Beware The Trial Junkie

That’s the name given by Matt Brown, who is feeling the rush of adrenalin as he comes closer to the edge.

I had a long weekend of work, but I’m ready for trial. The work I completed over the weekend wasn’t trial prep, though, because that was done long ago. I spent the weekend tying up loose ends.

Trial is like a really shitty vacation. You have to make sure all your ducks are in a row so you can take some time off. Instead of dipping your toes in the water and watching a sunset with your adult beverage of choice in hand, however, you get to endure grueling combat all day every day for days on end. It’s a break from your daily stress during which you forget about your normal troubles in favor of some more pressing troubles. Did I mention that I love it?

The point of the job is often trial. Negotiating and writing and analyzing are frequently the point too, probably more so, but trial is the most obvious display of skill. Lawyers phone in motions and avoid other important work altogether. People watch you at trial.

Some lawyers feel a sense of dread, cold fear, as the judge turns to them and asks, “counselor, would you like to give your opening statement?”  Others embrace it. The blood pumps, and sense become hypersensitive. This is the moment they live for, to stand up before the jury, all eyes on them, and feel the rush of owning the courtroom.  If the words, “you may inquire” thrill you, then you are a trial junkie.

For most criminal defense lawyers, this is the epitome of our work, where everything is on the line. This is what people want to hear about at cocktail parties, and where we regale the groundlings with our glory. Or our crashing defeat.  Sure, everything else we do matters too, but it’s not the same.

Different lawyers approach trial different, with some walking down Main Street as gunslingers, no more thought than a challenge demanding a quick draw. Others plan their assault as if it was Omaha beach, meticulously parsing evidence, inspecting crime scenes, preparing witnesses and making sure each document is premarked and ready to be offered.

Like Matt, I prepare long and hard for trial.  My clients have no idea what goes into their trial, as they don’t seen the long, often boring, nights spent pouring over somnambulant papers to find the sentence, maybe only the word, that will destroy a witness’ testimony. Or read page after page and find nothing.  But you do it because there’s someone’s life on the line. And because you want to win. Every thought in your head is to win.

But this isn’t a universal approach. I cringe when I read about some lawyer going to trial tomorrow who has spent the past month doing nothing to prepare. Daily announcements of how wonderfully busy you are going to court on cases of every sort but the one on trial, desperately trying to tell the world  how cool you are. Yet not a word about preparing for trial. It’s disgraceful, and only fools think this makes you an admirable lawyer. Your neglect shames you.  This is a trial. Do you really think it makes you look good to tell the world that you’ve utterly neglected your client? 

When I saw this twit, I was astounded.

To the trial junkie, this might at first blush seem cool, or as Mark put it, “badass.”  And if this was a sporting event, it might very well be.  But this isn’t a sporting event, but a process by which someone’s life could well be destroyed. 

No one can try 22 murder cases in a year and a half. No one. Not the best lawyer ever. Not anyone. At least not competently.

That this was viewed, discussed, as if it was incredibly cool reflects a horribly misguided focus. It’s never about how a lawyer is such a gunslinger that they can go from trial to trial to trial, toughing it out and not breaking a sweat.  It’s about 22 defendants whose children may never again see their father. Every one of those children deserves a lawyer who takes the time to make sure their father receives the best possible defense.  Not one of those children care about how cool it is that a lawyer can rack up mind-blowing numbers of trial over the course of 18 months.

It’s so easy for lawyers who run from case to case, being as much a part of the dehumanizing of defendants as the prosecution, the police, and the system, to think only of their interests as trial junkies.  The names and faces cease to matter, and it’s just the rush of trial that counts.  They harbor irrational belief in their abilities to cross a witness to death, without ever having put in the time or effort your client deserves.

To extol the lawyer who tries 22 murders in a year and a half is insane.  This isn’t cool.  This isn’t badass. This isn’t awesome. This is wrong.  This is the trial junkie taken beyond reason and acceptability.  This is where the trial junkie has lost sight of what trials are about, and what they exist to do.

From the plea junkies, the ones who seek obscurity and dread the light of courtroom, I learned that the point of the job is to do every part of the job as well as possible. A big part of that job is trial. Whether that’s where you actually end up or not, it’s something no lawyer worthy of respect should fear. A lawyer’s time and advice may be his stock in trade, apparently, but some of that time is probably going to have to be spent in the well. Fear can lead to injustice, and that fear just as often comes from the lawyer as it does from the defendant. The fear I saw in many of my colleagues was disturbing, but the overall effect wasn’t all bad. A desire to resolve cases short of trial can inspire a powerful desire to fight for an acceptable non-trial resolution, and the plea junkies taught me that what makes it onto the record is often just the tip of the iceberg.

The trial junkie despises the plea junkie, and looks down on him as if he’s worthless dirt.  But the trial junkie who thinks of trial only for his own rush, who fails to do the boring preparation, is worse than the plea junkie. No criminal defense lawyer is more destructive to the lives of defendants than the one who tries a case without having done what’s necessary to give his client a decent chance.  You are not a badass.

7 thoughts on “Beware The Trial Junkie

  1. Dan

    We’re sure that @kreyes didn’t commit 22 murders in a year and a half? Because that would definitely badass.

  2. SHG

    Uh, yeah. In fact, I’m unaware of @Kreyes committing any murders at all. Trying murders, well, that’s another thing.

  3. Marc R

    How many of the 22 did he win? Not that winning equals prep time, but it certainly mitigates armchair lawyering after the fact if you do win.

    Let’s say 22 murders in 18 months gives you 3 weeks prep time per trial. Assuming you have a decent secretary, it’s not unreasonable to spend 150-170 hours preparing. This assumes of course, no other work besides these murder trials.

    But some trials take a few hours of prep time if there’s just a few witnesses. On the other hand, I’ve spent a couple hundred hours on 3rd degree drug cases that wouldn’t result in more than a 5 year sentence if convicted. I guess it depends on the length of witness reports, the type of evidence, the number of relevant locations, the arresting/investigating agency, etc.

    How many hours/weeks do you think are necessary for a murder trial? I know it depends, but what variables would you use to determine what’s enough time to mount a “proper” or “conscientious” defense?

  4. SHG

    Yes, winning certainly mitigates any complaint, but it’s not the point. And no one wins every trial.

    The problem with trying to average is (as you note) it doesn’t work that way. Some cases require more time. Some less. Each is independant of the other. And then there’s burn out. And then there are always other cases (including the 21 other murder case), etc.  And let’s not forget, these are Murder cases, though I would argue that no one can adequately prepare and try 22 cases in 18 months.

    One of the points raised was that with good staff, it would be easier.  You mention a good secretary. I disagree strongly.  There are lawyers who love to tell how their staff is wonderful, which is invariably a way of saying, “I won’t give you my attention, but will shift it off to paralegals, investigators and others who aren’t lawyers and aren’t me,” and get a yeoman’s job at best when the client believe he’s getting an experienced lawyer. It’s a lie.

    As the lawyer, I am responsible for everything. My client doesn’t hire a secretary to represent him. He retains me. He gets me.

  5. Michael Drake

    What the hell are your papers doing walking around in their sleep? You must be quite the soporific. Funny — you don’t show it in your writing.

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