Today, I want to talk about decision making.
There comes a time in every case when one must fish or cut bait. One must decide – do we settle this case or do we take it to trial?
The thing is – it’s always the client’s decision.
I’m very careful when I meet with a potential client to let them know, from the beginning, “This is your case. This is always going to be your case. This is never going to be my case. I’m going to do everything I can to explain to you the law and the evidence, the judge and the prosecutor (their tendencies, their skill sets), how all of that factors in together.”
At some point, I am going to tell a client, “Based on everything that the jury is going to be able to see and hear, here’s what I think are your chances.”
Now, let me unpack that a little bit.
The jury doesn’t always see all of the evidence. For example, police report, sometimes referred to as an arrest affidavit or an A form. That’s the arresting officer’s narrative summary of what happened, but it’s not evidence. The prosecutor can’t mark it as an exhibit and introduce it into evidence and just let the jury read it.
Witnesses have to come into court, get up on the witness stand, take an oath to tell the truth and answer questions telling the jury what they personally saw.
So, when I’m advising a client on their chances at trial, I’m not taking into account the police report as a document, as a piece of evidence, because it’s not.
But it is often a good guide to what the officer can and cannot testify about, so it’s something we take into account.
Let’s say that we have a case where some of the evidence was gathered illegally by the police. An interrogation without benefit of Miranda. An illegal search or seizure. If there’s evidence that the judge, pre-trial, has ruled not admissible or inadmissible, that means the jury doesn’t get to consider that; it won’t be presented at trial.
So, if there’s any evidence that’s been excluded, I’m not going to consider that when I tell a client, “This is what I believe are your chances based on what the jury is going to be allowed to see and hear.”
The same with witnesses who may have moved or otherwise have become unavailable. In fact, there’s an acronym that we sometimes use to refer to five things that can happen to a witness that makes him or her unavailable to testify. A witness, police officer or otherwise, can get fired, indicted, retired, enlisted or even deceased.
And during my career I have seen each of those five things happen to both police witnesses and other witnesses alike.
If a witness becomes unavailable to testify, for one of those reasons, then whatever that witness observed is not evidence any more, unless some other witness observed it.
So, I will take into account only what the jury is going to be able to see and hear.
Now there’s a big variable in play in a jury trial when a lawyer is giving a client this kind of advice, and that is the jury itself, because, until we get in there and conduct jury selection, we don’t really know who’s going to be on our jury. We don’t even know the kind of a panel we’re going to have.
When I’m expressing to a client their chances, I will phrase it sort of like this, I will say, “If I could take your case to trial, with the evidence we know that the jury is going to see and hear, and I could try your case twenty-five times before twenty-five different juries, this is how many times that I think you would win.”
That helps to account for or cancel out the really great jury on one hand, and the really horrible jury on the other hand.
This kind of a situation doesn’t really lend itself to an exact statistical analysis, so I can’t tell somebody, “Well, you have a seventy-one point six percent chance of winning this case.” But I want my client to know this is what I think your chances of winning or losing this case at trial, based on what a jury would actually get to see and hear.
That’s one of three things I want to be able to explain to a client.
The second is, “Based on a review of the judge assigned to the case, this is how big a risk I think you’re taking.”
Any lawyer can say to a client, “Well, the minimum penalty the law requires is this, and the maximum penalty that the law requires is this, and so if you go to trial you’re risking anywhere in between that.”
That’s true, as far as it goes, but it’s not very helpful.
What I’d rather have a client know is, “The last five times that your judge presided over this kind of a trial, and the jury found those defendants guilty, this is the sentence your judge imposed.”
Typically, when I do that kind of an analysis, I see a really tight pattern, because judges do tend to be consistent, and the tend to view particular situations as deserving of particular penalties.
I may do that review or analysis and say to a client, “Alright, this judge is going to max you out. If you go to trial and lose, you’re likely to get the maximum penalty the law permits.”
I remember when I was a younger lawyer when every hair on my head was jet black, we had a judge in Fort Pierce who always gave a first-time DUI defendant seven days in jail, as part of a sentence. That is, a defendant who had no prior DUI’s, who went to jury trial and was convicted of what we can call a garden variety DUI. And what I mean by that is a DUI with no aggravating factors. Not only no prior DUI’s, no prior other significant criminal history. No other aggravating factors in this case, such as a crash, or children in the car, or drugs, or particularly obnoxious behavior.
We had a judge that would give, after that kind of a trial, seven days in jail. Nobody got six days or less. Nobody got eight days or more.
So I could tell a client, “Well, the law says you’re facing up to six months in jail, with no mandatory jail, but as a practical matter, if we go to trial in your case and the jury brings back a guilty verdict, you’re looking at seven days in jail as part of your penalty.”
Now I would have some clients who would tell me, “I don’t want to spend seven more minutes in jail. Make me the best deal you can make me without a trial.”
I would have other clients who would say to me, “Well, I can’t risk a month or more in jail. I’d lose my job. I’d lose my house. But if you’re telling me I’m really only facing a week, I can take a week off work. I believe I’m innocent. Let’s win this trial.”
So, that kind of information is really helpful if I can tell a client, “Based on your judge’s recent history on similar cases, where other defendants were found guilty.”
I’m pretty good at what I do and I don’t lose a lot of trials, so I’m not going to be able to tell them the five most recent that I tried and lost. I’m going to have to look through the files of other lawyers’ cases, and so I’m going to have to go to the clerk’s office and have them pull the files on recent DUI trials or, whatever crime it is, other cases.
But when I do that again, I do tend to see a particular pattern, a particular tight spin, a narrow range with not much variation.
I like to be able to tell a client, “Based on the evidence that the jury is going to see and hear, this is what I think are your chances for winning or losing. And, in order to take that chance, based on your judge’s recent history, this is how much I think you’ll be risking in order to take that chance.”
And, of course, most of my clients would like to also know, “Well, what’s the alternative?”
I want my clients to have alternatives, and the alternative really is, “What do I believe the prosecutor will reasonably agree to, to settle your case?”
When I have a client who is approaching what needs to be their decision-making point, I want them to know, “This is what I think are your chances. This is what I think is your risk. And this is what I think are your alternatives.”
Obviously, individual cases merit specific, detailed information about those three things. But generally speaking, that’s what I’m doing to try to help a client get to the point where the client can make a decision. Fish or cut bait. Go to trial or don’t go to trial.
And as my father was fond of telling me, “The roads are paved with flat squirrels who couldn’t make up their mind which way to go.”
I try to help my clients not be those flat squirrels.