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Having your Day in Court? Think Again - The Decline of the Trial

So far in 2014, I have tried ten cases to verdict and picked three juries for cases that settled prior to opening statements but after we argued pre-trial motions. These cases represent a very small portion of the total number of cases I handled in my criminal defense practice. Most cases resolved with a negotiated resolution. This is not just the trend in my practice, but a national phenomenon which has received widespread coverage.

Overall, there are substantially fewer trials (of all kinds) and a much higher rate of negotiated pleas. The decrease in trials has gone hand in hand with increased penalties for offenses (many with mandatory sentences) which means someone accused of a crime is more likely to accept a punishment, even if innocent, rather than face the risk of a conviction that would make them a convicted felon and mandate prison time.

It seems that every year the Florida legislature increases the number of crimes on "the books" adds more mandatory penalties or "collateral consequences" (like losing your license if convicted of a drug offense) and seldom do we see any kind of sentence reform. It was a small victory when the legislature decreased the penalty for certain prescription drug offenses to recognize you could not treat a pill which was mostly inactive buffer as an equivalent weight of heroin. And I call it a small victory because a lengthy prison sentence is still a reality for many facing those charges.

Another chilling factor is the idea that if a person is found guilty at trial, the Judge will punish them for exercising the right to a trial. I have some good friends who are Judges and I know most Judges would never do such a thing - in fact, I think Judges overall respect a well-conducted trial and hold skilled trial lawyers in high regard. Legally, a Judge cannot punish someone for going to trial, but may consider all the evidence heard at trial in deciding what sentence in appropriate. There is also the psychological factor that "to the victor goes the spoils" and the State Attorney often asks for "extra" punishment because "they won." Not fair, but it happens. On the other hand, I have had State Attorneys who made it clear the offer was the offer, regardless of a guilty verdict. So, as an experienced trial attorney, I always counsel my client there is a fair amount of uncertainty as to what sentence would come with a guilty verdict.

Because less people are choosing to exercise their fundamental right to have a trial by a jury of their peers, lawyers get less experience trying cases. Trial law requires practice - you cannot sit in a room, read books, meditate, and synthesize everything you need to present an effective case to a jury, deal with the surprises of trial, the quirks of the judge, jury and opposing counsel, or the very real physical demands of days of objecting, actively listening, questioning and being on edge. Am I better trial lawyer than I was during my first trial - absolutely! I continue to learn and improve with each experience I have in the court room. I do worry that my generation will be on the last generations to have more than an occasional trial - I see attorneys around me in Court, handling pre-trial conferences, who have not tried a case in years if not decades. Your opponents know if you are willing to try a case, they know if you are good at it, they know if you have a chance at winning even the toughest cases, and they know when you are all heat and tough talk.

Trials are not for every client. You should not go to trial just to see what might happen. You should choose a trial if, after careful consideration, you believe it is in your best interests. You should carefully weigh the advice of your attorney, consider the uncertainty that you face and then decide as best you can. If you do decide you have a case that must be tried, I highly recommend you have a candid talk with your attorney about their trial philosophy, their trial experience and make sure you are comfortable with them as your trial lawyer. There are many attorneys who are brilliant draftsman, amazing writers, superb scholars but are not great trial lawyers. There is nothing wrong with assembling the best team you can afford.

If you have any questions about how our team of experienced trial lawyers can help you, please do not hesitate to contact me.

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