Over the years I’ve heard, from time to time, about some lawyer who “has never lost a case.”
I’ve been practicing law now for more than 30 years, have tried more cases than I can count, and would have to say that such a statement is about as silly as claiming that some football coach or baseball manager “has never lost a game.”
The only lawyers, football coaches, or baseball managers I have known who have never lost a case or a game are those who have never tried a case, or coached or managed a game.
Because like Al Pacino said, “on any given Sunday, you’re gonna win or you’re gonna lose.”
Half the teams do one or the other.
And no one wins them all.
Recently, I was telling another lawyer about what a great judge we had on our upcoming case. I had tried many many cases in front of him, many more than she. But to be honest, and truthful, and to dispel any false notion that I had any unfair advantage in this judge’s court, I felt compelled to tell my opponent that our judge “had slam dunked me a few times in the past.”
The point I wanted to make was that our judge was good and fair and just, and did what he thought was right, regardless of politics, or where a lawyer was in the pecking order, or anything else. That’s really all you can hope for with a judge.
Because cases are, and should always be, decided on the facts in evidence and the law, not because some lawyer is almighty or connected or omnipotent and never loses a case.
It just doesn’t work that way.
I can think of cases I have tried and lost in the past, that I thought I was going to win. That can be devastating, for lawyer and client.
I can think of cases I have tried and won in the past, where I thought we might not have much of a chance of prevailing but were going to give it our best shot. That is always thrilling, and even more so when opposing counsel you have been dealing with for a year has been rude, arrogant and condescending the whole time. Ah, sweet victory.
The lesson is you can never be sure.
And woe be to the lawyer who makes unduly optimistic predictions to a client, and has to then try to explain a surprisingly poor outcome.
The honest lawyer will say there can be no guarantees, but we will do everything we can to prevail.
And perhaps the uncertainty that any case represents is why 95 percent of cases filed ultimately are settled by agreement, without a trial.
I’ve also heard it said that a fair settlement is one that leaves both sides equally dissatisfied. That seems a bit negative, but perhaps there is some truth to it.
But the truth is anyone who is unhappy with a settlement without a trial had a choice. They could have chosen to go to trial and not settle.
But they didn’t.
And when parties lament their unhappiness with a settlement, they should not forget that, unless of course the lawyer against them has never lost a case.
– Ken Garten is a Blue Springs attorney. Email him at firstname.lastname@example.org