Trial Chicken

Every time one of our clients gets a plea offer from their prosecutor, a new game of “trial chicken” begins…

What do I mean by “trial chicken?”

Will the prosecutor dismiss the case? Will they make an offer that our client can accept? If they don’t, will we “lean on our client” to make them plead guilty to something they did not do or with the promise of a prison sentence they cannot live with?

Do we really want a trial? Does the prosecutor? Does the court?

Obviously, a client’s case, when they are facing serious consequences like fines, a criminal record, loss of their job, and even loss of their freedom for years or decades is not a game. Yet some prosecutors treat it like a game, and, for many of our clients, the stakes are high.

Trial Chicken – How Do You Win a Game of Chicken?

How do you win a game of chicken? Trial chicken, specifically?

The answer should be obvious – the person who wants to crash wins. If you’re playing chicken in tractors (see, Footloose), typically neither side wants to crash. It’s a game of tolerance – how close can you come to crashing before you bail, and the person who bails first loses…

But, if one person wants to crash, has no choice but to crash, or just doesn’t mind crashing if that’s what it takes to win, that person wins.

“I’ll see you in court!” says the angry litigant in a made-for-TV movie, when they don’t get what they want. It’s a phrase you don’t hear much in the actual practice of law, except on occasion from a newly minted prosecutor or defense attorney fresh out of law school.

In the real world, most attorneys don’t want to go to trial. Why?

If you’re a prosecutor, your boss doesn’t want you to try every case. The court doesn’t want you to try every case. You can’t try every case – there are not enough courtrooms, prosecutors, judges, or days in the week to try 1/10th of a prosecutor’s pending cases, much less all of them.

If you’re a defense lawyer, you know that guilty pleas pay better than trials. You can take a client’s money, get a good plea offer, and sell it to your client in a fraction of the time that it would take to investigate a case, prepare a case for trial, argue motions, and try a case to a jury, and time is money.

On the other hand, if you’re a defense lawyer who cares about your clients and who cares about winning your cases, you are investigating your cases, preparing your cases for trial, arguing motions, and trying cases to juries – if you’re not, at least some of your clients are getting screwed and you are losing more cases than you are winning.

If your primary goal in practicing law is to get rich and make as much money as possible, you’re not a criminal defense lawyer anyway – you are most likely either representing big corporations or suing them because that’s where the money is…

Criminal defense is about people.

It’s about helping people who no one else will help and when they are in danger of being crushed by the overwhelming power and resources of the government. Criminal defense lawyers get paid, and sometimes well, but it’s certainly not the place to be if your goal is to get rich.

Does Every Case Go to Trial?

Most of our cases do not go to trial, but we are ready to take every case to trial if necessary and if our client agrees.

When we can, we want to try our cases – because our clients get better outcomes when we try every case.


  • The solicitor’s office cannot try every case. If every defense lawyer demanded a trial in every criminal case (every criminal defendant has a constitutional right to a jury trial), the system would grind to a halt, and chaos would ensue.
  • When a prosecutor insists on an unjust or unduly harsh result, and they are punished for it with a grueling and lengthy trial (potentially ending in an acquittal or post-trial motions, a potential appeal, and potentially a second trial when there is a conviction), they are more likely to offer a just and fair result the next time around.
  • Many prosecutors do not want to try cases – it makes their life and their job difficult. Most prosecutors’ happy place is a steady stream of guilty pleas with no threat of the stress and chaos of trial.
  • When the solicitors know from experience that your attorney will try any case, win or lose, without hesitation, you are more likely to have your case dismissed or get a reasonable plea offer. Your attorney can only get there by trying a lot of cases…

If every case becomes a game of “trial chicken” to the prosecutor, you win if you are willing and able to crash.

You must decide if you are willing to take that risk, however, after you have seen the evidence against you and your attorney advises you on your odds of 1) dismissal or better plea offer before trial and 2) winning your case at trial.

Don’t Rock the Boat…

If a criminal defense attorney says to you, “we don’t want to rock the boat,” run

I can’t tell you how many attorneys have told me they will not file a particular motion, demand a trial, or criticize the police officer or prosecutor because “they get good deals” and don’t want to “rock the boat.”

Good lawyers don’t get good deals by rolling over and giving the prosecutor what they want. Good lawyers get good deals when the prosecutors know that they will get extended litigation and a trial otherwise…

Sometimes, you must sink the boat to win your client’s case. Afterward, you may discover that your boat is bigger and stronger than it ever was.

Criminal Defense Lawyers in Columbia and Myrtle Beach, SC

The criminal defense attorneys at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC. We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.

If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.