What is a Win?


“How many cases have you won?” I hate the question, because for the answer to mean anything, the person asking and the person answering have to mean the same thing by “won,” and that can rarely be ensured.

If my client is acquitted, that’s a “win,” right? In most cases it would be. But what if, because we win one case, the government files a more serious charge (one that it can prove) against the client? I had a client whose 2-kilo cocaine case I beat in state court, only to see him receive six years in federal prison for the illegal reentry that the feds might not have bothered with had we not prevailed in state court. Is a pyrrhic victory a win?

At the far end of the outcome spectrum from an acquittal, a jury conviction is a “loss,” right? Not necessarily — it might be a “win” if the accused is punished less for having gone to trial than she would have been for pleading guilty. This is a common outcome in Texas, where an accused can elect to have punishment assessed by a jury. It’s less common in federal court, but I’ve had it happen several times.

What about a guilty plea? Is a guilty plea a win or a loss? How can it be a loss if it’s an outcome agreed to by the accused? If the accused goes to prison, how can it be a win? (I wrote here about an Odd Sort of Victory — a plea to life in prison to avoid a possible death sentence.)
Some lawyers claim never to have lost a case. If “losing” means having a jury convict a client, then any lawyer who tries criminal cases, loses cases. The lawyer who has never had a client convicted by a jury hasn’t tried enough criminal cases. We do the greatest good on the edge, trying not only the cases that are sure winners, but also the cases that need to be tried; if some of our clients aren’t being convicted by juries, we’re not trying all of the cases that need to be tried.

For that matter, if some of our clients aren’t being punished more harshly after trial than they could have been had they pled guilty, we’re not working on the edge, testing the bounds of what a jury will do.

I have lost cases. I’ve had plenty of clients convicted by jurys. Some of them have received greater punishment than they would have received under a plea deal. Strangely, though, those aren’t the losses that rankle most — to me or to the clients. The cases that feel most like losses — that carry the greatest stench of defeat and wake me most often at three in the morning — are cases in which my clients pled guilty but probably shouldn’t have, in which I could have and should have done more to convince them to go to trial.

I find that clients feel much the same way — they often express buyer’s remorse after a plea, but they are almost always satisfied by having someone fight for them at trial, whatever the outcome.

Sometimes simply to fight is to win.

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