Tag Archives: trial law

The secret to winning…so who are you?

When I enter the courtroom it never occurs to me that I could lose. Battles are to be won. The opponent is merely a necessary player, as is the judge. They are there because the battle could not proceed without them.

The idea of losing comes, in part, from a lack of preparation, which is a failure of self respect. Think of it as if you were a boxer. You have not trained. You have two inches of belly fat hanging over your shorts. Your cheeks are baggy. You puff going up the stairs. You brag a lot because that is all you have. This is a fighter who will lose because he does not respect himself sufficiently to prepare. If he were the trainer he wouldn’t allow a boxer such as he to enter the ring—he would care too much about his profession as a trainer to let an unprepared fighter he trains get slaughtered.

The refusal to prepare also reveals a lawyer who does not care deeply for the client. Jurors recognize an unprepared lawyer. It means the lawyer does not care much for this person whose life or welfare is in his charge. If the lawyer does not care, why should the jurors? The lawyer knows the client better than they. Caring is contagious. If the lawyer doesn’t care the jurors won’t care either.

I know lawyers with great talent who stagger out of bed in the morning not knowing for sure which case they are scheduled to try that day. But the fault is sometimes not the lawyer’s. The cost of operating a law office and to make an acceptable living from the trial of cases is hard at best, particularly in the criminal field. Most persons charged with crimes do not have the money to pay a lawyer for the necessary time it takes to adequately prepare a case – months, considering the investigation, the interviewing of witnesses, and the endless pretrial motions the lawyer faces in the modern trial, not to mention a trial that can last many weeks.

To survive financially, many lawyers are required to take too many cases from poor paying clients. Public defenders are often laden with scores of cases, many serious ones, without the time or resources to properly prepare while the prosecution may have all the time and resources necessary to win. As a consequence too many persons charged with serious crimes do not receive an adequate defense. They are often counseled to plead guilty, to make deals—the only bargaining chip they have—with their own lives. Take ten years from my life in exchange for the forty years that I will probably lose if I go to trial with an unprepared, unskilled, uncaring, overworked public defender or for that matter, a private attorney who has taken my case because he’s three months behind on the rent. A money system favors money, not justice.

A few lawyers are skilled enough that they can win some of their cases with nearly no preparation at all, but they know that many a client has suffered as a result — in a system that cannot provide justice for all, no matter how the myth is sold to the people.

I have said that when I enter the courtroom I do not consider the possibility I might lose. To lose one must give permission to his opponent to beat him. As a young lawyer I lost three civil cases in a row. The pain of losing was so severe I could not bear the thought of ever losing again. It became a life or death issue for me. Life as a loser became so unacceptable that I would rather quit the profession than continue down that road. I realized that preparation was a critical key.

I also began to understand that if one has a full sense of self, not a blown up conceit, but a person who makes mistakes, who is afraid, who can feel and care, who is as real as he can be, who is on the road to becoming a person—that person will be hard to beat in a courtroom or anywhere. He is not an intellectual muscle man or a phony sweet pea with the supercilious smile and a nose worn smooth from toadying the judge. He can be trusted and he speaks a language that jurors understand.

How do you beat such a lawyer? Be more of a person than he. I let my opponent worry about losing. It will take him into strange and dangerous places.