Is you attorney's "success rate" a question you should be asking when deciding to hire him/her? The answer isn't so simple and is worth exploring.

A common question I get when a prospective client meets with me is "what is your success rate?" or "what's your win percentage?" While I understand the inclination to wonder about these questions, a better one to pose is "how many cases like this have you tried?" Why is this?

A criminal defense lawyer that tells you something like "I've never lost a DUII trial" or "I've won 'x number' in a row" or "I win 'x percentage' of the cases I take to trial" likely is providing you with some important information that should scare you away. In all likelihood, a lawyer who tells you these things actually is telling you "I don't try many cases" or "I don't take hard cases." Some of the best lawyers I've ever seen in trial lose more trials than they win. Why is this? It's because they take hard cases and they try cases. 

As an attorney, I have several ethical and legal obligations to my clients. One is a duty of confidentiality...what they tell me stays with me, forever, unless they instruct me otherwise. Another obligations is a duty of loyalty. I have a duty to look out for my clients' best interest and not to act in such a way that would imperil their legal well-being. I do my best to advise my clients and provide them with the best guidance for them to make the best decision for themselves. However, they don't have to take my advice and ultimately it's their decision whether to go to trial or take a plea.

I can think of a number of times when I advised a client to take a plea, but they decided they wanted to go to we went to trial. One case, in particular, comes to mind. I once tried a case in which a client was charged with theft of merchandise from 4 or 5 different stores. Not only was he charged, but he was caught on video and actually admitted to one of them. As an experienced attorney and someone who has taken many cases to trial, I was pretty sure what would happen at trial. I knew, in all likelihood, the jury would return with one word anwers "guilty." This particular client was not swayed by this. This client was not interested in any plea deal and wanted to exercise his Constitutional right to go to trial and force the prosecutor to prove his guilt beyond a reasonable doubt. If I were concerned about my win-loss record or winning a certain number of cases in a row, I would have run from that case. I would have begged the judge to let me off of the case. Sadly, I have seen lawyers withdraw from cases when their clients rejected plea deals and instead wanted to go to trial. I'm not ashamed to admit, but we lost that case...we went down in flames. But, my client got his wish and we fought the good fight. While we ultimately lost, he got to exercise his right to trial and had the assistance of an experienced lawyer and one who did his best to help get a two word verdict "not guilty." As for me, my win-loss ratio took a hit because of that case. But, I also gained more trial experience and developed more skills and strategies for the next case. I'm always learning and working to become a better lawyer. The best way to do this is to try cases and get more and more experience. 

So, this is my answer to the question of "should I ask my lawyer what his win-loss rate is." And, this is the explanation I give to every prospective client with whom I speak. The better questions are "how many cases do you try" or "how many cases, that you were convinced were total losers, have you taken to trial." The sign of a zealous and committed advocate is someone who is willing to fight and be loyal no matter how good or bleak the result may seem.

Rob Crow
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Licensed to practice law in all State & Federal Courts in Oregon.
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