What Are the “Odds” of Beating the Government?

Whether expressed or implied, every client wants to hear what his or her chances are for success in their case.  How an attorney answers that question oftentimes sets the tone for the relationship to come.  And yet, there is no single correct answer, as there is rarely enough information at the beginning of a case to have confidence in the foreseeability of an outcome. 

As cases progress, and as information is shared with clients, the outcome may be easier to anticipate, but outright oddsmaking on verdicts is rarely what some clients want to hear.  Avoid this practice at all costs; engage in it at your own peril. 

Every case is different, and every client has a right to know that the variables are almost infinite.  Here are but a few of those variables that may affect the outcome: 

  • What is the offense charged?
  • Does it involve violence, fraud, property, or sex?
  • What is the jurisdiction?  State or federal?
  • Who is the investigating agency?  Highway Patrol?  Drug Enforcement Administration (DEA)?  Federal Bureau of Investigation (FBI)?  Local police?
  • Who is the prosecutor?
  • Who is the judge?
  • What is the jury pool?
  • Are there co-defendants?
  • Are there informants?
  • Are there confessions?  Identifications?  Line-ups?  Physical evidence?  DNA?
  • Does the client have a prior criminal history?  If so, is it for the same type of offense?
  • Will the client be able to testify?
  • Is there a viable defense of alibi, self-defense, or mental disease or defect?
  • But most importantly, what are the facts?  A jury of twelve strangers will determine their relevance after the Court gives them specific instructions chosen from an array to be submitted by both parties and after all pre-trial motions have been submitted, argued, and ruled upon.

It would be easier to simultaneously predict the outcome of next year’s World Series, Super Bowl, and NBA Championship. 

Having said that, only experienced trial counsel will have the ability to guide clients through the treacherous waters of the criminal justice system, from indictment through trial.  The only guarantee should be that all proper avenues of defense are considered, explored, and determined – that no stone be left unturned and that your client’s interests always come first.  The best defense is preparation; the worst is arrogance.  If a client insists, there are always unethical lawyers around who will tell them what they want to hear.  If, after explaining all of the variables, the potential client has not heard what we have said, then they will never understand.  It is best that they seek alternative avenues.

And if you are the client who needs a guaranteed outcome before you hire an attorney, then beware: You may be your own worst enemy.

The contents of this article are the property of KesslerWilliams, LLC.  Permission to reprint this article will be granted upon request.

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