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 . . .?