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Congratulations, Scoplaw & MissTyrios! (But it’s always about me and what about me!?)

Big props to Scoplaw, who just won two jury trials in two days. Also congrats to MissTyrios, who just picked up her first outright win in a jury trial. The feeling is one I know not, but I do know it must be sweet!

Reading Scoplaw’s brief accounts of an office where 61 cases are set for trial (on the same day!?) and trials appear to be happening on a regular and daily basis — it really makes me question where I am and what I’m doing. My job is nothing like that. I might have 1-4 trials set on a single day, and none of them will go. That happens at least once each month, and in some months it happens once every week. But almost nothing goes to trial here; even in misdemeanor land, only the very rare case goes to trial. In felony land, our entire office of 9 felony attorneys will probably do less than two dozen trials the entire year. Meanwhile, our approximately 6 misdemeanor attorneys might do a few dozen jury trials and I have no clue how many bench trials. But of the thousands of cases that go through our office each year, that’s nothing. For a huge number of reasons, this just doesn’t seem to be a place where people go to trial.

And so while Scoplaw and others1 spend their first years as PDs getting massive amounts2 of trials under their belts (and building their confidence by collecting wins at least now and then), I’m spending my first years arguing felony probation violations, negotiating plea agreements, and honing my skills making sentencing arguments. Of course, these are vitally important skills, and these are services my clients require; however, who wants to be the pleading and sentencing attorney? And it’s one thing to become very good at these things over a career while at the same time learning to be a good trial lawyer. It’s another thing entirely if after a few years of practice you’re still no better at trials than when you started b/c you simply have done so few of them.

I know it’s not that simple. I’ve learned and continue to learn many many things in addition to how to negotiate plea agreements and make sentencing arguments. I’ve taken a handful of cases to the eve of trial, with all the preparation that entails, and each time I have learned a great deal about investigation, preparing cross and direct examinations, choosing, writing, and arguing jury instructions, writing motions in limine, etc. But there’s no substitute for actually going to trial if you ever hope to be good at it. And I do hope to be good at it. So what to do??

If you’re a PD and you’ve read this far, please tell me: How often do you go to trial in a year? Do you work mostly felony or misdemeanor cases? Inquiring minds want to know!

  1. Audacity goes to trial (& wins) a lot, too. Frolics and Detours seemed to do a good number of trials (and win), but has not posted for months now. Ipse Dixit goes to trial, too. It goes on….
  2. “Massive amounts” might be an exaggeration; I really can’t tell, but it seems like they’re doing more trials than I am.

Comments

5 Comments so far. Leave a comment below.
  1. nonya,

    I’ve averaged 6-14 felony trials a year, from shopliftings above a certain amount thru life eligible cases.

    Talking with others in my office over the year, a good general rule of thumb here is iff we draw a capital case we are out of rotation and will only do that case (or any other capital case they feel like dumping on us). In an especially good year you might get 2-4 trials, in an exceptionally bad year 16-20 trials. Trial calls several times a month with as many as 8 cases for one day is not unheard of, although rarily you won’t know exactly what case will be tried in any given week.

    If you are on a winning streak you do fewer trials, on a losing streak you get buried. If you are perceived as “weak” you get more trials, if you are perceived as “strong” or “nasty” at trial you get fewer.

    Sorry I can divulge my name or where I work as my boss would have a cow.

  2. nonya,

    Correction: The last sentence should read, “Sorry I can’t divulge my name or where I work as my boss would have a cow.”

  3. I'm embarrassed to say,

    I have been practicing for 2.5 years and not once have I ever had a trial. This is not uncommon in my area, as the volume is too high to try many cases, but most people at my level have one jury and one bench under their belts. I have zero. It makes me feel shitty about myself and it makes me not want to wake up for work in the morning.

  4. Scoplaw,

    First off, thanks for the congrats.

    Second, I’m not sure trial for trial’s sake is a good thing. Here, it allows us to keep a certain amount of pressure on the prosecution and thus to keep the pleas reasonable. Otherwise you get nobody taking the pleas, 61 cases set – 40 or so nolle prosses, a handful of very good pleas, and some trials.

    The experience is nice, but I’m not sure how much one really *learns* from one trial to the next? I mean, in the sense of implementing something in the next trial? Does having 5 trials under your belt make you any better then when you had four? I’d guess not all that much. There’s always a new wrinkle or twist that pops up. You’re always dealing with new witnesses and new faces in the jury box.

    I have to echo Nonya in that it’s weird how attorneys from both sides “rank” other attorneys based on “trial chops” – whether or not those chops actually work. It’s like a weird popularity contest or something, but it results in defendants getting different plea offers. I think I’m seen as intellectual and condescending – but I’m not in this job to make friends with the state.

    You’re good my friend – you’ll get those wins soon enough.

    Best,

    Scoplaw

  5. ti,

    Thanks everyone for responding to this. I know that trial is not the measure of a public defender, nor is it ever good to push to trial for yourself when it’s not what your client wants or sees as being in her best interest. There are many reasons trials don’t happen, and those reasons differ by jurisdicition. Here, for example, we basically have a felony 2-strikes law: Get a second felony w/in 5 years of release from your last felony and your mandatory sentence automatically becomes 5 to life. So those cases almost never go to trial for very good reasons…

    I’m still thinking about this, but I do know that I would like to have the experience one day to confidently take any case to trial if that’s what my client wants. How that happens I don’t know. Maybe it never does….

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