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For My Incarcerated Clients, There Is No Winning

“What he really needed, a lawyer couldn’t give him.”

Tears were streaming down the man’s face, and the interview room in which we’d been sitting across from each other didn’t have any tissues.

“They wouldn’t give me clean bandages for my hand! I was just walking around with this infected, bloody rag, begging them to help! They just laughed at me! Shouldn’t they pay for that? Shouldn’t I get something for that?”

Our conversation was taking place inside a California penitentiary, with its endless fences topped with barbed wire and guards with rifles perched atop their towers.

This man was a prisoner and had sent me, a lawyer who does civil lawsuits, a heartbreaking letter that said he had been ignored while an injury became gangrenous. He wanted to sue the prison in court for the utterly preventable harm he said he’d endured.

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He reached out to me because I primarily work with incarcerated and formerly incarcerated people. My practice focuses on helping them recover assets stolen from them as a result of their long-term prison stints—a huge problem among inmates who prepare to come home only to find that the money or the house they thought would be waiting for them has disappeared.

I like to think of myself as a legal problem-solver for incarcerated people. Identifying the problems to solve is often the hardest part. My heart goes out to the people whom I’ve been able to get to know and from whom I’ve learned about the struggles they face to stay alive in a prison cell for decades.

I make a point of visiting as many people who contact me from inside prison as I can, although these in-person meetings are the hardest. Inevitably, the trauma that prisoners have experienced throughout their lives, from growing up around violence, to the memory of their crime or crimes, to their time as part of the criminal justice system, bubbles to the surface.

And I’ve found that this type of lawyering requires a different skill-set than what we might normally expect from lawyers. We have to identify how trauma is influencing people’s legal decision-making. We have to set realistic expectations about what can and can’t be achieved in court. And we have to clearly explain how the civil justice system works (as opposed to the criminal justice system) so that we don’t set them up for a sudden realization that no justice will be had.

I began slowly: “Obviously, something terrible happened to you, and the prison doctors and nurses were wrong to ignore you. They did something wrong and caused you a lot of pain. But you’re sitting here in prison; you know that terrible things happen all the time and that the legal system isn’t always the best way to get justice done.”

Working with prisoners, I’ve found the simple act of acknowledging what they have been through to be an important part of the process, regardless of whether or not we move forward with litigation. It helps a potential client feel safe, slow down and gain some perspective. Meanwhile, it helps me clarify what the client’s needs are. Sometimes they just need to be heard.

My clients have amazing, often disturbing personal stories, studded with unbelievable violence and long-festering emotional wounds and resentments. It’s crucial to show compassion in order to even consider building a healthy attorney/client relationship.

Now, the man had stopped crying and was looking down into his lap.

“Also,” I said, “if we’re talking about suing prison doctors, we’re talking about the civil legal system, which is different than what you might be used to. You’ve been fighting your criminal case for years. This is something else.”

I ripped a piece of paper from my legal pad and began drawing a simple picture showing how a lawsuit progresses, from filing a complaint, to discovery, to motions, all the way to trial. I wasn’t being condescending, I sincerely hoped, but was trying to be completely transparent on how long the path would be.

“Now,” I continued, “even if we filed this lawsuit tomorrow, we’d be litigating it for two, maybe three years before we even got to a trial, if we ever got to a trial. During this time, it wouldn’t really be about what happened to you; it’d just be a lot of lawyers writing stuff, arguing about rules that determine whether we could move forward.”

Many of my clients spend decades as criminal defendants; a not-guilty verdict is virtually impossible in the plea-bargaining system, and the only “wins” for them are marginal reductions in their prison time. A civil lawsuit may mark the first time they are plaintiffs, “controlling” the legal proceedings. That is a powerful feeling, but it also engenders false hope.

“This thing happened to you four years ago, right? So that’s also a ding against you: It was a long time ago and you’re only talking to a lawyer right now. That’s not your fault, but there’s probably a statute of limitations issue, which means that you may have waited too long…”

The man was still looking at my drawing. Without looking up at me, he said, “I was molested when I was a kid. I got into gangs and drugs, bad stuff. I did something bad to get in here, I’ll admit it. But I had no chance, man. No chance from the start.”

Now he looked up from the paper and straight at me. “I’ve been losing all my life. I just want to win at something. I’ve got witnesses who will testify for me. I’ve got the paperwork, the names of the nurses and the doctor. They’re still here! I just want to win, for once! Please!”

I sat there stunned. I felt humbled and thrown off-track from my usual spiel.

What came next was the hardest part of our meeting: “Honestly,” I said, “if you want to win at something that bad, you may want to start with chess or sports. That’s as honest as I can be. Because it’s really hard to tell when you’ve ‘won’ with stuff like this, although it’s very easy to know when you’ve lost.”

In a legal context, where parties and attorneys are expected to make rational, strategic decisions, unaddressed trauma can derail attorney/client relationships and lead to wasteful, often more traumatizing legal action. I had another client doggedly pursue scorched-earth tactics—demanding a trial at all costs—despite a clear path to recovering a house that was stolen from him without a trial. All he wanted was his “day in court,” the moment when he could dramatically reveal from the witness stand how much terrible stuff has happened to him, thereby finally getting validation from a judge or a jury, the very people who put him in prison in the first place.

Yet seeking that day in court would have made it impossible for him to actually get the house back and would have put him at risk for homelessness when he was paroled from prison.

Similarly, this man’s startling admission of abuse and violence made me realize that a lawsuit wasn’t what he needed, even if it was a winnable case. What he really needed, a lawyer couldn’t give him.

Now I was looking down at my lap. “I don’t want to waste your time or give you the wrong impression. For all the work and time we’d put into this, for all the pain you’ve gone through, the humiliation, you probably wouldn’t win this lawsuit, and that is really unfair.”

The man left the interview room promising me that he’d send me more documentation, more paperwork, more arguments in favor of proceeding with the case. I never heard from him again.

Peter Borenstein is an attorney and founder of Restorative Justice Fund (RJFund), a nonprofit justice reform incubator based in Los Angeles.