 1959. The search led them to the Clutter farm, and ended on Kansas' death row. Capote's rendering of the crime, the character of the defendants and the legal wrangling resulting in their execution is wonderfully written. But Capote was no lawyer. His account of the post-conviction proceedings does not convince. He simply didn't get habeas corpus, and he had no sense of litigation as a sometimes wasteful blood sport.

Even so, the work is well worth reading. The final sentence of the book is absolutely perfect, and must be saved for last. If you are not clear what a sociopath is, read In Cold Blood. Even if you are confident that you know a sociopath when you see him, read the book any way. I last read it in college, reading it again was like a reunion with an old friend.

If you thought genetics posed challenges to the development of law and legal dotrcine, you haven't seen anything yet. Developments in neuroscience are rapidly providing insight into the structure and function of the brain. Does that mean we will soon understand the contents of our minds? And, if so, what then of the law, where factfinders struggle with mental states, memory and truth?

I could not put down Neuroscience and the Law: Brain, Mind and the Scales of Justice. It kept me up all night -- in the middle of trial, I hasten to add. Edited by Brent Garland on behalf of the American Association for the Advancement of Sciences, the book is a collection of four papers and a discussion. The papers were presented at an invitation-only symposium of neuroscientists, legal scholrs, judges and lawyers to explore the sorts of issues likely to arise in years to come as neuroscience advances.

Are lie detectors unreliable? Fine. How about charting the P300 brain wave, which is activated when a person knowingly fails to be truthful, or lies? Farfetched? This business of Brain Fingerprinting, as it is know, was admitted into evidence in Iowa not long ago. Harrington v. Iowa, PCCV 073247 (Pottawattamie County D.C. Iowa, 2000).

Are pyschological tests unreliable in part because they rely on self-reporting? Then let's eliminate the danger of malingering by going right to the source of cognition, the neural circuitry than underlies and, perhaps, forms the mind.

And what of downloading the contents of a brain onto a computer? Or, perhaps, transplanting part, or, indeed, all, of a brain from one body -- I almost wrote person -- to another.

The law routinely accommodates changes in science. Computer-generated evidence is now common in the courts. The various iterations of the Daubert tests across the nation permit the results of new science to be admitted into evidence as it becomes available. But science teetering on the very verge of eliminating the disctinction between mind and body? That is, pun intended, mind-blowing.

Neuroscience already points to abnormalities in the brains of those exhibiting signs of consciencesless sociopathy. A specific gene has been located that is associated with aggression, and a variance from the norm may account for certain forms of criminality. How will the law respond to this information? Shall we quarantine those set to explode?

Of the four essays in this book, Laurence Tancredi's, clinical professor of psychiatry at New York University and an attorney, is the most challenging. I was unaware of how sophisticated the technologies used for brain imaging had become. His chapter inspired me to read further.

The brief chapter on free-will by Michael Gazzinga and Megan Steven is a huge disappointment. Gazzinga is at the Center for Cognitive Neuroscience at Dartmouth College, and Steven is at the University Laboratory of Physiology at Oxford. They dabble at philosophy and yield the trite conclusion that the person is a social contruct, and we are therefore free. This question-begging linguistic trick is unworthy of the AAS symposium. Why wasn't a credible philosopher invited to this event? The law is, after all, nine parts unstated and, for the most part, unexamined philosophic commitment.

The two final papers int the volume, by Henry Greely and Stephen Morse, are fantastic. They steer between trite conclusions of Gazzinga and Steven and the complexity constructed by Tancredi. Both papers are reliable issue-spotting devices.

Perhaps the best thing about the practice of law is the ever changing terrain. It may be that the human dramas unfolding in the courtroom are old and repetitive, but the manner in which facts can be explored grows ever more complex. Advances in neuroscience promise tremendous excitement and turbulence in the law in years to come.

The Dana Press, which published Neuroscience and the Law will send a free 30-page summary report of the conference on which the book is based. Contact Randy Talley at [email protected].

Whether philosophy has anything to teach is a post-modern dilemma: When it tries to assert a truth that is universal, creeping skepticism takes aim. Yet the skeptic's tart attack on universals contains its own universal truth. One can know that nothing can be known? How can this be?

The point is life requires commitments and commitments yield struggle. Philosophy can aid in illuminating the shape and form of our conflicts, and in providing insights into how we may cope in some principled fashion with the many things that go bump in the night. That includes sociopathy and downright evil in the people we represent.

Mary Midgley's Wickedness, first published in 1984, now republished as a Routledge Classic, 2001, is a refreshing read. She is an analytic philosopher, but no mere word-dicer. Her contention is that there are genuinely evil, or wicked, things in human nature. Evil cannot be explained away in reductionistic terms as the product of evironment. Neither is evil some romantic lark, or the ambrosia  of overlords and strong-spirited men and women breaking with the herd.

In matters large and small, in things world-historicial to mundane, there is a capacity for wickedness, and evil, everpresent. We need to recognize that, not make excuses for it, and contend with it judgment by judgment, choice by choice.

I was struck by this simple thesis as I considered some of the literature on sociopathy. Sociopaths are manipulative, they lack conscience, they possess the uncanny ability to make their failings appear to us to be our faults. And we are inclined often to give the sociopath the benefit of the doubt because we want to believe the best of those around us, including our clients. The ability to recognize wickedness on its own terms is a gift.

Oh, I can hear sniggering in some corners. In a world seemingly bounded by cause and effect, can we not explain the appearance of evil in terms of privation, want, need, and all the other nostrums of the reformer? We can try. But these excuses for poor behavior are often disproven by the everyday exceptions in our midst. Evil a result of poor education? Recall that Nazi Germany arose in a cutlure that produced the gymnasium and superb scholarhsip. Evil a result of poverty? Most poor persons aren't monsters. You can name the other exceptions.

Midgely provides an unflinching look at our capacity to be wicked. I heartily recommend the work as abounding in good sense, good scholarship, and a solid grasp on recent trends and tendencies in philosophy and intellectual history that have made the discussion of evil appear to be trite. There is nothing trite about it. Indeed, evil is what makes most of our professional life possible. Would there be a need for law if we were something other than flawed?