Just because you say it doesn’t mean they’ll believe it.

When Clients Lie and Judges Know It: A Lesson for Young Lawyers

Lessons in Legal Advocacy #1: When Clients Lie and Judges Know It

I’ve called this series the 'Caro Excellence in Legal Advocacy' — but it’s really about how courtroom persuasion actually works. Not theory. Not tactics. Just truth. It’s inspired in part by the method of Robert A. Caro, the preeminent political biographer today who believes in relentless fact-checking, disciplined storytelling, and exposing how power really works. His writing isn’t about politics or history. It’s about power and how power works in a democracy. It's about who has power, how to get it and how that power is wielded. It also seeks to expose how and why decisions get made and the forces that shape decision-makers.

That’s what good advocacy is too.

This happened right in front of me in court:

‘That’s a lie’!

The words echoed across the courtroom.

Not from a prosecution.

From the judge.

And they were directed at the Defence, square between the eyes.

‘That’s completely untrue. What you’re telling me is a lie.

He’s told you a lie and now you’re repeating that lie to me in court.

‘It is simply inconceivable that a man with 30-odd convictions for theft could go into a SuperValu, place a bottle of whiskey in his pocket, walk out of the store having forgotten that the bottle was still in his pocket and that he’d forgotten to pay for it.

‘Those are my client’s instructions Judge’ the young lawyer stuttered.  

‘I appreciate that those are your instructions but he’s telling you lies and I don’t believe a word of it’.

The judge proceeded to jail him.

"They won’t suddenly ‘dislike’ you because

you were straight with them.

They might be disappointed

but at least they’ll respect you

for being truthful with them"

What about this:

‘He didn’t realise that he was driving without insurance when he was stopped.

Judge (smiling): ‘Mr McCarthy, your client has two previous convictions for driving without insurance…

‘Those are my client’s instructions judge’.

‘I know that Mr McCarthy, but I don’t believe them.

I don’t believe that somebody who has been convicted twice for driving without insurance, somebody who has been disqualified at least once, could possibly be mistaken about whether they were insured on this occasion or not.

‘As I said judge, those are my client’s instructions.

‘I know that, I’m not blaming you, but I don’t believe a word of it.

When you are training to be a solicitor one of the principles you learn is that you must “give the court your client’s instructions”. 

"As lawyers, we are not just mouthpieces.

You surely did not spend your time in law school

just to become a parrot?"

In other words you advise the court what your client’s views are by telling the court what your client has told you.

That’s fine if the client is being truthful with you.

Many are.

But some are not.

And these people will lie through their teeth to you in the hopes that you might be stupid enough to believe it.

And if you are, if you are that stupid to believe it, then there’s a chance that the judge might also be stupid enough to believe it and they’ll somehow get away with it.

That’s the theory.

But in the end they’re using their lawyer to ‘float’ their stupid nonsense, dragging their lawyer down with them.

As lawyers, we are not just mouthpieces.

You surely did not spend your time in law school just to become a parrot?

Do you not have intelligence, intellect?

Have you got the capacity for critical thought, or do you just repeat what you’ve been told like some political nut chanting slogans at a rally?

Clients bring cases. Those cases contain evidence. As lawyers, we must engage with the evidence. In other words, we have to be objective in our advice.

Or as one judge used to say, “there has to be some reality to what’s being said”. 

You have a brain. Use it.

Part of your job is to ‘manage expectations’. That means telling clients how difficult their case is, if that is the case.

You have to be straight with them, look them in the eye, that sort of thing.

"This then is the secret fear of most lawyers:

being fired in favour of a competitor.

And if you’re a junior lawyer working in a firm,

this fear is especially pronounced where its

accompanied by another fear:

the fear of ‘getting the blame’ by your employer for having ‘lost a client’.

They won’t suddenly ‘dislike’ you because you were straight with them. They might be disappointed but at least they’ll respect you for being truthful with them.

After all, if you are willing to say whatever you think they want to hear, then they might reasonably say, “what might they not say to me?”

_________________

But you also have to advise them when the instructions they’re giving you are rubbish.

You don’t have to tell them they’re talking rubbish -you can finesse this part- but you have to protect them from themselves.

Here’s a scenario I was involved in.

Trevor was charged with robbery.

The allegation was that he ran into his neighbours apartment downstairs and covering his face pushed his neighbour and stole his iPhone before running out of the apartment.

A well thought-out plan this wasn’t.

He was arrested about an hour later by an undercover Garda as he tried to sell the phone to him. Trevor’s neighbour had rang the Gardai and they noted the number of his stolen iPhone. Then one of them rang Trevor and pretended to be some random person offering to buy the phone from him.

Trevor agreed to meet them down a side street.

It was about 2pm.

The Garda dressed in civilian clothes and wearing a hoody to cover his face so Trevor wouldn’t recognise him at the last minute and bolt, met his “buyer”.

He identified himself as a Garda and all hell broke loose.

Trevor resisted arrest, was pepper-sprayed and taken to the Garda station.

Both his barrister and I agreed to meet him in the office to discuss the case.

He intended to plead not guilty.

His defence was that he had nothing to do with the robbery.

He had just innocently bought the phone off someone he met on the street.

He had no idea it was robbed.  

Both his barrister and I then did our job.

We asked him to take us through his “side of the story”.

This sticks out in my mind -it’s about 12 years ago- as the way lawyers should do their job i.e. use their critical faculties to assess and advise on what they are being told.

Trevor said that he had been out walking one day when he encountered a group of youths. It was about 1pm. They offered to sell him an iPhone.

“For how much?” we asked him.

He paused. “€1100” he said.

Trevor was unemployed. “You were out and about with €1100 cash in your pocket?”

Another pause. “I won it in the bookies”.

‘That day?

‘Yeah. In the morning’.

As he was walking downtown on his merry way he got a phone call, on his shiny new phone. He didn’t know from whom but it turned out to be someone interested in buying the phone. What are the chances?

He agreed to meet them.

We asked who he thought it was.

“Dunno” he said. “think it was one of the lads that I bought the phone off”.

“One of the guys you had bought the phone off an hour earlier?”

‘Yeah’.

‘So one of the guys who had sold you the phone wanted to buy it back’?

‘Yeah’.

Trevor was not a ‘details’ guy.

Elaboration did not come naturally to him.

‘And you were going to sell it back?’

‘Yeah’

‘And how much were you going to sell it to them for’?

‘€900’.

‘€900?’

‘Yeah’.  

‘So you buy a iPhone at 1pm for €1100 and you’re going to sell it at about 2pm for €900?

‘Yeah’.

‘Why would you sell it for €200 less than what you just paid for it’?

Trevor shrugged his shoulders.

His story had begun to collapse like a cheap deckchair.

He looked at us hopefully.

‘What do you think will happen’?

The barrister spoke.  

‘We can tell the judge and jury your story Trevor but they won’t believe it and you’ll be convicted’.

‘Then’?

‘You’ll be jailed for at least 2 years’.

Trevor paused and smiling said:

“Yeah, I’ll plead guilty then”

This is virtually a word-for-word account of what happened.

Leaving aside the almost comical nature of the story, it did highlight one takeaway: Trevor had concocted and peddled a story that he hoped we’d believe.

And he was cynical about it. A brazen lie was 'worth it' if it worked.

His thinking was rational: after all if the lawyers believed it then maybe the jury would too?

They wouldn’t but we needed to advise him of that.

If we had taken our client’s instructions and run that ‘defence’ in court he’d have been convicted and given a 2-year sentence at least.

So, in a way, we were protecting him from himself.

"You’d be pretty angry that somebody thought

you were stupid enough to fall for that rubbish.

It’d make you mad.

Unfortunately there’s not much you can do about it.

But judges can.

They’re the only people in the country who can send you to prison.

That’s a handy little superpower.  

And you want to antagonise them?"

I understand why many lawyers are reluctant to do this, to tell their client that their story is absurd. The thinking here too is logical:

“If they think I don’t believe them, they’ll think I think they’re a liar. Then they’ll fire me and get another solicitor”.

This then is the secret fear of most lawyers: being fired in favour of a competitor. And if you’re a junior lawyer working in a firm, this fear is especially pronounced where its accompanied by another fear: the fear of ‘getting the blame’ by your employer for having ‘lost a client’.

I have never had that problem, not because I am particularly excellent at retaining clients or have some special insight into the human condition.

But because I have never framed the problem in that way. I prefer a more subtle approach:

“It is not me who might disbelieve you, it’s the court”.

If it makes them feel any better by saying: “of course I believe you but the court likely won’t” then so be it.

Nobody’s feelings get hurt.

Judges are just like you and me. They don’t live in ivory towers divorced from reality, “out of touch”.

They’re also cynical and as someone who travels the country every day, I see more judges in more courthouses than 99% of my colleagues.

Not only are they not out of touch, they’re suspicious of almost everything they hear because their default setting is, “I’m being lied to here”. 

And if there’s one thing they hate, its being lied to.

Think about that.

A client tells a lie to their lawyer and maybe unthinkingly the lawyer parrots it directly to the judge.

To any living human what’s being said is clearly untrue.

But worse, its being said in open court.

Everyone now knows it’s -pardon my French- “bullshit” and the judge knows that everyone knows it.

"Not only are they not out of touch,

they’re suspicious of almost everything

they hear because their default setting is,

“I’m being lied to here”. 

So now you have a judge listening to something that everyone knows is a lie.

What do you think they’re going to do?

What would you do?

You’d be pretty angry that somebody thought you were stupid enough to fall for that rubbish. It’d make you mad.

Unfortunately there’s not much you can do about it.

But judges can.

They’re the only people in the country who can send you to prison. That’s a handy little superpower.  

And you want to antagonise them?

No one ever got fired for challenging what their client told them.

But sometimes, just sometimes, you should.

They might be damn glad you did.