How Often Do You See Criminal Cases Going To Trial?
August 10, 2017
Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
About 1 per cent of all criminal cases end up actually going to trial and that is the number one reason why most criminal defense lawyers are not certified and specialists. They may have been practicing over 25 years, like I have. However, they have not been able to get the trials that are needed to become a specialist. If you don’t try cases in front of juries and you want to be a criminal trial law specialist, it’s not happening with the Florida bar. You can get very pretty AVVO ratings and you can get all kinds of other social medical accolades which are great at fooling people but there’s no way a lawyer can be certified as a specialist if they don’t handle serious and complex cases at trial.
I do think that some lawyers avoid trials. Now, they might like some trials involving misdemeanors but they are not going to go out of their way to get anywhere near a death penalty case. They are too complex, the liability is too great, the consequences of an adverse verdict are very severe and so many lawyers avoid hard cases when it comes to trial. Now, some lawyers love trial and that’s why they end up becoming specialists. But generally speaking, most cases do not go to trial. Classic example; a client was charged with DUI with serious bodily injuries for an accident that happened on a 3-mile bridge between Pensacola and Gulf Breeze Florida, it happened on the Gulf Breeze side of the bridge so it was charged in Santa Rosa County with DUI with serious bodily injury.
As the case started, it started out as a mandatory prison offense. So my client was looking at mandatory prison just based on the charge alone and the number of points it has. What it ended up happening was it did not go to trial, it was reduced to DUI from DUI with serious bodily injury and then it was substituted from DUI to reckless driving. At that point, my client who’d been utterly terrified of the entire process and for good reason, elected to take the reckless driving substitution and entered a plea of no contest to what started out as a felony DUI and ended up being resolved as a misdemeanor without a day in jail. People always ask, “How did that happen”, it happens because the officer did not transition properly when gathering evidence between the traffic crash investigation, which is required but privileged in Florida, and the criminal investigation, which of course is not privileged. An officer has to do very, very specific things and when I reviewed the discovery documents, that’s the first thing I noted and I promptly picked up the phone and called the prosecutor. So the short answer is about 1% of all cases go to trial. Some lawyers love trials, many do try to avoid them.
Should Someone Be Afraid To Go To Trial And Be Afraid Of Getting A Worse Or Harsher Penalty Or Sentence If They Are Convicted?
There is always a risk that someone will receive a more severe sentence if they lose a jury trial than whatever the plea bargain was before a trial. Under the case law, judges are not allowed to punish people for exercising their rights to trial. As this cutesy video on YouTube once explained, the judge will simply say nothing, listen to both parties and then impose the harsher sentence if that is in fact what they want to do. So a person should be concerned about taking a case to jury trial. However, every case should be set for jury trial upfront unless a handful of exceptions apply, and that would be less than 1% of all cases. The decision to go to trial should not be undertaken lightly and this is something that someone should definitely have very good communication with their attorney about.
One of the biggest problems in the decision to go to trial revolves around factual information. A lot of people want to plop into a chair in the lawyer’s office or pick up the phone and chat about the facts of the case, or they want the lawyer just to ask them a bunch of questions about the case. In my research and experience, and this goes back from 27 years, I have found a very best way to gather factual information from a client is to have them spend 4 days doing a fact pattern report and know they don’t spend four whole days doing it. Basically they, number one, type them into their computer, pray it out and then they carry it with them for the rest of day 1, all of day 2, 3 and 4. At the end of day 4, they simply take all the notes in the margins as things have come back to them because when people do fact pattern report, things come back later. Then they take these facts, go to their computer, add those facts in, complete the report, and then I have them forwarded via secure email or other means.
The reason I do this is that narrows down the questions I would need to ask a client for trial preparations and it makes sure that I don’t have what happened to me in August of 1990 ever happen again when after picking a jury and after meeting with a client 15 or 16 times as we were headed back into the courtroom to start the actual trial in front of the jury, my client goes, “Mr. Cobb, I forgot to tell you X, is X important?” This was my very first jury trial. I’ll never forget it. My hand was frozen in the courtroom 301 because I was so shocked at what we lose. I asked him, I said, “We met all these different times, I have seven notepads filled with notes, why didn’t you tell me X?” He replied, “I kept forgetting and I didn’t know if it was important”. I undid the trial, he didn’t serve a day in jail and I made a decision that day that truly affected my career and has made a better lawyer, I began researching the best way to gather information from a client and it begins with the fact-pattern report.
We use fact pattern reports extensively because if someone loses at trial, the risk is so severe and we want to make sure that we’ve done everything we could when they’re making that decision whether or not to go to trial to make that decision easier and less stressful for them.
For more information on Criminal Cases Going To Trial, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (850) 423-0035 today.