Cynicism And Taking Clients Seriously

Let me tell you a story about taking clients seriously.

Years ago I had a young client who got into a summer program at Big Prestigious University, or BPU. The Client didn't go to BPU — he went to a community college, but was accepted by an on-campus summer program at BPU.

Client got arrested for having a gun and a bag of serious drugs in his dorm room at BPU. He was turned in by his roommate, a full-time BPU student, who found the gun and the drugs. Having a gun on any sort of campus is a very serious crime in California, and the DA was in the middle of a safe-schools kick, and Client was looking at hard time and a bad record.

Client swore to me the gun and drugs found in his dorm-room dresser weren't his. He said that someone — perhaps his roommate? — must have planted them. Sure, I thought. A BPU student acquired a gun and hard drugs and decided to use them to frame some rando — a rando who was, perhaps, not completely unfamiliar with drug culture. That makes perfect sense. Nothing in the evidence the DA turned over suggested any motive for the roommate to do any such thing. I was deeply skeptical, and planning for a very grim set of choices.

But Client's family had money, so I hired an investigator and had the investigator look into the roommate. Would I have found a way to acquire public money for an investigator if the Client hadn't had money? Good question.

Guess what the investigator found?

Turns out the roommate was fresh back at BPU after a stint in state prison. Roommate went to state prison because he had been stealing stuff — laptops, phones, and so forth — from classmates at BPU. When roommate was caught, he attempted to pin the thefts on friends, and when that failed blamed mental illness. He was currently on probation, and was having some trouble with his probation officer — and might be trying to curry favor.

No, BPU didn't warn Client that he was rooming with a recently released felon with a record of falsely implicating others in crimes and a pattern of blaming mental illness for his conduct against fellow students.

By the way, the same mid-sized DA's office that was prosecuting Client had recently prosecuted the roommate — and had withheld any information about the roommate's recent criminal activity, as had BPU in my discussions with them.

I subpoenaed roommate to the preliminary hearing and told the DA I was going to interrogate him. The roommate appeared, looking terrified. General counsel for BPU appeared, looking concerned. The judge looked angry — she felt it was my responsibility to arrange for a criminal defense attorney for the roommate if I knew that my questioning might trigger a Fifth Amendment assertion. Interesting theory, judge.

The DA had a long talk with a supervisor, and a long talk with the roommate, and came back to me with a deal: drop the gun charge and accept deferred entry of judgment on the drug charge. If Client completed probation successfully, the case would be dismissed, with no conviction. Notwithstanding how much Client and I wanted to put roommate on the stand and eviscerate him, or force him to take the Fifth and tank the DA's case, it was impossible to turn down the deal — the risks were too high. Client took the deal, completed probation successfully, and as far as I know has run into no problems since.

I would be lying if I said that I believed the client when he told me the gun and the drugs. But, thank God, I took him seriously — that is to say, I followed up on what he had to say with the resources available to me.

Just as prosecutors are captured by the system and its culture, so are defense attorneys. It is currently fashionable for defense attorneys to say "clients lie" and "most clients are guilty." I wouldn't agree with either proposition. Everybody lies; I don't think clients lie more than anyone else in terrifying and stressful circumstances. Humans tend to remember a version of events that puts them in the best light, something we normally regard as a mere venal sin. It's just that criminal defense scenarios require a level of precision and accuracy that most human interactions don't.

Being an effective and responsible criminal defense attorney doesn't require believing everything a client says, exactly. The policy could be better described as "trust, but verify." The key isn't to build a defense on the premise that everything the client says is perfectly accurate. The key is to take what the client says seriously and follow up on it, rather than dismissing them out of hand. If you don't, you're not defending the client — you're defending your stereotype of the client.

Last 5 posts by Ken White

Comments

  1. Brian Buchbinder says

    I was fortunate to work for a PD's office that was well-funded, so in answer to your question, yes, there would have been public funds in that case for an investigation. But Marin County isn't representative of the world of public defense.

    I helped represent a man on Alabama's death row whose attorney had been paid a total of $1,000 to defend/investigate/try the case. While that was in 1982, I doubt that much has changed.

  2. Moebius Street says

    Ken, what does your typical discussion with an accused client look like? Do they universally swear to be innocent; do they tell you they did it but that there were mitigating circumstances; or something in between?

    Since I expect that most will be at least exaggerating their innocence, how do you decide how seriously you'll take them? Is this just your gut feelings, or are there rules of thumb you can fall back on?

  3. Loren says

    The real sad thing is that the client was still convicted of a crime, when there is more than a reasonable belief that the client was innocent of any crime and the roommate did it.

  4. Erik says

    Oh, this goes well beyond legal. Back when I was in retail sales as a teenager near the US – Mexico border, I had a few co-workers who felt it was beneath them to work with some of the less-well-dressed Mexican customers. I found that while, yes, some will waste your time (just like any other group), there were plenty that had actually have to conscientiously save money to shop with us and appreciated being treated with respect, and some actually had plenty of money but avoided an ostentatious appearance for whatever reasons. I developed a nice following of loyal customers who, ironically, often out-spent the "better customers" that some of my co-workers preferred. I even had a few who would travel hundreds of miles to shop with me, which is quite the ego boost when you're just a kid. Bottom-line: yes, people will often behave within stereotypes (which is why they exist), but it's usually good to keep an open mind. The world is full of plenty of pleasant surprises for those open to them (and we all get the unpleasant ones, regardless).

  5. Riccardo Cabeza says

    god forbid the DA admit a fucking mistake, make the kid plea, chalk up another victory and then sod off. little people are there to be screwed or they wouldn't be little people. amiright?

  6. says

    @Loren, no– the client was not "still convicted of a crime"; the client successfully completed probation to ensure that there would be no such conviction.

    ….deferred entry of judgment on the drug charge. If Client completed probation successfully, the case would be dismissed, with no conviction….

  7. MDT says

    @David Byron

    The best way is to watch late night television, note down any private investigators that have ads.

    Cross those off your list

    Next, check the yellow pages, look for any investigators with references to Micky Spade or any other famous fictional detective in their ad.

    Cross those off your list

    Next, check the names of the agency, if the first two letters are AA…

    Cross those off your list

    Then, when you've narrowed your list down, ask the following :

    Clerk of Court
    Clerk of local Sheriff's Office
    Local Defense Attorneys
    Ensure they are in good standing with the State Private Investigator's association (whatever it's called in that state)
    Run a Credit Check if you can afford it

    Once you've narrowed it down further, interview your top picks, and find out how much experience they have with your specific type of case. Find out all fees and rates, and then make a decision.

    My unasked for $0.02 worth… :)

  8. SandMountain says

    I think this approach applies to civil practice as well. I am a patent litigator. Some of the most outrageous things my clients have told me have turned out to be true and some of the most straightforward fact patterns have turned out to be utter BS. Sometimes the BS is intentional or semi-intentional, sometimes the client really believes it (even after you find the evidence to contradict it).

  9. Dragoness Eclectic says

    @Erik: good job! Seriously, good job: I've read so many stories of very rich people who decide to go shopping in their cut-off jeans and t-shirt, and get snubbed by sales people–and take their very lucrative business elsewhere. You'd think sales people would read those stories, too, and not judge prospects based on appearances.

    Hell, I don't bother dressing up to go shopping for expensive items, so if the sales guy turns up his nose at me, it's his loss.

    ETA: also, if you ever read Erle Stanley Gardner's memoirs, he built up his practice as a white lawyer serving the Chinese-American community in Los Angeles (IIRC), a group that many of his peers looked down on. Gardner made a lot of powerful, influential friends in that community, because he took them seriously and represented them diligently.

  10. Dan says

    Ken, questions.

    1. When defending someone, do you actually ask "did you do it?" if necessary? Or is it like in the movies where the lawyer says "don't tell me if you did it because then I can't defend you?"

    2. If I were framed and put in the situation you described, I would refuse "deferred judgement" and absolutely insist that you put the roommate on the stand. Am I just stubborn stupid? Tell me now so I can start talking myself down from this high horse, in case I ever end up in such a situation.

    3. Was the roommate charged? Or at least expelled from BPU?

  11. Bees! says

    When I was in private practice doing wage and hour lawsuits under the FLSA, I developed a real streak of being skeptical of clients: our managing partner devoted barely any pre-suit investigation time to their overtime claims, usually signing up the client almost immediately, and us associates basically acted as damage control and Rule 11 defense. The claims seemed lofty and implausible, but because Anderson v. Mt. Clemens Pottery provided a decent amount of evidentiary leeway when the employer failed to keep reliable time records our clients were able to get by with no records and their estimations of hours worked alone.

    And we had some ridiculous claims come into our office. But for every ten bull cases, there was one where the guy either had records, or photographic evidence, or damning witnesses that actually brought the crazy story together. I learned quick: investigate always.

  12. John says

    Great article. I learned this lesson while doing a brief one year stint at a legal aid office in Spokane Washington. We did lots of landlord tenant, and the tenants always claimed that they paid. A nice older lady came in, sued for eviction, and claimed that she paid. She gave me a few hand written receipts from the landlord. Looks like she did pay, but not enough. She went home, came back, dropped off some more receipts, but still….not enough. She was short. By the time we got to the hearing, and we added up all of the hand written receipts that the tenant found from the landlord, turns out….you guessed it….the landlord was over paid and she owed money back to the tenant. I'll never forget the my nice client looking at me deadpan in the hearing room and saying "See, I told you I paid."

  13. Seth says

    I would have been really tempted to make a counter-offer: drop all charges immediately and I won't make formal complaints against the DA for not providing me with exculpatory evidence, and BPU pays all my legal fees and expenses in return for me not suing them for giving me a roommate they should have known was likely to commit a crime against me, and not even telling me about the roommate's criminal record.

  14. David says

    Welcome back from what seems to have been a wonderful time in China.
    We missed you

  15. LrdDimwit says

    Question for Ken:

    Why isn't this prosecutorial misconduct? (I know that sounds like an accusation, but really, it's a question, I honestly want to know.)

    Because I am under the impression that prosecutors aren't allowed to bring cases unless they think it's beyond reasonable doubt that the person is guilty. After all, that's the standard you have to prove at trial, yes? So how can a prosecutor look at this set of facts and conclude that it's beyond reasonable doubt that the roommate (a known liar) is telling the truth?

  16. Matthew Cline says

    It is currently fashionable for defense attorneys to say "clients lie" and

    Among those who provide technical support for computer users it's popular to say "users lie".

    Support: Have you tried rebooting?

    User: Yes.

    [support walks to user's office, finds computer hasn't been rebooted for over a month]

    Support: Have you checked that it's plugged in.

    User: Yes.

    [support walks to user's office, finds that computer is unplugged]

  17. Quiet Lurcker says

    @Ken, I'm with several others here. The prosecutor knew or suspected roommate was a convicted felon. At a minimum, that should have weighed heavily in the prosecutor's thinking when deciding to push forward on this case or at least caused him/her to look a bit deeper before going forward. At the opposite end of the spectrum, it's exculpatory evidence (evidence as to character, I believe, and therefore admissible under certain circumstances – can't be troubled to look it up off hand). Somewhere in the middle is prosecutorial discretion, and a (perhaps purposefully wrong in the name of votes) decision either to proceed with the case or not provide the relevant information, or both.

    Then again, why didn't BPU campus clowns (the ones in the uniforms, not the suits – or, maybe them, too come to think) take a step back when it turned out roommate was a convicted felon and look a bit deeper into both client and roommate, then act on that discovery and thinking?

    Every case is unique. Agreed. We shouldn't let the past color our judgment of the present. Also agreed. But with this set of circumstances and facts, frankly I have to wonder. It looks too much like someone, somewhere really dropped the ball, and there should (my own personal opinion here) be serious – read disbarred and or fired – consequences for whoever it was that did drop that ball.

    Comment, please?

  18. Wesley says

    Excellent post, Ken. Sometimes it is hard to believe the clients — sometimes they're just liars, sometimes they're caught in a trap with no one believing them — but it's always important to investigate and advocate.

    I'll take a stab at answering one of the more basic and common questions:

    Ken, what does your typical discussion with an accused client look like? Do they universally swear to be innocent; do they tell you they did it but that there were mitigating circumstances; or something in between?

    1. When defending someone, do you actually ask "did you do it?" if necessary? Or is it like in the movies where the lawyer says "don't tell me if you did it because then I can't defend you?"

    Everyone's approach is different. I ask my client's what happened and what they want me to know. Many freely admit to being guilty of something (not always what they're charged with), some present some type of sympathetic explanation, and others staunchly insist on innocence. There's a full spectrum. Nobody actually says "don't tell me what you did because then I can't defend you." If a lawyer actually believed that, then they couldn't be a criminal defense attorney. And they'd be an asshole.

    Now, if a client does confess to me, I can't put them on the stand if it goes to trial (a little rule against suborning perjury). But I tend to feel the overwhelming desire to physically restrain some of my clients to prevent them from testifying, so that part doesn't bother me much.

  19. says

    Thank you from a divorce lawyer. It can be hard to keep the cynicism in check, and it's just as important for those of us on this side of things. I appreciate the reminder.

  20. says

    @Quiet Lurcker and others

    Comment, please?

    Not Ken, obvs, but I think it boils down to a couple of things.

    If you have followed the blog (and most of you have been) this is not an exceptional occurrence. Ken talks about this a lot. About how "justice system" is just a name. About crooked incentives (although he doesn't tend to phrase it quite like that). Occasionally someone steps up in the comments and tries to argue his points but I think we're at the point that it's not worth responding. The system is working as intended (as Ken likes to say) and the evidence for that is legion. Guy in this case was innocent? The truth is incidental, and all that really matters is how much leverage prosecutors have. Ken neutralized most of that leverage here, with his Swamp Thing like powers.

    As to why this guy wasn't disbarred, well it's typically true that agents of the state go unpunished for their misdeeds. The reasons for this are myriad. Ken didn't pursue anything here but being the crafty veteran that he is, he probably didn't do so because he knew there was no point (I could be wrong, of course, and he will correct me if he feels it necessary). There are many more incidents – more severe incidents – of misconduct that go unpunished. This is chump change. It certainly isn't to the defendant, but the entire system seems only barely interested in the well being of the defendant, so what does he or she matter?

  21. Quiet Lurcker says

    @Grandy —

    Probably – no, on second thought all too likely – you're right about it being chump change.

    Too bad Edmund Burke's warning has fallen on deaf ears within the justice system and legal community.

  22. Jordan Chandler says

    Are DAs so obsessed with the win they can't drop a clear case of being set up by a known criminal? Why do they insist your client effectively admits to being a drug user because his roommate is a career criminal? If you eviscerated the roommate, who would move to convict? The DA would look like an idiot.

    If the client has money why not right?
    ALso this shows you how the DA can destroy an innocent's life because they're lazy and corrupt

  23. Derrill says

    @Quiet Lurcker

    I don't even remember who Burke is but every warning of history has fallen upon deaf ears.

  24. Dan says

    "The only thing that is necessary for evil to triumph is that good men do nothing." [or something very like that.]

    –Edmund Burke (18th century British politician/philosopher/writer)

  25. says

    @Quiet Lurcker

    The other factor at work here of course is nicely summed up by the Burke. When horrible things happen we do often get swells of support for change. But they're frequently regional. And, once the spotlight has long since moved on, whatever they do accomplish is undone. To wit: Atlanta created an independent review board in the wake of the Kathryn Johnston accidental death. The board was disbanded a couple of years later and it's not clear how much the board accomplished (although having one is better than not, other things equal). And we typically don't see that much done in the wake of a tragedy like this.

    People care, but not enough people care. There's all sorts of reasons why the people who don't care feel the way they do and their not caring is a serious problem (the government, theoretically, serves as a check against this issue but as history has shown us it's mostly only when it's politically expedient), though these people are not "the enemy". Until more start caring there won't be real change. And many defendants will have their entire futures swing on whether they were able to afford a lawyer like Ken and also luck. Certainly not justice.

  26. Quiet Lurcker says

    @Grandy —

    What happened to 'do the right thing'? When did the people who were responsible for guarding against these kinds of things quit doing their jobs? Or has it just been too easy to 'go with the flow' for far too long?

  27. That's what he said says

    My wife did this today. Appointed case. Spent three months telling me the girl was guilty. First trial was a hung jury. Very sloppy police work but couldn't get a unam verdict. But today, she blew open a murder case after following the latest of every single lead this girl gave her since the trial. Drove across the state to get the information. She really thought the client was just making new things up. Now the police investigator is on the right trail, and the D.A. is going to continue the trial that was to go forward next week. The offer was 40 years. Very proud of her.

    I enjoy your blog and so do all of my friends when I share articles with them.

  28. Michael Cox says

    @Dan et al.,
    IANAL, I am a physicist. I have also been a juror. I sat through a three week trial of two gentlemen, who may, or may not, have been guilty as sin. Long story short, all of the witnesses were involved in a brawl in a parking garage with the defendants. All of the witnesses were likely drunk. The only exceptions were the cops who arrived after-the-fact, who added nothing substantive, but did add a lot of hearsay.

    When we went to deliberate, all of the other jurors wanted to convict the defendants, "to get this over with". That was a quote. OMFG. In a couple of days, we returned a "not guilty" verdict. Afterwards, we had the opportunity to discuss with the defense attorneys, and the ADA. My question to the ADA was, "why did you try this case, and waste three weeks of our lives?" The answer was obvious, because the others would have convicted the defendants out of hand… Had it been up to me, he would have done a couple of months in the county lockup. But then, I have an over-developed sense of justice, perhaps…

  29. Schismatism says

    I work in technical support for a large company. (Strike one against me, I know: I should already be in a mental ward.) There is a very pervasive culture among us which is, in short form, '90% of the time, it's the user's fault.' And while true in many cases, that quote is a dire overestimation of the issues we receive. At this point? It's less than 10%. (Though, oh boy, does it ever feel like 90% of our /day/.)

    As with any large company's technical support, many of the issues which we're tasked to resolve are in fact the fault of the person sitting behind the keyboard of their box, but at the same time, there are quite a lot of factors which might be the cause – external factors, such as advertising networks being attacked by vile ne'er-do-wells, sailing across the ocean of the internet… or a nephew who had gotten into things he really shouldn't have… or simply a hardware failure.

    From what I've been given to understand, technical support on this level is similar to dealing with a legal client. You are first given the problem you need to solve (be it 'my internet doesn't work' or something more substantial, like 'my computer won't POST'), and then you ask questions about the circumstances, and then you narrow down the details, and then you deal with troubleshooting to help lead to a conclusion of the issue. The troubleshooting is, of course, the lengthy bit, but that's true in any line of work.

    And yes, we trust-but-verify. We accept the customers' words as, if not gospel, then at least apocrypha. They can't fix this problem on their own: that's why they come to us, and we don't expect them to know the minutae of computer security or law or medicine or the like. And if they say they were just browsing, say, Kijiji for hand-knit patterns when suddenly their computer exploded with a thousand popups, we won't automatically believe them…

    But we'll check. We'll take them seriously. It's what we do.

  30. Quiet Lurcker says

    @Schismatism —

    Been there, done that. But, I've been on the other side of that equation, too. Ran into a connectivity problem on two boxen. Did full-up diagnosis/trouble-shooting up to and including installing different hardware. Did I do something wrong? Called the ISP technical support people, explained what had gone on. Is there a problem with your servers? I've done steps Aleph through Zed troouble-shooting, and conclude the difficulty is on your end. The answer came back, 'No, We're good, because I'm not seeing what you're seeing.." Two hours later, the servers blew up in their faces. Were the techs lying in their teeth, or were their diagnostic appliances just that slow to catch up to real-time?

  31. dew says

    Support: Have you tried rebooting?
    User: Yes.
    [support walks to user's office, finds computer hasn't been rebooted for over a month]

    This is (perhaps unintentionally) a good example of what Ken is talking about.
    I did a little tech support many years ago (1980s). Sometimes the situation above happened. When I bothered to dig, some people had really turned the "computer" off then back on, just not the noisy box underneath the desk (for those who don't get it, they "rebooted" the monitor). Sometimes they logged off then back in, and just didn't understand that the technical term "rebooting" means something a bit different. Sometimes they "rebooted" the problem application, just not the whole computer. Those users weren't right, but they weren't lying. Sometimes they were confused, and often they were just stretching the truth a bit to put what they did do in the best possible light. And of course, I am sure some really were lying, but it usually wasn't worth the energy find out if they were lying or just mistaken, that wasn't what I was there to do.

  32. nancy knox says

    Sometimes we have to just trust the client a bit, despite our tendency to disbelieve, and whomever suggested that a DA would drop a case due to 'unreasonableness" doesn't work where I do. The "state" (no longer "The People) is a business, just as McDonald's, who probably shouldn't sell us pink slime for food, but they do because it is their business to do so.

  33. says

    Ken, was Client's record expunged or at least sealed after he completed the probation?

    Dan, it's very easy to say, while your freedom and criminal record aren't (yet?) on the line, you and your family aren't (yet?) on the hook for big-time legal fees with the meter running in overdrive and you aren't (yet?) anxious to just get on with your life, what you would or wouldn't do.

    Seth, that sounds like a nice counter-offer. How certain are you — and how certain would you be if you were Client — that the DA wouldn't come back and say "OK, I guess you're refusing the plea offer. No problem — see you at trial?"

  34. Sami says

    It's also worth noting, I think, that even if you know someone's lying, you might not know why. Sometimes people make poor choices under pressures you might not be aware exist.

  35. says

    @quietLurcker

    I was typing up a response to you at home but Ken just posted something topical, so go read that instead. That, of course, doesn't cover everything but it's a handy summation.

    There's hypocrisy on both sides. The Republicans haven't truly been a party of small government in decades, of course (this worked well when we were trying to spend the soviets to death, maybe, but you can't put that sort of thing back in the bottle). The Democrats are all about rights and such right up until it's time to get elected, at which point that sweet union money (and plenty of sweet corporate money) is too much to turn down. Both sides readily trade off on supposed core values if they think it can swing a few more seats their way, because then they can get "real change done!".

    But there's hypocrisy in us too (the royal us). Politicians and state actors don't need to do more than pay lip service to their oaths of office (certainly, there are plenty who do pay more than lip service) because we don't force them to.

  36. Aaron says

    @Ken
    I thought I remembered in some of your other posts that DAs are supposed to disclose possibly relevant stuff to the defendant/defendant's lawyer? Shouldn't the DA have disclosed the roommates previous history, and at least been censored afterwards for withholding that?

    Or is this another one of those DA "discretionary" things that most judges won't contradict DAs on?

  37. Seth says

    If the DA insists on a trial, I'll accept that. His witness will be destroyed, and I'll ask the judge for Rule 11 (or state equivalent) sanctions against him.

    I'll also insist on getting the police lab report including copies of the fingerprints they found on the contraband. (What? They didn't look for fingerprints? Why not? Did the DA tell them not to because he knew they wouldn't show what he wanted?)

  38. Encinal says

    I think they only have to disclose exculpatory evidence at trial. Or maybe it's 30 days before trial (but they also aren't allowed to keep someone in jail more than 30 days in jail on a misdemeanor charge, so I don't know how that works; unless they disclose all their evidence immediately upon arrest, if the defendant refuses to waive time, they have to let them out of hail before the trial starts.)

    "and the D.A. is going to continue the trial that was to go forward next week."

    Ever noticed that when lawyers say "continue", they mean the opposite of what everyone else means?

  39. A programmer says

    @Encinal, regarding the "continue" comment:

    Computer programmers do it too. When you're looping through a set performing an operation on each item in the set and you encounter an error, you "continue" by ceasing the operations on the current item and moving on to the next item. The alternative is to "break" the loop and stop processing any more items at all.

    As a non-lawyer, my perception is that prosecutors are continually looping through a never-ending set of cases and when they hit a failure state, they "continue" with the next case in the set. Hence, the lawyerly version of "continue", as in "move on without further delay".

  40. says

    @Michael Cox: The last time I got called in for jury duty, the judge asked everybody in the pool if they'd served on a jury before, and what the verdict was.

    Every single person who'd been on a jury before said it had been a guilty verdict, me included.

    I still think I made the right call with that guilty verdict, but under the circumstances I can't help but wonder. It certainly speaks to the possibility of a presumption of guilt, and biases in that direction even among skeptics like myself.

  41. Simon Farnsworth says

    I remember my stint of working tech support; you quickly learnt to ask questions that would increase the chances of the user actually doing the right thing, not because users are stupid or dishonest, but because they either don't understand (so you need complete clarity), or they do understand and are taking shortcuts when they shouldn't.

    Two of my favorites:

    * "We've had some issues with bad cables recently; please could you unplug the network cable at both ends, turn it round (so the wall port end is in your PC and the PC end is now in the wall port) and see if it helps?" The real goal was to get the user to check if the cable was loose – but if you ask them to do that, they'll often do a visual inspection and say it's not loose, yet when you get there, the clip is broken and the cable falls out. As the cable is symmetric, swapping the ends works to make them actually check and say something like "I can't get the cable to stay in" – at which point you know to go over armed with a spare cable.

    * "Please can you tell me what color the inside of the USB port is?" Not unreasonable – the PCs in question had black (USB 2.0), red (eSATAp) and blue (USB 3.0) ports compatible with a USB plug. The actual goal was to get the user to unplug and replug the device, thus confirming that it's not just a random failure.

    In both cases, the key is that a user who thinks they know better gets pulled out of their "I know this" loop – so I got better information because they were now having to check things that they'd otherwise (honestly, in their opinion) not bother checking properly.

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