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Great trial lawyers enhance the chance of victory, but do not guarantee it

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From the beginning of my criminal defense career twenty-three years ago, some of the greatest trial lawyers have urged me to discover, cultivate, and apply my own magic; to not be overly daunted by the risks of failure, and to minimize those risks in the process; to dare to be great; and to not have reality be an excessive obstacle. Zero limits is the way.

Even the best trial lawyers cannot guarantee victory. They do not start with a clear slate. They deal with pre-existing circumstances, pre-written rules, the inability to perfectly predict the type of evidence and testimony that will be presented at trial, and the effect the evidence and courtroom mood will have on the judge and jurors. The lawyer can try to change the cards dealt to the lawyer, by handing back some cards and seeking new ones. The lawyer can seek to obtain rules and rule interpretations that are as favorable as possible to the lawyer’s side. The lawyer can seek jury nullification when the rules and evidence are not going the lawyer’s way. At the end of the day, though, a lawyer cannot control what a judge and jury decide; the lawyer can only create the best possible circumstances, persuasion, and mood for enhancing the possibility that the judge and jury will rule in the lawyer’s favor.

Michael Jordan’s famous Nike commercial reminds people going to battle — whether on or in the court — the necessity of maximizing the chances of winning, and of finding a way to become stronger even from defeats. Being mortal, even apparent superhumans cannot guarantee a perfect win-loss record in court.

Although I did not closely follow the recent lengthy criminal corruption trial against former Virginia governor (and a former prosecutor) Bob McDonnell and his wife (see the indictment and docketed results), of particular interest to me is that his lead lawyer for the case is Hank Asbill. I understand Hank to be a great trial lawyer. Bob McDonnell’s conviction underlines that even the best trial lawyer cannot move a mountain, versus persuading people to come to the mountain.

When I asked the now-late trial lawyer Don Fiedler in 1991 for the names of a few excellent local trial lawyers for me to talk with about my interest in switching to criminal defense from my corporate law firm job, Don gave me the names of three excellent lawyers. Two of them had egos the size of a few football fields, but nevertheless were highly skilled and generous of their time with me. They blessed me with their caring, but left me wondering how much their egos interfered with their persuasiveness with judges and jurors. The remaining lawyer, Hank Asbill, sounded as down to earth as anyone comes. Subsequent to becoming a Maryland Public Defender the same year, I interacted with Hank through the District of Columbia Association of Trial Lawyers. Not only did my interactions with Hank confirm how down to earth he was, but a colleague pointed out the obvious, which was that his regular-folks quality enhances his ability to connect with and, therefore, persuade juries. I will always be deeply grateful to Hank’s kindly sharing his time with me for the handful of times that I called on him.

Thereafter, Hank went from his small several-lawyer boutique law firms to a large corporate law firm to his apparently even larger current law firm of Jones Day. I would think that Hank is as down to earth as ever at this law firm that — like most large corporate law firms — likely looks heavily at law school attended, grades, experience clerking for a federal or appellate state judge, class rank, and scholarly journal participation in its decisions to hire new lawyers. Of course, some of the greatest trial lawyers did not shine in their grades and other aspects of academics. Being a great trial lawyer requires going far beyond cerebral pursuits to being as human as they come. Humanity is not measured by grades.

On the day the jury returned its guilty verdict on most counts against McDonnell, Hank told reporters that he was disappointed by the jury’s guilty verdict. Of course he was disappointed. I could only begin to imagine all the preparation and sweat that Hank and the rest of the Bob McDonnell defense team put into preparing for and pursuing the trial defense. This was a multi-week trial in Richmond that for weeks on end kept Hank two hours away from his Washington, D.C., office. Multi-week trials are taxing on one’s time no matter what, and all the more so when a trial lawyer is camping out at a hotel rather than being close to the lawyer’s home. Also probably not lost on Hank is the huge legal fees that McDonnell likely has already racked up, without a victory to show for it. At least McDonnell will have no what-ifs about whether he gave his best fight possible, with a lawyer of the quality of Hank.

The fight is not over. McDonnell will appeal, as is ordinarily essential when one loses a felony trial. He will argue his best at sentencing. His legal team will argue hard to keep him out of incarceration pending his appeal. McDonnell’s wife and co-Defendant Maureen will be similarly fighting for her life and liberty.

Losing at trial in imperfect respects can be like visiting the wall where law school grades are posted in a common area of the law school, a particularly imperfect analogy when considering that a bad law school grade only harms the student, but a trial loss harms a lawyer’s client. Many students nicknamed that grade result wall at my law school the wailing wall, which describes the response, at least internal, of students who found disappointing grades posted. At least law students exist who repeatedly find a way to come on top of the grade curve in their law school exams. Those same students will have a harder time figuring out how to repeatedly win trials. It can be done, but added to the trial mix is the unpredictability of judges and jurors, and the frequent war of attrition and financial resources waged between and among litigating parties.