Monday, August 2, 2010

The Personal Side of Losing

I doubt anyone likes to lose. Some people detest it more than others. When I was a child, I hated losing at anything. From Monopoly to baseball, I hated losing. I don't know why. But I suspect it's because winning feels so good and losing so horrible.

My competitiveness eased as I grew up, but it's still palpable. For someone that likes to win, I might have picked the wrong career. I have to think most criminal defense attorneys that actually litigate cases in court lose more than they win. Well at least the ones around me do.

We in the defense bar celebrate wins that aren't even ours. When a fellow defense attorney does well in court, it's a nice thing to witness. It restores a basic faith in the fairness of the system that 5 minutes later is forgotten.

Gerry Spence claims to have never lost a criminal trial. I, like Norm Pattis, would love to know how many criminal trials he has tried to verdict. In my world, any lawyer that claims he never loses, is a lawyer that never steps in the ring.

I have lost my last 3 trials. 2 juries and 1 bench. I took something from each trial. I learned what I could or should have done differently. And I will still firmly state all 3 guilty verdicts were wrong. 2 of them were entirely unsupported by the evidence. And 1 was pretty close because the issue was whether or not my client knew there was a gun in his trunk.

If you read here, you might recall the 45 minute verdict I got on a murder case in April. That made me distrust Chicago juries. And two weeks ago was the bench trial where somehow the State's inconsistent, perjuring felon witnesses were found credible over my witnesses. The judge found my client guilty of 2 counts of attempt murder and 2 counts of aggravated battery with a firearm and I honestly don't know how.

The day after that verdict, I ran into my co-counsel on the April murder case. If you recall, she has a couple of decades of murder trial experience and represented the co-defendant. I told her about the previous day's verdict. She looked at me with this look that conveyed she knew what I was feeling.

I asked her something like this: "If the juries don't want to be here and screw us and we can't trust the judges, what are we doing?" I don't recall her exact answer. But it was something along the lines that asking that question too much was bad for one's career.

I am starting to figure out why so few private defense attorneys try cases or litigate motions. I am sure there's more than I think, but I still keep seeing the same ones over and over. Most of the ligating falls on the shoulders of the PD's and sadly, most of the PD's have bad cases. Or maybe we all have bad cases, and the PD's have the worst of the worst.

Maybe people give this career a shot and then leave out of frustration. I have thought more than once about retreating to misdemeanor court. No one goes to prison there. I know back when I was doing mostly misdemeanors, I slept better. And my overall day to day stress was much lower.

You can lose in misdemeanor court too. But compared to violent felonies, the loses are more gentle. Clearly the stakes are lower. But the flip side to the misdemeanor work was handling more clients, taking more phone calls, and earning significantly less per case. The busy work of signing up new clients and getting paid for misdemeanor cases was exhausting.

And honestly around here, I never felt like much of a lawyer doing the misdemeanors. More often than not, I was paid to come to court and watch the case get thrown out because the cops didn't show up. And even when the cops did show up, my client would get offered a little slap on the wrist like 60 days of court supervision. I never litigated anything in misdemeanor court because it rarely happens. I mean rarely.

I filed a motion to suppress on a misdemeanor case and the State gave me an unbelievable deal. I had a misdemeanor case set for trial but the complaining witness was a no show, thus the case was dismissed.

But back to losing in felony court. Why do I hate losing so much? The answer isn't simple. On cases where I really feel I am on the right side of the law, losing forces me to accept the system isn't perfect. Representing an innocent person that's going to prison hurts in ways I can't describe.

I feel my clients trust me. In the serious cases, by the time the case gets to trial, I know the client well. I know the family. I know the girlfriends. I know the buddies. I am part of the family. Everyone is counting on me to set things right. When it goes poorly, I feel like I let everyone down. The only thing the client and family knows is the outcome. Everything else is court and lawyer stuff. The stuff I am supposed to know. The stuff I am supposed to be able to work for our side. What do they think of me after a loss? 

Losing also causes me to doubt my abilities as an attorney. I always ask if the outcome would have been the same with a more seasoned litigator. Losing sucks because it's taking the place of a winning celebration, however small. Winning just feels better. My life is a better place to be when I win. It really is.

I need to figure out a way to savor the wins more and brood on the loses less. There has to be a way to balance this all out. If not, I will slowly be consumed by the failure virus.

A couple of weeks ago, I tweeted that my job is much like gambling in Las Vegas. I win just enough to keep playing, but overall I lose more than win.

Since I began serious felony litigation under a year ago, I have had some successes. Right before Christmas I returned a young man to his 4 children after he spent 5 months in the county jail. And in April, a client charged with murder, was freed after 8 months in jail when I got his case dismissed on the day of trial.

I have spoken with both clients sporadically since they went home. I would like to think neither will ever forget me. I won't forget them. There have been other significant wins too, but those two cases are the ones I celebrate privately the most. Both cases remind me of why I do this job. And both cases remind me of how great it feels to hand deliver justice to someone dearly in need of it.

Much like that one great golf shot in an otherwise horrible round, the few great wins do keep me coming back. I am slowly learning to deal with the loses. Every time I hear "motion denied" or "guilty" my skin grows a little thicker. My time to pout grows shorter. And I suspect my resolve stiffens a little more. I will never like losing. Nor will I accept it. 

But it appears for the time being, I have to learn to live with it. I will figure out a way to make something good from it too. Character is measured not by how we get knocked down, but in how quickly we dust ourselves off and go back at it.

You either do, or do not. There is no in-between.


1 comment:

  1. I am glad there are defense attorneys who actually are doing the best they can. The system in Chicago is definitely flawed. There must be a way to have alternative sentencing. I myself I am going through a trial but I would love to work with some lawyers to decrease the need to have so many people go to prison. My email is My name is Donnell.


Please feel free to offer comments and opinions. However, if you require legal assistance please call 312-504-4554 to speak with me personally.