Confidence Game

In order to accept the legitimacy of the greater influence that lawyers claimed, a great deal of trust has to be placed in their propriety; lawyers must be assumed to put their clients first.

These later studies appear to show that clients decline to pronounce upon the ‘competence' of their lawyer (Moorhead et al, 2003: 14).

Unfortunately, this means that clients are exposed to lawyers' attempts at ‘image management' (Moorhead et al, 2003: 5-6). Lawyers know they can influence clients by manipulating their perceptions, leaving the clients primed for exploitation. This is reflected by Welsh's (2003: 10) practitioner guide, which urges lawyers to ‘trick' clients to conceal any lack of knowledge or effort. In these circumstances, Blumberg (1967: 23) labels the lawyer-client relationship a ‘confidence game'. Lawyering is a hustle. Clients are marks ready to be tricked and, as such, lawyers are able to abuse their trust.

For Blumberg (1967: 25), this situation derives from the special problem lawyers' face justifying their fees, as ‘much legal work is intangible'. It is relatively straight­forward for a plumber to demonstrate the services they render: unblocking a drain earns the instant appreciation of their client. Doctors are presented with a more challenging situation when there is no call for physical intervention; in order to ensure that the client feels tangible gain, they might be tempted to administer a placebo. To justify their own role, lawyers feel compelled to engage in some level of professional mystification. Lawyers are secretive about the legal process to ensure that clients are kept in ‘a proper state of tension' (Blumberg: 1967: 26). The increas­ingly worried client becomes ever more dependent on their lawyer, as Blumberg (1967: 26) suggests that, ‘law practice maintains a manipulation of the clients and a stage management of the lawyer-client relationship so that at least an appearance of help and service will be forthcoming'.

The way in which lawyers use this tool to lower expectations has been suggested by Morison and Leith (1992: 70). This practice leads Ericson and Baranek (1982: 99-100) to note lawyers' ‘Godfather quality'; making clients offers they can't refuse. This approach was evident from my participant observation, as lawyers from all firms would regularly seek to spook clients into pleading guilty. The most common means of achieving this was to scare clients with talk of the magistrate or judge who would hear their case. At one time or another, nearly every one of these was built up as ‘tough', ‘harsh' or ‘bad' - despite the same individuals being deemed ‘decent' or ‘fair' in conversation away from the clients. This common tactic can be appreciated from the following example, where a solicitor opened a consultation by warning the client that the judge would accept ‘no messing around':

Hello Mr Clarke, I'm Audrey. Let me tell you from the off, you've got a DJ [District Judge] today, and he's a tough one. He's a tough one. You just need to know that, before you say anything else.

(Audrey, solicitor, Swining MacSage, OR) It seemed that Audrey wanted to ensure that he would plead guilty, and swiftly. She assured him this was the sensible thing to do and the judge would appreciate it. The client pleaded guilty despite having given no comment in his police station interview.

However, the participant observation uncovered another means of manipula­tion, involving what Mungham and Thomas (1979: 179) label pyrotechnics, ‘the demonstration of sustained aggression and a fancy piece of theatrics... deliberate manufacture of emotion and display'. Pyrotechnics refer primarily to advocacy, and that image of the lawyer on their feet in the courtroom so valorised in the sup­posed golden age of days long past. More recently, from the 1970s onwards, advo­cacy has been held up as an increasingly insubstantial part of the criminal process, exerting little effect on results (Kapardis, 2003: 208-11).

It is possible to leave behind a satisfied client after the completion of a case, even though it might be easy to show that the advocate handled the case poorly, and got less for the client than he could have done had he deployed other arguments or resources.

While fear could produce client satisfaction notwithstanding a guilty plea, this alternative confidence trick provided a mechanism by which lawyers could get cli­ents to accept defeat in the rare cases where they had convinced lawyers to run a case. If lawyers faced a trial or bail application they had not wanted, pyrotechnics allowed them a means to mask the fact that they were not really trying to win.

The application of this approach can be discerned from a trial that Harold, part­ner in Radford Hope, was given by his secretary the morning it was due in the Magistrates’ Court. I was sitting with him in his office when he received it. The cli­ent was accused of assaulting three police officers. He skimmed through the papers and remarked:

It hasn’t got a chance; the magistrates will never believe one toe rag over three police officers.

(Harold, partner, Radford Hope, IC) Harold, then, had neither the ability nor the inclination to thoroughly prepare the case for the trial. With less than half an hour before he would leave for court, there was no time for him to consider it in detail. Regardless, this was deemed fruitless as he stated that the magistrates wouldn’t be persuaded on a case such as this anyway. In these circumstances, Harold proceeded to the Magistrates’ Court with the inten­tion of persuading the client to change his plea, later explaining that:

I told the client he had no chance, and that he should plead guilty.

(Harold, partner, Radford Hope, IC) The client refused, and wanted the case fought. In court, Harold put on a show of pyrotechnics, and was extremely aggressive to the police officers in the witness box.

At this point the prosecutor objected that Harold was ‘unfairly murmuring under his breath remarks that could be heard by some in the court but not by oth­ers’. The magistrates upheld this objection, and reminded Harold that, ‘there is no place for muffled asides in the court’. Harold did not apologise and, instead, pro­ceeded to make numerous more such remarks. He eventually lost the trial. However, the client was happy, thanking Harold profusely.

The delight of this client despite being convicted highlights the manner in which pyrotechnics can engender much goodwill. Harold engaged in more obvious dis­plays of pyrotechnics, and more regularly, than other lawyers. Interestingly, Harold appeared to be the most popular lawyer among lay persons at the Magistrates’ Court; clients, ushers and those who watched from the back of court regularly appeared wowed by him. He was notorious for his ‘hopeless bail applications’, in which he made over-the-top speeches in cases that he deemed did not have a chance. Harold would outline the fine details of the Bail Act 1976, weaving long stories together, with verbose and florid language, always ending with a flourish as he would ‘commend my client as a prime candidate for bail’. He did all but take a bow. The typical reactions from the lay persons watching were smiles and admiration:

[Defendant One] You’ve got to watch him. He’s great! He’s tearing the police apart.

[Defendant Two] I want him.

[Defendant One] Me too.

(Tim Paine and Marcus North, defendants, OR - at the back of the Magistrates’ Court)

I love watching Harold. He’s so eloquent and passionate. Of all the solicitors I’ve seen here, he’s the one I’d want to represent me.

(Haruki Murakami, usher, IC)

When I was training, I went along to watch him in court, and he’s fantastic. When he stands there and makes his speeches. I know that if I ever got in trouble, knock on wood, then he’s the one I’d want to represent me.

(Harriet, secretary, Radford Hope, IC)

More often than not, Harold’s applications were unsuccessful. He would impishly shrug his shoulders, and apologise to the client and any family at the back of court. However, these parties were rarely disheartened or aggrieved, pyrotechnics made them incredibly forgiving and more likely to greet him with gushing praise for trying.

In contrast, lawyers who did not utilise pyrotechnics tended to be more unpopu­lar, and frequently elicited negative reactions. Clients and their families might not have felt the lawyer to be on their side or may have judged a lack of effort. Another Radford Hope solicitor, Bob, provided a good example of this - other lawyers were amused by his approach. He refused to engage in pyrotechnics, priding himself on being ‘straight’ and aiming to simply ‘get my head down and get on with it’. Bob showed little desire to win round the clients, rejecting any gloss or charm. He was frustrated at the notion of running trials or making bail applications that he felt had no merit, and sought to speed clients through as quickly as possible. His colleague, Harold, explained that the result of this was:

Lots of clients just don’t want him to represent them, he winds them up; they don’t feel as though he’s committed to them.

(Harold, partner, Radford Hope, IC) This can be seen from Bob’s approach to the case of a juvenile client who was in the cells on a common assault charge. The client had pushed Bob into making a bail application. Bob was not pleased at having to do this, labelling the attempt

Pointless - a waste of my time.

(Bob, solicitor, Radford Hope, IC)

Bob was subdued and appeared distracted; it seemed to me that he was going through the motions and wanted to get it over with. This application, though, was adjourned by the magistrates, so that Bob could establish a firm address for the cli­ent. Bob was equally unimpressed by this, complaining to me that:

I can't wait to get to the pub. Have you seen the time [four o'clock]?

(Bob, solicitor, Radford Hope, IC)

The client's family had garnered the same impression as I did, and confronted Bob on his heading back into the court for the continuation of the hearing:

He's useless that solicitor... What a shit job he's doing... Just don't care, does he? It's all his fault... Oi! You, you're a joker. So, you gonna try a bit harder to get bail this time, then?

(Nathan Bracken's family, clients, Radford Hope, OR)

Bob was similarly languid in the second hearing. The client was refused bail, and Bob left to a chorus of jeers.

Considering these two examples, the practice of pyrotechnics can be appreciated as an exemplar of Goffman's (1990: 203-07) impression management: defensive measures used to save their ‘show' from unintended slip-ups and deviations from the script. Social performances, for Goffman (1990: 78) are explained as in a play, making heavy use of the dramaturgical metaphor, whereby, ‘the world is not, of course, a stage, but the crucial ways in which it isn't are not easy to specify'. By this, the actor puts on a show, forever with the audience in mind. Each performance is tailored to ensure that the particular target is left with an impression consistent with the desired goal of the actor. So it was that the lawyer performed for the client; they are effectively playing to the gallery. Lawyers seemed to recognise this when I asked them about pyrotechnics:

They do provide satisfaction - for the client watching, and the family at the back of court, that's my job. That's what I should be doing.

(Dale, senior partner, Swining MacSage, IC)

The client, he appreciates a bit of fireworks in there.

(Harold, partner, Radford Hope, IC)

However, performing for that particular audience was not necessarily a positive thing. This was acknowledged by Leo, the senior partner of Radcliffe and Musk who, unprompted, used the word pyrotechnics to describe these practices in a negative manner:

Pyrotechnics - usually a complete waste of time and a ‘show' for the client.

(Leo, senior partner, Radcliffe and Musk, EM) Pyrotechnics might have done more harm than good in actually attaining a good result for a client, militating against any sort of victory (Kapardis, 2003: 211-19). In addition to closing down witnesses, stopping them talking, pyrotechnics likely worked to frustrate magistrates or judges who would be left unimpressed at the harsh treatment afforded to witnesses or police officers. This is recognised in prac­titioner guides, such as Davies (2007: 34) which warns that, ‘such people do not deserve to be harangued when they are in the witness box, and you will not get the sympathy of the bench or a jury by badgering them'.

By concentrating on making a good impression on the client at the expense of the officials who hear the case, the lawyers put aside any serious attempts to succeed with the court. Instead, they focused their efforts on deceiving the client that they had made efforts to do so. Leo was attuned to this, and in commenting on it made reference to Harold, partner, Radford Hope:

I can think of a solicitor here (whom you would know) who regularly used to use this tactic in bail applications (particularly when he had little to say). My impression was that he did not really want to have to advise the client that the application was hopeless and initially wanted to ‘keep the client happy' and that it was easier to make ‘a lot of noise' in court than try to explain the realities of the client's situation. This was quite often (in my view) detrimental to the client's case and as a result the client would often get entirely the wrong idea about the merits of his case - this observation based on taking over several such clients later on.

(Leo, senior partner, Radcliffe and Musk, EM)

In the earlier example, then, it is likely that Harold knew that ranting at police offic­ers would not be conducive to achieving a not guilty verdict in the trial. In the same way, he was probably aware that his bail applications had very little chance of suc­ceeding. This can be seen in the following exchange with a prosecutor:

[Prosecutor] What a wonderful exposition of the Bail Act. It hasn't got a chance though! [Lawyer] Oh, I know! Sometimes you just have to go off on one.

(Douglas Copeland, prosecutor, and Harold, partner, Radford Hope, OR)

Harold's actions were froth, and pyrotechnics can be understood as a lot of sound and fury, signifying nothing. Lawyers were frustrated at proceeding in the direction that the client chose, and could cite strong prosecution evidence, questionable cli­ent character or a lack of time to prepare to excuse them from putting work into a case. More so, they could do little and still receive greater rewards in terms of the plaudits that pyrotechnics provided. Clients were distracted from the reality that their cases were treated as hopeless and thus pyrotechnics provided for the obfusca­tion of poor practice and poor results. Pyrotechnics may have been superficial, but they seemed to exert a considerable sway on clients.

The difference that pyrotechnics could make can be seen from the one client's varying reactions to two lawyers, one of whom engaged in them - Dale, senior partner - and one who did not - Thomas, partner - both from Swining MacSage. Thomas had a client, David Boon, for whom he had made an unsuccessful bail application on charges of common assault. Following the hearing, Thomas was confronted by David's family and friends who jostled him into an interview room. Here they shouted abuse at him and he was mocked and threatened with physical violence. Court security staff rushed to the scene and kept guard as the heated exchange continued. The group was livid, claiming that Thomas was:

Useless... not trying... didn’t care... working with them [the prosecution]... he should be sacked!

(David Boon’s family, clients, SwiningMacSage, OR) They complained to the firm about Thomas’s low-key, routine bail application and threatened to take their business elsewhere. When Thomas got back to the office that afternoon he was called to see Dale. He read Thomas the - metaphorical - riot act, as David and family provided a lot of business to the firm. Dale subsequently went on a successful charm offensive, persuading the family to retain them. The most important part of this was identified to be the need for pyrotechnics:

You have to show them that you’re trying. They want to feel like you put the effort in. Did you think Thomas did that? He doesn’t know how, he hasn’t got the personality; head down, too quiet, all that. He hasn’t got the advocacy. You have to remember, that it’s them at the back, they’re the important ones. Just make them feel it. That’s what I can do.

(Dale, senior partner, Swining MacSage, IC) Dale duly put on a show of pyrotechnics, he was flashy and entertaining; he impressed the public gallery. However, he did not provide any new arguments, and the content of his application was all but identical to Thomas’s. Dale did not expect any success and the first result was duly repeated; the client was remanded in cus­tody. However, the reaction was quite different, as the family was left extremely happy:

Thank you, Dale, we really appreciate you trying... you gave it everything, he knows that... you’re the best.

(David Boon’s family, clients, SwiningMacSage, OR) In a conversation over lunch later that week, Dale had discussed Thomas’s handling of this case with his other senior partner, Ed:

[Lawyer One] It doesn’t matter whether he gets him out or not, he should still make sure they’re [the family] happy with the service they got.

[Lawyer Two] Yes, I just don’t think he realises that. I don’t think he knows what the job is about.

[Lawyer One] He’s too quiet.

(Dale and Ed, senior partners, Swining MacSage, OR) Dale considered that Thomas had an understated, ‘civil service approach’, anti­thetical to his, bombastic, ‘old school approach’. The popularity of the latter seems to signify that this was simply a victory for style over substance.

It was true, then, that most lawyers in this research appeared to know what many of their clients desired; they wanted a show. That this allowed lawyers to get away without working as hard as they might, disguised incompetent practice, and soft­ened the sting of defeat, does not seem a particularly good advert for lawyers' claims to use their experiential knowledge to the clients' benefit. If lawyers really did work to get what their clients wanted, it seems strange that they would willingly trick their clients into accepting the outcomes they achieved. The presence of these confidence tricks within my data questions the sense in trusting lawyers to look after the best interests of their clients. It suggests that many lawyers are willing and able to control their clients. These findings are more consistent with the academic critique than the lawyers' defence that academics simply do not understand how law works in practice.