Choice
However, the idea that lawyers controlled clients has been dismissed by Travers (1997b: 105-06) as an academic stereotype. He contests the supposition that clients who were persuaded to plead guilty were rendered powerless, insisting that lawyers would not recognise such interpretations (Travers, 1997a: 370-71).
Talk of control is said to be alien and unfamiliar to those actually located within this branch of the legal profession. In the formal interviews for this study, the question of control was put to lawyers, but found little response. Rather than dismiss it, lawyers tended to sidestep questions that pertained to it; it was occasionally implied that others might do it, though never the lawyer themselves. For many lawyers, the divergence between academic discussions of control and their own self-perceptions might be borne of the distance between theory and practice - it was often suggested that those outside the legal profession did not understand their job. This was usually discussed in relation to the government or public, as in this example:Most people don't find out what's going on in the system. I'm not saying that everybody should become a defendant but to take them around court, you know, follow people, see what actually happens. When I first started listening to Jack Straw, I found out about his being a barrister, I was surprised. But, from my limited knowledge of him, I don't think he practised for that long within legal aid. I don't think he did that for that long enough to understand the situation. Defence solicitors know that. It shows you that people who make decisions, they haven't been there.
(Leland, solicitor, Radford Hope, INT)
This sense that the world of the defence lawyer could only be comprehended from within could be extended to academics: the distance separating those who write about lawyers' work and their actually being engaged in it.
Perhaps, through politeness, this matter was little discussed around me. However, it was well articulated by a Radcliffe and Musk solicitor, Shelly, in relation to a prominent legal scholar who had once been a lawyer in her firm:It's amazing that he can write so much about representing clients, it's been such a long time since he's done it himself. Every so often he'll come back, have a look at the Crown Court, keep his toe in. But he doesn't get involved in the everyday things. He might phone up to ask a question, the impact of this or that, but he hasn't actually done it for so long. The thing is, there's such a huge gap between theory and practice. You can have a long book about representing clients but reading it doesn't help you. It's all about experience. Doing it first-hand, you learn more than you ever would just by reading it. You can get too bogged down in the theory; you need to actually do it to understand it. We know what we're doing, and we do what's best for the clients and don't need to be told how by someone who just writes about it.
(Shelly, solicitor, Radcliffe and Musk, IC)
There was apparently a gap between academics and lawyers. This has been observed by Podmore (1980: 14-15), who suggests that this divide has allowed the former to become increasingly critical of the latter, with the result that:
An example of strain and segmentation arising from different work settings can be seen in the rift that has developed between some academic lawyers (teachers and researchers) and the professional bodies... Increasingly acrimonious disputes arising out of the essentially ‘liberal’ state of academic lawyers and the ‘profit interested' standpoint ofpri- vate practitioners.
Most lawyers in this study, though, did not appear to be aware of the fault-finding timbre of the existing literature. They were frequently surprised when I quoted it to them in the formal interviews:
It doesn’t sound that this [previous] research comes out very favourably for lawyers at all!
(Teresa, solicitor, Radcliffe and Musk, INT)
During the participant observation, I was only once confronted about the criticism present in many academic accounts.
This was by a lawyer who had gone back to university and undertaken additional courses, so was exposed to the academic critique. In the first fortnight of the research, I had accompanied the Radford and Hope solicitor, Bob, to the Magistrates’ Court on several occasions when he had been extremely busy with large lists of clients to work through. We had got on well, and Bob had always been very open and talkative. However, one morning at court Bob began to rant at me, demanding to know what was in my notebooks:What do you write in there? You don’t understand what it’s really like. How can you understand what we have to do? This is my job. You just write it, get to leave it; you don’t live it. I have to stay here and do this. It’s easy to criticise or pick holes in things from the outside, might not seem perfect. But it’s what we do.
(Bob, solicitor, Radford Hope, IC)
Though he was confrontational, I judged his tone to be more frightened than aggressive. All the same, it was disconcerting. It was particularly alarming because I could not show him what I had written as I had been criticising him. I had seen him talking in derogatory terms about clients, giving them short shrift and seeming not to listen to them.
At the time, I considered that Bob was trying to cover up practice he knew to be deplorable. However, his concerns should be given credence. He would have recognised my naivety as I talked in glowing and romantic terms about the lawyer’s role. I had amplified my own beliefs and been particularly effusive to ingratiate myself through flattery. Bob was likely concerned that I was not prepared for the reality in which he operated, with the financial pressures lawyers routinely discussed. He did not appear to feel that he would be judged fairly; perhaps only lawyers could understand lawyers.
The view that criminal defence is somehow distinctive can be found to underlie Travers’ (1997b: 19-36) work and his espousing ethnomethodological research in Garfinkel’s tradition - he places great stock on ‘situated local knowledge’.
This position is premised upon Garfinkel and Weider’s (1991: 203) concerns that the social researcher must address the ‘haecceity’ of any institutional setting in which they find themselves - they need uncover just what makes a niche unique. So it is that Lynch (1993: 274) deduced that Garfinkel ‘seemed to be insisting on a strong participant-observation requirement, through which his student would gain “adequate” mastery of other disciplines’.The researcher must pay heed to the local knowledge that exists in a specific field. On outcomes, then, it is important to consider that the main difference between lawyers and the academic line offered previously was the concentration on convictions. In academia, this has been a major issue as evinced by the attention given to clients being pushed towards pleading guilty. However, most of these lawyers did not appear to view it as such a salient concern. No lawyer ever told me that convictions did not matter, but they did convey the impression that they did not think them especially significant to most of their clients. Indeed, the interviews saw lawyers reveal several concerns that were identified as more pertinent to clients, most commonly the sentence they would receive and gaining the opportunity to ‘have their day in court’. A flavour of this is given in the following quotes:
Actually, I think, almost, you can make more of a difference on guilty pleas sometimes because you have more opportunity to help people when people can’t put forward their own explanations of what happened. I think sometimes you can make more of a difference doing mitigation, and talking people through what happened, than you can actually having a trial; looking at agreeing pleas, like a little plea package or a plea bargain.
(Annie, solicitor, Radcliffe and Musk, INT)
I’ve done a couple of trials recently where they really shouldn’t have been trials and the evidence was very strong but the client was absolutely adamant that they were not guilty and so you really have to have a trial, and they both unfortunately got convicted. But, at least, they had their day in court and sometimes that’s what a person needs, is to have their say and to see the witnesses come to court and have their say.
(Ronette, solicitor, Radcliffe and Musk, INT)
The position these particular lawyers took is reflected in the practitioner guides, such as Ede and Edwards (2008: 99), which tells lawyers to:
Give clear advice as to the risks and consequences of losing a trial, i.e. if your client’s evidence is disbelieved he risks possible destruction of any mitigation... Ifyour client’s real concern is the possible sentence, he may be assisted by knowing the sentence the judge actually has in mind.
Throughout the participant observation, lawyers talked of ‘regulars’, with these constituting the bulk of their court lists. They were repeat offenders, with convictions in double or triple figures. With these clients, there often seemed to be an unspoken understanding on both sides that a guilty plea would be entered. It was not discussed as a live issue. Lawyers were focused on other items beyond the guilty plea: the client avoiding prison or getting the community order that best suited them; taking the opportunity to wipe their slate clean with other offences being taken into consideration when sentencing the matter at hand; maintaining their on-remand status and greater visitation rights, for as long as possible with an initial not guilty plea, and; making sure their possessions and/or loved ones would be safe and in order before going to prison.
On one occasion, a Radford Hope solicitor did nothing to prevent a client from being convicted of theft, despite her claims not to have committed the offence. He explained how this achieved what she would have wanted:
So I got her a conditional discharge. That's a good result. There are some people who wouldn't agree, they'd say it should have been taken it to trial, etc. But that's not the point. She'll be happy with this; it's all over quickly and gives her another chance. I'm pleased.
(Windom, solicitor, Radford Hope, IC)
A further example can be seen in the reaction of Laura, a Swining MacSage solicitor, to an assault trial.
The client was found guilty, but that was not considered the important point to take from it:It went really well. He was convicted ofthe assault, but he was happy with that because, in their findings, they found that the police were completely inconsistent in their statements. Every single police statement was different. The only thing that was corroborated in their evidence was that he used the word ‘fuck', but all of them used it in a different statement. Every single one said his behaviour was different, completely different. So, yeah they felt that the police officers' evidence was not consistent with each other but that his behaviour had gone beyond what was reasonable. But that the police didn't treat him as the victim that he was and that, perhaps, if they hadn't have been so heavy handed he wouldn't have reacted that way. He was happy with that; he'd felt aggrieved that the police had treated him the way they had. That really did go very well indeed.
(Laura, solicitor, Swining MacSage, IC)
However, I was not simply relying on the lawyers' explanations. The following dialogues show that clients had priorities other than securing an acquittal:
[Lawyer] The main thing we have to do today is make sure the judge doesn't sentence you. If he does, it'll be prison. You don't want that, do you?
[Client] No, I don't care what happens, I just don't want no prison.
[Lawyer] We have to try and persuade the judge to adjourn it today and send you to Probation for [Pre-Sentence] Reports. Then we've got a fighting chance when we come back in two week' time.
[Client] I just want to be out for Christmas and my kids [cries].
[Lawyer] I know. I want to get you out in two weeks time. You want to get out and see your kids, alright. Any questions?
[Client] Will you try and get me out please? Even if it's tagging or something. Not go to the stores, maintain my script [methadone prescription], anything?
[Lawyer] I will try and do that. So, you're happy to enter pleas, say you're guilty and hopefully go for reports. Is that alright?
[Client] Yeah. Do that.
(Leo, senior partner, and Claire Taylor, client, Radcliffe and Musk, OR)
[Client] Hi, you're Radford Hope aren't you?
[Lawyer] Yeah.
[Client] Good. I just need to get it done quickly, I have to be out of here by eleven. [Lawyer] Why's that?
[Client] For my DRR [Drug Rehabilitation Requirement meeting].
[Lawyer] Okay. So what is it here today?
[Client] It's my first appearance, for a theft from a motor vehicle and it's a simple guilty. I just want it done quickly so I can be away.
(Jason Gillespie, client, and Norma, partner, Radford Hope, OR)
Lawyers, then, did not see conviction as the be all and end all, as they did not believe their clients were overly concerned with it. I saw for myself that this belief was not unjustified - at least so far as some clients were concerned. From the lawyers' perspective, then, academics focused on conviction were detached from the real world. Academics might judge clients by their own standards, far removed from the world of regular patrons. Lawyers considered themselves more attuned to these values through the knowledge gained from years of experience. It was the lawyers who witnessed clients returning time after time, laughing even, proud about how long their lists of charges were and regularly asking what the likely sentence was before discussing their plea. They felt close to these clients and so thought that they were able to make judgements about what they thought and what was important to
them. As such, they deemed themselves able to provide the clients with something of a mediated choice; it was taken for granted that clients would want to plead guilty, and lawyers tasked themselves with providing options following this acceptance of guilt. By this line, what seems at first glance to be lawyers exerting pressure on clients to plead guilty is reconceptualised as the former helping the latter to achieve ends that are in their best interests, whether or not clients understand the situation. In short, lawyers knew best. This stance fed into their self-professed role as advisers, helping to enlighten clients as to what they wanted, even when they did not initially realise it.
At this point in the analysis it is helpful to draw on Blank's (2004) Sociological Theory of Choice. His thesis is largely premised upon hierarchy and Bourdieu's (1984) notion of status. For Blank (2004: 15-16), those with greater social, economic and cultural capitals review the options for those below them. The individuals making the choice defer to those with the superior knowledge and cachet, following their lead. The individual is not alone in making their choice, they make it based on relations with others; it is a social act. To some extent, this approach situates choice as the communal activity that Durkheim (1964: 278-79) seeks to promote, stressing that human contact created association that led, in turn, to the development of ‘groups of co-operators'.
Under this practice, choice is a collaborative decision-making process, involving some measure of consultation and agreement with others. An important aspect might involve having another regulate the size of the choice set that can be selected from. Psychological research has suggested that, the larger the set, the more difficult individuals find it to make a choice (Iyengar and Lepper, 2000). At some point,
then, choice ceases to be seen as a signifier of freedom and becomes detrimental to emotional and psychological wellbeing (Schwartz, 2005: 2-4). There is a cognitive burden that can be experienced in having too many options, leading to greater stress and a desire to have the field narrowed (Arunachalam et al, 2009: 823-34). Lawyers fulfilled this role as they shaped their clients' choices, and in so doing, they saw themselves as better placed to make these calls than outsiders.