Business Plan: Never Lose

Back in March (sometimes posts percolate for a few months before bubbling to the surface) Norm Pattis wrote something about about Gerry Spence that caught my attention.

I recall years ago his complaining that he could not get into court. His cases kept settling. I offered him a chance to come on board in a gang murder. He declined. “I can’t win that case,” he said.

I wonder: what if a criminal-defense lawyer took only cases that she could win?
There would be triage issues. The potential client’s account of the case might allow the lawyer to rule out taking the case, but it would rarely be enough to convince him to take it. The lawyer would have to quickly investigate the facts in the cases that looked like potential winners. To know that she could win a case, the lawyer would have to know how she was going to win the case. She would have to know the law and her own capabilities.

She would have to be very good at defending cases. She wouldn’t have to be as good as Gerry Spence, but she couldn’t be a run-of-the-mill trial lawyer; if she were, the pickings of cases she knew she could win would be slim.

She would not spread the word that she took only cases she could win; rather, she would let it be known that she had won all the cases she had taken. Once people knew that hiring her meant winning their cases, she would be highly sought-after.

Everyone wants to beat the lawyer who never loses; once people knew that she never lost a case, prosecutors would be gunning for her. She would have to take this into account when deciding whether to take a case.

People would throw money at her for the privilege of being represented by her. She could charge whatever the client could afford. She would make more money while taking fewer cases.

In about 20% of the cases I take, I know that in the end I will win and my clients will be able to get their records cleared. There’s a larger chunk of cases that I eventually win; if I investigated every case before taking it, I would recognize many of them as winners ab initio. If I took only cases that I knew I could win, I would still make a decent living. And, while it’s far too late for me to say I’ve never lost a criminal case, the better part of my career is ahead of me; that living would improve as word got out of my newfound invincibility.

I wouldn’t try it because I agree with Norm: “Criminal defense isn’t about picking winners.” If I had, for the last fifteen years, taken only cases I knew I could win, I wouldn’t have won many of the cases that I did outright. I wouldn’t have minimized sentences in many other cases. I wouldn’t have put the government to its proof as many times. In sum, wouldn’t have done nearly as much good.

But what if . . .?

32 Comments

  1. Thanks. Criminal defense is really about holding the government to the law, the evidence, and optimizing the outcome for the client, whom would be “run roughshod over” without advocacy. That in itself can be considered a win, given the alternative; it’s not really a black and white “win” vs “lose” dichotomy.

    1. I think I would implicitly distrust a lawyer who claimed to never have lost a case; aside from the fact that it would be horseshit, it’s also from losing that I’ve learned some of my most important trial skills.

      1. I have it on excellent authority that when people say of Spence that he has never lost a criminal case, they mean it in the layman’s “anything but acquittal or dismissal is a loss” sense rather than the CDL’s “there are lots of ways to win a case” sense.

      2. Has he also never plea bargained a case? (Certainly he must have done so as a prosecutor.) I’ve assumed his claim to only refer to cases taken to trial. Even there I think his claim is dubious, because in at least one case as a prosecutor (and have to assume there may have been others with similar results) the defendant was acquitted on 10 out of 11 counts, and even the conviction on the one count was reversed on appeal. I have to wonder whether he ever represented a defendant who was convicted at trial of a lesser included offense or a minor count (for which there was overwhelming evidence of guilt) but acquitted of the more serious and doubtful charge(s). Such a result could legitimately be counted as a “win” for the defense, but it would complicate his claim.

  2. Do you consider cases that are plea bargained to a fair sentence (by your definition) a win? I’m thinking that there are cases where there’s no doubt the client is going to prison, and the best you can do is make sure the sentence isn’t excessive.

    1. Yes, but not for purposes of this post. If I wanted to be the lawyer who never lost a case, I would want every win to be obviously a win even to those who have never stepped between a human being and the government’s wrath.

    1. If only DA’s did this (i.e., dismiss the doubtful cases), even if only in pursuit of a spotless win-loss record, we’d all be much better off. As Gerry Spence wrote in The Making of a Country Lawyer, his (allegedly) spotless record as a prosecutor wasn’t that big of a deal, because in his opinion a prosecutor (if his office is properly exercising its discretion) should never lose a case. Instead, by prosecuting the doubtful cases, prosecutors give juries the opportunity to go rogue and convict people who shouldn’t be convicted. Sadly, I suspect that a prosecutor’s office which only prosecuted cases it knew it would almost certainly win would likely be deemed “soft on crime” by the voting public.

  3. Ross. There are times when a prison sentence actually can do some good. If the right programs are in place for an individual to take, if they will avail themselves to the process. For some, landing flat on your back is the only way to look up. So, the Zen moment would be when Defenders insist that the cases they lose become rehabilitated, while incarcerated, and not merely housed for a number of years in a purely punitive fashion. These long prison sentences being served out do nothing but waste tax-payers money. If we cannot rehab a man in 5 years, we aren’t trying. Prison isn’t the end of the world, it just seems like that the first year.

  4. I don’t know how extensive Vincent Bugliosi’s career as a criminal defense attorney was, but in his excellent book And the Sea Will Tell (about a murder case he successfully defended) he wrote:

    “‘Everyone is entitled to be represented by an attorney’ is the idealistic chant often recited by defense attorneys as justification for representing even the most vicious criminals in our society. The concept is unassailable, but idealism is rarely what motivates lawyers who represent guilty defendants. They take the work because trying cases is their livelihood, and they are ambitious to advance their careers. These motivations, while not improper, are clearly not idealistic.

    True idealism would be involved in a hypothetical situation such as the following. Suppose a family is brutally murdered in a small town, and none of the six lawyers in town is willing to represent the suspect because the enraged citizens are all convinced of the suspect’s guilt and no lawyer wants to be ostracized in the community for attempting to get the suspect off. Finally, one attorney steps forward and says, ‘I don’t care what my friends at the Rotary Club and the First Baptist Church say. This is America, and everyone is entitled under the Sixth Amendment to our Constitution to be represented by an attorney.’

    That would be idealism. I, too, would represent a defendant — even one guilty of murder — if I were the only lawyer available, because the right to counsel is a sacred right in our society and much more important than any personal predilection I might have. But this type of situation simply does not exist in a city like Los Angeles, where 35,000 lawyers stumble over each other’s feet for cases. So I am free to follow my inclination.

    Since nothing in the canons of ethics of the American Bar Association says a lawyer has to represent everyone who comes to his door, I choose not to defend anyone charged with a crime like robbery, rape, arson, or murder unless I believe he is innocent or unless there are substantially mitigating circumstances.”

    If I had the stature of a Bugliosi and could pick and choose my cases to the degree he could, and wasn’t pressed by the un-idealistic need to make a living, I’d likely adopt a similar policy to his. This policy would seem to have the incidental benefit of making an undefeated record more possible, with the additional career benefits cited in your post.

    1. How long was Bugliosi’s career as a defense lawyer? Null. Standing up only for people you believe are innocent is not what criminal defense lawyers do.

      The vast majority of my cases fit the pattern that Bugliosi describes: either I hunch that they are innocent, or there are substantially mitigating circumstances somewhere out there to be found. Turning down the very few who don’t qualify wouldn’t affect my living much.

      But representing those whom God has forsaken is what separates the criminal defense lawyers from the unreformed ex-prosecutors or, in other words, the men from the boys.

    2. It’s harder when your client is actually innocent as in it sucks horribly if you lose. But in my career it has never crossed my mind that I would only choose those who are innocent or who had a good backstory. I’m with Norm, guilt or innocence doesn’t factor into it. I couldn’t give two shits most of the time. If I ‘know’ the person is innocent, will I sleep better at night? I’ve slept just fine thus far, even knowing full well the person done did it (if I even got to the point where I thought about that for that long).

      Maybe I’m just a masochist.

  5. I am haunted by Spence’s claim never to have lost, and I think less of myself for it. I am competitive and the notion that I left something on the table leaves me with little peace of mind. What’s more, I never truly know whether a client is guilty or not — if I did, I suppose I’d be a witness. I get lost in the piuzzles and when I can’t find my way out, it hurts. Even so, I am with Mark: It is better to fight the government than succumb, regardless of the claims against my client. And like John K., I don’t have the ability to pick and choose my cases.

  6. Speaking of Spence never losing a criminal case and of Vince Bugliosi’s philosophy: Spence did lose a criminal case when Bugliosi successfully prosecuted Lee Harvey Oswald in the unscripted television trial that took place about six months after Bugliosi and Len Weinglas walked Jennifer Jenkins against all odds in the infamous Palmyra Island murder case. Say what you want about his philosophy, Bugliosi’s performance in both trials was masterful. I do not know how long his career as a defense lawyer was but we can all learn something from his level of preparation and his handling of Judge King, as told in ‘The Sea Will Tell’.

    1. You point out something lacking in my comment above: Bugliosi’s personal decision to only represent people charged with serious violent crimes if he personally believed they were innocent did not equate to a decision to only take easy cases he was sure he could win.

    2. Please, can we all comfortably agree that mock trials don’t count?

      Someday I’ll write a book about myself so that more people will call my performance “masterful.”

  7. To “shift the lens? a little on this topic: What if Physicians only “treated” people they could “cure”?

    1. Spence would probably say (and Bugliosi would certainly say) either that physicians are different (which would be a copout) or that as long as there are other physicians who will treat anyone, a physician can choose whom he will and will not treat

      The more I read Bugliosi’s quote, the more it seems that he displays symptoms of ethical retardation.

  8. Weighing in late (hey, I’ve been busy defending people), I nevertheless feel constrained to echo (and expand on) something of what Mirriam said. I don’t much want to represent innocent people (more precisely, those I believe to be factually innocent). I’ve done it, and it’s no fun.

    Perry Mason isn’t my role model. The case that’s interesting or that provides the opportunity to maybe make good law or where there seems some particular injustice against which to rail or where they want to kill the accused (or already convicted), that’s what I’ll eagerly sign on for.

    It’s probably a lousy business plan, but it reminds me of why I’m in this business. (On the other hand, my wife would sure like it if I brought in more cash.)

  9. If the system decides the case correctly and fairly, in a sense society wins.
    If an advocate, on either side, does his job professionally and zealously, to the point where he or she knows that they did the absolute best job they could do for their client, then they win, regardless of the outcome of the case.
    A person charged with a crime, or a victim of a crime, never really win, they merely survive.

    1. It’s a curious definition that has me winning while my client gets executed because I know I’ve done the best I could. That’s not a win for me. Sorry. That’s a big loss.

      And the victim of a crime (by which I assume you mean individual harmed) can never win or lose in a criminal case because that victim isn’t a party and has no legally relevant interest in the outcome. The only “victim” in a criminal case is the body politic.

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