Simply put, there is no secret magic lawyer trick that will snatch victory from the jaws of defeat. In most lawsuits, there is no substitute for favorable facts.
We’ve all seen the televisions shows and the movies. You know – the ones where the attorney pursues a brilliant line of questioning and uncovers a shocking new truth which blows the lid off the case and results in a verdict for his client.
I suspect many law students envisioned being on the long end of this scenario; leading to an avalanche of new clients; a large desk in a large office; a new wardrobe and all the fancy accessories of a successful attorney. I can also imagine these same students getting a face full of real life when they realize that practicing law is very rarely like it is portrayed on the screen.
The purpose of this post is to cut through some of the false expectations about winning a lawsuit at trial. I hope it alters the reader’s perception about the legal practice or a particular case and a lawyer’s role in these pursuits.
Pounding the Facts
There is an old legal adage, “If the facts are on your side, pound the facts; if the law is on your side, pound the law; if neither the facts nor the law are on your side, pound the table.”
Credit for this little wisdom nugget may be disputed, but it still can be useful in understanding that lawsuits are unique. Each has its own set of facts, parties and surrounding circumstances. Since no one’s life is exactly alike, no lawsuit will be exactly alike.
Nevertheless, lawsuits sometimes rhyme. So it is still a must to understand the facts as they apply to the law. The point I want to make however, is that although you may be truly skilled as a trial lawyer, your skills will most likely be no match for the facts of your case.
Settlement Incentives
Settlement is the name of the game in civil litigation. It simply makes sense since both sides know that anything can happen at trial – that a jury can wander far off course of what would seem normal to legal professionals. I doubt you would find many seasoned litigators tell you they were never surprised by a jury.
Settlement makes things easier. For defendants, it closes a file, puts a concrete figure on damages (losses) and calculations can then be made to adjust for those losses. Plaintiffs not only get the opportunity to agree on a figure, but also avoid both the risk of total loss at trial and the delay caused by the appellate process in the event of a favorable verdict. The choice is clear for both parties.
Finding Yourself at Trial
In routine personal injury cases, such as slip and falls and auto accidents, if you find yourself picking a jury, it means that your case is not very strong, at least in the eyes of your adversary or insurance carrier. For border line cases, your skills in trial preparation and presentation can surely make a difference. But the facts are still the facts, and because you are at trial, they are average at best.
Facts are Facts
So you decide to do your best, and see where the chips fall. No big deal – this is your profession after all. But what happens if the case doesn’t go your way? You will possibly think to yourself, “if I just added that one question or that one point on summation, it would have changed the outcome!”
I am here to tell you the answer – probably not. Facts are facts. Your job is to present facts. Present them in the light most favorable to your position of course. But you cannot change the facts.
After all, losing a marginal case at trial is nothing to be ashamed of. In fact, having the professionalism to take a marginal case to trial is the right way to practice law, in my opinion. Far too often I hear of attorneys dismissing their clients after all pre-litigation settlement attempts fail.
Take the opportunity to hone your skills as a trial attorney. Take the time to learn something about your preparation or about your approach. But by all means, do NOT beat yourself up about any loss at trial, especially when involved in personal injury practice.
Although your clients will probably disagree, trial losses are part of the package.
Conclusion
The whole purpose of this post is for the reader to get a better grasp of what his/her role is as a litigator. The system is designed to produce a just outcome for the dispute between parties. An attorney is only a cog in the wheel of the judicial process. The role is NOT to pull a rabbit out of a hat, regardless of what you see on T.V.
Unfortunately, there is a misconception about the role of lawyers in this process as evidenced by this question posted on Quora. The answers do a good job of setting the questioner straight, but the very presence of the question, “How do top lawyers win the unwinnable cases?” is telling.
Simply put, there is no secret magic lawyer trick that will snatch victory from the jaws of defeat. In most lawsuits, there is no substitute for favorable facts.
Thanks for listening.
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