Knowing when to stop
Simple justice commented on a decision out of the 9th Circuit, where the court questioned the wisdom of the appeal. The court noted that if the appellant was successful, he was probably going to get more time when he went back to court. You would think that rarely happens, but too often lawyers give little thought to the consequences of their actions. As Scott points out, lawyers should give at least some thought to what is going to happen if they win. Popehat also pointed out the same thing.
One of the first things I look at before pursuing an appeal is whether that is what should be done. I've advised people to leave well enough alone; although they might not be happy with what happened, it could be worse.The same advice goes for decisions during trial.. I've often wondered why courts don't grant relief more often so they can get another chance to really hammer a defendant. Personally, I've never seen a judge do that.
Since others have already the decisions defense lawyers make, I want to point out the same considerations ought to apply to prosecutors. Of course there is a difference; they generally can't make their situation worse. After all, they are the State. Nevertheless, they too often oppose something, or object to something, merely because a defense lawyer wants it.
I guess I should be happy about this. I wouldn't have been successful in nearly as many appeals if the prosecutor had thought about what they are doing. Most of the time, they give little thought to the effect a decision is going to have on an appeal. I've always been amazed at how many times they are willing to create an issue, when there is no need to do so. Every now and then something is really important to the State's case. More often than not though, the case isn't going to be hurt. Most lawyers have seen prosecutors object to evidence when its not going to effect the verdict one way or the other. Good lawyers know this, and sometimes use it to build error into a case.
Why do they do it? Because that's what you are taught as a lawyer. You are an advocate for your side. As an advocate, you take the opposite position your opponent takes. Sometimes that's warranted, but many times its not - especially in criminal cases.
No matter which side your on. its not a bad thing to think before you act.
