Concept

Remedy and Practical Limits

Ineffective assistance of counsel

Remedy and Practical Limits

The doctrine ends with a practical question: what does a defendant receive who wins the claim? The answer also explains why winning is so difficult. When counsel's performance was deficient and the deficiency caused prejudice, the usual remedy is a new trial, or a new sentence where the error touched only sentencing, conducted with substitute counsel.¹ A damages action against the lawyer is a poor alternative, because a malpractice plaintiff must prove but-for causation, and a convicted client rarely can. That leaves the Sixth Amendment claim as the principal source of protection.² The relief is fitted to the harm the lawyer caused. In the forfeited-appeal setting, as the preceding section explained, the defendant receives permission to file the missed appeal rather than a reversal of the conviction. In the plea setting, the Court in Lafler v. Cooper required the state to offer the old deal again, while in Missouri v. Frye the state court had to decide whether the lapse of an uncommunicated offer caused prejudice.³

A new trial is not risk free for the defendant who obtains it, and the Due Process Clause supplies a protection against retaliation for winning. In North Carolina v. Pearce the Court held that vindictiveness against a defendant who successfully attacked a first conviction must play no part in the sentence imposed after a new trial. Whenever a judge imposes a more severe sentence, the reasons must therefore affirmatively appear, rest on objective information about identifiable conduct occurring after the original sentencing, and be placed in the record.⁴ The companion defendant Rice shows what is at stake. His burglary convictions had been set aside because he was denied his right to counsel, and after retrial his sentences aggregated 25 years against the original 10.⁵ The rule rests on incentives: a defendant who feared a harsher sentence might decline to challenge a conviction at all, so removing that fear keeps the remedy usable.⁶

Because the remedy sends the case back for retrial or resentencing, courts treat it as costly, and that cost shows up in how they apply each prong. Courts tend to resolve close claims by finding either that performance was not deficient or that any error caused no prejudice.⁷ On the first prong, the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance protects strategic choices. A lawyer who skips an alibi witness out of a belief that the witness would not be credible, or that another defense looked stronger, will rarely be found deficient.⁸ On the second prong, even fairly poor representation is unlikely to have caused prejudice when the state's evidence of guilt is weighty.⁹ The two prongs therefore work as paired filters, each protecting the finality of a verdict that a retrial would put at risk.

The same concern about scale appears across the whole system. Claims of ineffective assistance are raised constantly and rarely succeed, because no high-volume system could function if even a modest fraction of convictions were sent back for a new trial or sentence on account of lawyers' performance. For the same reason, the bar cannot be set where large numbers of lawyers would fail it.¹⁰ Many convictions are therefore affirmed despite serious defense errors, although the claim still monitors the integrity of the process that produces a conviction.¹¹ Critics point to how low the floor sits. Courts applying Strickland have denied relief where counsel said nothing throughout the trial or was arrested on the way to court with a blood-alcohol level of .27, and professional discipline of defenders for comparable lapses is uncommon.¹²

These practical limits follow from the presumption on which the doctrine rests: effective assistance is presumed unless counsel's conduct so undermines the adversarial process that the trial cannot be relied upon to have produced a just result.¹³ The presumption has a procedural counterpart. When counsel's performance meets the Strickland standard, the risk of counsel's error falls on the defendant, so a constitutional claim that counsel defaulted by failing to raise it properly generally stays defaulted. The defendant can revive it only by showing cause and prejudice, often by arguing that counsel was constitutionally ineffective.¹⁴ That route is itself difficult, because a single procedural error or mere inadvertence does not meet the standard, and courts evaluate counsel's performance in the trial as a whole.¹⁵ Only in a few settings, chiefly concurrent representation of co-defendants with a conflict of interest, is prejudice presumed.¹⁶

Hypothetical Illustration

Two defendants are convicted of armed robbery, and in each case defense counsel never interviewed a neighbor who had told investigators that the defendant was home that evening. The omission is identical, and it is a complete failure to investigate rather than a strategic choice not to call a witness, so a court could find it unreasonable in both cases. In the first case the state's only link to the defendant is a single eyewitness who saw the robber briefly in poor light, and the neighbor's account would have cast serious doubt on that identification. Both prongs are met, and the defendant receives a new trial with substitute counsel. In the second case the state introduced surveillance video of the defendant at the scene and recovered the stolen cash from the defendant's car, so the neighbor's account would have changed little. Prejudice is not shown, and the court can deny the claim on that ground alone without deciding whether the omission was deficient. The only variable that moved the result was the strength of the prejudice showing.

Exam Analysis Steps

Because the claim fails if any link is missing, it is best run as a screening sequence that reaches the remedy only when every earlier step is satisfied. The steps are these:

Check first whether the facts fall within a setting where prejudice is presumed or the showing is modified, such as a conflict of interest raised by timely objection or a forfeited appeal the defendant wished to pursue, and if so apply that modified showing in place of the general test.
Otherwise, identify the specific act or omission of counsel and ask whether it falls outside the wide range of reasonable professional assistance, starting from the presumption that it was sound strategy.
Ask whether, considering the totality of the evidence, there is a reasonable probability that the result would have been different without the error, and take up this step first if it is the easier way to dispose of the claim.
Deny the claim if either prong fails, and if both are met, identify the remedy that fits the harm, usually a new trial or new sentence with substitute counsel or, for a lost appeal, permission to file it.

The usual error on an exam is stopping at deficient performance. A fact pattern full of a lawyer's glaring mistakes invites the conclusion that the defendant wins, yet the claim also requires prejudice, and prejudice turns on the state's whole case. The likeliest correct conclusion is that the defendant has no viable claim unless both prongs are strongly supported. A good answer names the prong that fails, saying either that counsel's choice was within the range of reasonable strategy or that the evidence of guilt was strong enough that a different result is not reasonably probable. Because a court may reject the claim on prejudice without first deciding deficiency, the answer can say so where the prejudice showing is plainly missing.¹⁷

Remedy and Practical Limits

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