Bob's blog: Attorney "wins" and how to evaluate statistics.

I won my very first trial: a misdemeanor case where the client was charged with three counts of violating a restraining order. Hearing "not guilty" three times in a row was a thrill.


If I had never tried another case, I guess I could post 100% of trials won! on my website... but I'm not the kind of lawyer who would make a misleading claim like that.


Over the years, I've had the opportunity to look closely at a number of lawyers' claims of a win rate, and some of them remind me of something Mark Twain wrote:     

There are three kinds of lies: Lies, damned lies,  and statistics.

Did the lawyer win those cases as a defense attorney... or a prosecutor?

Many former prosecutors count their victories in the District Attorney's office in their win rates. Does that mean they know how to defend people? Have they even done a jury trial as a defense attorney?


•One lawyer recently boasted to me that he had done forty felony jury trials and never lost. When I asked if he had actually won a trial as a defense attorney, he admitted that he had never tried a felony case after he left the District Attorney's office. 


•Another lawyer's win rate includes traffic court trials, without a jury, where he was prosecuting people without lawyers as a law school intern at a District Attorney's office.


I've never been a prosecutor and don't plan to become one. My legal career has been devoted to defending people accused of crimes. I've done jury trials in cases from misdemeanors to murders... always representing the person sitting next to me, not the government,

What is a win, anyway?

Lawyers define "winning" differently. In some cases, the so-called win doesn't make any real difference to the client.


Does getting one DUI charge dismissed make it a win? 


A few years ago, a DUI program asked me to talk to a couple of their clients who didn't understand why they had to take the class. Their lawyer told them he "won" the case.  


It turns out that he had them enter a no contest plea to Vehicle Code §23152(b), driving with a blood level over .08%, and a charge of §23152(a), driving while impaired by alcohol, was dismissed.


I don't consider that a "win." If you are convicted of either or those charges, or both, the fine, jail time and drivers license suspension are exactly the same.


In fact, they could have achieved the same result if they walked in and entered a guilty plea on their first court date.


I've tried DUI cases with a split verdict of not guilty on one count and guilty on another. The result isn't any less disappointing for the client than if we lost on both.


What about getting other charges dismissed? 


Prosecutors often file charges "in the alternative," which could be summed up as saying they throw a bunch of charges at the defendant to see what sticks.


•In some circumstances, a person legally can't be convicted of all of the charges. That happens in a variety of cases, including theft cases, where a person can't be convicted of stealing and receiving the same stolen property, and child molestation cases, where the defendant can't be convicted of both lewd acts with a minor and continuous sexual abuse during the same period.


In those cases, the District Attorney has to make an election and decide which charges they want to submit to a jury.  


The District Attorney may also file lesser included offenses.       


•EXAMPLE: Charges include posesssion for sale of drugs, and simple possession of the same drugs. If the jury finds the defendant guilty of possession for sale, they don't even consider the simple possession charge.


In other cases, two charges may be so closely tied together that the defendant can only be punished once.


•EXAMPLE: The defendant is charged with illegal possession of a firearm due to a prior conviction, and illegal possession of the ammunition in that same gun. The court can't impose double punishment for having a loaded firearm, so being convicted or one or the other is the same as being convicted of both.


Is a hung jury a win? 


Sometimes the jurors can't reach a unanimous decision on a guilty or not guilty verdict. This is known as a hung or deadlocked jury. The District Attorney has to decide whether to do another trial or agree to dismiss the case.    


 Many attorneys consider a hung jury to be a win for the defense.... but is it?


I've had cases where the District Attorney gave up and moved to dismiss the case... and others, where they learned from their mistakes the first time and got a conviction the second time around.

How often does the lawyer actually go to trial?

 Some lawyers rarely, if ever, actually take cases to trial. They don't earn the District Attorney's respect as a worthy adversary, which hurts their ability to negotiate good resolutions for their clients. 


Sometimes, after a thorough review of the evidence, a plea agreement is in the client's best interests. I recently saw a man sentenced to life in prison, after rejecting an offer to serve four years. 


There are some people who reject the lawyer's advice and demand a trial. There are lawyers who ask the court to relieve them in these situations, instead of continuing to trial and doing their best for the client.

So what is your win rate?

There are so many variables, I've given up on trying to list any kind of statistics. I've tried many, many felony cases and am happy to discuss my experience with prospective clients. Here's a sample.         


 •I recently got a full acquittal in a felony assault case, where the client was charged with trying to run a motorcyclist off the road with his truck on the freeway. The key prosecution witness was a superior court judge, who saw the whole altercation from its start at a traffic light.


 •I won a full acquittal in a case where my client was charged with  burglary and auto theft. Surveillance video showed that my client drove his car to the scene and another person jumped out to grab a purse from a parked, locked car. When police came to arrest my client, there was a stolen car in the driveway... and the plates from his car were on it.  


•A client was charged with the stabing murder of an ex-convict. The jury found him not guilty of first and second degree murder, but convicted him of volutary manslaughter. That would usually be a great result, but the client still received a life sentence due to his prior convictions under the Three Strikes law. 


•The jury deadlocked after a felony child molestation trial. The District Attorney offered a misdemeanor with no additional jail time; if the client had been found guilty of the felony, he was facing six years in prison. 


•One of my clients was convicted of murder for shooting the victim in the head, without apparent provocation. The entire incident was captured on home surveillance video. The client decided to take his chances at trial because the District Attoney's best offer gave him little chance of ever being released from prison. 


•The District Attorney failed to introduce a vital piece of evidence. I didn't point it out during the trial or my closing argument, and the jury convicted my client.  After the trial, the judge granted my request to dismiss the case in the interests of justice, agreeing with my argument that the District Attorney could not get another trial  because the case was dismissed for insufficient eveidence. I guess you could say I lost the trial, but I was looking at the big picture and the case ended with an excellent result for the client.

Your case is the one that matters.

At the end of the day, your case is the one that matters to you. No lawyer can win every case, but your chances are better with a criminal defense attorney who knows the law and has the experience to make decisions under the pressure of a jury trial. 


No ethical lawyer will ever guarantee a result in a particular case. There are just too many variables, which also make it impossible for a lawyer to give you meaningful "odds" of winning. A good lawyer knows how to evaluate the strengths and weaknesses of a case, and explain that to clients, but it's impossible to assign a specific number. 


I defend people when the government accuses them of crimes. That's all I do. I work hard to stay up to date on the law, develop creative strategies on every case, and get the best possible results of each and every one of my clients.  


It would be my honor to handle your case, too.