It’s all in the “if” – How to interpret what lawyers say…

Reading and posting on Avvo is a treat. is a website that allows lawyers to answer questions from anonymous people about their legal issues. It also gives lawyers rankings, based on various criteria that are run through some kind of secret algorithm. I don’t understand it. But I do post on Avvo occasionally.

Increasingly, though, I get the sense that Avvo is a waste of time. People ask the same questions, rather than search the archives. People get themselves into further trouble by posting very specific details and admissions about their cases. Avvo basically violates two rules of criminal defense practice. You need to pay a criminal defense lawyer ultimately for advice. And the criminal defense lawyer is going to almost always instruct you to keep your mouth shut, and fingers off the keyboard. In other words, Avvo, being a free forum and a place where people can confess in detail, is not a particularly helpful website from people facing criminal charges.

But another issue comes up on Avvo, and, even, when I’m talking to someone about their criminal case. And that’s this phenomenon: In an “If… then…” sentence, lawyers focus on the “If” and people focus on the “then”.

For instance, consider this question that was recently posted on Avvo, but which I’ve tweaked to take out some of the identifying characteristics so the person’s confession doesn’t get him into further trouble.

I’ve stolen $10,000 of merchandise from my employer, a big box retailer. My employer says they will not be coming to court. Will my case be dismissed.

The answer to that question is, probably, along the lines of “If your employer does not come to trial and the state cannot prove every element of the crime, then you will win the case.”

Or how about this question, which I frequently get asked in Domestic Violence situations: “I don’t want to go to court to testify against my [boyfriend, girlfriend, husband, wife]. Will [his, her] case be dismissed?”

The answer to that questions is probably, along the lines of “If no witness to the assault testifies at your trial, then you will likely win the case.”

Note that my answers are not advice here on the Interwebs. Rather they’re mean to show the contingent nature of answers that lawyers give when posed with questions. In other words, given certain facts and what I know about the law, then you can anticipate certain outcomes, although no guarantees can be made.

People tend to focus on the last part of the sentence fixating on the outcomes I’ve described rather than the “if” part of the statement that sets out the conditions that must be fulfilled for that outcome to “likely” happen.

Let’s take one final common example. Someone might give me a litany of facts from a DWI stop. Then they will ask me what I think the outcome will be. My answers are always contingent. First, I explain that no particular outcome can be guaranteed. I don’t guarantee outcomes for two reasons. First, it’s a violation of the Rules of Professional Conduct. And, second, it’s unfair to the client or prospective client who needs to have a realistic view of the law and the criminal justice system.

The DWI scenario is particularly problematic because I am almost always getting a partial story. That’s because, whether or not my client was impaired, a lot of things happened that night. There was an initial conversation with the officer. There were field sobriety tests. Maybe a Preliminary Breath Test (PBT) was administered. All the while, the person was under extreme stress. They were then transported to the jail or a police station where, in many cases, they were read rights, and had to decide to blow into a machine. Maybe they requested a witness. Maybe the didn’t. Maybe they don’t even remember whether the officer requested a breath test.

Now 24 hours later – or a week later – when they call me, I ask them what happened. Even in the best of circumstances, it’s tough to remember exactly what happened.

My clients give me a version of events that may be accurate, but may not be accurate. The possible outcomes I describe, as I always explain, are contingent on the “If,” not the “then”. “If what you tell me is accurate, then these are the possible outcomes…”

So when you talk to a lawyer, or seek out a lawyer’s counsel, listen carefully to what’s being said, including the “If” part of the sentence. Because then “then” is only true if the “if” part is also true. And no outcomes can be guaranteed.

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Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.