Perspectives on a Lost Trial

There has been some debate over the last couple of months in the blogosphere about the extent to which a criminal defense lawyer does and should fret over losses.

Ideally, you would assess how well you did at trial at the bar of the court right after final arguments and you would stick to that assessment no matter how the verdict came back. As it is, speaking for myself anyway, the verdict tends to contaminate that assessment. No matter how you feel prior to hearing the verdict, you still feel ten-feet-tall after an acquittal, with every decision you made now confirmed as the right one. And you still can’t help feeling like a miserable lawyer after a guilty verdict, with the need to second-guess every tactical decision.

Clearly, every case is different and every lawyer is different. At the same time, to the extent that self-reflection leads to a trial lawyer’s personal growth, I can’t help thinking that a certain degree of navel-gazing should be forgiven. After all, a person unafraid of self-examination is a person unafraid of what he or she may find.

I was therefore interested to come across the perspective of a prosecutor on trial losses, in this case from my favorite prosecutor DA Confidential. A reader asked Mr. Confidential to what extent, after losing a trial, he engaged in “any sort of retrospective look at things to see what went wrong.”

Yes, Mr. Confidential responded, there is always some “what-iffing” after a lost trial. At the same time, the prosecutor has already conducted a thorough analysis of the case prior to trial, looking closely at plea bargaining issues and running certain issues by his supervisors. As a result, “there’s not much point in revisiting [these issues] after a loss.” Trials are always unpredictable. The prosecutor is usually too busy to engage in too many post-mortems. Finally, the gap between the respective expectations of the prosecution and defendant on a potential plea bargain is sometimes just too large. Trial becomes necessary when there is no overlap in the relative expectations of the two sides.

While it is difficult to say to what degree Mr. Confidential’s approach reflects the views of most prosecutors (he certainly strikes me as one of the more enlightened prosecutors and, in that event, may not be typical), any major differences between a prosecutor and a defense attorneys in dealing with a trial loss can certainly be attributed, at least in part, to the different objective each has in going into trial.

For the prosecutor, the ultimate objective in taking a case to trial is supposed to be justice. If the person is convicted after a fair trial, that is justice. If a person is acquitted after a fair trial, that too is justice. In this sense, assuming the system has worked, the overall objective is completely intertwined with the result.

The defense has a much more narrow objective going into trial; namely, to serve the interests of the client. This leads almost inevitably to a much more results-based calculus. The client may feel relieved that you did everything you possibly could on his behalf. But brilliance and hard work count for nothing when you lose: The client is still convicted. He may be going to jail. It is therefore no wonder that this emphasis on results creeps into the defense attorney’s assessment of his own performance.