A conversation with a law student led to something coalescing in my mind about good lawyers. Experience matters when you hire a lawyer. I'm biased, but I think trial experience is critical. Of course it's most important when you need a trial lawyer. Even for other kinds of law, it can still matter. A good lawyer has to understand what happens when something goes to court.
When a new case comes in, a lot of lawyers just think about how they're going to settle. For criminal cases they think about how to get a good deal from the prosecutor. For personal injury they think about how to persuade the insurance company.
That kind of thinking may be fine for some cases, but you never know when the deal won't happen. What do you do for your client then?
When I get contacted about a new case, I start thinking right away about how I would present that case to a jury and how a jury would look at it. And right from the beginning I talk to the client about the whole process. That way the client knows what to expect and they're not surprised when it takes time.
There's some game theory in being a trial lawyer. It's not only how I'm going to present my case to a jury. It's often more about how the other side will present theirs, with some interaction between how you'd react to their story and their reaction to yours, etc.
In my criminal defense cases, sometimes you see a case where you know the prosecutor is going to have a tough time selling a jury on their story. One of my trials involved a DWI where the guy was sitting in his apartment parking lot listening to the radio with the engine running. Yes, technically under NY law, a judge might not dismiss it. But how does the prosecutor explain it to the jury? I know how I explained my side: "My client is charged with DRIVING while intoxicated. He wasn't DRIVING!"
The prosecutor in that case never figured out how to sell it (because it's an awfully hard sell) and the jury said "not guilty" - faster than usual. That case should have settled. My client, whose BAC was 0.32 (four times the legal limit - that's close to dead), would have taken a reduction to DWAI. But they wouldn't agree because his BAC was so high. How many lawyers would have taken that case expecting to settle and then not known what to do when the prosecutor said no? Many of them would have told the client to plead guilty to a DWI.
We have a case going right now where our disabled client was injured when someone else slammed a car door on him. It's a "good injury". I figured it would settle quick and easy. But the insurer made a lowball offer. There are plenty of lawyers who would sit on the case for three years, hoping the offer would get better, because they don't like filing suit. Or they'd tell their client to take the crappy offer. We sued it. If they're going to make an offer that low, there's no point in waiting.
Going beyond litigation, trial experience matters in other areas too. Suppose you need a lawyer to write a contract. What would a good lawyer think about when working on the contract language? It should be this: What will this language do in court if there's a problem? A lawyer with no court experience will have trouble answering that question. Maybe they read what appellate courts have said about similar situations (which is important too), but that's not the same as being in the trenches.
Whether it's contracts, wills, corporate formation, lobbying and more, it all comes down to how it will play in court if something blows up. It could even be tax shelters - how many UBS clients are wondering why their lawyers didn't tell them the bank could make a deal with the feds? A good lawyer thinks about those things in the course of their work, and explains it all to their clients.
Showing posts with label trial lawyer. Show all posts
Showing posts with label trial lawyer. Show all posts
Sunday, August 23, 2009
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.
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.
Tuesday, March 06, 2007
A trial lawyer moment ...
I had a trial recently, and there was one short bit of the trial that really stood out. I was cross-examining the principal witness for the prosecution, the following exchange occurred - note that Q is a question from me, and A is an Answer from the witness ...
------
Q. Okay. So, it's your position that she does not
know how to spell her own last name? Is that what you're
telling this Judge?
A. It could have been a trick, just like everything
else.
Q. I see. Okay, let's talk about tricks, turning
tricks. Isn't it true, Ms. [name omitted], that you were arrested
last year for prostitution?
------
Well before trial I had become aware of the witness' criminal history, including a prostitution charge. I was planning at some point to attack her credibility on this issue, and then she handed me that moment on a silver platter. In my memory of this moment I paused and looked up at the sky (through the ceiling of course) and thanked god for this moment - which is really unusual since I'm pretty close to being an atheist. Somehow it doesn't read as good in the transcript as it was in person.
There was another good moment in the trial ...
----
Q. You didn't want the people you were asking for a
loan to know about your financial situation, correct?
A. If you have ever done a loan, they want a
fifty-fifty debt to income ratio. There's no one in this
world -- I'll say there's very, very few people that I do
business with that can reflect a fifty-fifty debt to income
ratio.
Q. Aren't you telling the Judge that your purpose in
having Ms. [Defendant] register the vehicle in her name, as you
claim, this was to deceive the Small Business Administration
so you could get a loan?
[objection overruled]
A. Yes
Q. It was a lie?
A. Yes. If that's how you want to see it. I don't
believe you're in my business.
-------
The witness actually admitted that her scheme was a lie. So I've got her admitting to prostitution and to lying. Now how often in life do you get to call someone a lying whore and be accurate?
I should add a further caveat here that prostitution should not be illegal, but that goes with my whole nutty libertarian thing.
I am wondering what business she's referring to ... the business where it's apparently okay to purposely deceive federal agencies for financial gain. I thought that was, in the popular misperception of our profession, exactly what some lawyers do (i.e. tax lawyers, not us criminal defense and personal injury lawyers - we're the good guys :-) ).
Or maybe she meant the prostitution business?
------
Q. Okay. So, it's your position that she does not
know how to spell her own last name? Is that what you're
telling this Judge?
A. It could have been a trick, just like everything
else.
Q. I see. Okay, let's talk about tricks, turning
tricks. Isn't it true, Ms. [name omitted], that you were arrested
last year for prostitution?
------
Well before trial I had become aware of the witness' criminal history, including a prostitution charge. I was planning at some point to attack her credibility on this issue, and then she handed me that moment on a silver platter. In my memory of this moment I paused and looked up at the sky (through the ceiling of course) and thanked god for this moment - which is really unusual since I'm pretty close to being an atheist. Somehow it doesn't read as good in the transcript as it was in person.
There was another good moment in the trial ...
----
Q. You didn't want the people you were asking for a
loan to know about your financial situation, correct?
A. If you have ever done a loan, they want a
fifty-fifty debt to income ratio. There's no one in this
world -- I'll say there's very, very few people that I do
business with that can reflect a fifty-fifty debt to income
ratio.
Q. Aren't you telling the Judge that your purpose in
having Ms. [Defendant] register the vehicle in her name, as you
claim, this was to deceive the Small Business Administration
so you could get a loan?
[objection overruled]
A. Yes
Q. It was a lie?
A. Yes. If that's how you want to see it. I don't
believe you're in my business.
-------
The witness actually admitted that her scheme was a lie. So I've got her admitting to prostitution and to lying. Now how often in life do you get to call someone a lying whore and be accurate?
I should add a further caveat here that prostitution should not be illegal, but that goes with my whole nutty libertarian thing.
I am wondering what business she's referring to ... the business where it's apparently okay to purposely deceive federal agencies for financial gain. I thought that was, in the popular misperception of our profession, exactly what some lawyers do (i.e. tax lawyers, not us criminal defense and personal injury lawyers - we're the good guys :-) ).
Or maybe she meant the prostitution business?
Thursday, February 08, 2007
Why it's hard to be a trial lawyer
I had lunch with a friend the other day. He's one of the smartest and hardest working lawyers I know. The kind of guy who reads every decision and knows every nook and cranny of the law relevant to his field. He was telling me about a couple of cases he had. In one, he won the unwinnable case. In the other, he lost the unloseable case.
We make decisions as trial lawyers. Should we have a jury trial, or go with a bench trial (where the judge serves as the "finder of fact")? Or you're in a situation where the case has gone very well for you, and you have to decide whether to put in more evidence. The prosecution's case was very weak - do you have your client testify? Should I ask the witness one last question?
You can do a trial, have a fantastic case, do everything correctly, and on top of that things break your way during the trial that you didn't even expect, and yet you can still lose. Or on the other hand, everything can go badly for you and you win anyway.
Winning is great. You feel very up after you win. But for me at least, and I think for many other trial lawyers, you still second-guess yourself on those decisions. Even when you win. I usually don't sleep well when I'm on trial, and it's the worst after the trial is over. I can't stop thinking about those decisions, what I did, and whether I should have done something else.
Losing is unpleasant, and the negative feeling from a loss is much, much greater than the positive feeling from a win. Sometimes you see ahead of time that you're going to lose, or at least that you're likely to lose. For me those are the easiest cases emotionally. You still do the best you can, and you agonize over some decisions, but losing in a case like that isn't such a big deal. I sleep better on those cases than I do on the wins.
Losing a good case is extremely hard. You have trouble moving on to other things. It is depressing and you can go into a funk, sometimes for a week or more. We suffer tremendous self-doubt afterwards. I've talked to several other trial lawyers who feel the same. The friend I mentioned above was talking about how he lost the unloseable case. The loss was months earlier, and yet he was so animated in describing it. A loss like that is so frustrating, so upsetting, that we just can't let it go. It can make you "gunshy," afraid to take risks in future cases.
Losing weighs so heavy on me that I question whether I should really be a trial lawyer. On the one hand it causes me to question whether I'm good enough. Maybe I lost because I'm just not that good as a trial lawyer. And on the other hand, the psychic damage from losing is so powerful that I just feel like I should find another line of work.
Of course I believe I am a good trial lawyer. To say I have a strong ego is a severe understatement. Most trial lawyers have very healthy egos. It's really a requirement. Anytime I have lost a trial where I should have won (or won when I should have lost), it always comes down to one simple thing: the finder of fact was just plain wrong. Usually that's a jury, but sometimes a judge. I think they get it right about 80% of the time, maybe 90%. That's not too bad, but not great either.
In my egotistical way, I have talked about how winning and losing affects me. As attorneys we must remember that the impact on our clients is far more serious. One lawyer friend of mine put it this way at a seminar: "I've never lost a trial. Many of my clients have lost trials, but I've never lost one."
When we lose a trial, our client loses much more than we do. Criminal defense clients, in particular, can lose their liberty, their right to vote, their jobs, and much, much more. We move on to the next case, but the case we just lost was their only case.
It's very important to communicate this to our clients, and I have a way of doing this. I tell them something like the following, usually when they ask me whether they should take a deal or go to trial -- "I love trials. I get paid more for doing it, and if we win, it's a great feeling. If we lose, I don't go to jail. I get to keep sleeping at home. You're the one who does the jail time if we lose, so you have to decide what to do here."
Getting back to the lawyer's pain of losing, one other thing really stands out. It doesn't feel that bad to lose when you represent a guilty client in a criminal case. You still fight hard, and do your best to win the trial. It still bothers you a bit when you lose. But when a guilty client goes to jail, it's not that upsetting. The worst is losing when your client is innocent. It happens. I can't think of anything more unpleasant in my work than that experience.
It's tempting to throw your hands up, and give up on the system. I can't do that. It is a flawed system, but I'm not aware of any alternative that comes anywhere close.
We make decisions as trial lawyers. Should we have a jury trial, or go with a bench trial (where the judge serves as the "finder of fact")? Or you're in a situation where the case has gone very well for you, and you have to decide whether to put in more evidence. The prosecution's case was very weak - do you have your client testify? Should I ask the witness one last question?
You can do a trial, have a fantastic case, do everything correctly, and on top of that things break your way during the trial that you didn't even expect, and yet you can still lose. Or on the other hand, everything can go badly for you and you win anyway.
Winning is great. You feel very up after you win. But for me at least, and I think for many other trial lawyers, you still second-guess yourself on those decisions. Even when you win. I usually don't sleep well when I'm on trial, and it's the worst after the trial is over. I can't stop thinking about those decisions, what I did, and whether I should have done something else.
Losing is unpleasant, and the negative feeling from a loss is much, much greater than the positive feeling from a win. Sometimes you see ahead of time that you're going to lose, or at least that you're likely to lose. For me those are the easiest cases emotionally. You still do the best you can, and you agonize over some decisions, but losing in a case like that isn't such a big deal. I sleep better on those cases than I do on the wins.
Losing a good case is extremely hard. You have trouble moving on to other things. It is depressing and you can go into a funk, sometimes for a week or more. We suffer tremendous self-doubt afterwards. I've talked to several other trial lawyers who feel the same. The friend I mentioned above was talking about how he lost the unloseable case. The loss was months earlier, and yet he was so animated in describing it. A loss like that is so frustrating, so upsetting, that we just can't let it go. It can make you "gunshy," afraid to take risks in future cases.
Losing weighs so heavy on me that I question whether I should really be a trial lawyer. On the one hand it causes me to question whether I'm good enough. Maybe I lost because I'm just not that good as a trial lawyer. And on the other hand, the psychic damage from losing is so powerful that I just feel like I should find another line of work.
Of course I believe I am a good trial lawyer. To say I have a strong ego is a severe understatement. Most trial lawyers have very healthy egos. It's really a requirement. Anytime I have lost a trial where I should have won (or won when I should have lost), it always comes down to one simple thing: the finder of fact was just plain wrong. Usually that's a jury, but sometimes a judge. I think they get it right about 80% of the time, maybe 90%. That's not too bad, but not great either.
In my egotistical way, I have talked about how winning and losing affects me. As attorneys we must remember that the impact on our clients is far more serious. One lawyer friend of mine put it this way at a seminar: "I've never lost a trial. Many of my clients have lost trials, but I've never lost one."
When we lose a trial, our client loses much more than we do. Criminal defense clients, in particular, can lose their liberty, their right to vote, their jobs, and much, much more. We move on to the next case, but the case we just lost was their only case.
It's very important to communicate this to our clients, and I have a way of doing this. I tell them something like the following, usually when they ask me whether they should take a deal or go to trial -- "I love trials. I get paid more for doing it, and if we win, it's a great feeling. If we lose, I don't go to jail. I get to keep sleeping at home. You're the one who does the jail time if we lose, so you have to decide what to do here."
Getting back to the lawyer's pain of losing, one other thing really stands out. It doesn't feel that bad to lose when you represent a guilty client in a criminal case. You still fight hard, and do your best to win the trial. It still bothers you a bit when you lose. But when a guilty client goes to jail, it's not that upsetting. The worst is losing when your client is innocent. It happens. I can't think of anything more unpleasant in my work than that experience.
It's tempting to throw your hands up, and give up on the system. I can't do that. It is a flawed system, but I'm not aware of any alternative that comes anywhere close.
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