You don't know what your clients don't know

If you're reading this, you've had more education than the average American. How do I know? Because if you're reading this, you're a lawyer. Or you're sitting in your lawyer's office waiting to meet with her, in which case I'd be reading the 3-week-old copy of Time magazine that's surely sitting on the table in front of you instead. Its article on "The Battle of Indiana" was an interesting read. But the odds are you're a lawyer. You went through four years of college, and did well enough to be accepted into a law school, where you did well enough to graduate. You've cut your way through dense thickets of administrative and tax code. You've been beaten about the head by Blackstone's Commentaries. You've read through steaming piles of Supreme Court Commerce Clause jurisprudence watching Justice Scalia's angry opinions swat at the buzzing amici, wielding a well-thumbed copy of Federalist #33 as a flyswatter. In short, you've overcome all the obstacles to get to the opportunities* a legal degree provides. *Your results may vary. On the way, we've been inured to truths (or "legal fictions" passing as truths) that surprise the average American. If you believe White House Press Secretary C.J. Cregg, who has been an expert on language (at least in polling models) since 1993, most Americans are happy to describe themselves as "average." "Average" is not an insult. But if you're reading this, as far as it comes to principles of law, you are not "average." Some of the principles of law that we've come to accept, if not like, just don't make much sense to the normal, average American. As much of the popular reaction to last year's Hobby Lobby decision aptly illustrates, the idea of "corporate personhood" is something the average American might understand, but does not really accept. And to paraphrase one of my favorite movies, the Rule Against Perpetuities took a nose-dive off the stupid tree and hit every branch coming down. More problematic still are issues of practicality. It's a tough conversation to have with potential clients to explain that they will probably win their case and have nothing to show for it but a pretty piece of paper (which they're welcome to frame) if it turns out that the defendant is judgment-proof. It's perhaps even tougher to explain to a defendant that as a businessman you have to charge for your time, and to recommend that while they have a 100 percent chance of winning their case (note to the Board of Professional Responsibility: I've never actually said that, although I've come pretty close), they should still pay on a settlement offer because winning their case would actually be more expensive than losing it. We've had clients who simply do not understand the idea of the Court of Appeals not being an error-correcting court, no matter how many times we've tried to explain it. Who don't understand the idea of "damages" as an element of a tort - surely the wrong is enough. Compounding this is the deeper issue: There are some issues that a legal education has drilled into our heads that your typical member of the public doesn't know. I'm not just talking about how pop culture has misdirected us about things like when police have to read you your Miranda rights (I'm looking at you, "Law & Order") or what self-defense really means (I'm looking at you, CNN). No, I'm talking about simpler things like how much work the client himself will have to do on his own case, or how long a case can take from start to finish. Things like trial blocks, or the scope of discoverable information. If you look back on your legal education, you'll realize how much different your perspective on the legal system is than that of the average American. Combine all these issues, and the great case you prosecute for your client may be vastly different than the case she thought she would have. If you work at a firm or are lucky enough to have a good mentor, you have someone who will warn you ahead of time about the things that, in her experience, clients have found strange, confusing, or frustrating. You'll know to advise your clients about things that otherwise you wouldn't know they don't know. But if you're a solo practitioner, unless you take a hard look back over how far your legal perspective has changed since before law school, these lessons are likely to be learned through your own-or your clients'-hard experiences. In the end, good client representation assumes that we are able to adequately explain to our clients the legal issues. That much is obvious. But we also have to be wary of the assumptions built into that model of client representation and learn how to avoid the traps built into those assumptions. It's great that you explain to your client the difference between a criminal DUI prosecution and an Implied Consent revocation hearing, or the tax implications of forming their business as an LLC versus an S-Corp. But do they understand that if they take a 4th degree DUI to trial they will not have a jury of 12 people? Do they know that at their pretrial hearing they may be waiting for 3 or 4 hours before their case is even called? Do they know they will probably be forced to mediate their civil claim? I'm sure there's plenty I haven't even thought of. I'll find them out one at a time when a client says to me "I was surprised whenâ?¦." Hopefully, we learn as we go the idiosyncrasies of the law that will confuse our clients, and learn to prepare them for the surprises of the system that the average person has no idea are coming. Published: Wed, May 06, 2015