12 Comments

  1. AHCL
    April 28, 2008 @ 9:22 pm

    Welcome back. I was beginning to fear your laptop was broken.

    I don’t know if sociopathy is the right descriptor here, since he was advocating breaking all the rules for the benefit of his client, not himself.

    That being said, I can see Matlock’s point in his advertising. Taking “no prisoners” can be interpreted many different ways.

    For instance, in a kiddie case, the prosecutor puts an eight-year-old child on the stand who testifies as to sexual abuse. Would a client be served better by a defense attorney that doesn’t have the heart to aggressively cross-examine that child because it would break his heart and moral compass to do so? Or would he be better served by the attorney who goes after the tough questions with the child and then does the typical closing argument line of “If I did anything to offend you during the trial, please don’t take it out on my client”?

    Just a thought.

    Reply

  2. Mark Bennett
    April 28, 2008 @ 9:43 pm

    Thanks.

    Eight-year-old? D is clearly better off with a compassionate, empathetic lawyer who can put himself into the shoes of the eight-year-old and understand a) what might motivate him to lie; or b) why he might actually believe something that just ain’t so, and who can then gently tell that story to the jury through cross-examination.

    How many times have you seen a lawyer help his client by breaking an 8-year-old down on the witness stand? The 8-year-old witness is a perfect example of a witness on whom a “soft” compassionate cross will yield better results than a “hard” ruthless cross.

    Reply

  3. Western Justice
    April 28, 2008 @ 10:13 pm

    Agreed (in part)…I was trained as a prosecutor to always ask: “Why should somone care about this case?” “What is it about this case that makes it important?” As a defense lawyer, those same questions, with a keen sense of empathy, can help

    Reply

  4. Windypundit
    April 28, 2008 @ 11:06 pm

    “Here’s a thought experiment: suppose that you, a lawyer, could legally kill an innocent child and free your client.”

    Here’s slightly less extreme thought experiment: Suppose that your client confesses to you that he committed a crime that someone else is on death row for? You keep your client free by letting an innocent person die.

    In a real-life case here in Chicago, some lawyers let an innocent man take 25 years of a life sentence. Their seems to have been their ethical duty, and it may not meet your definition of ruthless, but it’s damned cold and brutal.

    Reply

  5. Ron in Houston
    April 29, 2008 @ 5:26 am

    You make an important point. I get really put off by the whole “tough, smart lawyer” crap.

    Winning cases is great but waking up and looking at yourself in the mirror with a good conscious is priceless.

    Reply

  6. Stephen Gustitis
    April 29, 2008 @ 8:46 am

    Mark:
    I don’t understand why many just don’t get the empathy thing? It’s such a foundational part of our humanity. It is so basic, so obvious, and so effective, it astounds me more people don’t see it. However, developing empathy for others (including the victims and police) requires vulnerability. Ah yes. Maybe that is what we are afraid of . . . being vulnerable. The more vulnerable we are, the more empathetic we are, the more transparent we are, the more credible we are, the more effective we are. Is my logic flawed, or am I just an idealist?

    sg

    Reply

  7. Brendan Kelly
    April 29, 2008 @ 9:57 am

    “The Ruthless Take-No-Prisoners Lawyer”.

    Hey, why not just go for and advertise yourself as “The Sepp Dietrich of Litigation”? maybe “The Jürgen Stroop of the Texas Bar”?

    They were both “take no prisoners, no matter what the cost to others” kind of guys, and Stroop wasn’t slowed down by concerns about “collateral damage”.

    I think you have another candidate for that award you gave out yesterday Mark.

    Reply

  8. sctexas
    April 29, 2008 @ 10:08 am

    Brendan–
    There’s really no need to portray some young lawyer who is perhaps misguided about his legal tactics as a budding Nazi, is there?

    Reply

  9. Brendan Kelly
    April 29, 2008 @ 11:29 am

    sctexas

    Hey, HE’s the one who says “no prisoners, no matter what the cost to others” and that “everything is just collateral damage”. I’m just taking him at his word.

    If Mr. Matlock wants to emulate the “take no prisoners, win at all costs, who cares about the colateral damage” school…well I’m just showing what a REAL “take no prisoners” guy looks like.
    If you object to their political affiliation, well there are also go with plenty of other examples we could use. We could use Col. John Chivington, or Lt. William Calley, or General Antonio de Lopez de Santa Anna, or General Yamashita, if you want to be ecumenical about it.

    My point is that a “ruthless, take no prisoners, win at all costs, ruthless to the point that everything is just collateral damage” attitude does not make you “strong” and it does not make you “tough”… it makes you a war criminal.

    If this attitude has no place on a battlefield, a place where ethical constraints are somewhat looser than in other areas of human endeavour, how could it possibly be acceptable or praseworthy in a court of law?

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  10. Charles Kenville
    April 29, 2008 @ 6:20 pm

    Mark,

    How do you empathize with an accuser who lies about your client sexually assaulting them? How do you empathize with the cop that invents the probable cause for his traffic stop out of thin air? How do you empathize with the DEA agent that you talked about in one of your posts that shoots your client and then takes the 5th so he can get his story straight with the other crooked cops? The answer is…YOU DON’T!! The only thing you should feel for that person is contempt for trying to pervert justice.

    Empathy is not the ultimate goal in this business. If you have it for everyone, great. You don’t NEED it for everyone to be an effective lawyer.

    Do you think a surgeon NEEDS compasion or empathy for his patients? Maybe all he cares about is another trip to St. Martin or a bigger house in the Hamptons. If he’s skilled I could give a flying fart if he cares about me as a person or understands my pain. As long as he does his job with skill I am happy.

    You seem to think that without this over-arching sense of empathy for everyone you come into contact with you can’t be an effective attorney and that is just plain wrong.

    Reply

  11. Pennington
    April 30, 2008 @ 7:15 am

    Attitude, a little thing that means a lot. Regardless how one “sells” themselves to get clients, in Court juries can smell bullshit a mile away. Less is more in many aspects of trial. Speaking of surgeons, Id rather have BOTH a qualified and empathetic one. Empathy is probably the greatist human quality. In cross examination you obviously have to know when to “squeeze” and when to “crush” – depending on the circumstances. But it never hurts to get the honey first before you “eat it”.

    Reply

  12. SC Barrera
    April 30, 2008 @ 10:04 am

    I think the whole notion of being ruthless, take no prisoners, win at all costs and the like may play well to clients, but it is not an effective way to practice. After all, as lawyers we are in the people business. We only do well if other people (judge, jury, prosecutors, clients, etc.) buy what we have to say. To do that, it’s absolutely necessary to have the ability to look at the case through your client’s eyes, the judge’s eyes, and most importantly, the jurors’ eyes.

    How can I convey my client’s story to the jury so that they’ll see his situation exactly like he did when he did X, Y, & Z? How can I get the jury to see that my client is just a defendant in a criminal case, but is a real person who could suffer real consequences because of X allegation? How is that 65 year-old Catholic woman sitting on the jury going to feel about my defense, whatever it is? All of the above require empathy.

    There is also the possibility that the jury picks up on a “win at all cost” mentality and that would undoubtedly hurt your client. I’d rather have a juror believe that I am fighting for my client because I believe in him and his case, rather than thinking I am there just to win.

    Reply

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