Thursday, August 25, 2011

Win? Loss? Top Eight Reasons I Don't Keep Count.

There's a common perception, I think, that trial lawyers put a lot of stock in their win/loss record. As competitive people, most of us, one might expect us to.

So, after my trial this week (yes, it went ahead!), I thought I'd present you with a Letterman-style Top Eight list of why win/loss tallies are pointless.

1. This isn't a game. It's about justice for victims, and at stake is often the freedom of defendants. Making it about me winning or losing risks distorting that.
2. What is a win? If I offer a four-year felony sentence and the defendant will only plead to a misdemeanor, how do I tally a guilty verdict (and so a felony conviction) but a sentence of probation?
3. What is a loss? See example in #2.
4. How would one tally the following?: a hung jury, a mistrial, a conviction reversed on appeal...
5. If I'm winning all my cases, I should probably be pleading them out. Winning slam-dunk cases is proof of nothing.
6. If I'm losing all my cases, I might want to try practicing civil law, where they don't try cases.
7. None of us should be afraid to try the hard cases. Sometimes we have cases where we are convinced the person is guilty, but maybe for evidentiary reasons, we also know it'll be hard to prove it. The defense knows it, too, so won't plead. I think sometimes we have to try and convince a jury in those instances, even if the risk of losing is high. It's simply the right thing to do. And, you know, sometimes when we do that, we win.
8. If we were able to objectively tally wins and losses, some might have a better record than me. I would not like that.

Ah, and you're probably wondering how I got along in my trial. See Number 2, above for the answer. Fine, fine work by defense attorney Ray Espersen. I obtained a conviction, yes, but mighty well done, sir.


  1. a fellow prosecutor in the Midwest, I applaud your view that it's less about you and more about justice. Too many prosecutors, defense attorneys and members of the public get caught up in the won/loss stuff.

    As a former boss of mine said on multiple occasions: Whenever a case is tried, we all win, because justice is done. We may not like what the jury decides to define as justice, but it is done when they reach their decision.

  2. All you want is the truth to win (!) - but you can't handle the truth

  3. Anon: well said, sir. ANd thanks for the kind words.

    Igneos: I handle it every day. Or try to. :)

  4. I'm not a prosecutor, but I've been a lawyer for a long time, and I've always believed that the state should want justice, not glory. You sound like a prosecutor who should star in the prosecutor's remake of "To Kill a Mockingbird." Way to go!

  5. Thanks Cecil, you are kind. But I'm far from alone, despite what you might read in the press. Everyone I know in this office works hard to see justice is done. One's opinion about what constitutes justice might be different, but all our intentions are good.


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