Successful Trial Lawyers are Positive
After more than 40 years of trying lawsuits of every description, I’ve concluded that perhaps the most important quality a successful trial lawyer can have is actually one he or she does not have. To be successful we have to get rid of apprehension.
As many have written before me, if you are trying cases, you are going to lose some. Over the years I have won more than I have lost and in the past 20 years it seems it’s getting harder to win. But then a good friend pointed out to me that at this stage in my career, I was not getting anything easy. All my cases were complicated and as I tell clients if you have a chance to win, you also have a chance to lose. But in my opinion, jurors are like stray dogs. They will sense fear if you have it. Just like the stray dog growls and menaces the person who is frightened of them, so jurors will find it harder to respond positively to your message if they sense you are afraid of them.
This is not to say you have to ignore risks. But you have to recognize it and manage it. I have never had a case that was unlosable or unwinnable. There are so many variables that prediction of trial outcomes make forecasting the weather look like a certainty. It is not uncommon for clients to ask me “What is my chance of winning?” I tell them, “If we were going to try this case ten times, I think you would win it 7 times, but that necessarily means you are going to lose it 3 times. And we only get to do this once and we won’t know until afterwards which category this trial falls in. It is a risk to go to trial.” But increasingly I have cases in which settlement is not possible. There can be a problem with the professional license if a plea is entered or the money to settle the case is beyond your client’s ability to pay it. Or settling a case for less than adequate consideration puts your Plaintiff in a position from which he or she cannot recover. So you work hard, study hard, think hard and come up with a plan to achieve the best possible outcome.
It is not always winning the case that is important. Years ago I had a friend who was defending a railroad from a tragic accident in which a family of 5 were killed at a crossing. He tried the case and lost but damages were only $500,000. The railroad sent him and his wife to the Greenbrier for a week-long vacation at its expense. They thought the verdict would be ten times that amount at least.
It is important to remember that you are not God. It is almost always the case that if you weren’t the one that created the problem that now confronts the parties. Put differently, you did not bake the cake that you are now being forced to serve. I have often said a trial lawyer has to be more creative than Spielberg or Tarantino. If they find an actor that is not living up to his or her ability, they can replace that person. If they don’t like the ending to the script, they can change it. A trial lawyer is stuck with his actors, is stuck with the way the case ends. But it is equally true that the other side is confronted with the same situation. You are more likely to prevail if you are confident and not fearful.