Lawyers Who Never Lose

Scott and Norm and Gideon and Stephen have been having a discussion, started by Norm, about lawyers "keeping score" -- keeping track of (and, incidentally, boasting about) their won/lost records.

Norm points out that a jury trial really isn't a sporting event, and the playing field isn't level.

I can't promise any client that a won-loss record will shed any light on the outcome of his or her case. Each case is different. Sometimes a mountain of facts can yield only a valley of despair. All a client can and should expect is dedication and hard work.

Scott adds:

If you want to know whether the lawyer is any good, there are two questions to ask yourself. Does he know what he's doing and will he fight for me to the end. Other than that, the score card means nothing.

Steven contributes:

The honest and fair approach is to explain that no two cases are anywhere near comparable and that our "won/loss" record is a meaningless attempt at self-promotion and self-glorification.

And Gideon pipes up:

For us public defenders, on the other hand, the score wouldn’t represent anything. Our “win-loss” record means as much as it does for a pitcher in baseball: almost nothing. We get what cases we get. We deal with them as best we can.

So my esteemed colleagues seem to agree that a win/loss record is meaningless.

I disagree.

Suppose that you have a choice of two lawyers. One of them claims never to have lost a criminal case; the other, like me, Scott, Steven, and Gideon, has had clients convicted by juries. All else being equal: which do you hire? If a win/loss record were meaningless, the correct answer would be "either." But I'm confident that Norm, Scott, Gideon, and Stephen would agree with me when I say: hire the latter lawyer -- the one who admits having lost jury trials.

There are four possible reasons a lawyer would claim never to have lost a criminal case. First, he might define "loss" differently than the rest of us. Second, he might be a deceiver. Third, he might not have tried many criminal cases at all. And fourth, he might have tried only the cases that were easy for him.

If the lawyer defines a "loss" differently than the rest of the world, he's failing to communicate. Since lawyers are communicators, you don't want to hire one who tends to give words private definitions (especially if he does so to support his self-image). If you have a choice between hiring a lawyer who speaks to you in his own special language in which losing on bad facts is not "losing", and hiring a lawyer who speaks to you in English, choose the latter.

Similarly, if you have the choice between hiring a lawyer who deceives you and hiring a lawyer who tells you the truth, choose the latter. (That really should go without saying.)

Babe Ruth struck out over 2,000 times. Generally, anyone who tries cases loses some. If you have a choice between hiring a lawyer who is so new to jury trials that he hasn't had an opportunity to feel the sting of defeat and hiring a lawyer who has tried enough cases to get his butt kicked a few (or many) times, choose the latter. The former isn't going to know what to do when things start turning nasty.

There is an exception to the general rule that anyone who tries cases loses some. A lawyer who is very selective might be able to try only cases that are easy. If you try the easy cases and not the difficult ones, you might preserve a perfect or near-perfect win/loss record. Now, the cases that are "easy" to this sort of lawyer may not be easy to everyone. He might be exceptionally gifted and hardworking and able handily to win cases that would be difficult to most lawyers. But, facts being what they are, there are cases that would be difficult for him as well, and he's doing something with those cases other than trying them.

Some of those difficult cases need to be tried. A dedicated, talented lawyer who tries tough cases loses some of them, but he also wins some. In fact, he loses some that by all rights he should have won, and wins some that he should have lost.

Imagine that there's a class of cases that a particular lawyer at his best would have a 50% chance of winning. If he tries two of those cases, he's going to lose one (so he'll no longer have a perfect record), but one of his clients who would not otherwise walk is going to go free. If a lawyer is so averse to losing that he doesn't try the tough cases, his win/loss record might look good, but he's not pushing his limits, and he's leaving something -- the freedom of some of his clients -- on the table.

I have a friend who advertises that she has "never lost a case where she's put her client on the witness stand." Now, she's a great trial lawyer, but I've always thought this an odd thing to say. I have to wonder: are there cases in which she didn't put her clients on the stand, where their testimony might have made the difference between a conviction and an acquittal? And if it came down to the choice between putting a client on the stand and maybe winning a trial, or preserving her perfect testifying-client win/loss record, how would she choose? It seems to me that if you never put a client on the stand and lose, you're not putting your clients on the stand enough.

If I were being defended, I would want to take the stand if my lawyer thought it would do more good than harm, even if I might be convicted despite my testimony. I certainly wouldn't want to think that she might advise me not to take the stand, even if it might help me, because her record might suffer if I took the stand and she "lost" despite our best efforts.

By the same token, if I were being defended I would want my lawyer to help me decide whether to plead or go to trial based entirely on whether the expected cost to me of losing at trial outweighed the expected benefit to me of winning. I would want someone willing to push the envelope, willing to try cases on the ragged edge of the plausible.

It is easy to envision how a lawyer might become a slave to his perfect record -- how the desire to maintain a perfect record might, to his clients' detriment, reduce the lawyer's tolerance of risk. Trial, though, isn't about the sure thing; it is about taking risks. Give me a lawyer who sometimes loses over one who always wins. Any day.