If there's one question that I get asked more frequently than any other when meeting with a potential client on a criminal case (aside from the typical questions about cost), it's concerning how many cases I've won. It seems rather natural. After all, if you were going in for open heart surgery it would likely make you feel better to know that the surgeon isn't getting his first bit of experience with your heart! So it makes intuitive sense that a criminal defendant wants to know whether the attorney they are about to hire has won jury trials. That's a flawed way of thought though. Here's why.
To understand the flawed logic behind sizing up a criminal defense attorney by their win/loss record at trial, you have to first understand how cases get to trial. The fact of the matter is that the vast majority of criminal cases are plead out, not jury tried. Who decides what cases go to trial, as opposed to settling in some fashion short of a trial? By and large it's the government that decides what gets tried and what doesn't. Even this is interesting. After all, it is often the criminal defense attorney that requests a trial date. Why? Let an example be our guide.
John Doe is charged with D.U.I. He was leaving work late one night after working a 12-hour shift. He's was tired. He stopped at the local convenient store to get a Red Bull and some Pringles for the ride home. As he drove home, he started to feel the sleep creeping upon him. He felt himself drift off and jolt back awake. Shortly thereafter he's pulled over by a local officer. The officer has been behind him for some time and noticed his difficulty in maintaining his lane of travel. The officer approaches Mr. Doe's window and after the usual pleasantries asks Mr. Doe if he's been drinking. Mr. Doe responds that he has just gotten off work after a 12-hour shift and that he hasn't been drinking. The officer says that Mr. Doe has "red, bloodshot, watery eyes and an odor of intoxicant coming from the vehicle." Standard cut and paste language in just about every single DUI warrant you will ever read. Mr. Doe is asked to step out of the vehicle to perform standard field sobriety tasks. Mr. Doe explains that he's extremely tired and doesn't think he can perform the tasks very well, even if he weren't tired. After all, how many of us go around standing on one leg! He, as anticipated, performs poorly and is arrested for D.U.I. Mr. Doe gives a blood sample, makes a bond, and goes home. He calls a lawyer and has his consultation. Fast forward a few months. The crime lab finally completed the blood alcohol analysis and Mr. Doe's report shows negative for alcohol and negative for all drugs. What a shocker! So it turns out . . . he was sleepy. Who'd of ever guessed it? The D.A. looks at the case and after unsuccessfully attempting to convince the criminal defense attorney to have their client just pay the court costs, begrudgingly dismisses the case. No hearings. No trial.
Fred, on the other hand, is arrested after robbing the same convenience store that Mr. Doe purchased his Red Bull and Pringles from earlier in the evening. Fred, not being the brightest offspring of his mother, doesn't wear any type of disguise during the robbery and, in fact, wears his work shirt from the local Tire & Lube joint with his name printed on it in BIG, LEGIBLE letters. As he runs out of the store, he runs into a high-school buddy of his and says hello. He jumps in his Ford F-150 with the jacked up suspension and mud tires and burns rubber as he peels out of the parking lot. Clearly visible on the back glass are two bumper stickers. One that reads "Dale Earnhardt for President" and another, apparently put together using mailbox letters from Lowe's, that says "Fred's Big Ride". All of this is vividly captured on the store's freshly installed state-of-the-art surveillance cameras designed by NASA. Within a short while the police are at Fred's house with a search warrant where they seize the cash stolen from the store, impound the truck seen on the video surveillance, take the work shirt laying on the floor with Fred's name emblazoned on it, and for that extra measure of case security, take plenty of pictures of the Dale Earnhardt shrine in Fred's spare bedroom. After being booked in and realizing that posting bond is likely out of the question (unless the cops give him some of his loot back), his mama calls a lawyer to help her baby boy. The prosecutor is a "big city" lawyer who likes to throw around his trial victories as proof of his courtroom expertise. He offers Fred a quick trip to the electric chair as his offer of settlement. No dilemma really. The defense attorney can't take that plea offer. He's got no choice. He has to go to trial and hope for a miracle, or a dumb jury. To no one's surprise, Fred is convicted and carted off to prison. The prosecutor swaggers outside the courtroom and declares his success at protecting the innocent from the savages like Fred. He pulls off his belt and his pocket knife and he notches another mark in the leather. Dang, he's a good trial attorney. Or is he?
The prosecutor sized up his case and determined that it was a slam dunk. With that, he can offer just about whatever he wants, or nothing at all, because he's getting what he wants by plea or by sentencing. But Fred is going down. The thing is, shooting fish in a barrel doesn't make you Annie Oakley.
So think about it. If a criminal defense attorney has lost 25 out of 30 jury trials, it isn't really because he's no good at his craft. Most people don't win big in Vegas. The odds are always with the house. But, if a criminal defense attorney has gone to trial 30 times, it means he's willing to go. And sometimes being willing to go says more about them than whether they win or lose.