1 Blumberg, Abraham, The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession, 1 Law & Soc'y Rev. 15 (1967).Google Scholar

2 Casper, Jonathan D., Did You Have a Lawyer When You Went to Court? No, 1 Had a Public Defender, 1 Yale Rev. L. & Soc. Action 4 (1971).Google Scholar

3 Casper, Jonathan D., American Criminal Justice: The Defendant's Perspective (Englewood Cliffs, N.J.: Prentice-Hall, 1972); id., Criminal Courts: The Defendant's Perspective (Washington, D.C.: Government Printing Office, 1979); Glen Wilkerson, Public Defenders as Their Clients See Them, 1 Am. J. Crim. L. 141 (1972); Antoinette N. Hetzler& Charles H. Kanter, Informality and the Court: A Study of the Behavior of Court Officials in the Processing of Defendants, in Sawyer F. Sylvester, Jr., & Edward Sagarin, eds., Politics and Crime (New York: Praeger, 1974); F. Arcuri, Lawyers, Judges, and Plea Bargaining, 4 Int'l. J. Criminology & Penology 177 (1976); Burton M. Atkins & E. W. Boyle, Prisoner's Satisfaction with Defense Counsel, 12 Crim. L. Bull. 427 (1976); Geoffrey P. Alpert & Donald A. Hicks, Prisoners' Attitudes Toward Components of the Legal System, 14 Criminology 461 (1977); Stewart O'Brien, Steven Pheterson, Michael Wright, & Carl Hosticka, The Criminal Lawyer: The Defendant's Perspective, 5 Am. J. Crim. L. 283 (1977); Geoffrey P. Alpert & C. Ronald Huff, Defending the Accused: Counsel Effectiveness and Strategies, in William F. McDonald, ed., The Defense Counsel (Beverly Hills, Cal.: Sage Publications, 1983).Google Scholar

4 Hosticka, Carl, We Don't Care About What Happened, We Only Care About What Is Going to Happen, 26 Soc. Probs. 599 (1979); Douglas E. Rosenthal, Lawyer and Client: Who's In Charge? (New York: Russell Sage Foundation, 1974).Google Scholar

5 Cain, Maureen, The General Practice Lawyer and the Client, 7 Int'l. J. Soc. L. 331 (1979).Google Scholar

6 The counties were chosen on the basis of social, economic, and political criteria that produced diverse triplets of counties within each state while forming roughly comparable triplets of matched counties across states. There were three suburban “ring” counties that were primarily middle class and Republican; three “autonomous” counties; and three declining industrial, Democratic counties. More detailed information on the methods and scope of the larger project can be found in Peter F. Nardulli, Roy B. Flemming, & James Eisenstein, The Tenor of Justice: Criminal Courts and the Guilty Plea Process (Champaign: University of Illinois Press, forthcoming).Google Scholar

7 The numbers shown in parentheses after each interview excerpt are codes assigned to assure anonymity to each attorney.Google Scholar

8 Casper, Criminal Courts, supra note 3, at 83.Google Scholar

9 This distinction parallels the two meanings of “representation” identified by Skolnick: in one, an attorney accepts a client's view of how the case should be handled and provides counsel as to how to implement the strategy; in the other the attorney takes the responsibility for both strategy and tactics. Jerome Skolnick, Social Control in the Adversary System, 11 J. Conflict Resolution 52, 65 (1967).Google Scholar

10 Casper, Jonathan D., Having Their Day in Court: Defendant Evaluations of the Fairness of Their Treatment, 12 Law & Soc'y Rev. 237 (1978); Tom R. Tyler, The Role of Perceived Injustice in Defendants' Evaluations of Their Courtroom Experience, 18 Law & Soc'y Rev. 51 (1984).Google Scholar

11 For a more detailed examination of the preliminary hearing decision in these nine courts, see Roy B. Flemming, Elements of the Defense Attorney's Craft: An Adaptive Expectations Model of the Preliminary Hearing Decision, 8 Law & Pol'y 33 (1986).Google Scholar

12 Hermann, R., E. Single, & J. Boston, Counsel for the Poor: Criminal Defense in Urban America (Lexington, Mass.: Lexington Books, 1977). An analysis of “regular” defense attorneys, their “styles,” and their negligible impact on case outcomes and sentencing in these nine courts can be found in Peter F. Nardulli, “Insider's” Justice: Defense Attorneys and the Handling of Felony Cases (paper presented at annual meeting of Law and Society Association, San Diego, Cal., June 6–9, 1985).Google Scholar

13 For a discussion of the problems in more direct observation of lawyer-client interaction, see Brenda Danet, Kenneth B. Hoffman, & Nicole C. Kermish, Obstacles in the Study of Lawyer-Client Interaction: The Biography of a Failure, 14 Law & Soc'y Rev. 905 (1980); Douglas E. Rosenthal, Comment on “Obstacles to the Study of Lawyer-Client Interaction: The Biography of a Failure,” 14 Law& Soc'y Rev. 923 (1980); Stewart Macaulay, Law and Behavioral Sciences: Is There Any There There? 6 Law & Pol'y 149 (1984). These problems may not be insurmountable, however; e.g., see Hosticka, supra note 4, and Cain, supra note 5.CrossRefGoogle Scholar

14 Casper found that privately retained lawyers spent dramatically different, more extensive periods with their clients; 47% of 132 defendants with private lawyers said they saw their attorneys for more than 3 hours. In contrast, 59% of the 463 defendants with public attorneys reported that their attorneys spent a half hour or less with them. Casper, Criminal Courts, supra note 3, at 35.Google Scholar

15 See Nardulli et al, supra note 6, for further descriptions of the nine courts.Google Scholar

16 Casper, Criminal Courts, supra note 3, at 12.Google Scholar

17 Id. al 22–23.Google Scholar

18 Casper, American Criminal Justice, supra note 3, at 117–18 (emphasis in original).Google Scholar

19 In autobiographies of their work and careers, defense attorneys frequently bemoan their clients' lack of veracity. For example, Moldovsky states, “1 know that clients lie to me I just don't know which ones are the liars.” Joel Moldovsky & Rose DeWolf, The Best Defense 76 (New York: Macmillan Publishing Co., 1975). Wishman also recalls, “It didn't take me long to realize that nearly every client had lied to me.” Seymour Wishman, Confessions of a Criminal Lawyer 81 (New York: Times Books, 1981). Finally, Kunen describes the awkward situation a new client created for him when he asked, “Do you believe me?”“I didn't want to say 1 didn't believe him, because then it would seem I wasn't on his side. But I didn't want to say 1 did believe him, because then he'd think I was a fool.” James S. Kunen, How Can You Defend Those People? The Making of a Criminal Lawyer 187 (New York: Random House, 1983).Google Scholar

20 Dershowitz, Alan M., The Best Defense (New York: Vintage Books, 1983), recounts his shock at discovering his client was a stool pigeon for the prosecution: “After all, when I agreed to become his lawyer I had taken his case to defend a landsman, a fellow Boro Parker, a kid from the old neighborhood—not a stool pigeon. How could I ever trust Seigel again? For months he had tricked me and my colleagues into believing that he was a murder suspect, when all the while he was working for the other side, probably reporting every detail of our strategy right back to the prosecutor” (at 21).Google Scholar

21 Mather, Lynn, The Outsider in the Courtroom: An Alternative Role for Defense, in Herbert Jacob, ed., The Potential for Reform of Criminal Justice 283 (Beverly Hills, Cal.: Sage Publications, 1974).Google Scholar

22 Casper, Criminal Court, supra note 3, at 16.Google Scholar

23 Galanter, Marc, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, 9 Law & Soc'y Rev. 95 (1974).Google Scholar

24 Carlin, Jerome E., Lawyers on Their Own 161–62 (New Brunswick, N.J.: Rutgers University Press, 1962).Google Scholar

25 In an early study, Arthur Lewis Wood, Criminal Lawyer 101 (New Haven, Conn.: College and University Press, 1967), found that of 93 criminal lawyers, all of whom were private practitioners, 21 said they refused to accept clients who would not follow their advice.Google Scholar

26 This means that attorneys who are successful in this respect can play the kind of “confidence game” Blumberg describes. Blumberg, supra note 1.Google Scholar

27 See Nardulli et al., supra note 6, for an analysis of the guilty plea processes in the nine courts.Google Scholar

28 See id. regarding trial penalties in these courts. For other analyses, see Thomas M. Uhlman & N. Darlene Walker, He Takes Some of My Time: I Take Some of His: An Analysis of Sentencing Patterns in Jury Cases, 14 Law & Soc'y Rev. 323 (1980); David Brereton & Jonathan D. Casper, Does It Pay to Plead Guilty? Differential Sentencing and the Functioning of Criminal Courts, 16 Law & Soc'y Rev. 45 (1981–82).CrossRefGoogle Scholar

29 While sentences are important components of the client's decision, grievances and appeals are part of the attorney's choice and concerns. Between 1973 and 1983 criminal appeals more than doubled in Michigan and rose by 80% in Illinois. U. S. Department of Justice, Bureau of Justice Statistics, The Growth of Appeals: 1973–1983 Trends (Feb. 1985). However, all appeals do not center on the attorney's performance, and success rates for defendants are not high. Thomas Y. Davies, Affirmed: A Study of Criminal Appeals and Decision-Making Norms in a California Court of Appeals, 1982 A.B.F. Res. J. 543.Google Scholar

30 See text accompanying note 21.Google Scholar

31 Rosenthal, supra note 4, at 13.Google Scholar