The Problem of Attorney Coaching
Along with malingering of forensically significant mental symptoms, the coaching of litigants by the attorney is a major problem for accurate and valid forensic assessment (1). The question of coaching presents a number of features that might be analogized to the differential diagnosis in clinical work; the dimensions of coaching are discussed in this section.
First, not all coaching is self-evident. Of course, a litigant who appears for his or her independent medical examination clutching the relevant pages, supplied by the helpful attorney, of the latest Diagnostic and Statistical Manual (DSM), does not reveal a subtlety of approach. In casual conversation experts describe such litigants as reporting that the attorney “wanted to help them to understand their condition more fully”—a transparent rationalization. However, other forms of coaching may not be so clear, as the following discussion may make clear.
Second, in the current climate there exist multiple sources of “public coaching” from television, movies, and the Internet, where notorious cases are anatomized in detail that may provide tips to would-be litigants as to what symptoms or problems might be expected in their case. Friends, family, other litigants, and “jailhouse lawyers” represent additional sources of potential coaching influence.
Finally, although coaching is a venal and unethical practice, it is, fortunately, not universal: Most attorneys operate at a higher ethical standard. The following examples, drawn from a wide variety of real and fictional sources, are intended to explore the spectrum of phenomena that relate to coaching of litigants.
EXPLICIT COACHING
EXAMPLE:
A fictional but convincing conversation in a best-selling novel between the defense attorney and his client, a murder suspect; the attorney as narrator describes giving his client “The Lecture” (2, p. 35):
The Lecture is an ancient device that lawyers use to coach their clients so that the client won’t quite know he has been coached, and his lawyer can still preserve the face-saving illusion that he has not done any coaching. For coaching clients, like robbing them, is not only frowned upon, it is downright unethical and bad, very bad. Hence the Lecture, an artful device as old as the law itself, and one used constantly by some of the nicest and most ethical lawyers in the land. “Who, me? I didn’t tell him what to say,” the lawyer can later comfort himself. “I merely explained the law, see.” It is good practice to scowl and shrug here and add virtuously, “That’s my duty, isn’t it?”
This excerpt from a longer discussion in the novel explicitly uses the word, “coaching.” In addition, the excerpt reveals a dramatic mixture of paradox, ambivalence and sheer cynicism about the ethical practice of law.
[C]oaching is universally decried and universally used; it is wrong and unethical and is used by otherwise ethical attorneys; it is a form of deceptive and self-deceiving duplicity; and it is as old as the law itself (1, p. 7).
Note further that any attorney presumably reading this is also being “coached,” right down to the appropriate body language (scowl, shrug) to use while rationalizing!
The core attorney-client dialogue in the novel continues the example (2, pp. 45-46):
EXAMPLE:
“Tell me more.”
“There is no more.” I slowly paced up and down the room.
“I mean about this insanity.”
“Oh, insanity,” I said, elaborately surprised….“Well, insanity, when proven, is a complete defense to murder…[details are reviewed]. So the man who successfully invokes the defense of insanity is taking a calculated risk….”
The Lieutenant [the suspect] looked out the window. He studied his [cigarette] holder. I sat very still. Then he looked at me. “Maybe,” he said, “maybe I was insane.”
Very casually: “Maybe you were insane when?” I said ….
“You know what I mean. When I shot Barney Quill…”
“You mean—you don’t remember shooting him?” I shook my head in wonderment.
[The attorney feeds a series of “You mean you don’t remember…” questions to the client that elicit the expected negative answer.]
“You don’t even remember threatening Barney’s bartender when he followed you outside after the shooting—as the newspaper says you did?…”
The smoldering dark eyes flickered ever so little. “No, not a thing.”
Although labeled explicitly as “coaching,” the previous combination of disingenuous suggestions, leading questions, and signals that the client “gets it” (“You know what I mean”) is far more subtle than the term might suggest; in practice, it more closely resembles an artful dance between two partners correctly reading each other’s signals. Thus, it appears that the suggestion of employing an insanity defense is coming from the client himself, a result allowing the attorney to continue to pretend that no coaching has occurred. In the novel it is quite clear from the context that the attorney cherishes no belief that the client meets any actual insanity criteria.
EXAMPLE:
From a film about a serial killer entitled Ten to Midnight; the arrested suspect has a conference with his attorney (3):
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