From Malum in Se, a blawg by a young criminal defense lawyer who is trying his best, comes a very touching post about what to say when you lose a trial.  In this instance, he was second seating a murder trial in Mississippi, where the sentence will be life.  With minor differences, there is no criminal defense lawyer who actually tries cases who hasn’t felt what he’s feeling now.

To those readers who aren’t lawyers, or aren’t trial lawyers, the bottom line is that no trial lawyer wins every case.  No matter how good he or she is, no matter how well prepared, no matter how brilliant his strategy and how incisive his examination, he or she will lose at trial from time to time.  Juries are unpredictable, even though we do everything we can to make them less so.  Facts sometimes can’t be overcome.  Things just turn out bad for reasons no one can anticipate or explain. 

Even when we have our doubts that a case can be won, lawyers gird themselves for the fight.  We focus on doing our job like an Olympic athlete.  We believe we can win, because we can’t go into battle believing anything else.  When we stand up next to our client to hear the verdict, we feel what they feel.  If the word that comes out of the foreman’s mouth is “guilty”, our hearts crash and our heads spin.  Big tough lawyers like us may not want to admit it, but that’s the moment that makes or breaks us, just like you.

When I was younger, and believed so ferverently that I was going to win a trial, the guilty verdict would hit me like a ton of bricks.  It never bothered me if someone called me a name, or told me I was wrong.  But there was no arguing with a verdict.  It was the depth of depression, a soul-searching experience of where did I go wrong. 

But Malum’s essay isn’t about him, and differs from my experiences in one critical way.  He writes, “I could have apologized, but we didn’t do anything wrong.”  For me, it was not about doing anything wrong, but doing it right enough to win.  A human being relied on me to save his or her life, and I failed to do so.  I stood between the person and the State, and it was not enough.  It was my responsibility to do better.

Malum asks what to say to a defendant who has just been sentenced to life in prison.  In my experience, that conversation would be had before the trial, because I never go to trial without talking to my client about what losing means.  More often than not, we’ve had that talk a few times before the trial actually happens.  It’s the clients life, and the client must know what it all means to him or her.  Without a real appreciation of consequences, before the final decision is made, we have not fulfilled our responsibility to our client. 

Afterward a loss, most of my clients have told me that they appreciated the efforts I made on their behalf.  They felt that I gave them a great trial, did better than they could have imagined.  They comforted me!  And I return the sentiment with an honest appraisal of what happened and where it will head from there. 

Since I do appellate work as well as trial work, my view of where things will go is strong and frank.  But this means that sometimes the answer is that they have no meaningful chance of reversal on appeal.  Sometimes they got a great trial, no error, no misconduct, strong evidence, and I don’t see reversal on appeal in their future.  I won’t lie to my clients.  In this instance, I tell them that they must get another lawyer to do their appeal, to review my work for flaws to give them a chance when I see none.  And I hope that another lawyer can find error on my part, if no one else’s’.  There’s no concern for my reputation, only for the client’s chances.

But let’s assume that the trial is over and lost, and there’s just nothing good to say.  You look your client in the eyes, hold him by the shoulders and tell him to hang in there.  You let your client know that you understand what he’s feeling at the moment, so that he knows he’s not alone in the world.  Words aren’t necessary to do this.  The look is more important, that you can look him in the eye. 

No matter how tough your client is, no matter how many times he has told you that he’s man enough to take a guilty verdict, he needs to know at that instant that there is at least one person who understands what just happened.  When you go to see him the next day, there will be time enough to talk about details.  But for that one moment after the word guilty is spoken, no matter how evil the rest of the world views you client, let him know that you understand.  That’s what you do.