I’ve recently had a few clients mention to me that they had initial consultations with certain Phoenix-area attorneys who boasted jury trial records of more than twenty acquittals without a single conviction. I would have assumed they were exaggerating if they weren’t all saying the same thing. Maybe I’m wrong, but it seems to me that attorneys with jury trial records of twenty or more wins without a loss are exceedingly rare. I’m certain there are attorneys out there with records like that, but multiple attorneys within a five-mile radius?
In my experience, a case that’s close to a guaranteed winner will get dismissed prior to trial more often than not, so the ones that go to trial tend to have a less than perfect defense. That’s the way the system usually works, even in Maricopa County (shocking, I know). Also, I think that any criminal defense attorney who has handled a decent number of cases has encountered at least one client who insisted on taking a loser case to trial. Sometimes, you just can’t talk them out of it. A lot of attorneys call those trials “long-form guilty pleas.” I’ve spoken with some excellent attorneys who have a wealth of knowledge about the most effective defenses to use in such cases, but they’ve never claimed to have more than a 50% success rate with them.
Arizona’s jury trial statistics also seem to suggest that undefeated trial attorneys are rare. Some quick internet research tells me that over 1800 criminal jury trials took place in Arizona’s Superior Courts in 2008 and that less than 300 of those resulted in acquittals. Those are hardly perfect numbers, and I may be misunderstanding the data on the Arizona Supreme Court’s website, but I think I’m at least in the right ballpark. That means roughly five out of every six defendants who go to trial are convicted. It’s possible that a large number of acquittals are achieved by relatively few attorneys, but it seems to me that winning twenty consecutive trials is something of a statistical anomaly, even for a highly effective criminal defense attorney.
I doubt those lawyers are lying. I can see a highly experienced attorney passing off ugly cases to the associates they supervise in order to keep their personal trial records untarnished. If that’s how they keep up their record, I’d be curious about what their office’s record is. That is, after all, the more meaningful statistic for a prospective client who may get his case transferred to one of a number of lawyers.
They could also be employing creative record-keeping methods. I’ve heard some attorneys only count “good trials” in their records. In other words, they don’t count the ones they didn’t think they could win or the ones they did grudgingly. They also may not be counting appointed cases or ones that took place prior to entering private practice. If they’re former prosecutors and have never done a trial as a defense lawyer, they might claim a “100% trial success rate.” They may say that if a client is found not guilty on the majority of counts, it’s an acquittal. They may keep track count-by count. Personally, I think there’s something very deceptive about some of those practices, though I believe they are somewhat common.
I think the vast majority of clients don’t care about an attorney’s trial record. Most of my clients never ask, and I personally think that discussing trial wins and losses can be a dangerous thing, whether you have a terrible record or a great one. I wouldn’t be surprised if attorneys who advertise their perfect trial records find many of their clients hire them for that reason alone. There are a lot of factors that go into hiring an attorney, and the likelihood of a bad match is high when the client only focuses on one factor. You also have no idea how the client is going to respond. One of my clients said he didn’t hire one of the undefeated attorneys because he figured the attorney was “due for a loss.” To me, that makes the process of hiring an attorney seem like something akin to placing a college football bet (or numerous friends’ wise but upsetting bets on last year’s Super Bowl).
A criminal defense attorney’s trial record (or more importantly, his or her trial experience) is definitely something to consider, but it isn’t the only thing. Depending on how the attorney counts wins and losses, his or her trial record may not tell you very much at all. If those Phoenix-area attorneys do indeed have such excellent records without having to resort to passing off cases or creative counting, I am impressed. However, like with a lot of statistics, it’s probably not quite as informative as it would seem to be at first glance.