Tuesday, April 10, 2007

Winning and Losing for the Wrong Reasons

I wrote before about winning and losing. There I was talking about "unwinnable" and "unlosable" cases. Now I'll talk about winning and losing for the wrong reasons.

Most of our work involves cases where we expect the results to be straightforward. Take personal injury cases where the client is a passenger and had a broken bone. In such cases liability is essentially clear in one respect - it's not the passenger's fault. There may be exceptions to this rule (e.g. the passenger is yelling "faster! faster!") but they are so rare I haven't seen it come up yet. And since the client had a broken bone, there's no question about the injury. A case like this will almost always settle. Here our role is to make sure our client gets a fair amount (and try for more than fair - hey, that's our job).

Similarly, in many of our criminal cases, the prosecution has an excellent case and we expect our client will get convicted of something. Often this is through a plea deal, and here our role is to minimize the consequences - less or no jail time, etc.

We all get a few cases where it's not so easy. Either the liability is in question, or the injury is not so clear, or in the criminal cases the police may have made substantial mistakes or even - dare I say it - the client might be innocent. This is where it gets tough.

In these cases most results involve winning or losing for the right reasons. Typically, this means that a jury made a decision on a close case. You had a fair trial, and the result was what it was. In some cases it involves a judge making a decision, for or against you, on a close question of law. We certainly don't like losing in these cases, but we knew it might happen and the process was fair. And of course, we do like winning in these cases.

But then there's the cases where you win or lose for the wrong reasons. Maybe the jury just didn't like one side (I've found juries really don't like obese plaintiffs in personal injury cases, for example), or the judge made a decision from left field on an issue that neither side argued.

You can't complain about winning for the wrong reasons, but it's fundamentally unsatisfying. You didn't win because you did a great job, or because the facts were on your side, but instead you won because of a fluke. Also, you've usually developed some level of camaraderie with the attorney on the other side - in some cases you've been friends for years - and you can't help but empathize with him or her.

Losing for the wrong reasons can be unbearable. You can lose sleep for weeks in a case like that. As I've gained more experience, this has been less of a burden. Sadly, it's just become part of the game of being a trial lawyer. For us, we have our next case to face, in a seemingly endless line of cases. We'll win some and lose some, both for the right reasons and for the wrong reasons. Over time they'll balance out for us.

One particularly difficult aspect of this is explaining the loss to the client. While for us this is one of many cases, usually for clients this is their only case. How do you explain that the system is - deep down - fundamentally unfair? I don't mean that it's unfair to one particular group or another, though that is true in some circumstances (like the obese plaintiffs). I just mean that there's an inherent arbitrariness. Juries aren't perfect, and neither are judges. Sometimes you get the feeling that something personal is going on. I've had clients and others tell me they think a judge was paid off (most often in cases where I was not involved at all). I've seen verified reports of that in New York City, but even there it's rare and somehow I just think that doesn't happen here.

I've been very fortunate in the few cases I've lost like this, in that my clients seem to believe in me even more after such a loss. In their eyes I fought for them against an unfair system. Maybe they never believed it was fair in the first place. For some reason I just can't let go of the idea that it should be.
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