When Kisha Petticolas runs into the buzz saw of a “high volume day,” she can have as many as 20 court hearings.
“It is just go, go, go, go, go,” she says.
As a supervising attorney at the Maryland Office of the Public Defender, Kisha represents clients in their criminal cases in district and circuit courts, specializing in cases with a mental health element, in addition to overseeing the cases of other attorneys. She’s also co-founder of Eastern Shore Network for Change, a community-based organization dedicated to social and economic empowerment.
The high volume of cases is just one of the many challenges faced by public defenders across the United States. In an interview with Kisha, we talked about this and other challenges: being underfunded and stretched thin, helping the court understand mental health in the context of a case, and building trust with clients who have lost all trust in the legal system.
Our conversation with Kisha also illustrates how often clients, overwhelmed by challenges they face in their lives as well as the complexity of the legal system, just want their attorney to make decisions for them. As Kisha says, “most people would be surprised at the number of clients who throw up their hands and say, ‘I don’t know what to do. I don’t care. Just do something. I just want this over with, just whatever’s quickest, whether it’s best or not.’”
They do not see themselves as active participants in the decision-making process even though legal ethics require that clients, not lawyers, make decisions about their case. Lawyers provide trial strategy, advice, expertise, and represent clients in court, but decisions such as whether or not to plead guilty or reach a plea agreement can only be made by clients themselves. This can be a blurry line that is difficult for both lawyers and clients to navigate, especially when clients have urgent needs and lack knowledge about legal procedures and consequences. Moreover, lawyers are almost never explicitly taught how to support a client in the decision-making process.
As Kisha explains, it is her job to make sure that clients understand the decisions being made and that it is their role to make them. She talks about the importance of clients being able to ask questions and advocate for themselves, and how self-advocacy is important even beyond the lawyer-client relationship.
For more resources on how to support clients in understanding and making decisions about their cases, read about RQI’s Voice in Decisions Technique here.
Our conversation with Kisha has been condensed and edited for clarity.
RQI’s method, the Voice in Decisions Technique, helps clients understand what a decision is, and how they can participate in decisions that affect them by asking questions. How do you, as a public defender, engage clients in the decision points in a case?
Cases can go on for months. As their lawyer, I can’t make decisions for them. They have to make decisions for themselves, while I decide on a trial strategy.
There are a whole lot of different decisions that get made during the course of a case. For example, do they want to enter a guilty plea? Do they want a trial by jury? Can I share information about their mental health history? If they give me any indication of what their sticking point is, I try to focus on that. I will lay out the situations and give them the pros and cons of each decision. Ultimately I have to be as detailed as possible in laying out the consequences of a decision.
Most people would be surprised at the number of clients who throw up their hands and say, “I don’t know what to do. I don’t care. Just do something. I just want this over with, just whatever’s quickest, whether it’s best or not,” which is kind of scary and sad. Very few clients ask good questions when it’s time to make a decision. I think fear comes into play—and so they get kind of paralyzed and want me to make a decision for them.
Another challenge is for clients who don’t understand their roles, or the roles of others in the decision. Some believe that they get to make all the decisions, which is not the case—down to what their sentence will be. I have to explain their role versus my role versus the role of the court.
What is the value of relationship-building with clients at the beginning of a case?
Most people in life just want to be seen and heard, regardless of the circumstance or the outcome.
My philosophy has been that people want to be heard, and I give them the opportunity to tell whatever story they want to tell me. I explain that whatever you tell me is going to be the basis of our investigation, my theory of the case, and my trial strategy. I’ve never been an attorney who will say to a client, “You’re not telling me the truth. You’re lying to me.” Because when you do that, even if you are correct, the client now feels that they can’t trust you, that you don’t believe them, and so you’re not going to work hard for them
Part of the value of building trust is so that over the course of our relationship, the client feels comfortable saying “I have no idea what’s going on. I thought I was with you, but I’m completely lost. I need you to start over.” If I didn’t make them feel comfortable at the beginning, they would go through the whole case and never tell me that they didn’t understand what was going on because of that fear.
When clients do ask questions, their questions are enlightening to me whether they realize that they are or not. Their questions cause me to have more questions than I started with or sometimes their questions let me know what the truth really is.
People think lawyers are smarter than them. We’re not any smarter, we just know the law. I just know this arena. So if you don’t understand, I need to give you the space to tell me that. I think attorneys get tripped up because they didn’t build that relationship at the beginning. And then they get near the end of a case, and a bombshell gets dropped: “I’ve been talking for 26 days, and you don’t know what’s going on!”
So for me it is about making them feel comfortable, not only with me, but with the power that they have in the situation. It’s like when you build a house. If you skimp on the foundation, you might get the house built. But how long is it going to stand?
I like that metaphor for both skill-building and for making sure that clients have the space they need to have a voice at the beginning of your relationship with them. People don’t necessarily see the value of investing that time up front.
Professional people forget that not everybody knows what they know. It would be like if a cook said to you, “Well first you blanch the tomatoes.” Well, what does that mean? But to them, it’s second nature. I think a lot of times professional folks forget that the person that they’re talking to either has never done this before or still doesn’t really know what’s going on. So they talk in shorthand. Especially those of us with high caseloads and not a lot of time. It’s second nature to us, but not to the person that we’re talking to, and we skip a lot of steps.
What do you see as the importance of self-advocacy in public defense work?
One place for self-advocacy is in my prep conversations with clients. When they can be up front about what they want, I can take the logic they’ve given me, and go to the state and make a better case for them than if they had said nothing.
All the way through the process, from being charged to being released and out of supervision, there are points where self-advocacy is key. There are points where attorneys don’t get to go, so the client is on their own having to navigate whatever system. [RQI’s] work would be invaluable to people in jail.
Or after people are released, with the parole board or with the probation agent. Being able to establish themselves and form relationships with their caseworker, or whoever, and have that person listen to them can be huge.
In a hypothetical world, if we could [build clients’ self-advocacy skills] it would help reduce the rate of recidivism. Because if you understand the power of your story, and you understand how you got to this point, and you know the beginnings of how to ask the right questions of yourself and of other people, you are helping to reduce recidivism, which should be the goal.
One of the things that I hope to do eventually is to train people on how to ask the right questions, regardless of circumstance. Whether you’d be in a doctor’s office or court room, wherever you are.
What I’m working on now is a sort of guide for parents: what you need to know if your child gets in trouble with the law, basics of how courts work, collateral consequences, and so on. I want to give them enough information so that let’s say they’ve never experienced a heart attack and nobody in their family has ever had a heart attack; they would have no idea what comes after the heart attack. What kinds of questions should I be asking? What is it I need to know? I’m trying to give them this experience in an eBook so they have knowledge to have a conversation with their attorney.
How does client voice play a role in court in your work?
Every client has a moment of allocution, that is, where they can address the court before sentencing. And some of my clients choose to remain silent, and it’s not held against them.
But there are a few clients who use that opportunity to tell more of their story. And you as the lawyer could give the most eloquent mitigation speech where you tell the court all about your client, and why they made the decisions they made, and humanize them in the most profound way possible. But that does not compare to the client standing up and looking at the court and telling the court their story.
It would be wonderful if every client was equipped to do that. It is hugely impactful to be able to stand up and tell your own story.