Beware of Ghosts, Patrick Swayze & Sneaky Court Marshals

In the movie Ghost, actor Tony Goldwyn plays a man who murders his best friend. As a result of his villainous deed, “Carl” eventually meets his own horrific death and his soul leaves his body for the afterlife. Unlike Patrick Swayze and the audience, the treacherous Carl is initially unaware that the slowly approaching demonic shadows are about to take him to the depths of hell (And I don’t mean the DMV). Poor Carl was not prepared for his fate.

For some reason, I am always reminded of this scene during sentencing hearings. Like the dark stealthy shadows in the film, I could always sense the court marshals sliding in slowly behind my client. I could hear their keys jingling as the muffled sounds of walkie talkies prepared lockup. I knew what was going to happen. My client did too. I prepped him for it. I made sure my client and his family knew exactly how the scene would play out.

I was surprised to learn that not every attorney prepped their clients. During a recent court appearance, I watched as another attorney stood shoulder to shoulder with his client. Out of the corner of my eye, I could see the court marshals slowly begin to position themselves behind the defendant. The defendant’s survival instinct must have kicked in. “What’s going on?” he asked. “Umm, I guess you’re going to prison for 120 days.” was his attorney’s reply. If you can believe the tirade that followed, it appeared the client had no clue he was going to the clink that day. Apparently, the busy attorney forgot to mention it.

Except for that one glaring omission, the lawyer did get his client a decent offer. The sentence was the minimum the defendant could get under the guidelines. His client probably knew he would have to do jail time. He just didn’t know it was going to begin that very minute. The result was an embarrassing scene for the attorney as the confused client began cursing him in front of a packed courtroom.

Not surprisingly, clients get upset when they are subjected to surprises. The sentencing was probably fairly routine for the attorney. This can be dangerous. After years of practice, some attorneys forget that most clients are far less sophisticated about the legal process. Things that may be routine and crystal clear to you, may be unclear to your client. So what can you do? Here are a few basic suggestions:

• Explain the Legal Process: Whether it’s a court hearing, a closing or a deposition, I always prep my client in advance. With criminal defendants, I show them pertinent statutes. I ask my clients if they know where the court house is located. I tell them where they can park. I warn them that my partner might sub for me because of a conflict. I tell them not to worry if they don’t see me in the court house right away. I may be speaking with a prosecutor or could be tied up on another matter. I even tell them what the courtroom will be like including where the judge sits, where they will sit and how they will be called. I find these things help put the client at ease as they feel more familiar with the process. Make sure you also warn your client of the consequences of their actions. If they are a non-citizen pleading guilty to a crime, they should know of possible immigration consequences. If they are foregoing alimony in a state like Connecticut, they should know that they are closing the door on asking for alimony in the future. Make sure they understand your babbling. It will save you lots of stress and heartache later. Repeat key points and drill it into their skulls.

• Don’t Make Promises You Can’t Keep. If you have a criminal defendant facing mandatory jail time, don’t tell them that he won’t do any jail. If you are doing a divorce, don’t guarantee that you will get your client a lifetime of alimony. If you are a PI attorney, don’t promise a big payout even before you review the case. Be realistic. It may be wise to let your client be aware of the good and the bad. If they are aware of both, a favorable outcome will be even more appreciated. Caution your client that there are no guarantees in life.

• Avoid Too Much Legalese: Make sure your client understands the legal process. Many attorneys throw out terms that may be unfamiliar to a “civilian.” Your client may not know what a summons is or that “AR” stands for the accelerated rehabilitation program. I always ask my clients if they have any questions.

• Cover Your Ass: Put everything in writing. Too many times, clients leave our offices only to be tainted by outside forces. You may have told your client one thing, but five other people might tell them another. Like the old campfire game “telephone”, your original message will return to you unrecognizable. The client might read something about a case in another jurisdiction or they have a friend who apparently knows more about the law than you do. I’ve had real estate agents tell my clients they did not need title insurance although the lending bank required it. I’ve had hairdressers tell a client that he did not need to disclose several past arrests to Immigration because the crimes happened five years ago. I had a butcher tell a client that his wife was not entitled to a portion of the marital property because she made less money than him. Eventually, the client might forget where they got the bad advice. Clients hear what they want to hear. They might assume it was you that gave the bad advice. Putting things in writing is especially important when dealing with “red flag” clients. These are your difficult clients that tend to be in denial with unrealistic expectations. They are angry at the opposing party. They are the ones who have been to other attorneys and do their own research. They feel the world is out to get them. They come in with a friend who “knows the law.” Be careful. Put it in writing.

• Remember, communication is the key to a successful law practice. But you knew that already, right? And stay away from ghosts.