What is Success for a Public Defender?
Why not focus on what we can control? The first step is to identify those things over which we actually have control, which is not as easy as it might seem. Public defenders with overwhelming caseloads and inadequate resources (investigators, experts, etc…) can't always prepare adequately for each case. It's awful to make an appearance with a client knowing that you would be better prepared with more time.I have a confession. That phrase, “I walked him,” sometimes used by public defenders after an acquittal, is like nails on a chalkboard to me. Even hearing lawyers say, “I won,” after a not guilty verdict, makes me cringe. I have felt this way since law school, but only in the last few years have I come to believe that this language can be representative of a potentially harmful mindset.
That language suggests that a jury verdict – or a judge's decision – is a referendum on our performance, not the facts of the case. We “won” because of our skills. It's all about us. The flip side, however, is that a “loss” must represent some deficiency in our presentation of the case. If we view adverse decisions from this perspective, we can feel powerless and incapable.
I don't believe that either is true. As a young lawyer, I remember walking back to the office after verdicts and having to face the inevitable question – “Did you win?” It is hard to put into words what it feels like to have tried a great case and to have a jury acquit your client. And I, like every public defender, savor those feelings. But when the jury convicted my client, how was I supposed to respond to those who asked whether I won? What if I had little to work with (as we often do), but I prepared meticulously, tried a great case, and outperformed the prosecutor? Was I a loser? What if the jury acquitted my client despite my dumb mistakes and the fact that I wasn't at the top of my game? Did I get to say that I won? The truth is that we have very little control over the outcomes in our cases.
That is why I coach young lawyers to stop using language that defines their success by the outcomes of trials and motions. We should celebrate positive results because of what they represent to our clients. If we start equating results with our worth as public defenders, however, we will beat ourselves up every step of the way down the path to burnout.
Which brings me to an interesting book, “Mindset,” by Carol Dweck. Her research, which applies to parenting, supervising staff, teaching, and many other aspects of life, describes two different mindsets; fixed and growth. People with a fixed mindset define their self-worth by what they believe are inherited traits. They may have been praised for being smart, or athletic or artistic. If they don't do well on a test, they conclude that they simply weren't born with the intelligence trait.
Having never been praised for their preparation or hard work, they aren't conditioned to believe that strategically studying or putting forth more effort will improve their test score. Instead, they stop trying or they avoid difficult challenges for fear of being exposed as someone who wasn't endowed with intelligence. For people with the growth mindset, every “test” is simply a source of feedback to help them learn and to grow. Because it is not a reflection of an endowed character trait, they don't let disappointing outcomes define their self-worth.
How does mindset theory apply to our work as public defenders? The danger of perceiving our advocacy from a fixed mindset is that we may interpret an adverse outcome as failing grade. But what do we learn if we poorly try a case and our client is acquitted? The fixed mindset temptation is to conclude that we are awesome because we got a positive result. And if our client is convicted after we tried a case really well? We are convinced that we are lousy lawyers, and we beat ourselves up for failing the client. In the growth mindset, we understand that every outcome, however disappointing, is an opportunity to learn. We feel badly for our client, but we can more easily move forward knowing that we did not fail him because of our personal deficiencies.
Why not focus on what we can control? The first step is to identify those things over which we actually have control, which is not as easy as it might seem. Public defenders with overwhelming caseloads and inadequate resources (investigators, experts, etc…) can't always prepare adequately for each case. It's awful to make an appearance with a client knowing that you would be better prepared with more time. While public defenders have very little control over their caseloads, we can be strategic and efficient with the time that we do have.
If we can't control the outcome, or even ensure that we have enough time to try well prepared cases, with what are we left? First, we can control how we rebound from disappointing outcomes. Second, we can control how we react to the mistakes that we all inevitably make in this work. And finally, we can control how much time we engage in activities that reduce our stress. While we can control these things, we often don't. Why? Because it's often easier to flog ourselves for perceived failures and to work more hours trying to compensate for the things over which we have no control. After all, why should our well-being come before that of our clients, whom we've dedicated our careers to help?
Where do our clients fit into this? We are public defenders because we care deeply about providing client-centered representation. We are acutely aware that we are often their only voice in the criminal justice system. We feel – sometimes physically - the immense weight of the unfairness inflicted daily upon them. Despite this, we must develop the ability to move on to help our next client, and the next one after that. What we owe our client is our voice, in whatever capacity we are able to summon given the many circumstances beyond our control.
So what is success for a public defender? Years ago, I was assigned to a calendar where clients made their first appearances on probation violations. Almost all were held without bail and given a date to return before their sentencing judges. Before court, I explained to each client that this judge was not going reconsider the hold without bail imposed by the sentencing judge. After one client's case was called, the prosecutor made a boilerplate argument that the warrant had been pending for three months. She droned on that he was trying to avoid the consequences for violating probation because he had to have known about the warrant. The calendar was huge and I just wanted to get a date and move on to the next case. The client, however, desperately wanted me to tell the judge that he didn't know about the warrant. I told him that it didn't matter, but he kept begging me, which I am embarrassed to admit he had to do because I perceived his request as a waste of time. So I finally told the judge, who looked the client in the eye, thanked him, and told him to make sure that his sentencing judge had that information. My client turned and looked at me with a big smile on his face and said, “Thank you,” as the deputies took him away. I have never felt so small in my life.
We are successful as public defenders every time we give our clients a voice. It is our client's voice, after all, and we don't get to define what is important to them.
What we can do is to actively listen, to advise them about their options, and to put forth our very best effort given the circumstances in which we find ourselves. And sometimes we do get our desired outcome. We savor that moment and then we move on to giving a voice to our next client.