Losing
by Glenn Bradford[1]
“Because trial
lawyers identify closely with their clients, they enjoy their practice
only when they
win, and nobody wins all the time.”[2] –Martin Mayer, The Lawyers
It is frequently
said that the only lawyers who do not lose cases are lawyers who do not try
cases. More precisely, it has been said
that the only lawyers who do not lose cases are those lawyers “who do not try
cases, who settle too many cases, or who only take cases that are such sure
winners they do not need a trial lawyer to try them.”[3] Noted Washington, D.C., criminal lawyer
Edward Bennett Williams made this comment about the common perception that some
trial lawyers never lose cases:
Once in a while the illusion is created, probably by an overenthusiastic
press, that some great trial lawyer never loses a major case. This is pure fiction, and not harmless
fiction at that.
It casts the whole
administration of justice in an unfavorable light.
*** There is a limit to what a genius can do with the material
with which he must work.[4]
Judge Marvin E. Frankel has said that
“[t]he business of the advocate, simply stated, is to win if possible without
violating the law.”[5] True enough.
However, the acid test for a professional trial lawyer is defeat. After nearly 30 years of trying cases on my
own, I can speak with some authority on this point. In my experience, it is easy to work hard on
a case for several years, do a good job at trial, and reap the benefits of a
favorable verdict.[6] The hard part of the job is to work hard on a
case for several years, do a good job at trial, and then lose the verdict. And then get a phone call from the client
firing the firm as counsel. This is the
point where you determine whether a litigation career is really what you want
to do with the rest of your life.
Ultra-successful New York plaintiff’s lawyer Thomas Moore says that
"If I lose a case, it's a disaster, the losses live with me, it's like a
grieving process."[7] Although most trial lawyers probably do not
go through anything comparable to a grieving process, it is certainly easy to
get discouraged and lose confidence after a significant loss.
Based on his experience of a
lifetime in the courtroom, New York trial lawyer Henry Miller makes the
realistic observation that “[w]e must accept that in our careers we are going
to lose a certain number of cases. We
just do not know which ones they are.”[8]
Losing at least occasionally is simply a reality for an active trial
lawyer practicing in the real world.
There are two separate and distinct facets to our consideration of the
subject of losing: (1) dealing with the fear of losing and (2) coping with the
reality of losing.
Fear
of Losing
Nationally known
trial practice expert James W. Jeans has observed that the number of lawyers
who appear regularly in court number less than ten percent of the litigation
bar.[9] “Why?,” Professor Jeans asks. “As in most such cases, it is a fear of
failure, a feeling of inadequacy that restrains them.”[10] Oakland, California, plaintiff’s lawyer J.
Gary Gwilliam has written that “[t]he fear of losing is really the fear of
failure.”[11] Noted Kansas City criminal defense lawyer
James R. Wyrsch feels that a fear of losing is one of the things which
motivates a lawyer to put forth a maximum effort for the client. Although a fear of losing may well serve as a
strong motivator for many active trial lawyers, the fear of losing can become
crippling for others.
A distinction can
certainly be drawn between fear of losing and dislike of
losing. No lawyer who ever lost a case
was happy about it. However, a keen
dislike of losing or a strong desire to avoid losing does not necessarily
equate to a fear of losing. It
has been suggested that fear of losing often prevents a lawyer from
conducting a full- bore representation for a deserving client. A less than optimum settlement is recommended
to the client. Another continuance
request is filed. A case is delegated
to a junior attorney to try for “experience.”
Highly-respected Kansas City lawyer James W. Benjamin reports that he
learned to try cases by helping to keep the late Clay C. Rogers’ trial record
as pristine as possible. Benjamin
reports that he got a lot of experience on Rogers’ cases but few wins. Although perhaps healthy to some degree, a
fear of losing can become so pronounced “that we lose the courage to undertake
the difficult case.”[12]
In a 1939 piece on
New York lawyer Lloyd Paul Stryker for the New Yorker Magazine,
Alexander Woollcott described Stryker as having a “relish for combat” and
contrasted his attitude to that of many of his contemporaries at the bar:
The practice of settling out of court
has so gained ground of late that many a noted lawyer can hardly remember when
last he underwent the disconcerting experience of trying a case before a
jury. Furthermore, it may be guessed
that among the many excellent reasons which dictate a settlement in any case is
the
unconfessed one that, for personal
reasons, the counsel involved would a little rather not submit to ordeal by
combat. Once down in that dusty and
unpredictable arena, the most disturbing things might happen to them.[13]
My own trial
lawyer hero has always been Earl Rogers, the legendary California criminal
lawyer of the early 1900s. As testament
to Earl Rogers’ abilities, when Clarence Darrow was indicted for jury tampering
in the McNamara brothers case in Los Angeles in 1912, he hired Earl Rogers to
defend him.[14] Darrow himself once described Rogers as the
greatest jury lawyer of his time.[15] However, in Rogers’ biography Take the
Witness, the authors assert that Rogers made a decision early in his career
never to accept a truly hopeless case.[16] “It was at this stage of his career that Earl
made an important decision. It was never
to take a case that was absolutely hopeless, no matter how much in money it
would bring to him. Many of his early
associates still argue that he had determined upon this course because he felt
that success was a criminal lawyer’s chief asset, and that a losing case would
impede his rise to the top.” I have to
confess that Earl Rogers lost some of my admiration when I learned that he
accepted only cases which he thought he could win.[17]
Certainly few
attorneys are financially able to be so selective. As a further matter, it seems that an
argument could be made that the demonstrably guilty are entitled to
representation and counsel as much as the factually innocent and the not-so-demonstrably
guilty. In contrast to Earl Rogers’
approach based on professional self-interest, Oklahoma’s famed criminal lawyer
Moman Pruiett, a contemporary of Earl Rogers, once accepted a retainer in a
seemingly hopeless case, allowing as to how he was “the guy that can swallow
the sour right along with the sweet.”[18]
New York trial lawyer Henry G. Miller had this observation about the
trial lawyer business:
Young lawyers think trying cases
is all glory. But trial lawyers pay a
price unknown to our armchair colleagues who never stray beyond the safety of
their desks. Trial lawyers lose
cases. Did you ever hear of a lawyer
losing a contract? If you lose at
trial, every explanation seems
lame.
The client who adored yesterday’s summation glares at you in disgust
after today’s defeat. The jury has
rejected you. It’s a personal defeat. It burns in memory. Defeat is the price trial lawyers pay for
success.[19]
Professor
Jeans reports that he was frequently asked by a student of trial advocacy for
his opinion as to whether he or she might make a good trial lawyer. Professor Jeans’ standard response: “Can you
live the life of a manic depressive?”[20]
Lawyers Don’t Have Baseball Cards
Much
like Earl Rogers, many litigators seem to be concerned about his or her batting
average in court cases. The good news
for most of us litigators is that lawyers don’t have baseball cards. Because lawyers don’t have baseball cards, it
is difficult to actually know a trial lawyer’s win/loss ratio (or batting
average). If we did have baseball cards,
or maybe “barrister cards,”everyone would be able to see our courtroom track
record at a glance on the back of our card.
All a potential client would have to do would be flip over to the back
of the card and check out your win/loss ratio.
An opponent could ask for a copy of your card in discovery to determine
if she should settle with you. Juries
might start asking to compare the barrister cards during deliberations.
Maybe, eventually, a market would
develop in these collectibles. Would a
Rufus Choate barrister card sell for more than a Ty Cobb baseball card? Would you take two Percy Foreman’s for a mint
condition Moman Pruiett?[21] Would you drive all the way across town to
acquire that vintage Gladys Root card?[22] In any event, your mother probably would
have thrown out all of your rare Daniel Webster’s, John W. Davis’, and Samuel
S. Leibowitz’s when you went off to college.
I wonder if Johnny
Cochran would wear his little O.J. stocking cap in his picture for his
card? Did the Patty Hearst pardon
retroactively convert an “L” to a “W” on F. Lee Bailey’s card, or is there a
Maris-like asterisk next to the Hearst case on F.’s card? I guess since the State of Florida disbarred
F., he might not even get to have a card.[23] Professor Jim Jeans recalls that Melvin
Belli claimed that he won the Jack Ruby case because his client died after his
conviction for killing Lee Harvey Oswald was reversed on appeal, on the grounds
that the presumption of innocence was then again in effect.[24] We might have to check with the official
scorer on that one.
Celebrated Houston
criminal defense attorney Richard “Racehorse” Haynes refuses to reveal his
overall win-loss record. “I don’t ever
talk about that,” Haynes has said, explaining his fear that if he publicized
his win-loss record, “the newspapers would print it before every trial ‘and
make it sound like a sporting event.
It’s not a sporting event.’”[25] So I guess we better not print up any
“Racehorse” Haynes cards. And I would
have bought one of those.
Gerry Spence would
probably have the most collectible card of all.
On the front side of his card, Gerry would have on his buckskin jacket
and smile confidently out from under his trademark ten gallon hat. The majestic Rockies would provide a dramatic
background. Gerry has never lost a case. I heard him say so on “Larry King
Live.” You would probably need 100 Glenn
Bradford cards to trade for one Gerry Spence card. I wonder if it would help my standing if I
donned a buckskin jacket and cowboy hat for my picture for my card? And maybe even a pair of six-guns! But, I digress.
The
Sun will still come up in the morning!
In his book On
Trial: Lessons from a Lifetime in the Courtroom[26],
Henry Miller provides a number of practical suggestions for the young trial
lawyer. Here is one of the best:
Do Not Worry Just About Winning. Howard Fearfull has not
taken a verdict in years. Everybody knows it. Too bad.
He tries
a good case, well prepared, strong
opening, persuasive summation,
knows the law. But he cannot take defeat. Problem: vanity. He
thinks more about himself than his
client. Pride drags him down.
Defeat ages him. He thinks the whole world chuckles at his
every
loss. In truth, most of the time, nobody is even
looking. Listen
to Jeremiah (Sage): ‘Do your best. Let justice be done and forget
about winning or losing.’ Secret: the world does not end with our
every defeat.[27]
Many verdicts, of
course, arrive in shades of gray rather than as clear-cut wins or losses. It is for this reason that one of my former
partners coined the very apt phrase “semi-conquering heroes” to describe lawyers
returning from a case which settled in mid-trial. The term would also seem applicable to a
significant percentage of trial verdicts.
How often I return to my office as a mere “semi-conquering hero.” Perhaps fortunately for me, then, lawyers
don’t have baseball cards. The plain
fact of the matter is that nobody has any practical way of knowing what your
“batting average” is in the first place.
Few notice in the first place and fewer still remember.
We
Really Don’t Make the Facts
It is an axiom of the
profession that the lawyers don’t make the facts. At the heart of the fear of losing, perhaps, is the
assumption that the trial lawyer has more or less complete control over the
outcome of a trial and therefore that the result in a given case is a direct
reflection upon the competence of counsel.
There seems to exist the idea in the minds of many laymen (and many
lawyers who should know better), that there are some few elite trial lawyers
who can take on and win any case. Or
better yet, either side of any case.
Edward Bennett Williams felt that
the lawyer’s performance in a typical case accounted for at most 20 percent in
the outcome.
If you turn over any given football team to the best coach
in America, he may win two
more games than the most incompetent coach would win with
the same material.
Likewise, if you take a hundred criminal cases and assume
that fifty of them
should be won on the merits and that fifty of them should
be lost, and then turn
them over to the most able and
experienced advocate in America, he will
probably win sixty and lose forty. Turn the same cases over to the most
incompetent trial man and he will win forty and lose
sixty. The concept of
a great trial lawyer who always wins has no foundation in
reality. It is a
As Edward
Bennett Williams noted, there is simply a practical limit to what even the most
accomplished and well-prepared advocate can accomplish in any given case.
My own comparison has always been to a jockey. A jockey’s job is to enable the horse to
perform at its best. The jockey can
attempt to position the horse next to the rail or on the outside. The jockey can give the whip at the
appropriate time. The jockey can
encourage the horse to put on a burst of speed over the final furlong. However, even Eddie Arcaro, Willie Shoemaker,
or Laffit Pincay, Jr., could not have made a Kentucky Derby winner out of a
Budweiser Clydesdale.
Accepting the proposition that a trial advocate can only do
so much to affect the outcome of any given lawsuit is a necessary step in
putting winning and losing in proper perspective. The trial lawyer eventually has to learn to
be honest with herself about what she was able to accomplish with the facts and
law she was given to work with. We are
just not always dealt winning hands. It
has been written that the British bar is “fairly well agreed” that “of every
hundred cases, ninety win themselves, three are won by advocacy, and seven are
lost by advocacy.”[29] Indeed, sometimes the best thing we can do is
just not make a bad situation any worse.
In my view, the key question to ask yourself is whether you made the
most out of what you had to work with in any given case. What may not look much like a “win” to
others may in fact be a very favorable outcome, given the unique circumstances
of that particular case.
“The Best
Prepared Lawyer Always Wins–Every Time”
The ubiquitous Charles Manson prosecutor Vincent Bugliosi
wrote an article a few years ago in which he asserted that “the best prepared
lawyer always wins, every time.”[30] Mr. Bugliosi also detailed his personal
method of preparation for trial, which method alone apparently constitutes the
type of preparation necessary for assured victory. Certainly, no experienced lawyer would
disagree with the need for rigorous pre-trial preparation. However, Mr. Bugliosi clearly exaggerates the
power of an advocate to impact the results of a trial. This sort of message of course ignores the
time-honored, fundamental rule that lawyers don’t make the facts.
In their 1966 landmark report, The American Jury,
the most extensive research project on juries ever attempted, authors Kalven
and Zeisel observed that in only in a small percentage of close cases does the
quality of the lawyer’s performance appear to change the result.[31] Kalven and Zeisel found that the abilities of
opposing counsel are perceived to be substantially equivalent in the vast
majority of jury trials (76%).[32] Kalven and Zeisel concluded that the
abilities of counsel had only a 1 percent impact on the system.[33] A more recent study concluded that “[t]he
attorney is but one of many factors influencing juror and jury decisions.”[34] The authors of another published study
concluded that: “[t]his attempt to take a more comprehensive look at juror
reactions to attorneys reveals that the attorneys, like other trial
participants, contribute to, but do not singlehandedly determine, the outcome
of a trial.”[35]
After observing jury trials from the bench for more than twenty years, Senior
Federal District Judge Scott O. Wright is in agreement with Kalven and Zeisel
that the lawyer’s performance can make a difference, when a strong performance
by one lawyer is met by a weak performance by the opponent--in a very close
case.[36]
Kalven and Zeisel quoted famed British barrister Sir
Patrick Hastings, who gave trial lawyers only slightly more credit. “I have known so many advocates, good
advocates and very good advocates, bad advocates and very bad advocates, and in
the result that I am satisfied that at least ninety per cent of all cases win
or lose themselves, and that the ultimate result would have been the same
whatever counsel the parties had chosen to represent them.”[37]
Even Abraham Lincoln didn’t win every case he tried
Before he became President of the United States, Abraham
Lincoln was widely recognized as one of the foremost trial lawyers in the State
of Illinois, if not the entire country.[38] In his book Lawyer Lincoln, Albert A.
Woldman, devotes an entire chapter to assessing Abraham Lincoln’s trial record
during his 23 years of active practice.
Woldman actually went to courthouses in Illinois and reviewed court
records of Lincoln’s trials in state and federal court.
Although widely acclaimed during his legal career,
Lincoln’s record did not seem to be particularly outstanding, even with his
reputation as a leading trial lawyer.[39] “It is impossible to determine his record of
victories and defeats in the circuit courts where he must have tried two
thousand or more cases during his long career.
But we have the statement of Whitney[40] that Lincoln ‘was not
more than ordinarily successful for a first-class lawyer; he certainly did not
succeed in every case . . . he was sometimes defeated, like other lawyers, even
in cases that he believed in and did his best to succeed in.’”[41]
Of
eighty-seven cases for which the records are available and that
Lincoln
tried before the court without a jury, decrees were rendered
in favor
of his clients in forty and against them in forty-seven. Of
eighty-two
actions argued before a jury, verdicts favorable to his
clients
were returned in forty-three.[42]
If the
immortal author of the Gettysburg Address had to struggle to win as many cases
as he lost, then it seems to me that we mere mortals cannot reasonably expect
to avoid our fair share of trial loses.
It’s easy for you to say, Mr. Prosecutor!
Apparently Vincent Bugliosi has never defended many
criminal cases. William G. Hundley,
veteran Washington, D.C., defense lawyer, described the difference in
prosecuting and defending in an interview with The Washington Lawyer:
“The hardest thing to learn when I became a defense attorney was how to
lose. At Justice we could select the
cases we wanted to bring. I can’t
remember losing a case as a prosecutor.
Well, you lose them as a defense attorney.”[43] Mr. Hundley continued “I remember [Edward Bennett] Williams telling
me things like ‘Look, Bill, as long as you don’t see your name in the upper
left-hand corner of the indictment, don’t get too upset about it,’ and ‘Don’t
get personally involved. Your job is to
give them the best defense you possibly can.’”
Mr. Hundley had this recollection of his long career at the
criminal defense bar:
Most of
the people that I’ve represented have had some problems. I’ve
won
some. I’ve won more than my share. It’s a great feeling. But you
don’t win
that much, and you don’t always win on the merits. You win
on
technicalities, statute of limitations, and things like that.”[44]
***
I’ve had
a fair amount of success. Now, I’ve had
a lot of losses, too.
At one
time they used to refer to a ‘Hundley Wing’ at Allenwood [prison].[45]
Even Bugliosi-like preparation just simply won’t guarantee
success in defending criminal cases. As
a further matter, preparation is surely not the only factor operating to
determine the general effectiveness of a trial lawyer. Among other things, the attractiveness of the
lawyer’s personality or likeability is seen as a significant factor.[46]
The late Kansas City trial lawyer Thomas Conway, who
actively practiced in the Missouri courts for more than 50 years, staunchly maintained
that in a personal injury case the rule is simply that if the jury likes the
plaintiff, they give her money. And if
they don’t like the plaintiff, they don’t give her money. A trial lawyer’s ability to influence the
“Conway factor” is certainly somewhat circumscribed. There are numerous other factors which can
influence a jury verdict. Many of us
have simply found that success comes more often when we have good facts on our
side. As La Rochefoucauld said: “‘There
is nothing more horrible than the murder of a beautiful theory by a brutal gang
of facts.’”[47]
I could not disagree more with Mr. Bugliosi’s claim that
“the best prepared lawyer always wins, every time.” Lincoln biographer Albert A. Woldman put it
this way. “Defeats and victories in
legal contests, depending as they do upon other antecedent facts and
circumstances, are those ultimate results that may or may not prove anything in
so far as the respective abilities of the contesting lawyers are concerned.”[48] As found by Kalven and Zeisel in The
American Jury study, in the vast majority of cases tried before a jury, the
opposing lawyers are “evenly matched” and essentially offset each other.[49] The individual lawyer’s level of preparation
can certainly be a factor in the outcome of any given case, but to isolate the
lawyer’s level of preparation as the sole determiner of the outcome of all
trials flies in the face of reality and does a real disservice to the justice
system itself.
Is the lawyer’s batting average the most important
question?
The author would suggest that a trial lawyer should focus
not on whether the trial of a case is likely to result in a gold star for the
lawyer but, rather, whether it is in the client’s best interest to try
the case. Of course, in a majority of
cases the parties are able to reach a settlement. If a settlement if presented favorable to
your client, then by all means you should make the settlement. However, in some cases a reasonable
settlement opportunity is not presented.
Under the Federal Sentencing Guidelines, for example, an indicted
defendant frequently has precious little incentive to plead guilty. A convicted defendant may well end up in
essentially the same place for sentencing whether he pleads guilty or is found
guilty after a trial. Another example
might be where the defense makes no dollar offer in a civil case. What if, as happened to me a number of years
ago, the plaintiff never makes a demand anywhere down near the maximum amount
he can possibly recover under the law? Do you ask the client to pay double to avoid
sustaining a loss in a trial? If the
client has nothing to lose, then why not try the case? Can we legitimately say that the client has
nothing to lose but I, the lawyer, do have something to lose? I might lose.
Judge Scott Wright, a veteran of many years as an active
trial lawyer, points out that in his experience the client often tends to
evaluate the effort of the lawyer as much as the result.[50] Judge Wright reports than his clients
frequently expressed pleasure with his efforts in vigorously fighting for them,
no matter the outcome of the trial. To
extend the baseball analogy, clients seem to appreciate it when lawyers are
willing to go to bat for them.
As found in The
American Jury study, in most trials the opposing lawyers are more or less
evenly matched and essentially offset each other.[51] Perhaps the advocate’s true role in the
larger scheme of things is to provide effective representation for the client
so as to match the quality of the opponent’s representation and make certain
that the merits of the case determine the outcome.
Winning Despite Our Own Best Efforts
Veteran Kansas City lawyer Jerry Kenter wisely advises
younger trial lawyers not to get too high after a victory or too low after a
defeat. As the lawyer’s performance is
likely seldom the primary cause for defeat, the lawyer’s performance is likely
seldom the sole cause for victory.[52] Clearly, we sometimes prevail in trials in
spite of ourselves. This point was
brought home to me early in my career when I encountered a juror on the street
a few days after the conclusion of a criminal trial in which my client was
acquitted on a burglary charge.
Expecting praise, I was taken aback when the juror informed me that I
had done an abysmal job (not his exact words) in representing the defendant but
that he had “saved me” in the jury room by straightening out the other jurors
on the crucial question of expert testimony.
The juror rather disdainfully pointed out that neither lawyer in voir
dire had discovered that he taught a class on crime scene investigation at
a local university. Apparently, the
tool mark expert for the prosecution didn’t know what he was talking
about. Silly me, I had thought that the
government’s inability to attribute the tire iron in question to my client was
defense enough. However, ever since this
deflating experience, I have tried not to take a favorable verdict as solely a
testament to my own performance.
Coping with Defeat
In assessing the relative merits of some of the great trial
lawyers of the twentieth century, Professor Gerald F. Uelmen has written that
“[t]he ability to pick yourself up and forge ahead after a setback is an
essential quality for a trial lawyer . . . .”[53] Edward Bennett Williams was well known for
his determination to win, not only in court cases, but also in the athletic
successes of his Washington Redskins and even extending, it is said, to firm
softball games. It was Williams who
employed the legendary Vince Lombardi as head coach of the Redskins to deliver
a winning football team to Washington, D.C., area fans. Lombardi, celebrated coach of the Green Bay
Packers during their glory years of the 1960s, is remembered as much as
anything for his credo that “winning isn’t everything–it’s the only
thing.”
Author Evan Thomas, in his book on Williams’ life, The
Man to See[54],
provides this vignette between Williams and Lombardi.
On the
night he hired Vince Lombardi to be coach and general manager of the Washington
Redskins, Williams had said to the legendary coach, ‘You and I must always win,
Vince. But nobody always wins. I don’t care how great you are, you’ve got to
lose. You’ve got to learn to deal with
that.[55]
In his thoughtful book, In Search of Atticus
Finch, A Motivational Book for Lawyers,[56] Florida trial lawyer Mike
Papantonio describes what he terms the differences between the “haves” and the
“have-nots” of law practice. Here is his
comment on winning and losing:
The haves believe in healthy
competition–they are proud to win, but they do not allow their need to win to
distort the way they live. The
have-nots’ infatuation with competition and winning creates a ‘me against them’
attitude that touches even their most personal relationships and forces them to
evaluate their happiness according to their win/loss ratio.
Learning to cope with defeat is of course not the same
thing as being gracious in defeat, the benefits of which need not be discussed
in this article. The renowned Louis Nizer had this to say about how a
lawyer should conduct himself: “Politeness is the mark of a gentleman even in
legal combat. I have rarely seen a
successful trial lawyer who did not practice courteous amenities toward friend
and foe alike.”[57] If you want to see how a lawyer should
conduct himself in the face of a devastating loss at trial, read the Denver
Post’s account of Stephen Jones’ graceful reaction to the McVeigh guilty
verdicts.[58]
Perhaps every individual lawyer has to find his or her own
way of dealing with losing on an emotional level. As with every human endeavor, there comes a
point when a person just has to accept the fact that he has done his best in a
given situation and go on to other things.
Boston’s Rufus Choate,[59] who practiced law in the
first half of the 19th Century, is considered by many to have been
the greatest courtroom advocate ever produced in America.[60] Not even his friend and colleague Daniel
Webster was considered his equal. Among
his hundreds of cases were a not inconsiderable number of adverse results. Choate once described his philosophy “when a
case has gone against me.” “‘Now I am
not unfeeling, but after all has been done for a client that I can do, –and I
never spared myself in advocating his legal rights–the only thing left for me
is to dismiss the case from my mind, and to say . . . ‘bring on the next
(case).’”[61]
Choate’s biographer Claude M. Fuess records that Choate
“indulged in no regrets or rejoicings.”
“‘When I have once argued a case,’ he told [a colleague], ‘and it is
settled, I am done with it. I cast it
forcibly out of my mind and never allow it to trouble my peace. I should go mad if I allowed it to abide in my
thoughts.’”[62]
It Ain’t Over ‘Till It’s Over
If a verdict is truly unjustified, then the losing lawyer
should take advantage of the right to file post-trial motions and, ultimately,
to take an appeal. The very purpose of
post-trial review is to insure that the jury’s verdict is within the parameters
of the law and the evidence. The primary
way I have always tried to deal with defeat is to lick my wounds in private
over the weekend and then come in Monday morning ready to work on my post-trial
motions. If a verdict is truly wrong,
the trial court or the court of appeals will not infrequently take appropriate
curative action.[63] As Yogi Berra so famously said, “It ain’t
over ‘till its over.”[64]
Moman Pruiett practiced law in the Oklahoma Indian
territory and later in Oklahoma City, Oklahoma.
“From 1900 to 1935, he defended 343 persons accused of murder. Three-hundred four of them were acquitted–not
one was executed.”[65] Pruiett’s one client to receive the death
penalty was spared by Presidential clemency from President William
McKinley. Although a young lawyer not
yet fully established, Pruiett, who had been appointed by the court, paid his
own expenses to travel to Washington, D.C., where he lobbied friendly
legislators for two weeks seeking an entree to President McKinley on behalf of
his condemned client, an indigent black man.
When Pruiett finally succeeded in getting an audience in the Oval
Office, President McKinley was so impressed with the young lawyer’s arguments
that he commuted the federal jury’s death sentence to life imprisonment.[66] The commutation order came down one day
before Pruiett’s client was scheduled to hang.
Being a “Constructive Loser”
Famed stock car driver Dick Trickle was once asked about
his attitude toward winning and losing.
Bear in mind that Dick Trickle is considered the most successful short
track stock car racer in history, with over 1200 wins to his credit on tracks
all over the United States.[67] Trickle acknowledged that even the best
preparation cannot guarantee success but that it can put a driver in a position
to win, given the breaks in any given race.
Trickle acknowledged that losing was a part of racing. However, he advised that his philosophy was
to be a “constructive loser.” Being a
“constructive loser,” Trickle explained, means trying to analyze why you lost
and then attempting to correct for the cause of the loss in future races.
Author John C. Maxwell’s book Failing Forward: Turning
Mistakes into Stepping Stones for Success,[68] deals with the fear
of failure and how to overcome actual
failure. Maxwell quotes author William
Marston: “If there is any single thing that makes for success in living, it is
the ability to draw dividends from defeat.”[69] Author Emily Couric summed up the primary
attributes of the ten leading trial lawyers who are the subject of her book:
The Trial Lawyers: “Similarly, all
(of the ten featured lawyers) know how to learn from their own mistakes. Whether through postverdict jury interviews
or thoughtful self-evaluation, they continually review past strategies and
techniques and modify them as they move on.”[70] In his Introduction to Lloyd Paul
Stryker’s classic work The Art of Advocacy, Judge Harold R. Medina
comments that “I can still think of incidents, omissions and mistakes I made
over thirty years ago in cases which I lost. The one thing I miss most in this book is
emphasis upon defeat as a means of progress.”[71]
Bill Sanders learns from Moe Levine
Henry Miller has made this comment: “We older lawyers know a lot. We had the best teacher in the world:
defeat.” Veteran Kansas City defense lawyer William
H. Sanders, Sr., tells of trying a case
in his youth against legendary New York plaintiff’s lawyer Moe Levine.[72] If lawyers did have baseball cards, Moe
Levine’s card would have been the legal equivalent of a Honus Wagner. A loss in his case against Levine left
Sanders questioning his very future in the profession. Frustrated by what he describes as a
consistent pattern of losses in his early years at the bar, Sanders swallowed
his pride and frankly sought the guidance of the older lawyer. Levine candidly suggested that Sanders’
approach before the jury was too much that of the “streetfighter” and that he was being perceived by jurors as
ruthlessly pursuing a favorable verdict without regard for the justice of the
situation.
Accepting Moe Levine’s judgment, Bill Sanders altered his
approach and went on to become one of Missouri’s most successful defense
lawyers ever. Bill Sanders was a
constructive loser, whose willingness to take advantage of an opportunity to
obtain candid guidance from a highly successful trial lawyer Sanders credits
with changing the whole course of his career.
Talking to Jurors–Saving the Next Case
In addition to taking advantage of available post-trial
corrective remedies, a constructive loser might be the lawyer who takes
advantage of an opportunity to talk frankly with jurors as to why the case was
lost.[73] In The Art of Advcacy, Lloyd Paul
Stryker commented that “[p]erhaps the most useful lessons ever offered me have
come from jurors after the case was over.”[74] Experience teaches that
frank communication with jurors often reveals unstated, underlying reasons for
otherwise unexplainable losses at trial.
This information can sometimes be put to use in future, similar cases.
I once happened to observe a prosecutor friend trying a
shoplifting case in the Circuit Court of Jackson County. A few weeks later on running into the
prosecutor, he indicated that he had lost the case because of a tendency well
known to prosecutors for jurors to regard a shoplifting offense as completed if
and only if the alleged shoplifter actually leaves the store with the purloined
goods in hand. This, of course is not
the law.[75]
It was my suggestion that the prosecutor broach this
apparently commonly held misconception in voir dire in his next
shoplifting trial. Several months later
the prosecutor called and told me that he had indeed raised this false issue in
voir dire and had thus been able to disabuse the veniremen of this
misconception when, as forecast, the judge’s verdict-directing instruction
contained no such element. My friend the
prosecutor was able to win the next case because he made the effort to
understand the jury’s decision process in the earlier one. He was a constructive loser.
No guts, no glory! (And maybe not such great settlements)
The best way to handle a defeat is probably to treat it as
a learning experience and try to profit by the experience, as Bill Sanders did
in his case with Moe Levine. Be a
“constructive loser” if you have to lose.
Another approach might be to try adopting new values in addition to the
value of “winning.” How about measuring
yourself in terms of your courage and determination instead of solely on the
basis of your persuasive abilities and trial skills?
Why do we so much admire Clarence Darrow?[76] Did he win more of his cases than everybody
else? Certainly not. He lost the Scopes trial.[77] Leopold and Loeb got life.[78] He pleaded the McNamara brothers guilty and
incurred widespread denunciation throughout organized labor for doing so. [79] The answer is that we admire Clarence Darrow
at least as much for his dedication to what he believed in as we do his
courtroom skills and overall record as a trial lawyer. When we think of Darrow, we think of courage
and determination, devotion and passion for a cause he believed in.[80] Clarence Darrow was not called “Attorney for
the Damned” for nothing.[81]
Lawyer Robert Rantoul, Jr., of Boston, once agreed to
represent the defendant in a notorious and seemingly hopeless murder case where
the appointed special prosecutors were none other than Daniel Webster and Rufus
Choate. It is said that in accepting the
case, Rantoul acted with “characteristic courage.”[82] History records that John Adams, although a
died-in-the-wool American patriot, agreed to represent the British officer
Captain Preston on murder charges arising out of the Boston Massacre and
ultimately secured his acquittal, much against popular sentiment.[83] We aren’t talking oratory here; we’re talking
backbone. In the biographies of
history’s notable trial lawyers and barristers, the word “courage” appears
again and again. Writing of British
barrister Sir Edward Marshall Hall, Lloyd Paul Stryker noted that Hall “became
a great and famous barrister. He had
that indispensable quality for the role–stark courage.”[84]
 |
You got to know when to hold ‘em, and know when to fold ‘em . . .
I truly believe that being an active trial lawyer is
largely about accepting risk. If you
(and your clients) are willing to accept more risk, you will try more of your
cases, you will win more cases, and you will lose more cases. If you accept more risk and try more cases,
your winning percentage will undoubtedly go down over time, in accordance with
Edward Bennett Williams’ 60-40 principle.[85] In other words, if you only leave the warmth
and safety of your office to try a case every three or four years when you
think you have a certain winner, then you will probably be able to maintain a
higher win/loss ratio than if you tried all the cases which probably need
trying.[86] However, there is clearly a practical cost to
such a conservative approach. The trial
bar eventually identifies the lawyer who habitually avoids the courtroom and
extracts settlements accordingly. The
converse proposition also applies.
Alexander Woollcott writes that Lloyd Paul Stryker actually preferred to
try a case rather than settle. “While,
in the interest of his client, he often does settle out of court, the fact that
in his heart of hearts he would rather not gives him a tremendous advantage
when it comes to bargaining.”[87] I would say that handling a lawsuit resembles
a game of poker as much as anything else.
As Kenny Rogers sang: “You’ve got to know when to hole ‘em, and know
when to fold ‘em.”[88]
If you are afraid to lose, if you are afraid to take the
calculated risk of a trial, then you cannot possibly ever win. The simple truth is that you have to be willing
to lose in order to ultimately win.
Henry Miller put it more bluntly: “Timid trial lawyers never win a damn
thing.”[89] The colorful Percy Foreman once observed that
“[c]ourage in the courtroom is more important than brains. If I were hiring a lawyer and had to choose
between one that was all brains and one that was all guts, I would take the
guts.”[90]
Conclusion
We all want to win.
No lawyer worth her salt is ever satisfied with an unfavorable outcome.[91] Winning is the goal and rightly so. However, losing a case is not something which
ought to be feared. It is
painful and frequently difficult to accept.
However, it is not a disgrace. It
is not necessarily even a negative reflection on the efforts of counsel. It is not really a failure, in any fair sense
of the term. It is just something that
goes along with being in the trial lawyer business a certain percentage of the
time.[92] Highly-regarded Kansas City defense lawyer
Spencer J. Brown says that, because the outcome of a case is usually determined
by the facts, he tries not to take too much of the credit for a victory so that
he won’t have to take too much of the blame for a loss.
What happens when the overwhelming defeat finally
comes? Do we go ahead and meekly assume
our place alongside those timid souls who know neither victory nor defeat?[93] Do we sulk in our office for months blaming
the judge or the jury? Do we imply that
our opponent was less than ethical? Do
we agonize over the question of whether Plan B might have proven superior to
the ultimately unsuccessful Plan A? Do
we settle every case for the next ten years, no matter what? Does the fear of losing now paralyze us into
perpetual inaction?[94] Or maybe, more likely, perpetual
discovery. It has been said that “you
can tell the character of a man by what it takes to stop him.”[95]
The real truth is that the trial lawyer’s performance is
but one aspect of a trial. And, as a
society, we would certainly hope that the merits of the controversy would have
more of an impact on the ultimate result than the relative merits of the
contending advocates. In fact, this is
what the studies have shown.[96] There are simply limits to what even the most
experienced, skilled, and well-prepared lawyer can accomplish in any given
lawsuit. Sometimes your clients are
just wrong. Sometimes your clients are
just guilty. Discussing this point,
Henry Miller has remarked: “And
sometimes we should lose. Defeat may be
a just result, although it may take us some years to realize it.”[97]
And sometimes, I think you just need to make your opponent
beat you if he wants your client’s money, his good name, his freedom, or his
life. There really are cases in which
the principles involved are more important to the parties than the economics. If your opponent beats you fair and square in
such a case, then so be it. Sometimes
clients can live with an unfavorable but definitive verdict more comfortably
than they could have lived with the nagging uncertainties of an unsatisfying
settlement.
As a neophyte in the profession I had the good fortune to
work for the late Samuel Lang of New Orleans, a brilliant lawyer and a sensible
man. When I reluctantly had to leave his
law firm to enter the JAG Corps during the Viet Nam war, Mr. Lang sent me a
letter of advice and encouragement. I
still have his letter. Here is what told
me about trying cases. “Do everything
legitimate in your power to win your cases–every last one of them. Fight like hell for your clients! Hate losing!
Despise defeat! Don’t ever get to
where you accept losing. But, on
the other hand, don’t be intimidated by the prospect of losing to the point
where you become reluctant to press forward on a meritorious claim or
defense.”
The saying in the profession used to be that a trial lawyer
wasn’t really a member of the guild until he had lost a client to the hangman.[98] Thankfully, the guild currently maintains
lesser requirements for membership.
Prominent Chicago trial lawyer George Haight was once asked “‘What makes
a good lawyer?’” “‘His short reply
deserves to be remembered: ‘Lots of scar tissue.’”[99]
Glenn E.
Bradford
© 2002
[1]Glenn
Bradford practices as a trial lawyer in the firm of Glenn E. Bradford &
Associates, P.C., in Kansas City. He
lost his first trial in May, 1973. See
footnote 91.
[2]Martin Mayer, The Lawyers 44 (Dell Publishing Company, Inc., 1968)
(1966). Mayer illustrates this point
with a quote from a former associate of famed New York criminal lawyer Max
Steuer. “There’s grown to be a legend
that none of Steuer’s clients was convicted.
That’s nonsense, and no honor to
Max. A good half of them were
convicted—but nearly all of them were guilty . . . .”
[3]Henry
G. Miller, Living With Defeat, The Missouri Trial Attorney, Volume IX,
No. 1 (February 1991). A few
years ago, MATA (the Missouri Association of Trial Attorneys) reprinted New
York attorney Henry G. Miller’s thought-provoking article: Living with
Defeat. The Missouri Trial Attorney, Volume IX, No 1 February 1991. Mr. Miller’s article was reprinted from Litigation,
Volume 13, No. 2. I was
impressed by many of the points made in Mr. Miller’s article and saved it. This article is the result of 11 years of
ruminating, discussing this subject with colleagues at the trial bar, and
reading about the lives and careers of well known trial lawyers and how they
dealt with the specter and reality of defeat.
Mr. Miller’s article has been reprinted along with a number of his other
fine articles in book form: Henry G. Miller, On Trial: Lessons from a
Lifetime in the Courtroom (ALM Publishing 2001). Mr. Miller asked that we include the
statement that his article in book form was reprinted with permission from the
New York Law Journal, Copyright, the New York Law Journal NLP IP Company. Additionally, I would like to thank the
following lawyers for reviewing this manuscript and making editorial
suggestions: Jerry Kenter, Arthur H. Stoup, Professor James W. Jeans, Judge
Scott O. Wright, John M. Kilroy, Sr., and James W. Benjamin of Kansas City,
Daniel K. Atwill of Columbia, and, of course, Henry G. Miller of New York.
[4]Evan Thomas, The Man to See 157 (Simon
and Schuster, 1992) (1991). Mr. Thomas
is quoting from an early draft of Williams’ book One Man’s Freedom.
[5]Judge
Marvin E. Frankel, U.S. District Court, National
Observer, November 1, 1975, in The
Quotable Lawyer 7- 4.11 (David Shrager and Elizabeth Frost ed. New
England Publishing Associates, Inc. 1986).
[6]Professor
James W. Jeans, one of America’s most respected experts on trial advocacy,
kindly reviewed a draft of this article and expressed disagreement with only
one major point: that it’s easy to deal with victory. Professor Jeans had this observation: “Nothing grooms the ego quite as much as a
successful jury result. Therein lies the
danger. A few successes and the trial
lawyer is seduced into thinking that he or she is an accomplished
professional. It takes a continuing dose
of genuine humility to prevent the germ of victory from corrupting one’s sense
of self-importance. Some wag observed:
‘Success is the public destruction of a person in the process of learning.’ Amen.
I have seen too many lawyers have a few successes and self-destruct in
an explosion of ego.”
[7]See
a thumbnail bio of Thomas Moore available at http://www.fansoffieger.com/moore.htm
(The Lawyer’s Hall of Fame)(last visited February 26, 2002).
[8]Henry
G. Miller, Living With Defeat, Volume
IX, No. 1 The Missouri Trial Attorney 13 ( February 1991). See, also, footnote 3, supra.
[9]James W. Jeans, Trial Advocacy 5 (West
Publishing Company, 1975).
[10]Id.
[11]J.
Gary Gwilliam, The Art of Losing,
Trial, May, 1998.
[12]J.
Gary Gwilliam, The Art of Losing, Trial,
May, 1998.
[13]Lloyd Paul Stryker, The
Art Of Advocacy 287 (Simon & Schuster,
Inc. 1954)(Knight with the Rueful Countenance, A Profile by Alexander
Woollcott, reprinted from The New Yorker Magazine, Inc., Copyright 1939).
[14]Geoffrey Cowan, The People v. Clarence Darrow, The Bribery Trial of America’s
Greatest Lawyer 283 (Times Books, Randomhouse 1993).
[15]Alfred Cohn and Joe Chisholm, Take the Witness
2 (The New Home Library 1943) (1934).
[16]Id.
at 43.
[17]I
first learned about Earl Rogers from the book Final Verdict, written by
Rogers’ daughter, Adela Rogers St. Johns.
(Doubleday & Company, Inc., 1962).
Mrs. St. Johns mentioned the book Take the Witness in her book,
describing it as a book written by two newspapermen who covered many of Rogers’
trials. I searched high and low for a
copy of this book for over twenty years.
It was not until the advent of used booksellers on the internet that I
was finally able to locate a copy of this second important biography of Earl
Rogers.
[18]See,
Moman Pruiett, Moman Pruiett Criminal Lawyer 157-58
(Harlow Publishing Corp., 3rd ed. 1945) (1944).
[19]Henry
G. Miller, Living With Defeat, Volume
IX, No. 2 The Missouri Trial Attorney ( February 1991). Mr. Miller was here speaking through his
literary vehicle, “Jeremiah Sage.”
[20]Professor
Jeans realism is refreshing. Most
information for would-be trial lawyers emphasizes the personal requirements of
command of the language, memory, quick decision-making, and an ability to get
along with people. In F. Lee Bailey’s book
To Be A Trial Lawyer, directed at young people considering a career as a
trial lawyer, Bailey mentions many of these personal characteristics, but makes
no discussion of the requirement of fortitude, perhaps the most important
personal quality required in a trial lawyer.
F. Lee Bailey, To Be A Trial
Lawyer ( John Wiley & Sons 1985).
[21]Information
on Percy Foreman, available at http://www.fansoffieger.com/foreman.htm
(Last visited February 26, 2002).
[22]A
short bio of Gladys Towles Root, “The
Lawyer’s Hall of Fame” available at http://www.fansoffieger.com/root.htm
(Last visited February 26, 2002). See
also, Cy Rice, Defender of the
Damned: Gladys Towles Root (The Citadel Press 1964).
[23]http://news.com.au/common/printpage/0,6093,3295495,00.html
[24]See,
e.g., Rubenstein v. State, 407 S.W.2d 793 (Tex. Cr. App. 1966).
[25]Emily Couric, The Trial Lawyers: The Nation’s
Top Litigators Tell How They Win 325 (St. Martin’s Press 1988).
[26]Henry G. Miller, On Trial: Lessons from a
Lifetime in the Courtroom (ALM Publishing 2001).
[27]Id.
at 162-63.
[28]Evan Thomas, The Man to See 157 (Simon
and Schuster, 1992) (1991). Mr. Thomas
is quoting from an early draft of Williams’ book One Man’s Freedom.
[29]
Richard Fountain, Wit of Wig (1980), in The Quotable Lawyer 35-16.23(David Shrager and Elizabeth
Frost ed. New England Publishing Associates, Inc. 1986). Martin Mayer attributes the quote to the
British bar generally. See, Martin Mayer, The Lawyers 44 (Dell
Publishing Company, Inc., 1968) (1966).
[30]An
exhaustive search has failed to turn up this article. However, my memory of this article is quite
vivid. Presumably this maxim does not
operate when the court is controlled by “criminals.” “Five Supreme Court Justices are criminal in
the truest sense of the word.”
See, e.g., Vincent Bugliosi, None Dare Call
it Treason, The Nation,
February 5, 2001, available at http://www.thenation.com/doc.mhtml?i=20010205&s=bugliosi
(Last visited February 26, 2002).
Bugliosi does get in a few shots at David Boies, attorney for Vice President
Gore in the Supreme Court.
[31]Harry Kalven, Jr., and Hans Zeisel, The
American Jury 351-72 (Little, Brown & Company 1966).
[32]Id.
at 372. Kalven and Zeisel were
specifically studying jury trials in criminal cases.
[33]Id. Kalven and Zeisel based their study on
comparing the trial judge’s opinions on the case to the jury’s actual
verdict. ‘There is but one final
statistic on the over-all effect of superior defense counsel. Since the factor appears in 1 out of 11
trials, and since it causes disagreement once every 9 times it is present, a
disagreement is caused by superior defense counsel in (1/11 X 1/9 =) 1/99, or
in a little more than 1 per cent of all trials.” The “disagreement” referred to is
disagreement between the judge and the jury as to the appropriate verdict.
[34]Shari Seidman Diamond, et. al., Juror
Reactions to Attorneys at Trial, 87 J.Crim.L.
& Criminology 17 (Fall 1996).
In addition to Kalven and Zeisel’s work, other studies have confirmed
that the actual power of the lawyer to affect a jury verdict may be
substantially less than lawyers believe.
See, e.g., Shari Seidman
Diamond, et. al., Juror Reactions to Attorneys at Trial, 87 J.Crim.L.
& Criminology 17 (Fall 1996). (“This attempt to take a more
comprehensive look at juror reactions to attorneys reveals that the attorneys,
like other trial participants, contribute to, but do not singlehandedly
determine, the outcome of a trial.”) See, also, Valerie P. Hans and
Krista Sweigart, Jurors’ Views of Civil Lawyers, 68 Ind. L.J. 1297
(1993); Wissler, Hart and Saks, Decisionmaking
About General Damages: A Comparison of Jurors, Judges, and Lawyers, 98
Mich. L.Rev. 751 (December 1999).
[35]See,
e.g., Shari Seidman Diamond, et. al.,
Juror Reactions to Attorneys at Trial, 87
J.Crim.L. & Criminology 17 (Fall 1996).
[36]Telephone
interview with Scott O. Wright Senior Federal District Judge in the Western
District of Missouri ( January 30, 2002).
[37]Harry Kalven, Jr., and Hans Zeisel, The
American Jury 372 (Little, Brown & Company 1966). Quoting from
Patrick Hastings, Cases in Court, p. 329 (1953).
[38]See
the analysis of Lincoln’s career available at http://www.fansoffieger.com/lincoln.htm
(Last visited February 26, 2002). This
web site features thumbnail sketches of many prominent trial lawyers, past and
present.
[39]Albert A. Woldman, Lawyer Lincoln 246
(Carroll & Graff Publishers, Inc., 1936).
[40]Henry
C. Whitney, a contemporary circuit riding lawyer in Illinois. Albert
A. Woldman, Lawyer Lincoln 99 (Carroll & Graff Publishers, Inc.,
1936).
[41]Id.
[42]Id.
[43]Legends
in the Law: William G. Hundley, The
Washington Lawyer, November 2001, at 30.
[44]Id.
at 34.
[45]Id.
at 38.
[46]Harry Kalven, Jr., and Hans Zeisel, The
American Jury 364 (Little, Brown & Company 1966).
[47]Attributed
to La Rochefoucauld, in The
Quotable Lawyer 109-55.4 (David Shrager and Elizabeth Frost ed. New
England Publishing Associates, Inc. 1986).
[49]http://www.yogiberraclassic.org/quotes.htm
(Last visited February 26, 2002).
[50]Telephone
interview with Scott O. Wright Senior Federal District Judge in the Western
District of Missouri ( January 30, 2002).
[51]http://www.yogiberraclassic.org/quotes.htm
[52]See
generally, Harry Kalven, Jr., and
Hans Zeisel, The American Jury 351-72 (Little, Brown & Company
1966).
[53]Symposium,
Who is the Lawyer of the Century?, 33 loy.la.l.rev.
613, 642 (January 2000).
[54]Evan Thomas, The Man to See 22 (Simon
& Schuster, 1992) (1991).
[55]Id.
[56]Mike Papantonio, In Search of Atticus Finch: A
Motivational Book for Lawyers 209 (Seville Publishing, 1995).
[57]Louis Nizer, My Life in Court 91
(Doubleday & Company, Inc., 1961).
Of course, Mr. Nizer practiced law in a time when women lawyers were
very much the exception.
[58]See,
Guilty on Every Count, Denver Post, June 3, 1997, reported
at http://www.rickross.com/reference/mcveigh/mcveigh15.html
(Last visited February 26, 2002). “Meanwhile,
McVeigh's attorney, Stephen Jones, appearing soft-spoken and somewhat downcast,
said he planned to ‘get right back to work. There will be a second phase to
this trial, and we're going to be ready for it.’ Jones, who is also bound by the gag order
not to discuss the case, reiterated that he would be ready for the next phase
and congratulated the prosecution team.
‘I simply wanted to say we will be ready for the second stage in the
morning and I congratulate (the prosecution) and the FBI agents who were
responsible for the investigation and prosecution of this case and their work
on behalf of the United States and their presentation in court.’'' Henry G. Miller has a number of
concrete examples of stereotyped winners and losers in his Litigation
article “Living with Defeat,” reprinted in Henry
G. Miller, On Trial: Lessons from a Lifetime in the Courtroom (ALM
Publishers 2001).
[59]See,
generally, Samuel Gilman Brown, The
Life of Rufus Choate ( Little, Brown & Company 1881).
[60]“In
the Rotunda of the Boston Courthouse there stands a noble bronze. Wrought by the master hand of Daniel Chester
French with fine feeling and consummate art, the statute of Rufus Choate looks
down upon the hurrying throng of lawyers who hardly pause to glance at the
strong lineaments of a noble face or the determined posture of a resolute and
manly figure. Here for all time is a
glorious memorial that will commemorate forever the greatest advocate of
America.” Lloyd Paul Stryker, The Art Of Advocacy 176 (Simon & Schuster, Inc. 1954). See,
Claude M. Fuess, Rufus Choate: The Wizard of the Law, (Gaunt Inc., 1997)
(1928).
[61]Id.
at 189-90.
[62]Id.
at 189.
[63]Here’s
an example of a particularly stinging loss at trial that ultimately worked out
reasonably well. Landis v. Sumner
Mfg. Co., Inc., 750 S.W. 2d 466 (Mo. App. 1988). The jury returned a large verdict for the
plaintiff against my client. The trial
judge sustained a JNOV motion and, alternatively, a motion for a new
trial. After the Court of Appeals overturned
the trial court’s JNOV ruling, the case was remanded for the new trial. The case was eventually settled for
approximately half of the original verdict amount. I was more than happy to end up as a
“semi-conquering hero” in this case. My
opponent in this case, veteran Kansas City lawyer E. Wayne Taff, did a great
job at trial on this case after having lead trial counsel responsibilities
thrust on him in the middle of the trial.
Under the difficult circumstances he inherited, Wayne was still probably
a full-fledged “conquering hero” in this case.
[64]See
http://www.yogiberraclassic.org/quotes.htm (Last
visited February 26, 2002).
[65]Symposium,
Who is the Lawyer of the Century?, 33 loy.la.l.rev.
613, 615-16 (January 2000). See,
Gerald F. Uelmen, Moman Pruiett, Criminal Lawyer, Criminal Defense, May-June 1982, at
35. See, also, Moman Pruiett, Moman Pruiett Criminal Lawyer
(Harlow Publishing Corp., 3rd ed. 1945) (1944).
[66]Moman Pruiett, Criminal Lawyer
(autobiography)(1944), p. 115-27.
[67]See,
generally, “Dick Trickle, America’s Winningest Driver” available at http://tricklefan.topcities.com/ (Last visited February
26, 2002).
[68]John C. Maxwell, Failing Foward: Turning
Mistakes into Stepping Stones for Success (Thomas Nelson Publishers
2000).
[69]Id
at 144.
[70]Emily Couric, The Trial Lawyers: The Nation’s
Top Litigators Tell How They Win 364 (St. Martin’s Press
1988). The lawyers profiled are Fred
Bartlit, Julius Chambers, Linda Fairstein, David Harney, Richard “Racehorse”
Haynes, Arthur Liman, Howard Weitzman, James F. Neal, and Edward Bennett
Williams.
[72]You
can read one of Moe Levine’s closing arguments reprinted and available at
http://www.howardnations.com/persuasivejuryarguments/ii‑iii.html (Last visited February 26, 2002). See, also, Levine, Moe. The best of Moe: Summations (Condyne Glanville
Information Services: Oceana, 1983).
[73]Long-time
Kansas City trial lawyer Arthur H. Stoup recommends that the trial lawyer have
an associate or a paralegal actually talk to the jurors to insure that the
jurors won’t be worried about hurting feelings and will provide an honest
explanation of their thinking. Chicago’s
Fred Bartlit also has a paralegal conduct post-trial jury interviews or “debriefings”
in every trial. Bartlit’s paralegal is
careful not to reveal to the jurors who she is working for so as not to
influence the juror’s comments. Emily Couric, The Trial Lawyers: The Nation’s
Top Litigators Tell How They Win 22-23 (St. Martin’s Press 1988).
[74]Lloyd Paul Stryker, The Art of Advocacy 56
(Simon & Schuster, Inc., 1954).
[75]See,
e.g., Section 537.125.3, RSMo. 1994.
[76]For
more information about Darrow, see Professor Douglas O. Linder’s Darrow site at
http://www.law.umkc.edu/faculty/projects/ftrials/DARESY.HTM
(Last visited February 26, 2002).
[77]See
http://www.law.umkc.edu/faculty/projects/ftrials/scopes/scopes.htm; (Last visited February 26, 2002). See, generally, Geoffrey Cowan, Man for Some Seasons: Clarence Darrow, The American Lawyer, December 6, 1999 available at
http://www.law.umkc.edu/faculty/projects/ftrials/DarrowCowan.html (Last visited
February 26, 2002).
[78]See
http://www.law.umkc.edu/faculty/projects/ftrials/leoploeb/leopold.htm (Last
visited February 26, 2002); See, The Decision and the Sentence
http://www.law.umkc.edu/faculty/projects/ftrials/leoploeb/leopold.htm (Last
visited February 26, 2002).
[79]See,
The Bombing of the Los Angeles Times available at http://www.usc.edu/isd/archives/la/scandals/times.html> (Last
visited February 26, 2002); (Last
visited February 26, 2002). See also,
Book Review, Great Closing Arguments, by Jacob A. Stein at <http://writ.news.findlaw.com/commentary/20000612_stein.html>
(Last visited February 26, 2002). (Last visited at February 26, 2002).
[80]See,
Mike Papantonio, Clarence Darrow, The
Journeyman (Seville Publishing 1997).
[81]See,
Arthur Weinberg, Attorney for the Damned
(Simon & Schuster 1957).
[82]See,
Claude M. Fuess, Rufus Choate: The Wizard
of the Law 63 (Gaunt, Inc. 1997) (1928).
[83]David McCullough, John Adams (Simon
& Schuster 2001); See also, The
Boston Massacre Trials <http://www.sjchs‑history.org/massacre.html>
(Last visited February 28, 2002).
[85]Assuming
that one’s ability to analyze the odds of winning or losing at trial are
reasonably well developed in the first place.
[86]See
footnote 90.
[87]Lloyd Paul Stryker, The
Art Of Advocacy 287 (Simon & Schuster,
Inc. 1954)(Knight with the Rueful Countenance, A Profile by Alexander
Woollcott, reprinted from The New Yorker Magazine, Inc., Copyright 1939).
[88]As
heard on the album, The Gambler, United Artists 1978.
[89]Henry
G. Miller, Learning to Love the Trial Lawyer’s 14 Challenges, New York State Bar Journal, September,
2001. (“10. Learning to Love Boldness,
or Faint Heart Fair Cases Never Win.”)
[90]Percy
Foreman, Los Angeles Times, May 16, 1976, in The Quotable Lawyer 41-19.29 (David
Shrager and Elizabeth Frost ed. New England Publishing Associates, Inc. 1986).
[91]I
still have the trial record of the first case I ever lost. The case was United States Air Force v.
Howard M. Bell, SSGT, USAF, a Special Court-Martial. The military jury came back with their
verdict at 1:00 A.M. on Sunday morning, May 6, 1973, and convicted my client of
communicating a threat to kill a female airman.
We appealed. We lost. I am still irritated about it. If you want to discuss all the reasons why
the jury and the court of appeals were wrong in convicting my client in this
case, feel free to give me a call, collect, at (816) 283-0400. I can live with it–but I don’t have to like
it!
[92]Henry
G. Miller, Living With Defeat, Volume
IX, No. 1 The Missouri Trial Attorney 13 ( February 1991). Mr. Miller’s article was reprinted from Litigation,
Volume 13, No. 2.
[93]“It
is not the critic who counts, not the man who points out how the strong man
stumbled or where the doer of deeds could have done better. The credit belongs to the man who is actually
in the arena; whose face is marred by dust and sweat and blood; who strives
valiantly; who errs and comes up short
again and again; who knows the great enthusiasms, the great devotions, and
spends himself in a worthy cause; who, at the best, knows in the end the
triumph of high achievement; and who, at the worst, if he fails, at least fails
while daring greatly, so that his place will never be with those cold and timid
souls who know neither victory nor defeat.”
By Theodore Roosevelt, quoted in J. Gary Gwilliam, The Art of Losing, Trial, May, 1998. (Quoting Theodore’s
Roosevelt’s speech “Citizenship in a Republic,” delivered at the Sorbonne in
Paris, France, on April 23, 1910).
[94]“For
some people, fear of failure brings about absolute paralysis.” John C. Maxwell, Failing Foward: Turning
Mistakes into Stepping Stones for Success 39 (Thomas Nelson Publishers
2000).
[95]
Erwin W. Lutzer, Conquering the Fear of
Failure 147 (Servant Publications 2002) attributing the quote to Joshua
XIV.
[96]In
addition to Kalven and Zeisel’s work, other studies have confirmed that the
actual power of the lawyer to affect a jury verdict may be substantially less
than lawyers believe. See, also,
Valerie P. Hans and Krista Sweigart, Jurors’ Views of Civil Lawyers, 68
Ind. L.J. 1297 (1993); Wissler, Hart
and Saks, Decisionmaking About General Damages: A Comparison of Jurors,
Judges, and Lawyers, 98 Mich. L.Rev. 751 (December 1999).
[97]Henry
G. Miller, Living With Defeat, Volume
IX, No. 1 The Missouri Trial Attorney 13 ( February 1991). Mr. Miller’s article was reprinted from Litigation,
Volume 13, No. 2.
[98]The
fabled Melvin Belli, “The King of Torts,” got to witness the public execution
of at least three of his early criminal clients, two by hanging and one in the
gas chamber. This may help explain why
Mr. Belli went on to specialize in personal injury. Melvin
M. Belli, My Life on Trial (William Morrow and Company, Inc., 1976)
Chapter 5 (Hangman’s Hood).
[99]Milton
B. Pollack, “Some Practical Aspects of Appellate Advocacy,” New York State Bar Bulletin, February
1959, in The Quotable Lawyer
190-75.96 (David Shrager and Elizabeth Frost ed. New England Publishing
Associates, Inc. 1986).
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