Patrick Horan reflects on what he has learned from his clients in criminal defence

Has someone ever asked you a question – a really important question – and then stared at you intently while you thought about your answer? It’s an uncomfortable feeling, isn’t it, their eyes locking hard onto yours? Instinctively you want to look away – but to do so may seem evasive. But staring right back at them seems almost impolite.

I have noticed this quite a lot over the years in my practice as a criminal lawyer. Let me situate you. We are in a courthouse, deep underground in the cells. My client is here, speaking to me from behind plate glass. We’ve had this conversation many times, but now it has taken on a vital importance – because, in five minutes’ time, he is about to be sentenced. He knows he’s getting jail. He can handle that. He just doesn’t know for how long. And that ‘not knowing’ is killing him.

Criminal law is often looked down upon by its financial and corporate law brethren. That may have something to do with the kinds of people we represent. Breaking the law seems almost unforgiveable to most of my commercial law colleagues, who naturally regard themselves, and the people they represent, as people of best quality.

I smile when having lunch with colleagues who tease me about getting people off”. The presumption is that I help the guilty walk free. My own family have on occasion jibed me about this. Their view seems to be that people who break the law should stop wasting everyone’s time and just plead guilty.

These same people remain studiously tight-lipped when I remind them that when the well-heeled in society call me about having been arrested for drink driving, I am implored to find some way, any way, to “help get them off”.

This is an example of a psychological phenomenon known as cognitive dissonance: the ability to hold two contradictory points of view by rationalising our actions. Others should plead guilty, but not me because I am not a criminal, they are.

The lives of many criminal law clients are punctuated by jail and freedom. Jail is where you go when drugs get the better of you and you can’t stay out of trouble. Then you ‘go in’ for a while to get clean.

And they do get clean. Within a few days of proper food, regimented sleep and (almost) a complete absence of drugs, all visible traces of drug abuse melt away. The human body’s capacity for self-renewal is staggering. But problems emerge when they get released.

Addiction is an environmental issue, not due to some inherent lack of desire to give up drugs. In his New York Times bestselling book, Atomic Habits, James Clear recounts a stunning discovery made in 1971 when two US Senators visited troops based in Vietnam. They found that 15 per cent were addicted to heroin and that 20 per cent had tried heroin. There were fears of an epidemic of heroin addiction in the US when these servicemen returned home.

In the end only 5 per cent became re-addicted within a year of their return. That’s because addiction is a function of your environment: change your environment and you change your behaviour. In Vietnam cues triggering heroin use were all around. In the oppressive heat of a South Vietnamese jungle, when you’re fearful and surrounded by men who were already heroin users, people became susceptible to drug abuse. But once removed from this hell to the relative tranquillity of a home devoid of such triggers, the habit dropped away.

This explains why rehab facilities have such high failure rates. When people are in rehab, their addictions seem to magically disappear and many will report having no craving for drugs. This is because when they’re there they are removed from their familiar environment, their familiar friends, familiar haunts that trigger the habit. The real problems only begin when they emerge from addiction centres, when they return home to those familiar haunts, those familiar people, those familiar temptations.

This also explains why judges are traditionally sceptical of defendants who tell them that they’re ‘going into rehab.’. They’ve seen it all before, people asserting with great sincerity, their desire to get clean once and for all. Many of them really mean it.

Sometimes the judiciary keep their scepticism to themselves, sometimes not. I remember once telling a judge that my client, who had an extensive criminal record, was planning an imminent trip to a rehab clinic. It sounded good to me at least. The sudden intent to “get clean” undoubtedly had something to do with the very high risk that he might be jailed that day. The judge looked at my client, then me, and with impossible indifference drawled, “I don’t believe in treatment”. He then proceeded to jail my client.

Privately many judges don’t believe in treatment centres because so many reoffend. Relapse means a drug habit. An expensive one. If that drug is heroin, an addict can spend between £25-£50 per day. That’s a £20,000 habit per year – and that’s a very conservative figure. As most are not working, they have few options except to fund their lifestyle through crime. Inevitably, it catches up with them.

And now I’m back deep in the bowels of a courthouse with my client, who’s nervously waiting to be sentenced. He’s asking me what’s going to happen. Specifically what length of sentence, based on my experience, I think he’ll get. I have been asked this question dozens of times over the last few months. His eyes bore deep into me.

Your words matter now. In circumstances just like this I have witnessed some lawyers talking far too much. Maybe this is because of nerves, maybe it’s because of some inherent need to make their client somehow ‘feel better’.

But whatever it is, it’s a mistake. This is not really the moment for talking, at least not any old kind of talking. Because too much talking now is a weakness and will be perceived by your streetwise client as such. Less is most assuredly more.

Much of our communication in life is non-verbal and we rely on our ‘sense’ of the other person to give us an impression of them. Intuitively, we distrust people who talk too much because it signifies to us that they lack control, control over themselves. We’ve all sat in meetings where we’ve wished that someone talking would just shut up.

And so it is here. In this moment the client isn’t really listening to what you’re saying. They’re hearing you but they’re not listening. After all its just words. They cost nothing. It’s your eyes they’re now interested in. That is where the real value lies. No matter what a person is saying to you, it’s not as important as what you can read in their eyes. Keeping eye contact now is crucial. Your credibility is at stake. They’re scanning your eyes for a hint. A hint of what? A hint of whether you actually believe what you’re saying to them or whether you’re just telling them what you think they want to hear. At some point, that is what every one of our clients do…

Patrick Horan is the Managing Partner of Patrick Horan Solicitors: phoransolicitors.com. In 2018 he co-founded Legal Index Ireland, a legal marketing website which uses advanced artificial intelligence to position law firms on page 1 of Google legalindexireland.com

Patrick Horan
Partner
Patrick Horan Solicitors