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The Decision to Trial

By on May 26, 2011 | 0 comments

“Trial by jury is essential to secure the liberty of the people as one of the pre-existent rights of nature.”
-James Madison

A trial is a lot of things in our society: Dispute resolution, a search for truth, an opportunity for vindication, an emblematic display of our legal system. Yet in every state in the country, a trial is relatively rare. Lawsuits are settled, and criminal charges are dismissed or pleaded to before the trial phase. Why?

Two reasons. The lesser is that a trial is an awful lot of work for everyone involved. No prosecutor’s office in the world, much less the court itself, has the resources to take every single case to trial. But fundamentally it comes down to the unknown. A trial’s outcome is impossible to predict. You can make an educated guess but the final decision is in the hands of a jury, ordinary men and women. There are no guarantees.

Settlements, or plea bargains, are trading an unknown result for a sure thing. Considering the stakes, like months in jail or millions of dollars, playing “double or nothing” is a lot of gamble. And as I mentioned, a trial involves a lot of resources. They can be stressful too. Part of the appeal of the settlement process is its immediacy and its finality. Enduring days or weeks of testimony can be miserable for the side waiting for the shoe to drop. A trial is a lot of investment for an unknown outcome.

But trial is almost always an option, and sometimes it’s correct. As usual there are no hard and fast rules. Everything is fact-specific. But in my experience there are three common, good reasons to go to trial.


Contrary to what the masses think, defense attorneys often work with people who really have committed criminal acts. Those acts do not in any way mitigate or alter a citizen’s rights, including their presumption of innocence, the requirement of making a side prove their case, and the requirement of police and witnesses to be truthful. Being charged with a crime, even committing a crime, does not waive basic human dignity.

But past all that, sometimes the person really is innocent! It certainly happens. Common causes for false charges include improper identification, someone using a fake name, improper testing equipment, faulty records, etc. I wouldn’t call it common, exactly, but to say no innocent person is ever charged with a crime is naive.

Some of this stuff does not require a trial to correct. If a person is prohibited from being in a store for x years, and the order expired but the records weren’t updated, a records check should get the matter settled quick enough. But sometimes, like in the case of false identification, trial is required.

Eyewitness testimony can be, depending on factors like race, eyesight of the witness, time of day, etc., notoriously unreliable. To bring out those inconsistencies or raise doubt, live testimony is required. Just like saying someone is guilty doesn’t mean throwing them in jail, saying you’re innocent isn’t a get-out-of-jail-free card. In either case the jury needs convincing.

Lack of Evidence

A lack of evidence is similar, but not exactly the same as, innocence. Since I am never at the scene when an incident goes down, I can only rely on statements by law enforcement, my client, other witnesses, physical evidence, and so on to be put together a picture of what happened. If there’s not enough evidence to accurately put together a picture, there isn’t be enough for a conviction.

But in addition to that, even if a client intended to commit a crime, and even if he or she thinks they did commit a crime, the law may say otherwise. For example, theft, like shoplifting, requires taking a good, and a showing of intent to deprive the owner of the good. That showing is almost always the person walking past all the registers without paying for the item.

Let’s suppose a person grabbed some gum and stuck it in their pocket, intending to pay but forgetting about it. Some security guard watches this all go down, finds the person on the street and calls the cops on them. Here the person did not intend to take the item without paying for it, which would be an innocence defense. If the tab was something like $145 in groceries, and the gum was $0.46, it’s a pretty good defense.

But let’s say a person grabs some gum and sticks it in their pocket. And let’s say that person is 100% intent on stealing that gum. But let’s also suppose a security guard, too quick on the draw, accosts the person in the soup aisle, accuses them of stealing the gum, and calls the cops. Here is a lack of evidence defense, because there is no evidence that the person was actually going to steal the gum, because the person hadn’t passed the registers and hadn’t yet failed to pay. I would tell my client to stop stealing gum, but on this case we would certainly set it for trial and probably win. (We would win way before trial technically since the prosecution would drop the case at the speed of light, but the point is the same.)

This is common on the civil side too. Something extrinsic, like a car repair or hospital bill, is required. If someone calls me up and says I hit their car and drove off, and that I owe them $5,000 I’ll need to see a piece of evidence. If they don’t have some kind of proof I shouldn’t pay them anything. I could settle the claim, but why bother? They can’t win at trial, so bring it on.

A lot of civil complaints require a showing of damages, some financial loss that money could restore. Think lost days of work or medical bills or pain and suffering. If a plaintiff can’t show actual damages, why not go to trial? There’s no evidence of a person doing something that is worth money, so settling is pointless. If I poke you with my finger, I’ve committed a tort (battery). You could sue me, and you could win, but unless you show some harm beyond momentary annoyance, you don’t win anything.

This reason is characterized by an indifference to the underlying allegations. Yes someone may have committed a wrong, but unless their accuser can prove it, it has no force. This is an area where people seem to have problems with attorneys, as obfuscators or distorters of truth. My response is always the same: how easy do you want it for people to be sued? For people to be thrown in jail? It does not make the world a worse place when evidence is required before consequences are rendered.

No Good Alternative

As I said in the beginning, prosecutors offer plea bargains to guarantee a result, and not expend all their resources on a single case. The implicit promise of a plea bargain is that taking the offer is better than going to trial. Sometimes this is because part of a plea bargain is reducing the charge, and sometimes it’s just less jail time. In other words, plea bargains wouldn’t be appealing if the offer was “plead guilty as charged and get the maximum sentence.” The “bargain” in “plea bargain.”

The plea bargain process can be very complex, but it basically comes down to poker, or economics: how good is your hand and how good is theirs? Both sides should be roughly equally happy or equally unhappy. If someone thinks they made off like a bandit, someone may have made a mistake (although it could be the person that thinks they got a good deal). This is true for settlement negotiations too.

In any event the purpose of negotiating is to ensure a rough equity, although some slant goes to the person more afraid of a trial. For example, if a case is worth $100,000 if won and $0 if lost, and one party needs the money and the other couldn’t care less, the first could legitimately accept $40,000 instead of $50,000, because they have effectively more to lose. Obviously negotiating skills come into play here too.

But let’s say in the above situation, the person isn’t offered $40,000 or $50,000, but $5,000. Giving up 95% on a 50/50 case is a big loss, maybe too big. If the other side misevaluated their case and thinks $5,000 is fair then it’s simply trial time. With no legitimate offer on the table where else is there to go?

This happens in the criminal sphere in one of two ways. In the first, the prosecutor simply makes an unreasonable offer. If the maximum sentence is 365 days and the offer is 360 days, you can bet we’re going to trial. Even if the offer is 300 days, but you predict the judge would only sentence 180 days, trial makes sense. This is a little more nervy, requiring knowledge of the propensity of the court, but as I said there are poker elements to all this. What else is poker but making educated guesses? There are never guarantees in this line of work, and the client makes the final call, but if I think the offer is unreasonable I’ll say as much to the client. I wouldn’t be doing my job otherwise.

The other scenario has nothing to do with the prosecutor, but is rather an issue with the laws themselves, specifically “mandatory minimums.” These are sentences set by the legislature that dictate what a sentence must be. I am not a fan of these laws because they take discretion away from the lawyers and the judges. The use of a broad brush is how resources are misapplied.

The most common example of this are the “Three Strikes” laws. A lot of states have enacted a version of these laws, including California and Washington. Basically these laws require that after the third felony (sometimes violent felony), the defendant is locked up for 25 years to life.

If someone is charged with a felony and they’re facing mandatory life imprisonment if they lose, why in the world wouldn’t you go to trial? There’s nothing the other side can offer. If the chance of winning is 0.001%, going to trial is still correct.

Reasons not go to trial

In the civil side a plaintiff has to cross certain hurdles to get their trial. On the criminal side a defendant has an absolute right to receive their trial. In either case however, there are reasons to take an alternative disposition.

A good reason, the best reason probably, is that the chances of winning are moderate or worse, and the offer is fair. Like above it requires a good interpretation of your case and the proclivities of the court. But if the other side is being reasonable the matter can be resolved to something mutually satisfactory. Again, trading the unknown for a sure thing has inherent value.

A really awful reason to go to trial is that the person “wants their day in court.” Getting to tell one’s side of their story is nice. Avoiding jail is better. If there’s a fair offer on the table, and the chances of winning are middling or worse, risking everything to “set the record straight” is probably terrible, and often ineffective besides. For people who have never seen trials: judges and lawyers don’t let a witness speak ad nauseum. There are rules in place.

Another bad reason is because someone is spoiling for a fight. More than once a client has tried to convince me they can take on a prosecutor and win. I say sure, but let’s go through a practice cross examination first. They’re usually more receptive to my advice at the end of that exchange.

This is a bad reason for the same reason talking to the police is a bad idea: they have all the power. It has nothing to do with debate skill. It’s simply not a fair fight.

Personally, stressful or not, I do enjoy a trial. Like many of my clients I too enjoy a good fight. But my feelings are completely irrelevant. I tell my clients the same thing I write here: my job is to get them the best possible result. Sometimes that means trial and sometimes it doesn’t. Every case is different.

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The facts and circumstances of your case may differ from the matters in which results and testimonials have been provided. Every case is different, and each client’s case must be evaluated and handled on its own merits.