Losing and Releasing

Lawyers talk a lot about wanting to win cases and not wanting to lose them.  It’s something that seems pretty standard for anyone involved in trial work.  “Did you win your case?” is a common question in both social settings and at the office.  But the wording around this issue isn’t great.  As we are told ad nauseum during training, winning as a prosecutor does not mean guilty verdicts.  “Winning” as a prosecutor means letting the innocent go, convicting the guilty, and imposing appropriate correction.

So if you are at the point where you have submitted your case to the jury, you should already be sure that your defendant is not innocent.  After you submit your case, winning is securing a conviction and getting the appropriate correction and rehabilitation.

As you are sitting there waiting for the verdict to be read, you might feel a little anxiety over the result.  After all, if the jury returns a guilty verdict you will have done your part to protect the community and ensure the defendant’s accountability to the community.  You will have persuaded 12 jurors of the truth, and not just persuaded them, but convinced them beyond a reasonable doubt.  On the other hand, if the jury does not convict, then a guilty person escapes accountability.  The community is put back at risk when the defendant is released.  All the police work done on the case was for nothing, not to mention all of the work legal work.  And you have to face the victims and explain why you were not able to get the jury to see the light.  In other words, there are a lot of good reasons to be anxious.

There are bad reasons too.  You might think that a conviction would be good for your career, and conversely that a hung jury or (gasp) an acquittal would be bad for your career.  Your office may keep your trial statistics, which you may want to improve.  You may want to brag to your friends about what a good lawyer you are.  And you may want the satisfaction of overcoming a skilled defense attorney.  All bad reasons to be anxious.

If anxiety is the most likely reaction to the reading of a verdict, equanimity is the ideal reaction.  In a perfect world, you should sit at counsel table secure in the knowledge that you did everything you could.  That you presented the case in the best possible way.  That nothing about your trial presentation would lead the jury away from the fair result.  Because, again, your job is to present the facts; the facts should persuade the jury, not your soaring oratory or flashy powerpoint.

We should release our more unhealthy instincts, to competitiveness, pride in the job done, or anger at the defendant and remember our classics:

Abstaining from attachment to work, abstaining from reward in work, while yet one does it full faithfully.

(Bhagavadgita, Ch. 18)

After all, “right action” is done “without attachment, passionlessly, for duty, not for love, nor hate, nor gain.”  (Ibid.)  Right action is “neither the work, nor passion for  work, nor lust for fruit of work; man’s own self pushes to these.”  (Id. at Ch. 5.)

If you’re not the type to be sitting in court thinking about Hindu epic poetry, there is another good reason to let go of your desire to “win” and receive the verdict with composure.  As certain as you may be that your defendant is guilty, you have to remember that nothing is certain.  After all, as the jury instruction teaches us, everything in life is open to some possible doubt.  You may be sitting across from a defendant facing 10 years, 20 years, 30 years imprisonment.  A length of imprisonment beyond your capacity to accurately imagine.  For some, it may be virtually certain that their sentence will last the rest of their lives.  And during those years, their confinement will take almost everything a person can have, almost everything a person can enjoy.  To me, it feels small, even petty, to wish for a “win” at such a cost.  You can zealously advocate to your jury, but there is comfort in the idea that the facts are the final arbiter of the defendant’s fate, or that he is in God’s hands, if you believe in that kind of thing.  When the jury acquits, maybe that’s the universe’s way of telling you that you were wrong about the defendant, or that he has some other role to play than prisoner.  Maybe he enjoys the protection of a higher power, or maybe you talked yourself into a case and lost an accurate picture of the evidence.

I choose equanimity.  I may never get rid of my competitiveness.  I may never be able to release the anger I feel towards defendants who I believe have done horrible things.  And I may never be able to put aside the investment, in time and emotion, that I put into case preparation so that I can sit calmly during the reading of a verdict and accept any outcome.   But I think that equanimity is the right goal.  And in the end, the easiest one to live with.


It’s been three years since I wrote this post, and I’ve had a lot more chances to hear verdicts read. Importantly, I’ve had a lot more chances to lose cases or have mistrials. I still feel like remaining detached from the verdict is one of the hardest things to do as a lawyer. Particularly in a close case. You know the defendant is guilty, but as we say in the law, it’s not what you know, it’s what you can prove. Having someone escape accountability because of legal problems of proof can be a tough blow.

It’s not uncommon for defendants to celebrate when they are acquitted or when a jury hangs. That’s also tough to hear.

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