Wednesday, March 26, 2008

Trial Lawyers and the Feeling of Victory

The life of a trial lawyer has its peaks and valleys. I just heard the blessed words "Not Guilty" from a jury, and that is one of the peaks. Sort of.

I wrote some time ago about representing the innocent client. Since that time I have found myself with more and more of my criminal defense clients who I believe are innocent. When I started I figured I'd mostly be defending guilty people and that has changed. Maybe it's my perspective, but I really think more innocents are being prosecuted. I can't explain why.

In my career as a trial lawyer, I have won dozens of jury verdicts. Most were in personal injury cases as a defense lawyer for an insurance company. More recently I have won some personal injury cases as the plaintiff's lawyer, and some Not Guilty verdicts as a criminal defense lawyer.

The feeling of victory is very different. As an insurance defense lawyer, a win is exciting but not necessarily fulfilling. It's like winning a game. Your money isn't at stake and your client's money isn't on the line either (I represented the insurance company's customers). It's really the insurance company's money, and they've got about $20 billion lying around.

Winning a personal injury trial as a plaintiff's lawyer is very different. Both the attorney and the client have a significant stake. In my practice it's not unusual to put $5K or even $10K in a case. In a couple of cases I have "invested" over $20K. And when you win, there can be a windfall. If you win a $100K verdict, that means a fee in the ballpark of $30K (plus reimbursement of your $5K investment). Especially in the early days of my practice, that was a lot of money hanging out there. Even now, with our practice steady and growing, an additional $30K would be a big chunk of change. I struggle to describe the feeling of winning a plaintiff's personal injury case. The best I can put it into words is that it's very exciting.

Winning a criminal defense trial is something completely different. The lawyer has no real money at stake - at least if he's wise and got paid up front. I'm serious about that caveat by the way. If you're expecting the client to pay you later, and he gets prison time, that money's going to be a long time coming.

It's the defendant who has something at stake in a criminal case, and it's mostly not about money. It's about freedom, reputation, having or not having a criminal record, etc. For some it can be about their immigration status, which can be a really big deal that most Americans have trouble comprehending. As a lawyer who cares about his clients, the idea of losing a criminal trial can be very stressful.

There is one key difference though. In some of our cases we believe our clients are innocent, and in others we are pretty sure they're guilty. When a guilty client loses at trial, you still feel bad because you wanted to win, but you're not going to lose sleep about a guilty person losing. Winning such a trial feels good, like you did a good job. But it's not much more than that.

Losing a trial with an innocent defendant is probably my greatest fear. Even winning I'm having trouble sleeping tonight, as I write at 1:22 am. The feeling of victory in such a case is not excitement. My biggest feeling was relief.

I have to say, looking back on the OJ Simpson trial, I'm pretty sure Johnnie Cochrane believed OJ was innocent. He didn't look thrilled when he heard the verdict. He looked relieved. Maybe I'm starting to understand. I have a long way to go.

It was a one-day trial and my body aches. In some ways it's an athletic endeavor. You have to maintain your concentration for lengthy periods with unpredictable breaks. Since it's common to stand when making an objection, you're sitting on the edge of your chair, weight partially on your toes, ready to pop up when you hear something of concern. And of course, lawyers wear uncomfortable shoes on trial. I'm known for wearing sandals most of the time, but not in front of a jury. I have my limits.
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