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.

PRACTICE: Give me a Break

I'm off to Peru tomorrow for some rafting, horseback riding, and the like. What I have waiting for me will not be on my mind.

What do I have waiting for me? How about a possible one to two week manslaughter trial, Writ of Habeaus Corpus filing, Agg Sexual Assault Habitual trial, Injury to a Child (death) case, Agg Assault Habitual trial (caught on tape), Indecency with a Child, Client Competency Hearing, etc., etc...

I am looking forward to coming back to dive into each and every case. I learn something every time, and I feel myself getting more competent and knowlegeable every time there is a challenge. Of course, there are several lawyers with equally challenging cases and I applaud them for it. But for me, this year has been especially both challenging and rewarding.

The trip to Peru will be long overdue. But with the cases coming down the line with the year only half over, a breath of Andean air might be just what I need before the havoc and mayhem take over.

CLIENTS: Hand Me a Broom

I do everything I can to resolve cases in my client's best interest. I investigate their claims, get investigators involved, and dive into discovery the best I can. But one thing gets in the way the most..the facts.

Sometimes I feel like that man at the end of the parade who sweeps up the confetti and scoops up the poop after everyone has partied and made a mess of things.

Don't get me wrong--I have represented clients who were found not guilty at trial who clearly were wrongly accused and I believed in them. But often some of my clients are in need of a magician more than a lawyer. For them, it's a difficult ride.

What about that hypothetical situation where a person is on a second degree deferred adjudication and then involves themself in an aggravated robbery where a person is shot? Can they realistically believe they should get continued on probation and then probation on the new case? The prosecution has two bites at the apple to send them to prison by revoking their probation and then pursuing the new case (and of course stacking). Complicating this is the judge setting the probation revocation first so if there is a trial and the client had been revoked, they won't be eligible for probation.

Explaining this parade of horribles is the most difficult of tasks to the client and/or family. All of a sudden, I am supposed to fix everything by virtue of my few short months on the case, when the underpinnings of this conduct of the client has been brewing for decades. In short, there is a complete disconnect by the client and/or family between actions and consequences. When the consequences play out, they attempt to justify the actions or blame the lawyer.

Every case is different, but when we get the feeling that we are that man at the end of the parade, we should at least thank goodness we are not the ones who eventually pay for the mess that they themselves created.