As if things weren’t busy enough, Gideon at A Public Defender has chosen to throw down the gauntlet after picking up on the “secret to winning” post by Gerry Spence.

Gideon’s secret to winning: Knowing your rear from your face, or, preparation.

I mean, really, that’s your only shot. Know the State’s case inside out. Know the allegations, the witnesses, the police reports, the statute and your theory of defense. You have to prepare, prepare, prepare.

Having said that, Gid has sent the virus here, to Mark Bennett, the Texas Tornado and to Bobby Frederick.  Bobby was first to respond (and kick the meme to his three choices, Underdog John Katz, Hostis Civitas and Western Justice) with a laundry list of things to do.  While Bobby has a great list, he’s taken a bit much off the table for a meme, and we’ll remember that and pay him back some other time.

My response will be much simpler, and less satisfying.  There is no “secret”.  Lawyers want there to be a secret, something one can do that will spin the loser on its head and make it into a winner.  Lawyers want to win their cases.  Even bad lawyers want to win their cases.  And if there was a magic bullet to doing so, we would all be winners.  But we can’t all be winners.  The nature of a trial is that someone wins and someone loses, split verdicts aside. 

There are two independent factors to consider, the lawyer and the case.  Spence’s approach is to focus on the lawyer.  But I hear that under the covers, he’s a compulsive preparer, though this doesn’t show through from his descriptions.  This tends to make people think that the lawyer’s persona is all it takes to win.  But I suspect that even his most ardent supporter knows that it’s not just the lawyer’s “credibility”, but knowledge, preparation, technical skills and more that add up to the complete package.

Then there’s the case, made up of the law and the facts.  To neglect these aspects, no matter how much the jury loves the lawyer, is foolish.  Would the mystique work trying a basic buy and bust case?  Since it has never been tested as far as I’m aware, we don’t know.  But it’s hard to imagine that one could seriously believe that persona alone trumps facts and law.  If it were only that simple.

What strikes me as missing from these discussions is that every case is different.  While many appear the same on the surface, they never are in truth.  Even the most pedestrian case has a unique element to it, and it’s up to the lawyer to find it.  It may require the lawyer to adapt his persona to the case or defendant or judge or prosecutor or jury.  It may require the lawyer to find the wrinkle in the garden-variety crime that distinguishes it from the others.  There is no magic place to look to find this distinction, but it’s there.  Somewhere.  Just keep looking.

So while I have no “secret to winning” to offer, because this advice will not guarantee anyone the win, my small addition to this meme is to see each case, each defendant, as unique.  Approach it as if it’s the only case you’ve ever done, the only defendant you’ve ever represented, and figure out what makes it different from all the rest.

And now, I pass the baton to my three victims:  Mike Cernovich at Crime and Federalism, Jamie Spencer at Austin Criminal Defense Lawyer and David Tarrell at In the Moment.  Tag, you’re it.