The Business of Winning

It's rare that I get a potential client tell me that he or she doesn't want to "win" their case. Of course they don't use that term. Few view their case as a "win-lose" scenario. That's comforting to me. It makes my job easier. This isn't to say I don't like to win. I do. Of course I hate losing more. I hate losing more than I like winning. But that's not the point.

The vast majority of criminal cases plead out. It's a fact of life. If every criminal case went to trial, the system as we know it would grind to a halt. There are few things I enjoy more in life than trying a criminal case from the defense perspective. (Yes, there is a HUGE difference between a trying a case as the defense attorney versus being the prosecutor.) But if I had to try every case for which I have been retained, even I might wince. Maybe.

The point I'm trying to make is that the odds are overwhelmingly in favor of a client's case pleading out. It's the nature of the beast. That doesn't mean that's what I am planning as the outcome. Mark Bennett has talked about this before, and I agree with him wholeheartedly. I suspect others like Mark Jakubik,Scott Greenfield, Gideon, Jamie Spencer, Jon Katz, Steven Gustitis and Robert Guest would agree. Every client that comes through our door is told that from day one we are planning and preparing for trial. Our number one goal is to win at trial. But we aren't doing our job if we don't explore every available option for our client. That may mean looking at the possibility of a plea bargain.

Now when most clients hear those words, they think they are just pleading guilty to the crime charged and going to prison. I leave that kind of defense work to the Criminal Pretender. The truth is a plea bargain may be the best thing for a client. A lot of it has to do with playing the odds. What are the odds the jury believes my story versus the prosecutor's? What are the odds we can find the witness we need? What are the odds that if convicted by a jury, my client gets a more severe sentence than he gets under this deal? These are just some of the questions I have to ask myself when preparing a client's case. To do otherwise is doing a disservice to the client.

So when I get a potential client that comes in and sits down and asks the question "Do you guarantee I'll win?" I am tempted to send them packing. The truth is, I don't guarantee anything I can't control. The only thing my client is guaranteed by retaining me as counsel is that he or she will get the very best out of me. I'm available to them. I will try to answer all of their questions, and I will keep them informed. I will work as hard as I can to get them the best resolution to their case.

But to answer the client's question is not as easy as that. You see there is rarely black-and-white in this job. Even the best result at trial can be gray. In reality, if you are caught up in the system, there are degrees of winning and there are degrees of losing. A win for one client is a loss for another. Every case is different. Every client is different. Some client can do all the time in the world. Some won't survive a week. Some client's can't lose their driver's license. Some could care less. There are no "one-size-fits-all" resolutions for criminal cases.

So when a client asks me if he will win his case, I have to explain to him that winning is a matter of perspective. Make no mistake about it. We are in the business of winning. It's just that it's not always as black and white as we would like it.

Comments

[Jon Katz- Underdog]

Hi, Shawn- My short answer it to be honest with the potential client, and the actual client, about your ability and drive to go to the mat for the client, but inability to have a crystal ball, and why. Sometimes I tell the potential client that I'd be dishonest and in violation of my ethical obligations as a lawyer to paint a rosier picture than available.

The most difficult questioners about chances of winning often are from the non-client paying parties and from potential clients between a real rock and hard place (e.g., having lost at a misdemeanor bench trial with another lawyer, they now want a guarantee that the new lawyer will win at their de novo trial on appeal). When the latter type of conversation goes nowhere, I decline representation.

The main dynamics involved in such a conversation are the potential client and the client's fears, the reality of the case, and the dynamics of the lawyer and interacting with the lawyer. Some clients want a rock bottom fee to just go and plead guilty; I decline such representation. Some want assurance that the lawyer will treat the client with the same attention, drive and passion as if it were the lawyer's closest friend or relative.

This also is an opportunity for the lawyer to determine whether to cut losses early on and not accept the potential client. It is curiou that I rarely feel inclined to decline service to any potential criminal defense client who is paying himself or herself. On infrequent occasion, intense upset comes from the paying party who's not the client, when I don't include the paying party in the contract. Not to stay on this tangent very long, part of building trust with the client is reading how much of an interference the paying party will be. Ordinarily, I require the paying party to sign an addendum to the client contract saying: "The only client is ____. My status in helping to pay the client's fees and expenses is no different than if the client anonymously had been given the funds to hand directly to counsel. Counsel has full rights to enforce any insufficient funds check and any credit card payment that is reversed or otherwise not honored."

[Jon Katz- Underdog]

Hi, Shawn- My short answer it to be honest with the potential client, and the actual client, about your ability and drive to go to the mat for the client, but inability to have a crystal ball, and why. Sometimes I tell the potential client that I'd be dishonest and in violation of my ethical obligations as a lawyer to paint a rosier picture than available.

The most difficult questioners about chances of winning often are from the non-client paying parties and from potential clients between a real rock and hard place (e.g., having lost at a misdemeanor bench trial with another lawyer, they now want a guarantee that the new lawyer will win at their de novo trial on appeal). When the latter type of conversation goes nowhere, I decline representation.

The main dynamics involved in such a conversation are the potential client and the client's fears, the reality of the case, and the dynamics of the lawyer and interacting with the lawyer. Some clients want a rock bottom fee to just go and plead guilty; I decline such representation. Some want assurance that the lawyer will treat the client with the same attention, drive and passion as if it were the lawyer's closest friend or relative.

This also is an opportunity for the lawyer to determine whether to cut losses early on and not accept the potential client. It is curiou that I rarely feel inclined to decline service to any potential criminal defense client who is paying himself or herself. On infrequent occasion, intense upset comes from the paying party who's not the client, when I don't include the paying party in the contract. Not to stay on this tangent very long, part of building trust with the client is reading how much of an interference the paying party will be. Ordinarily, I require the paying party to sign an addendum to the client contract saying: "The only client is ____. My status in helping to pay the client's fees and expenses is no different than if the client anonymously had been given the funds to hand directly to counsel. Counsel has full rights to enforce any insufficient funds check and any credit card payment that is reversed or otherwise not honored."

[Scott Greenfield]

Jon, that's you short answer?