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Boulder’s Winning Side Of Losing: Can You Win Even If You Lost? YES!!!

During my 48 years of practicing law I handled many thousands of criminal defense cases. “Winning” had varying meanings. If a client/defendant was at a real risk of getting a sentence of decades in prison and I obtained probation, six months county jail, and a felony conviction, it might have represented a huge victory. Did I lose or win? For the sanity of a criminal defense attorney it is critical to keep ones perspective. Seeing “winning” as meaning ONLY a not guilty verdict is not rational, not realistic and not a fair assessment of the results obtained by the lawyer.

The best story I have about winning a case I lost deals with E.L. E.L. was a court appointed mental health case. The Boulder County Mental Health Center went to court to get an order to administer psychotropic medication against the client/respondent/patient’s wishes. E.L. explained that when he took the meds as prescribed and ordered by the MDs, he was truly miserable. When I met him he was one of the happiest people I’d known. Perhaps not what we’d call “sane,” but quite happy. He shared with me and with his docs that when he took the meds as directed by the docs, he was miserable. Depressed, with no quality of life. When he was off the meds he was legally insane, being “gravely disabled.” He could not take care of his basic needs on his own. He posed no danger to anyone.

I was appointed to fight the forced medication. Those case are basically always lost by the patient. My best results were when I was able to convince the patient that if they took the prescribed meds they would be out of the locked hospital in two or three days. That was the truth, and I was frequently able to explain that successfully. I got a lot of people out of the locked facility quite quickly. How? That’s a blog for another day.

In E.L’s case we had a hearing in the Boulder District Court that lasted a half day. Normally those hearings were an hour or two. The two psychiatrist that testified were ones I greatly respected. They were fair, honest, and devastating to my client’s case. E.L. testified in his own behalf. He was clear, coherent, and cheerful. He explained his reactions to and his experience with the medications. He was articulate, and made a wonderful presentation in his own defense. The judge followed the law and legally approved the forced medications as requested by the psychiatrists. I have always held the two psychiatrists in the highest regard personally and professionally. I knew they would simply tell the truth as they saw it.

After they listened to the client/respondent testify, they understood what he was saying. In spite of winning the hearing and leaving court with their forced meds order, they chose to NOT medicate the young man. They believed his assessment of himself, and believed that the benefits of the drugs were outweighed by the down side for this individual. They did the right thing even though they had the power, per the court order, to do what we believed was the wrong thing. They did not administer the drugs.

a 3d image of a judge's hammer on a black background

I ran into E.L. in Costco some years later. He was with a friend, shopping and smiling still. He was not medicated, and was doing great! We had won the case even though we lost it legally. In spite of losing, the psychiatrists realized after hearing E.L. testify that medicating was not the right thing to do. We had won, even though on paper we’d lost.

The line between winning and losing is not a sharp clear line. It can vary with perspective and with choice. Here, losing was at least as good as winning with the docs doing the right thing. The correctness of the docs’ choices were affirmed by how well E.L. was doing years later.

So when you are dealing with winning or losing, remember that losing might mean winning, and that what might be “winning” can vary with the situation. I could continue with example, but E.L. is the strongest showing of just how fuzzy that winning/losing line can be.

Lenny Lensworth Frieling

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