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The Myth of the “Aggressive Trial Attorney”

You’ve been arrested, and you’re looking for competent counsel to represent you.   You utilize search parameters with your favorite Search Engine (usually Google), and start looking for a lawyer in your geographic area who is very good, perhaps the “best”, that there is.

One of the things you will notice is an emphasis by lawyers, especially criminal practitioners, to get your attention (and your business) by trumpeting the idea that they are “aggressive trial attorneys”.

Don’t bite.

It’s a marketing scam, usually propounded by lawyers desperate for your dollars.

Why, because having a polished, experienced trial skill-set has no value?

No….of course knowing what to do in a jury trial is a valuable skill, and typically is the result of  years of study, dozens or even hundreds of completed jury trials, and yes, even some measure of ‘performance art’.  It is a ‘scam’ because most lawyers use that terminology merely as a marketing ploy, because most consumers have certain preconceptions, (usually misguided) about what criminal lawyers do and how they do it.

You see, the plain truth is, that approximately ninety five percent (95%) of criminal arrests end up never going to trial.  

A better understanding about the criminal justice process makes it easier to understand why that is true.

First of all, some arrest charges end up never being formally charged.  The formal charging process is conducted by the Office of the State Attorney, and your lawyer, if she/he is talented, may be able to persuade the Government, rather than filing formal charges, to “divert” your case into some other ‘track’, e.g., drug court, mental health court, or pre-trial diversion programs, that completely avoids dealing with the process of Arraignments, Discovery, Motion Practice, and Trials.  Sometimes, due to a legal defect in the investigation and arrest process, your case may even be dismissed instead of resulting in formal charges.

That is one of the things that good lawyers do.

If your charges are formally filed by the Government, then your counsel’s experience and talent throughout the Discovery and Motion Practice portions of the pre-trial process may, in many, many cases result in the case being reduced to a lesser charge, or even dismissed.

Prosecutors are people, too.   No prosecutor wants to take a case to trial and lose, and most will reduce or eliminate charges rather than risk that ignominious result.  Similarly, Defendants who elect to pursue trial when the likelihood of conviction is high, are similarly foolish.   Typically,  Defendants who needlessly go to trial on a case that is a “no brainer” win for the State, receive harsher sentences than those who choose to negotiate.

There are some cases about which reasonable people can disagree on the issue of case strength.   Those cases, along with cases where the Defendant has nothing to lose by going to trial, are the cases  most likely to proceed to trial, and which make up the vast majority of the 4 or 5 percent of the total criminal docket which result in jury trials.

If you are in that group (of cases that really do go to trial)….it is IMPERATIVE that you get a highly skilled trial tactician.

There are questions you can ask, and inquiries you can make, that will guide you to the very best trial lawyers.   Are they Board Certified Criminal Trial Lawyers? (a lawyer can only be Board Certified through a vigorous filtering process administered by The Florida Supreme Court.)  If they are Board Certified, how long have they been certified? Are they members of trade organizations like the National Association of Criminal Defense Lawyers (NACDL), and the Florida Association of Criminal Defense Lawyers (FACDL)?  Are they “AV” rated by Martindale-Hubbell, the oldest attorney rating entity in the country?

Will they speak with you on the telephone for a free consultation, or do they insist that you travel to their office to meet personally? (yet another marketing scam).

ALL  of the above are important……what’s NOT important is being “aggressive”.  Being aggressive is great if you are a grade-school-bully, or an NFL linebacker, but has no place in the decision making process in choosing your counsel.


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