Legal Updates

Step One: Think About The Trial       

My firm’s courtroom philosophy is sometimes colloquially referred to as “taking it to the hoop.”  Growing up I played basketball.  My coach often advised us on the benefits of taking the ball to the hoop and getting an easy two points. My coach’s reasoning was that, rather than settle for a difficult outside shot, it was better to drive into the lane and see what happened.  The coach suggested that even if the ball didn’t go in, good things would happen if you took it to the hoop. You might fouled and get to shoot free throws.  If fouled the other teams best players might be relegated to the sidelines.  The message coach had was simple.

It pays to be aggressive.

In criminal defense it pays to be aggressive.  Except instead of taking it to the hoop, you are ready to take cases  to trial.  Good things happen when you are ready to try a case.  Because of the large number of lawyers who settle for the first offer, your readiness to litigate is a sign of strength.  The DA in the room may be caught off guard by your desire to spend more time than necessary resolving the case.  You might get a better offer.  And even if you don’t get a better offer, you can force the state to prove every element of their case at trial. If convicted, the judge might take pity on you and sentence you to a disposition equal to the original offer.  (This is not always the case).

I am not suggesting that there is never a time to settle.  To the contrary, if the DA makes a reasonable offer and the Defendant wishes to accept responsibility then a stipulated trial, or plea, can in some cases be cooperation at its absolute finest. However, when the DA refuses to cooperate it may pay to be aggressive.

Consider the elements a DA must prove to convict someone of the crime possession of a controlled substance with intent to manufacture or deliver.

First: that the item is in fact a controlled substance or a counterfeit controlled substance.

Second: That the item was possessed by the defendant.  

Third: That the defendant was aware of the item’s presence and the item was in fact a controlled substance.

Fourth: That the defendant possessed this item or these items with the specific intent, or goal, of 

  1. Delivering them to another; (or)
  2. Using the item in the manufacture of a controlled substance

If the Commonwealth has failed to prove at least one element beyond a reasonable doubt, then the defendant must be found not guilty.

When you consider the standard, which is beyond a reasonable doubt, and when you take into consideration the pressure on the government to dispose of thousands of cases every year, the strategy becomes an obvious choice. 

You need to get a lawyer who is ready to stand and fight for your case.  A lawyer who is ready to push the Commonwealth to prove all the elements beyond a reasonable doubt.  In other words, you need a trial lawyer who is skilled at taking cases to trial.

Good things happen to those who are reluctant to settle.

Source:  Pennsylvania Suggested Standard Jury Instructions, 2nd Edition (2012)