A couple years ago I had the opportunity to talk with a local Saratoga City Court judge who had recently retired. We were at a bar dinner and over cocktails, I had the pleasure of discussing legal issues with the judge that never would have occurred while he was on the bench because of my pending cases in his court. One of the topics we talked about was fighting DWI cases. I was talking about a case of mine in which I thought the evidence was very weak. When I started talking about "fighting DWI cases" by filing pre-trial motions he looked at me with eyebrow raised and said, "So you are swinging the bat?".
I've thought about his comment a lot over the years and I think it aptly describes what criminal defense lawyers actually do when they "fight" cases. Think about it this way. You have been arrested and now you have to step up to the plate in court. The District Attorney (DA) will often make you an offer, or a "pitch" if you like. The offer will be to plead guilty to a reduced charge or plead to the charge in return for a reduced sentence. At this point, the ball is in your (the defendant's) court.
If you decide to swing the bat you are fighting back and you are effectively putting the ball in to play. The game moves on. If you hit a home run, you beat the case. If you strike out, you are usually not in a worse position but the game takes longer. What usually happens is that you will probably get on base. At this point, the DA is either concerned that you might make it to home and give you what you want. Or the DA will decide it is time to forfeit the game and give you what you want.
Criminal defense is a game. It is a game I have as much passion for as American's have passion for baseball.
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