Preservation and Concession is Both Easy and Good Lawyering
There is a lawyer I know who believes that whenever a judge rules against her, her credibility is damaged. Honestly, I find this belief pretty close to insane. Being a great defense lawyer -- or even just a pretty good one -- includes giving your client a shot on appeal. If you refuse to preserve an issue that has a reasonable chance of getting the conviction or sentence overturned, then you are doing a disservice to your client.
The hard part, of course, is identifying what issues have a reasonable chance of success. And by reasonable, I don't mean probable, just reasonable. I've had clients, as most criminal lawyers have had, that wanted me to argue things that had no merit. I wasn't willing to do so. Sometimes it caused problems, most of the time it didn't, in large part because the clients read the motions and I had filed, and they knew I wasn't afraid to fight.
Granted, there is a spectrum. Good lawyers can and will disagree about what has a reasonable chance. What are some fairly objective ways to determine what's worth raising?
Here's the easiest and simplest test. Has the Oregon Supreme Court (or SCOTUS) granted review of the issue? If the issue is dead at the COA, but the Oregon Supreme Court has granted review, then the issue easily satisfies the "reasonableness" test. Right now the OSC has a variety of issues before them that the COA has rejected but are issues of first impression for Oregon's highest court. Must certain types of enhancement factors be pleaded in the indictment? That's been under advisement for 13 months. If the defendant could either be an accomplice or a principal, must the trial court give a concurrence instruction? That's been under advisement for a year. Is restitution a jury question under the Oregon Constitution's Article I, section 17? That's been under advisement for a few months. There is simply no good reason for making a 30 second objection, conceding the issue has been decided against you at the COA, and maybe, giving the client a chance at victory when those opinions finally come down.
Another test. Whose got the better argument? I've often said that you can't judge the strength of an argument until you see the state's response. And in my experience, the state's response has often persuaded me that we didn't have a chance, and other times my hopes have gotten higher. So, on the issue of whether all upward departure factors entitle the defendant to a preliminary hearing, the written response from the state is so weak, it's hard to imagine, unless their argument gets better, that we won't win this issue eventually. In fact, the only argument against the defendant's motion is demonstrably untrue, a fact most recently demonstrated in US v Alleyne. Until the state comes up with a better argument, it's bad lawyering if you don't make this one.
Instead, however, too many lawyers judge an argument by its novelty. Too novel, and it must lose, regardless of its merits. I joke that defense lawyers who become judges never grant motions they themselves never filed. Unfortunately, too many defense lawyers don't file anything other than speedy trial and stop motions.
Third, have other people won this issue around the state? Well, the improper joinder demurrer is a tough argument, because it's so novel, but it's an argument that other lawyers have won. As far as I know, however, no one has won in Multnomah County, a place where improper joinder seems to be the most prevalent. But this is good news if you're a lawyer who practices in Portland. Half the appeal of this demurrer is that you might lose, which might result not only in a reversal on appeal but also keep the state from re-filing.
Fourth, who are the lawyers who discourage it? There are lawyers I bug -- to the point of being annoying -- to file a variety of motions. If I've annoyed you in that way, I sorta apologize, but you should also be complemented. It means I think highly of you as a lawyer, I know how busy and overworked you are, and I believe you just need a little prompting. There are lawyers I never bug, because I don't think they're good lawyers or I just don't have any confidence that they'd ever file a motion of first impression. If a lawyer in your firm -- someone with a ton of "experience" (pleading people out) -- has an immediate and negative response to an issue of first impression, ask yourself: has this lawyer ever had success beyond the familiar and minimal success that even the worst defense lawyers have? Have they ever had a conviction reversed at the COA (and not for plain error)? When was the last time they wrote a new, compelling motion?
Credibility comes in part from winning. It also comes from knowing the law better than anyone else in the room. And it comes from taking a tough issue -- or a tough case -- and making it a horse race. When the prosecutor -- or the judge -- starts to worry that you'll win, that's when you've earned some cred, regardless of the final outcome.
Which reminds me of an old joke. If you're a defense lawyer, how do you know when you're losing the trial? The judge starts granting all your objections.
If you're a lawyer, hopefully you get why that's funny.