My response to this question is the same every time. “What do you mean by ‘lost’?”
For that matter, what do you mean when you say “win?”
News flash, folks. There is no such thing as a win or loss at a criminal trial. There are better results than others, depending on your perspective, but there is no such thing as a win or a loss.
Every now and then, someone will ask me “Have you ever heard of <attorney>? He never lost a case!” (Usually, he also has a book for sale on Amazon.) It makes me cringe. What does that mean? Who was keeping stats? Where is the list of cases and results? Did he also find ancient gold plates buried near Palmyra, NY? Is the Guinness Book involved?
Perhaps I’m bitter. After all, I’ve gotten my ass kicked in the courtroom. Maybe I’m just one of those brats who is bitter and envious of the gifted kids in the classroom. You know, the ones already reading Harry Potter while I’m still stuck on The Adventures of Tip and Zip. However, I think it actually stems from my holistic view of criminal procedure.
Pretend that you are a prosecutor, and assume you secure a conviction along with a life sentence. Is that a win? No. There is still a victim (or victims) whose lives have been changed irrevocably, not to mention the money spent by the state for prosecution, the time and opportunity cost for the oodles of people supporting and displaced by the entire affair, and the discomfort shared by all. You didn’t win. You merely mitigated the overall suffering of everyone involved, all in order to get a label for the person convicted and possibly eliminate them from the free human inventory for a period of time. Suffering still abounds. You merely mitigated it, a bit. How is that a win? It’s not. It’s merely a more desirable result.
Now pretend that you are a defense attorney, and your client is found not guilty. Is that a win? Still, no. Your client just got shoved through the proverbial meatgrinder. For the last few months (or years), they laid awake at night wondering if they would lose their freedom and good name. They spent money, lived with the stigma of being the guy/gal being prosecuted for X, wondered how to ease the effects on their children, debated how to make ends meet after possible conviction, and suffered unbelievable stress. Their lives will never be the same, and they can only hope to regain their prior “normal life.” You merely got them the best possible result. When you aggregate the suffering and discomfort, it’s impossible to find the word “win.”
Looking at my career in an honest and realistic way, I can say two things:
- Have I obtained some good results for clients? Sure.
- Have I had my ass handed to me on a silver platter? You bet. (Oh no, I just ruined my online brand. Please mourn my loss. Social media gurus everywhere are cringing.)
But, when I use the fuzzy math applied by some, I suppose I’ve never lost, too. Go me.
Even with the strange calculus, one other thing rings true: I’ve also never won.
Alas, some folks are desperate to be winners. After all, they’ve never been losers. When they played sports, everyone got a trophy and pizza party. Regardless of the physical outcome of the race, everyone did wonderfully and gets a ribbon. Nobody kept score. At worst, everything ends in a tie. Our schools provide for “no child left behind” which also necessitates that no child will be allowed significantly ahead. It’s not until they are adults that they are told of their shortcomings. For many, the fall after being knocked from the Winner Pedestal is too much to bear. They look to shift blame. Life is unfair. They can’t do that to me. They are prejudiced against me. This isn’t possible, I’ve never lost!
Check out what one of my heroes, George Carlin, had to say about our dedication to winning. As always, he says it best.
So, for those of my peers who insist upon touting their win/loss record, I’ve been appointed by the rest of the group to tell you something.
Shut the hell up and get back to work.