BREWSTER’S CONFESSION: LAWYERS LOSE CASES

What is going on here?  This is a blog post on a law firm website. Here, all you’re supposed to hear about are big wins and ginormous settlements.

We have plenty of wins and many great settlements, and we’re not shy about sharing that information. Elsewhere on our website, you will find plenty of such reports.

On the other hand, we wouldn’t be honest if we didn’t admit that not all cases turn out well. Being honest with clients and prospective clients is supposed to be a foundational duty for this profession. Sadly, more than a few of my colleagues don’t seem to grasp that obligation.

At Rawls Law Group we believe in always being straight with those who seek and retain our services.

Cases can go bad for lots of reasons. The simplest (and most embarrassing) explanation is that we end up taking a case when we never should have done so. Sometimes we are oblivious to potential problems. To our credit (sort of), that is often a function of sympathy. We see a situation which seems clearly wrong, and we want to do something about it. However, the reality is that not all wrongs, even egregious ones, have a viable legal remedy.

At times, our investigation of cases or discovery turns up information which was unknown at the start. This changes our assessment as to the likelihood of success.

Sadly, there are times when clients are not honest with us. When that comes out, it’s never good. The case is not likely to end well.

Even if we have not gotten any adverse surprises, lawsuits are just a messy process. In pre-trial depositions parties and witnesses sometimes don’t testify as you expected. That can change a case entirely.

Judges can make some off-the-wall rulings which can change the outcome of a case.

In any case, both sides evaluate the matter with a basic two part equation: What are the odds of plaintiff winning and, if plaintiff does win, what is the likely range of damages. Let’s say we conclude that our chance of winning is very good, 80%. That’s great, but it still means there is a one in five chance of losing. If the odds of winning the lottery were 20%, we would all buy a lot of tickets – a whole lot of tickets.

Here's another factor to consider: Whether it is a trial with just a judge (like all our FTCA cases) or a jury trial, I always tell people there is a 10% “crazy factor.” Even if you have an absolute winner of a case – a matter with a 100% chance of prevailing (odds we never assign, by the way) – there is still a one in ten chance of something screwy happening. And if the odds of winning the lottery were 10%, again, we would all be buying a lot of tickets.

There are no guarantees in this business. Any lawyer who promises a victory is a fool or a liar or both.

Any lawyer who claims to have never lost a case or asserts something along the lines of a 95% win record is a liar – or he or she has just not tried many cases.

There are huge risks in almost any lawsuit. Good lawyers explain risks to clients. It’s our job. There are times clients don’t want to hear it, and they push back. It’s still our job to explain those risks. Even when clients get mad and threaten to fire us, we must be honest with them.

Just telling people what they want to hear is dishonest and the lawyer will eventually end up being outed.

So, if you are looking for a lawyer, ask that lawyer to tell you about the cases that didn’t turn out well and the trials that were lost. If he or she dodges the discussion, move on. Find an attorney who respects you enough to tell the truth.