Losing Sucks

I’ve said before that I would choose a lawyer who sometimes loses over one who always wins. But today I was reminded how much losing a criminal trial sucks.

The case: a “DWI-first no test no accident” in the argot. That is, a driving while intoxicated case, which was my client’s first, and in which she had no accident and did not blow in the breathalyzer. (She did perform the field sobriety tests, which made hers a “no test” rather than a “total refusal” test in the lingo.)

I was assisted by up-and-coming criminal-defense lawyer Nathaniel Tarlow, who provided me with many invaluable suggestions.

The postmortem: Assistant District Attorney Angela Mecca, the new prosecutor trying the case, did an excellent job trying a case with a cop who wasn’t the sharpest knife in the drawer and a DWI video that I thought could go either way. She fought hard, and generally fair (a couple of foul shots, I was able to take care of before the jury; I don’t think they helped the State).

What could I have done better? I’m going to have to sleep on that. It’s possible to try a flawless case and still lose (we don’t, after all, make the facts), but that’s not what happened here; I hope to isolate at least a couple of lessons from this trial, other than the title of this post.


0 responses to “Losing Sucks”

  1. Mark,

    I always learn more from the losses than the wins. It makes me a better lawyer for the next client when I lose. And more humble. I analyze what I did wrong, questions I should have asked, should not have asked, theory of the case, etc.

    Last month I lost a case I should have won (1st degree murder w/ no DNA or other physical evidence against my client and the witnesses were all convicted felons) and won a case I should have lost (DUI w/ accident w/ an involuntary intoxication – Ambien – defense).

    If you are not losing cases at trial, you are not trying enough cases.


  2. Mr. B.,
    When a lawyer is hired to defend a client in an agg. rob. case and ends up plea bargaining (against client’s wishes) for 10 years at lunch recess on the only day of trial, is it tallied as a loss or a win?

    Note: If this helps, the HPD police report clearly shows a black male robbery suspect. Showing the defendant as being white with five alibis witnesses and having a store receipt proving his whereabouts. Non-existent traffic warrants shows false arrest, gross eyewitness descrepentcies shows an unlawful indictment, faked firearm evidence backed up by police report and Adult Probation Dept. records show obvious planting of a throw down weapon by the ADA. I wonder if anyone could ever truly forget a case like this?

  3. Like you, I have won cases I should have lost and lost cases I should have won, and I still fret over many of the losses. Chalk this one up in that category.

    I have also had clients mad at me after a win and grateful to me after a loss. Go figure.

  4. Mr. B.,
    If 95% +/- plead out, is it safe to say that lawyers lose 95% +/- of the time since only the very strong, very solid and very close make it to trial according to a former career prosecutor?

  5. Mr. B.,
    Re: the 95% quote, It was revealed to us by a former career prosecutor from Harris County (1970’s – 2000ish) in a comment to the Simple Justice Post Plea Bargaining 201. Which is why I re-nick named him from (jigmeister) to the ‘King of Nolo Contendere’

    10/6/2009 9:37 AM Casey O’Brien wrote:
    In my experience as a career prosecutor, there are three kinds of cases with many exceptions, that go to trial: the very serious, the very solid, and the very close. The other 95% are plead. I have often wondered what would happen if the defense community balked and refused to bargain. The obvious answer is that everything would come to a screaming halt. I have to laugh every time I hear someone running for DA campaign on a “get tough on crime stance” that they will end plea bargaining. It might work in Cut-n-shoot, but not in the big city. If you want to cut down on the prison population, narrow the crimes that carry prison penalties and eliminate some mala prohibita crimes. That, by the way, is a legislative function.

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