The Secret to Winning: Bennett-Style

 Posted on August 11,2008 in Uncategorized

It all started with Gerry Spence's The Simple Secret of Winning post. Manhattan Paladin Scott Greenfield was inspired to make fun of Spence's formula for winning. Connecticut public defender Gideon, in turn, was inspired to post his secret to winning: "Knowing your rear from your face, or, preparation." Even better, he made it a meme, and tagged Scott, South Carolina criminal-defense lawyer Bobby Frederick, and me.

Bobby G.F. says that there is no secret, and then goes on to post eight suggestions: learn from others; try cases; know the law; prepare ("If you worked nights and weekends preparing your case for trial and covering every base, odds are you are miles ahead of the other guy"); win without fighting; tell your story; tell your client's story through the prosecution's witnesses; and care about your client. (Somebody needs to have a word with Bobby G.F. about the power of trilogy.) Bobby tags Maryland criminal-defense lawyer Jon Katz, Hostis Civitas, and Western Justice.

The Manhattan Paladin, Scott Greenfield, agrees with Bobby G.F. that "there is no secret", but recommends that you see each case as unique. "While many appear the same on the surface, they never are in truth. Even the most pedestrian case has a unique element to it, and it's up to the lawyer to find it.... There is no magic place to look to find this distinction, but it's there. Somewhere. Just keep looking." Paladin tags Crime and Federalism, Austin criminal-defense lawyer Jamie Spencer, and Omaha criminal-defense lawyer David Tarrell with the meme.

I disagree with the Manhattan Paladin and Bobby G.F.: there are secrets to winning cases. They is no secret in itself sufficient to win cases, but there are ways to improve your client's odds that are not commonly recognized or properly understood; some of them even go against traditional wisdom.

Gideon and Bobby both write about preparing. Here's one of my secrets: prepare just enough, then stop. Don't just do something, sit there. Play with the kids. Just play. Read a book - something non-law-related. Write a poem. Take the dog for a walk. Get some exercise. Sleep.

The object of this exercise is to solve the puzzle with which the case presents you. Sometimes the puzzle is patent - how do I convince a jury that she didn't know the cocaine was in her pocket? - but more often the puzzle is the meta-puzzle - what is unique about this case? what is the puzzle? or, in criminal-defense lawyer terms, what the hell is our defense?

Solving such puzzles requires inspiration. Inspiration doesn't come when it's sought; inspiration comes when you've fed all of the available data into your brain (by preparing fort trial and familiarizing yourself with the facts and the law) and then turned your attention to other matters. In order to win the trial, you have to give your brain time to work on the puzzle outside of your conscious attention. You can't force it. And that, friends, is one of the secrets of successful criminal defense trial lawyering.

I'm tagging Life at the Harris County Criminal Justice Center's AHCL for a Harris County prosecutor's view, my fellow Houston criminal-defense lawyer Grant Scheiner (don't foist this one off on young Matt Skillern!), and... hmm... how 'bout Dallas criminal-defense lawyer Robert Guest?