Law Life: The lawyer's dilemma

By Craig Napier

The Daily Record Newswire

I always liked the concept of the prisoner's dilemma.

It is a game theory that highlights a pretty basic flaw in humans: Sometimes we will hurt others to save ourselves.

The prisoner's dilemma essentially boils down to the story of two people in a police station being interviewed about a crime. If neither talks, then neither gets convicted; but the first person to talk will not get convicted and the other person will.

It's a concept played out over and over again in television shows, books, movies, and in cop shops and detention centers all over the country.

I, however, have the lawyer's dilemma.

My little story will be one of your friendly neighborhood defense attorney and your friendly neighborhood prosecuting attorney trying a case. The defense attorney objects to pretty much everything and frustrates the prosecuting attorney to no end. The prosecuting attorney becomes upset with friendly neighborhood defense lawyer. The defense lawyer has to work with the prosecutor all the time and personal conflict may harm his other clients in negotiations down the line.

Of course, what I am talking about is completely hypothetical and there really are no lawyers who would ever take something that happens in the courtroom personally.

You should hear "whatever" after that last sentence and see a 14-year-old rolling her eyes at you as well.

It happens. Sometimes the legal ego can be bruised in a number of ways, so what happens if you deal with someone whose legal ego is the exact same as their inner child's?

My answer: Do it anyway.

If you don't hold a trial opponent to their burden at every stage of the game you risk compromising your duty to your client. If you do not cut a trial opponent much slack, then you will have to deal with them and their sometimes bruised egos down the road.

I'll take being ethical to my client every time.

This is less of a problem in the larger communities around the state, but a bigger problem in the smaller communities. If the part-time prosecutor is also a divorce lawyer you can run into some pretty strange power struggles when there are only a few other lawyers in the area.

For the most part, though, I find that as long as you remind people from the beginning that in the courtroom you will be professional and offer no quarter (but in a fair manner), then you can preserve a personal rapport with an individual and be a barracuda in the courtroom.

Many of us may not care about such niceties. I know there is a certain school of thought that would ignore the interpersonal dynamic between lawyers, but I wouldn't.

I work with the same three lawyers over, and over, and over again, so if I lose credibility or the ability to communicate in a trustworthy manner then I am sunk.

Luckily I have managed to still object to sometimes minor things in an attempt to advocate for my clients and have not harmed the personal relationships too much. But hey, I've only been here for 16 months.

At the opposite end of the spectrum, lawyers must guard against becoming too close with lawyers who are routinely on the other side because friendship can lead to unprofessional conduct as well if you aren't careful.

If you can't kill for your client because it would kill your buddy from law school, then you for sure shouldn't be in that case.

These are my two cents anyway. And even if you aren't in any of these situations, considering such relationships is very important to keeping us professional and ethical.

They are concepts we need to foster and develop in our profession. Just ask Justice Clarence Thomas.

Craig Napier is an attorney in the Kirksville office of the Missouri State Public Defender System. He can be reached at

Published: Tue, Feb 15, 2011