Sunday, June 29, 2008

TRIALS: Throwing a Curve

I always viewed a trial as the milestone in my profession. As one local veteran attorney put it: "It is the juice of what we do". Why is it then, that so many attorneys never try cases? Is the juice in short supply or is it that they simply refuse a taste?

My theory is that cases could be ranked in sort of a sliding scale with some cases on one end that should be dismissed outright, and the other extreme where the client better plea and take responsibility without delay. But what about that mass of cases between where there is some doubt (for example, intoxication) as to whether the state should or could make a case against them?

Recently, one of our colleagues successfully defended a client with a .12 breath test. Great job. How many more challenges could have been taken up on behalf of clients with similar circumstances? And why is it that lawyers with substantial case loads never seem to get to trial but cut a deal constantly. Is that lawyering? Maybe, maybe not.

The ingredients must be there for a trial. Here they are:
1. A willing client who is appointed or who will pay if retained and understands the risks; and
2. A willing lawyer who is not afraid to put in the effort and time and has explained the risks to the client;
3. A unreasonable offer from the prosecutor (optional).

If someone gets great offers because they seem to get along with prosecutors and have a good reputation for moving cases, I wonder if that is truly a function of the adversary system. It would be much more preferable to get good offers because one has the respect of one's abilities and willingness to let the public decide.

Lawyers should always eye their cases for trial from the beginning. In the end, if their client is willing, they should show their client they are truly a full-service lawyer, not afraid to take the plunge into the pinnacle of our profession. Only then, will the juice be shared.

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