I believe public defenders and the like get a set fee regardless of how much time they put into a case.
At least in the jurisdiction of which I speak, the statutory defense fees are indeed set up in a way that appears to favor pleas. The cases that my friends typically saw go to trial usually involved (1) a defendant who was intransigent (or nuts); (2) Bad Facts for the State (not police misconduct, which most prosecutors I saw would steer way clear of even seeking an indictment when the cops did something fishy – more like sloppy/inconsistent report writing by the arresting officer); or (3) crusades by legal aid lawyers who (and again, this may be jurisdiction-specific) wanted to roll the dice on making new law on appeal.
Not in my county; we have a court appointment system where the court pays defense attorneys by the hour, so trials pay much, much more than plea agreements. At any rate, my point is just that the lawyer who cares about his client doesn’t necessarily advise to turn down all plea offers and go to a jury trial in every case. Sometimes the client demands a jury trial against your advice.
My employer is a criminal-defense and family-law attorney (she started in CD and only got into FL because there simply wasn’t enough work otherwise.) As in just about any business, It All Depends on the People You Deal With. Many of the FL attorney who are opposing counsel on these cases we have good professional dealings with, and my employer goes golfing with some of them – several were invited to her wedding. Also, there is a good deal of “covering” amongst these attorneys: where one will have a hearing that they are unable to attend, so they’ll ask my boss to continue the hearing for them. And vice versa.
On the other side of the coin, one of the local prosecutors is the most intransigent SOB who won’t give a scintilla in negotiating a plea or conceding a point of law. This may be because he went back to the DA’s office after failing to establish a private practice. Needless to say, we don’t invite him along for golf.
As pravnik said, sometimes the client refuses to listen to the lawyer’s advice. What can you do? You have to go along with it unless a) they will not or cannot pay; or b) they sign a substitution of attorney or c) you file a motion to be relieved (or the equivalent in your county.)
A couple of issues may be at play here. First, lawyers are appalling and hopeless gossips. (I am not proud of this aspect of the profession). Telling our war stories often descends to slagging people off at drinks over somebody’s latest ill-chosen words or less-than-compelling argument. But it’s usually a small number of bottom feeders who tend to attract that sort of thing. And the stories are talked up to make for better entertainment. The casual listener might get the impression that the sentiments expressed are more general than is really the case.
The second issue is juniority. There is a natural trajectory in the careers of most trial lawyers (and in particular prosecutors). Early on, there is a tendency to paranoia (born of defensiveness and inexperience) which translates to assuming the other side are cheating, and generally to putting the worst interpretation on their conduct. Later on, you come to understand that what once would have appeared to be dishonesty or cheating on the part of defence lawyers is usually just derivative of the fact that some scumbag client is twisting on the hook, has put his lawyers in an embarrassing position, and they are stuck with doing what they can with what they’ve got.
I don’t know if either of those factors applies to the people you have spoken with. But I adhere to my general proposition that merely being in opposition doesn’t make you think poorly of the other guy. You think poorly of him because he is a tool irrespective of which side he is on.
This has always been my experience, too, both in big cities and in more rural areas. In my six years as a prosecutor, I had friends who were prosecutors and friends who were defense counsel. I knew wonderful people and jerks, skillful advocates and bungling incompetents, on both sides of the courtroom. If you’re good, you try your cases to the best of your ability without being a jerk.
I can’t speak to the criminal side, but I can offer a few observations based on my experience with civil litigation (i.e. lawsuits) in Los Angeles. First, as a number of people noted, a lot depends on the personalities of the people involved. As with any other job, there are going to be people who you like, and people who are high on your list of candidates to test experimental parachute designs. A few points that are particularly exasperating.
First, there are attorneys who simply will not listen to you. I don’t mean that they miss the deep nuance of what you are saying, I mean that they are fundamentally incapable of listening to anything you have to say. Much of what happens in litigation is about discovery and much of this is worked out between the parties. So you get on the phone with the opposing counsel to schedule a deposition, and you say, ok, well, I can’t do it next week, but how about the week after… and the person on the other side interrupts you and talks for 10 minute straight on an irrelevant harangue. But you listen, and when they are done, you say, ok well I understand but I, and then they interrupt again and talk again for 10 straight minutes. This is exasperating beyond belief (as you can imagine) and even more exasperating when you realize it is just a tactic.
Second, and I think related, there are plenty of situations where the attorneys on both sides know certain facts far better than anyone else involved. And cases are complicated, and frequently you run into a situation where the attorney lies, and the problem is, you can eventually prove that they are lying, but it is a huge hassle and expense. For example, if there was a proceeding in another court that is relevant to the current case. The other court’s order is less than clear, and the opposing attorney misrepresents what happened. E.g., says Your honor, the state court denied their motion. Well, yes, strictly speaking that’s true, but the state court did not say we weren’t entitled to the injunction, it just said that it was not going to rule on it until another court decided who owned the land. Well, it is a big headache, and takes hours to write the brief and go to the hearing just to clear up the mess.
When I come up against these types of tactics, I can’t really put it to one side and laugh about it over drinks. I think it is dirty pool, and I can be professionally cordial with people who do this stuff, but can’t really imagine being friends.
makes a claim that is untrue, and that they know to be untrue
I would just add to this comment from my learned friend that you also gradually discover that the other side may have different evidence or knowledge that you don’t have, and that what may at first seem intransigent or shady conduct actually has a good foundation. This sometimes comes out at trial, and you say to yourself, “Ah! that’s why he took that position in our discussions before trial.”
This is also something I gradually learned as I acquired more experience.
In one case I sat on the jury for, the court-ordered defense lawyer was trying his first criminal case. The defendant changed his plea to guilty later that day, to avoid the “three strikes” felony penalty, so the lawyer deepsixed his first time out. He got with us afterwards and asked how we thought he did, and the ADA stepped up and told him not to be so hard on himself. So it looked to me like they were friendly with each other and shared a professional respect.
I remember attending a criminal trial quite a few years ago, and before the judge entered, the prosecutor and defence were chatting, and I was able to overhear enough to determine that it was at a non-professional level. (So, how’s little Billy doing with his tai-kwon-do classes?*) No more animosity than, say, two buddies who happen to play tennis against each other. They’re not enemies, they’re just playing the best game they can, and the outcome is what it is, as determined by the rules of the game.
S^G
*not the actual discussion, but a vague (and poor) example of the level of relationship displayed.
I had a similar experience as a cub lawyer, doing some Crown work one summer to get some court experience. The Court had acquitted on an impaired charge I was running. After court closed and the judge left, the defence lawyer came over chatted with me. He told me that I’d done the best I could with the case, and we discussed some of the points that had come out of the testimony, and their relevance to the offence. It was very helpful and encouraging for a senior lawyer to take the time to chat with a very junior lawyer like that.
I hope you understand this is often tactical. Like the live microphone rule all politicians follow, whenever a jury or juror is in the room, you are “on”. And when the judge is absent, the jury are looking for cues even more assiduously than usual because the absence of the judge makes them think they are seeing behind the veil of advocacy, as it were. So apparently unstructured idle chat is not infrequently a dominance game in which the advocates are trying to jockey for position, using talk about kids and football as a proxy.
The trick (and it is a difficult one) is to do it without looking like a dick. Whoever overcooks it and looks like a dick loses badly in the jury’s eyes, so often the default is just to be normal. But you can’t assume from the situation you saw that things were as casual as they perhaps appeared.
I remember a wily old prosecutor who had a gallery full of supporters of the accused, but he realised the jury did not know who it was they were supporting. At end of adjournments, while the jury were waiting for the judge to return, he would go over and chat to the friends of the accused, so the jury thought they were all there to support the prosecution, not the defence.
That said, even those brinkmanship games tend not to be played when the two opposing counsel know each other well, and when they are played, they don’t interfere with the professional courtesies, unless one of the people playing them is truly a tool about it. If that happens, you smile inwardly because you won the armwrestle, but you are less likely to want to drink with the guy afterwards. But you probably would anyway, just as a courtesy.