After the Trial Loss
Josh, exhausted and depressed, walked into the heat and humidity of a warm, summer evening, following a week–long trial. His shirt horribly wrinkled; tie partially undone; top button open, he left his quiet office a few hours after a jury had convicted his client of criminal possession of a weapon. Josh’s head was spinning with mixed emotions of relief for having finished an exhausting week and satisfaction from a fight well fought; emotions which conflicted against the sadness he felt knowing the loss of freedom that his client would experience as a result of the jury’s verdict. Not ready to go home, he stopped in a local watering hole to decompress and unwind. Josh saddled up to the bar and ordered a beer. As he looked to his left, he saw Carl, a man several decades his senior, staring down into a half empty glass of scotch. Josh and Carl knew each other as they had spoken in the past when both found themselves in this establishment. Carl is a quick conversationalist; someone intrigued by Josh’s cases and his chosen profession. Josh knew that by stopping in the conversation would quickly turn to his trial. Secretly he was hoping it would.
“You sleep in that suit?” Carl asked with a chuckle.
“Feels like it”. Josh replied with a quick exhale. It was the closest he could come to laughing at the moment.
Seeing Josh was visibly sullen, Carl asked: “What put that long look on your face?”
Josh: On trial this week. The jury convicted my client of possession of a weapon, but acquitted him of assault.
Josh: My client was convicted of the top count. He’s looking at 15 years in State prison. I really don’t feel like I deserve any congratulations.
Carl: You beat the assault.
Josh: I guess you could call it a moral victory.
Carl: How old is your client?
Carl: 15 years seems like a lot longer when you realize your client is only 25. What would he have gotten if he went down on everything?
Josh: 22 years
Carl: It’s hard to get your mind around the idea of what it would be like for someone to be sentenced to serve almost as many years in prison as they have been on this earth. 15 years in prison just for possessing a gun seems pretty severe, especially when no one died.
Josh: You’re right. When you think about it that way, it hardly seems like a moral victory.
Carl: What kind of case did they have against your client?
Josh: The Government had a strong case. I knew going to trial was going to be an uphill battle.
Carl: Why you are so depressed then? If they had a strong case against your client, you can only expect to do so much. You know what they say “You can’t make chicken soup out of, ………” Well you know. Every time they give me a project at work that I know is impossible, I don’t kill myself. I do just enough to make sure I don’t get fired, but don’t beat myself up when it ends the way I knew it would.
Josh: I appreciate that mindset, but I have to look at things differently because of the importance of what’s at stake. I represent people. I take the life and freedom of every life placed in my hands very seriously. For me, I can’t just go through the motions. I have to fight to save that life with everything I have.
Carl: What do you mean save the life? What are you a doctor? If you lose a case the “patient” still is alive.
Josh: That is true, but what kind of a life will my client have now that he’s been convicted? Locked in an 8-by-10 foot cell for more than half his life. When he is finally released, he’ll be closely monitored by Parole for another 5 years; knowing that a missed appointment or the slightest mistake could put him back in prison. Strapped to a GPS monitor, so the Government can track his every move. Labeled a violent felon for the rest of his life. Stripped of his right to vote. It’ll be next to impossible for him to get a job. Any job he can get, will hardly bring a living wage. He may have a life after the trial, but not the life that anyone would want. Not the life that I’d want for anyone I know. With all that’s at stake, as a client centered lawyer I just can’t just go through the motions, even when the case against my client looks bad. I would never be able to live with myself, unless I know I gave it maximum effort and left everything in the courtroom.
Carl: Okay, I’ll give you that, but I don’t understand why your depressed. If you gave it your all in spite of what they had against your client, I would think that you’d feel a sense of satisfaction not sadness. Especially when you consider that you beat some of the charges.
Josh: As a client centered public defense lawyer, I care deeply about every life that is placed in my hands. Also, when you go to trial, you convince yourself that you have presented a compelling argument against the State’s case. We call it “trial psychosis”. So when you hear the verdict announced stating the jury found your client Guilty, especially of a felony which carries a mandatory prison sentence, you come crashing to the ground very quickly.
“Trials make you delusional?” Carl asked with a laugh.
“Sometimes, yes. There are those cases a defense lawyer sees in a way that no other rational person would”. Josh replied, laughing quietly under his breath.
Carl: I get disappointed, but I don’t understand depressed. Was your client a great guy or was there something extra special about him?
Josh: One of the things I have learned since I started to follow the client centered path, is that I have to look past the crime with which my client is charged; beyond his record; and find the good in every human life placed in my care. As many clients as I have represented, I have always been able to find good qualities in each. They were always there before, but I never understood the need to or the importance of finding the good in each. My focus was always on the facts of the case and potential legal defenses. I never took the time to learn about the person I was representing. Now, I try to learn the why when it comes to my clients, not just the what. Why did my client end up involved in the criminal court system? Why did they find themselves accused of the crime? Why did the police focus their attention on my client? Why did they start using drugs or start carrying a gun? Many times the answers to these questions are far more important than the what in terms of developing the foundation of a defense theory. Not every lawyer is capable of or wants to make the effort to focus on the client and not just the case. They only see the charges or the person’s record. That is why it’s so important for public defense lawyers not only to find that good, but show it to the courts, the prosecutor, and the jury.
Carl: What about your client from the trial? What was the good in him?
Josh: My client was no angel. He had a long record and was charged with a violent crime. But that’s not his narrative. He had been left to survive on his own at a very young age. After his most recent arrest, he truly began to understand what he needs to do to move his life in a positive direction. He was tired of the life he was living. He wanted to find a way out of that life. He wanted a second chance. I believe that if given the opportunity, he would have taken advantage of the fresh start. All he needed was the chance. I desperately wanted to give him that second chance.
Carl: I could never fight as hard as you do, especially for a bunch of criminals.
Josh: As a client centered public defense lawyer, I don’t see my clients as criminals, but rather as human beings deserving of dignity and respect.
Carl: What do you mean by client–centered?
Josh: I strive to treat every client with the passion, dignity, and respect. To treat each and every client as well as anyone to whom I speak on their behalf the same as I would expect for myself or a member of my family.
Carl: Aren’t all lawyers client–centered?
Josh: Unfortunately, not all are. Some never are and have no desire to be. Some start with the best intentions, but lose sight of that commitment due to the culture in which they practice or because of the pressures that come with excessive caseloads and a lack of support. But the environment of criminal defense. There is a growing movement of client–centered, passionate, dedicated public defense lawyers committed to client–centered representation. Lawyers who fight to improve the lives of each and every of their clients. Lawyers who work to improve the quality of public defense representation in their own communities and around the country. Lawyers who are trying to change the culture of public defense, so even more, both public and private, see the importance of and become committed to client–centered representation. The movement grows every day.
Carl: Have you always been client–centered?
Josh: No, there was a time where I had lost my way. I decided to be a public defense lawyer, because I wanted to represent people. I entered the profession with the best of intentions. Somewhere along the way I lost sight of that. I was doing my job and doing it well, but I wasn’t being client–centered.
Carl: What caused you to change back?
Josh: I became involved with a supportive and encouraging client–centered community. A community of lawyers and professionals who helped get me back on the right path; who have continued to support and encourage me along the way.
Carl: I don’t like change.
Josh: We are creatures of habit and become comfortable in the way we do things. Change is scary, because we don’t know how something new will turn out. I have worked very hard to be more open to new ideas. When I hear of something new or a different approach to handling things, I strive to always keep an open mindset, instead of becoming defensive, thinking it’s wrong just because it’s different from what’s worked for me in the past. By being open to change, I have learned new approaches that have improved every aspect of my work; from my trial work to my every day interaction with clients and their families. I have become a more client–centered and effective advocate. I have become more persuasive, more passionate, and more successful in the outcomes I achieve for my clients.
Carl: Doesn’t there become a point where you can’t grow any further.
Josh: No, I think the only thing that can cause you to stop improving is if you close your mind to new ideas and approaches. In order to improve, you always have to be willing to push yourself out of your comfort zone. I will never stop working to improve. The people I represent deserve nothing less. I accept that am not perfect. I never will be. That’s what I will try to do with this trial loss. I will try to identify those areas where I failed and find ways to improve.
Carl: I hear lawyers in this place talking all the time. Too many times it seems like everything they discuss is about them—their cases; their clients; their sacrifices. It always struck me that I don’t hear as many talk about their clients or their clients’ families.
I am still struggling to figure out why you are disappointed. Your client committed the crime, didn’t he?
Josh: Do you think that should that matter?
Carl: Yes. If he did something wrong, he should be punished.
Josh: That’s not how I look at it.
Carl: Why not?
Josh: I believe in the Constitution and the rights we all have under it. Under that Constitutional right to trial, the only way my client, just like you or I, should lose that liberty is if evidence is presented that is so compelling it proves his guilt beyond any and all reasonable doubt. I take those rights and protections very seriously. Not just for the people I represent but for all of us.
Carl: Everything you are telling me makes me believe you should be happy with your work this week. What’s bothering you so much.
Josh: I can’t just separate myself from the result. It’s not that easy. I truly thought we had presented a defense narrative that would enable my client to get that second chance he so desperately wanted. I can’t help but feel like I failed him. The strength of the prosecution’s case doesn’t change the way I feel. My complete focus right now is on my client and the fact that as a result of my failure, he will spend a very, very long time in prison.
Carl: Why don’t you just blame the jury?
Josh: It doesn’t do me or my clients any good to blame the jury. Our system is not perfect, but trial by jury is the best option we have. There are a lot of people I could blame for this outcome.
Carl: Who do you blame?
Josh: Right now, I blame myself. I do every time a client is found guilty. I always feel there’s more I should have done.
Carl: That’s a lot of pressure to put on yourself. At the end of the day, we are all human. As much as I know you don’t like to acknowledge it, so are you.
Josh: I know, but client–centered public defense lawyers put a lot of pressure on ourselves, because of how deeply we care for the life and freedom of each and every human being we defend. Right now, all I can see is the lost opportunity and the devastating impact it will have on my client’s life.
Carl: I think I am beginning to understand why you are so depressed. Is that all there is?
Josh: In addition to losing the trial I can’t get it out of my head that my client had the chance to take 5 years right before trial and now he’ll likely get 15.
Carl: How can a Judge give your client more time if he beat some of the charges? I thought you said every person has a Constitutional right to go to trial.
Josh: That’s the way it’s supposed to be, but that’s not how it works in reality. Clients are punished for going to trial, especially if they are convicted. It’s called a trial penalty. Judges don’t like to admit it, but they regularly punish people who go to trial.
Josh: It’s a way of forcing people not to take cases to trial. Too many Judges are more concerned with docket management than with protecting the Constitutional rights of the people accused of crimes. It’s one of the reasons for the level of mass incarceration that exists in the United States today.
Carl: That hardly seems fair.
Josh: It is unfair. There is so much unfairness in the criminal courts. That’s one of the reasons many defense lawyers become cynical about our work and fall into the machinery of “assembly line justice”—where the primary focus is resolving cases through plea bargaining. Focusing on being client–centered has enabled me to fight against those forces. I work to inspire others the way I have been driven to fight against these institutional injustices. Injustices that too many times are just accepted as the way things are.
Carl: Are you going to tell your client he was an idiot for turning down the 5 years?
Josh: No, I would never call a client an idiot.
Carl: Why not? He is when you realize he’s going to do three times more than if he plead.
Josh: Calling a person you represent names is not something I do. It’s not client–centered. Plus, how do you think he would feel about me as his lawyer and the advice I give him, if he found out I called him an idiot? Do you think he would trust me?
Carl: If your client never hears about it, then there is no problem.
Josh: Treating a client with respect and human dignity includes both how you treat them to their face as well as being equally supportive and understanding when they aren’t around. Respect or a lack thereof, is not something you can turn on and off. If you treat someone with a lack of respect behind their back, that attitude will work its way into your face to face dealings. It will hurt how hard you work on their defense.
Carl: I really don’t understand what the problem is, if it was your client’s decision to go to trial, then it is not your fault that he will now be doing more time.
Josh: I appreciate that but I wish I had found a client–centered way to have convinced him to take the offer. Given what is going to happen to him as a result of being convicted, I wish I had helped him realize that accepting the plea was his best option.
Carl: Couldn’t you have forced him to take the deal?
Josh: No, you can’t force a client to plea. Trying to help a client see that taking an offer is a good decision is a delicate balance. As his lawyer, I try to explain the likely outcome of a case, while not making it seem like I am trying to force the client to take a plea. But the ultimate decision on whether or not to accept an offer is the client’s and the client’s alone.
Carl: Why can’t you pressure him until he gives in and takes a plea? You are his lawyer.
Josh: You have to understand that many of the people I represent do not trust me since I am appointed to be their public defender. My clients don’t choose me. As a result, I must pay special attention to developing a trusting relationship with them and their families. I not only have to earn that trust, I have to work just as hard to maintain it throughout my representation. Trust can be lost very quickly and once lost, it’s very difficult to earn back. If I lean too hard in trying to convince a client to accept an offer, it would reinforce the misperception that as his public defense lawyer, my job is to force him to plead guilty. If I lost that trust then it would be extremely difficult for him to work with me as we prepared for trial.
Carl: It seems like you did everything you were supposed to in a client centered way as you say. I don’t understand why you are so depressed.
Josh: As the person placed with fighting for the life of every person I represent, when the decision is made to go to trial and fight to give my client a second chance, my sole focus is trying to achieve that goal. When it comes down to it, I failed to deliver on what my client wanted. I know the reality was we didn’t have a great chance, but right now the feelings are too raw. The only blame I feel right now is for myself in failing to give my client that second chance I believe he deserved.
Carl: Do you eventually move past the self–blame?
Josh: Yes, most of the time. There are five stages following a trial loss. First you are depressed. Then after a few days, you get angry. Before too long, the healing process begins and you get the strength to reflect on those areas where you can improve. Eventually, you start to learn from your mistakes, finding ways to improve. Finally, you become energized to fight even harder going forward. I am in the depression phase right now.
Carl: In football, to be successful you have to have a short memory. Can’t you just forget about the losses and move onto the next case?
Josh: That would probably be the healthy approach, but it would not be client–centered. Plus, unless you are willing to look at your work with a critical eye, you will never improve.
Carl: I know you blame yourself for not convincing your client to take five years. Let me ask you, how would your he have felt if you had forced him to plead guilty?
Josh: He would have felt coerced. Like it wasn’t his decision to plead guilty. He would have believed I had sold him out and denied him his right to trial.
Carl: Those feelings would have remained with him the entire time he was in prison and lasted long after his release. They would stay with him the rest of his life and he would pass them on to his friends, family, and children. How do you think he feels given that he was convicted after trial?
Josh: I think he feels like we gave it his best shot. Like he had someone committed to fighting for him. Someone who cared about what he wanted and fought to achieve his goals. He and his family expressed that feeling to me several times this week.
Carl: That’s got to feel good.
Josh: It feels good when clients and their families say they feel lucky they had you as their lawyer; regardless of the outcome of the case. Ever since I started to practice in a client–centered way, I have heard that quite often. It’s one of the reasons I remain a public defender in spite of the fact that it would be far more lucrative to go private. I get a great deal of satisfaction from knowing that my client’s life and their goals are the sole guide in how we proceed with a case, not whether they can afford to pay for my services. As much as I hate the outcome of this week’s trial, I know I gave everything to try and achieve my client’s goals. Plus, we still have a shot at getting the case overturned on appeal. So at least for now, both he and his family feel like there is some hope he’ll receive the freedom we both think he deserved.
Carl: You have to give yourself some time to heal after a loss like this. It is clear you gave it your all. I doubt there was anything else you could have done differently or better. You need to learn to forgive yourself. Otherwise, you’ll burnout before you know it. In the long run, your clients and your community are better off if you stay in the game.
Josh: I appreciate that, but it’s tough right now. The nerves are too raw.
Carl: You need to find a way to try and focus on the positive and accept the good that came out of your work. What you provide is too important. The hope you give, goes beyond just your clients.
Josh: What do you mean?
Carl: My father spent most of my youth in prison. He had a public defender who didn’t care about him or his case. It seemed like he was just going through the motions, always trying to get my father to plead guilty. My father never saw his lawyer and right before trial, he pressured him into taking 18 years. I have always been angry about the way my father was treated. I never have had anything good to say about public defenders. Until now that is. You have shown me that things are different. If my father was represented today, things would have been better for him, for myself, and for my mom. I wish my father would have had you as his lawyer. So please, find a way to heal for yourself, your clients, and this growing community of client–centered public defense lawyers. The work you do; the hope you give; the lives you change for the better, are too important to lose.
Josh walked outside into the humidity, still stinging from his loss, but reminded of why he continues to fight. Talking to Carl help remind Josh why he loves being a public defense lawyer. Their conversation reminded Josh that while growth can come from reflecting on and learning from his failures. It also helped him remember that he has to be mindful not to become so focused on his failures, that he allows them to defeat him or hold him back in the fight for True Justice. Josh walked into the night with a renewed spirit that we always have to keep pushing forward; continue to fight for the lives and freedom of every client we represent; that we must remain steadfast and committed to following the client–centered path. We must because our clients need us and we need