Why Try the Unwinnable?

I closed yesterday’s post on justice and winning by asking, “Sometimes (rarely, but sometimes) we try cases because we have nothing to lose: the inevitable result of a trial is no worse than the result of a plea. If we have no hope of winning, why do we try those cases?”

We’re not trying these cases for justice, and we’re not trying them to win (though arguably there’s always a chance that the prosecutor will screw something up and we’ll win, which is something to hope for). Sometimes the goal is just to make it costly and difficult for the government to put the client in a box.

When we try an unwinnable case, not only do we make it harder for the government to box that client, but we also tie up the government’s resources, making it harder for the government to put other humans in boxes.

0 responses to “Why Try the Unwinnable?”

  1. I use my enhanced habitual offenders (usually my hopeless cases) to assist me in getting to know my judges better.

    I file every pretrial motion I can think of in these cases to see how far a particular judge will go. I also use these cases to file complaints against the arresting officers.

    By having my clients file complaints or allege specific misconduct, it creates a paper trail that I can use in future cases.

    I have already begun to see the fruits of my hard work. Its amazing how narratives differ from what I have seen on the patrol car arrest video.

    Reading your blog has taught to me to look at what is there to find what is not. Does that make sense?

  2. Of course, some people deserve to be put in boxes, because the alternatives are worse. So the argument that you are wasting gov’t resources (otherwise known as tax dollars) just for the sake of it, isn’t such a hot argument.

  3. Malum,

    The silences in a dialogue often tell more of a story than the lines.


    It’s fair to say that some people need (I don’t know about “deserve”) to be put in boxes, but the government is using the vast majority of its prosecutorial resources trying to box people who don’t need boxing.

    I hope that when the government feels pressure to pursue fewer cases, the malum prohibidum cases fall by the wayside first, leaving the government with the necessary resources to prosecute the malum in se cases.

  4. By Golly Mark -we try the “un-winnable” cases because we like to! We know that no case is really “un-winnable.” If there is something to lose at trial, then their is also something to gain. (oops, here we go again with that winning thing) Anyway, is this law of conservation of mass at work??


  5. Oftentimes I try cases because if the Judge hears (and sees) the witnesses and gets all the facts, my client may get a lesser sentence. The shortened facts at a plea may sound worse than what happened. Also never underestimate the DA’s ability to drop the ball. They miss a point or a witness fail to show, you win.

  6. As a matter of policy, I only advocate pleading when there’s something in it for my client. If s/he can’t do better on a plea than after a trial, then there’s no incentive to plead.

    You’ve probably seen the credit card commercial where everyone in the deli is moving in lockstep, swiping their cards. (creeps me out BIGTIME). In a system where over 95% of cases plead, calling for trial dates has the same effect. And that’s a GOOD THING. It’s the only way to hang on to any shred of the presumption of innocence. And as a previous commenter said, often I can get a better sentence after the judge has heard both sides of the situation.

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