One of the most frequently asked questions that I receive in a criminal defense consultation is, “Will you win my case?”
People seek the best attorney, the most confident lawyer, the person who will go to court and “fight for them,” and of course, the one that will ultimately win.
Potential clients with pending criminal charges want to avoid losing their job, keep full licensing privileges, not spend time in jail or prison, maintain a good reputation and not upset their family and loved ones. Understandably, people want to know what will happen to them with certainty.
Fundamentally, it is unethical for an attorney to guaranty an outcome of a case because so many variables are outside our control. So, a promise of a ‘win’ is, at its core, a lie. Therefore, unfortunately, if you speak with a reputable and experienced trial lawyer, the answer is always, “It depends.”
An initial consultation is an opportunity for a potential client to tell the lawyer what occurred, the charges, and the accusations. In this first meeting, which typically lasts at most an hour, the lawyer can go over thoughts about different defenses, address problems with the case, and in my practice, briefly educate the potential client about constitution rights and case law that pertains to the situation.
However, consultations do not provide the total picture of what a trial might look like for the attorney. It would be reckless and unreasonable for an attorney to affirmatively say, “Yes, I can beat this case,” without discovery from the prosecution, which can include:
- body camera footage
- police reports
- witness statements
- criminal record
- statements made by the accused
- laboratory analysis
- physical evidence
I think most clients understand these constraints on an opinion of their case, but still, “I am not sure” is a deeply unsatisfying answer.
A Look at Defense Attorneys
I can assure you that as a defense attorney, I want to win for you. I am deeply competitive, as are most defense attorneys.
We have competed our whole life. We worked hard for our undergraduate degrees to get grades that would make it possible to be admitted into law school.
In law school, we were graded on a curve, which means to pass a class, you must be better than the lowest percent.
We passed the bar, which is also graded on a curve so that not all can pass.
We march into court and argue constitutional law with not just prosecutors but judges.
Defense attorneys even compete with each other for your business.
I love to win, but I will not compromise my ethics or my devotion to my legal career for anything, which means I will never lie to a client.
The truth is many factors go into whether a case is “won.” To understand this better, let’s ask, “What is a ‘win’ for your case?”
There are various ways to define a ‘win’ in the criminal defense world.
Let us look at two examples of previous cases I have handled to explain this further.
DUI 1st at a BAC of .24 Dismissed.
My client was charged with a DUI 1st with a Blood Alcohol Content (“BAC”) of .24. This is a BAC that is three (3) times the legal limit. What is the penalty in Virginia for a DUI with three (3) times the legal limit?
The penalty, if found guilty, is a mandatory term of ten (10) days in jail up to twelve (12) months in jail, at least a $250.00 fine, mandatory enrollment, and successful completion of the Virginia Alcohol Safety Action Program (“VASAP”), and twelve (12) months loss of license with the possibility for restricted privileges.
My client’s goal was to do as little jail time as possible. For this client, that would be the ‘win.’
During the consultation, I thought it would be great if we could get this reduced to a DUI 1st, with a BAC between .15-.19, and reduce the jail term to a mandatory five (5) days in jail based on the facts he presented to me.
Through the investigation and litigation of the case, we obtained more evidence and information, as this was before the police were wearing body cameras. Notability, we subpoenaed and secured 711 camera footage that showed my client looked completely sober. The officer, who was only working on a tip about this individual, never saw my client look intoxicated or drive improperly.
At this point, the benchmark for a ‘win’ changed from trying to get a decent plea agreement to going to trial and getting the case dismissed for lack of reasonable articulable suspicion. My client agreed with taking the risk of going to trial. It paid off, and case dismissed.
In this case, I had no idea we would be able to obtain such valuable evidence for our client at the consultation. It would have been impossible to know where the evidence and investigation would lead from that first meeting. I gave my client the best look into the future that I could based on my years of experience but could not foresee such a successful outcome.
Furthermore, going to trial, even with this great evidence, is a risk. I cannot control how a judge is going to rule on each specific legal matter. Not only that, but I cannot even pick the judge that I would like to hear the case. Attempting to manipulate which judge presides off a case is commonly referred to as “judge shopping,” and it too is unethical.
This is an example of a clear, unexpected win for my client. Anytime a client takes the chance, goes to trial to have a trier-of-fact hear the case, and walks away without a conviction is a ‘win.’ Let us look at an example of a DUI that is less clear.
DUI 2nd within 5 to 10 year at a BAC of .16 – reduction
My client came to me, charged with a 2nd DUI with an elevated BAC. The punishment for this, if found guilty, is a mandatory (twenty) 20 days in jail with a possibility of up to (twelve) months, at lease a five-hundred-dollar ($500.00) fine, mandatory enrollment and successful completion of VASAP, and three (3) years loss of license with the possibility of a restricted license after the first four (4) months. During the consultation, we discussed the facts as the client knew them.
This was a relatively standard set of facts for a DUI/DWI in Prince William County. My client was driving down the road in an area where bars and restaurants are located, at night, swerved a couple of times and almost hit the curb. Police pulled over the car. My client was not sure of what was said but thought the Field Sobriety Tests (“FSTs”) went okay, subsequently arrested and taken to the station where the client blew a BAC of .16 into the breath machine.
From an attorney’s perspective, there does not appear to be many, if any, strong defenses in this scenario that would lead to the conclusion we have any real chance of winning at trial.
Suggesting in any way that I thought we could ‘win’ would have been unconscionable, unethical, and wrong.
However, I expressed to the client that I know DUI law, that I am trained in FSTs. I needed to see the evidence before jumping to any conclusions and that I would do my absolute best to help with this case.
For this case, the first ‘win’ is that the client left my office informed of the charges, the potential outcomes, and a clear understanding of the work that I would do on the case. Instead of a google-type search answer to the questions, this client left empowered with knowledge and understanding of the legal aspects of the charges.
After reviewing all the discovery and specifically the officer’s body camera footage, there appeared to be more strengths and weaknesses with the case than initially considered.
The client did not take the Preliminary Breath Test (“PBT”), which gave us the possibility of contesting probable cause for the arrest. The officer did not administer all the FSTs properly. The client did not perform perfectly on those FSTs but did okay. The client fumbled a little getting out the license for the officer but otherwise appeared relatively sober. Client did admit to drinking, though, and the officer noted a strong odor of alcohol.
Through negotiation with the prosecution, we were able to discuss these facts and what my client had done since the incident. The final offer was a DUI 1st offense without active jail time and a twelve (12) month loss of license rather than three (3) years. Thrilled, the client accepted the offer.
Criminal Defense Win
Winning in the criminal defense context is not like a game where there is generally a clear winner and clear loser. Clearly a not guilty verdict is a win, but very rarely is it that cut and dry.
Sometimes trials are about trying to be found guilty of a lesser and included offense rather than the most severe. Sometimes a trial is not in the best interest of the client at all.
For a criminal defense attorney, regardless of skill, most cases are likely to fail at trial because of physical evidence, statements, eyewitnesses, and video. Combined, they paint a very incriminating picture of my client committing the charged criminal activity.
But, that does not mean I ‘lose’ those cases either. I am able to negotiate plea agreements on behalf of my clients to optimize my client’s goals for the case. Many times, in the DUI context, a guilty plea to reckless driving is a huge win for a client that is concerned about issues like security clearance, job, reputation, and long-term financial impact.
Furthermore, there are times that we go to trial, client is found guilty, and the client still feels like there has been a ‘win’ because they had their day in court.
I have had clients with years and years of criminal history where they have been represented by many different attorneys prior to meeting me. They had never seen a Motion to Suppress in any of the previous cases. They never saw or perceived that their attorneys before cared or even worked hard for them.
In one case I remember well, I argued a Motion to Suppress for violation of the 4th Amendment right to unreasonable searches. I lost this argument, which ultimately made trial success very unlikely, so we negotiated a plea agreement. The client was ecstatic that a constitutional motion was argued on his behalf. He felt like he won just because he was being heard by his attorney and the court.
I cannot and will not promise that I will win any particular case because “It depends.”
My Promise to You
What I can promise is that I will work hard on all my client’s cases, whether it be reckless driving, Driving under the influence, robbery, rape, or murder, and everything in between.
Preparation and diligence are key to any successful venture. I believe through this dedication to the practice of law, and specifically criminal defense, most, if not all, of my clients see ‘wins’ in their cases and representation.
