Going For Broke In The Name Of Justice - Pride Has No Place In The Courtroom
posted on November 24th, 2009 in Trial, Strategy by clintI’m a night owl by nature so I wound up watching “A Civil Action” very late last night on one of the movie channels. This was John Grisham’s ode to a Boston personal injury lawyer, Jan Schlictmann, who goes for broke to win a toxic tort action. He turns down a $20,000,000 offer while the jury is deliberating and ultimately goes bankrupt. It is heart-wrenching to watch, yet I have to see it everytime it shows on a movie channel. I feel like I’m seeing it for the first time every time it comes on. I’m sure you know movies like that as well. I can totally relate to Schlictmann’s desire to seek justice at all costs. I love it. I thrive on it. It makes me get up in the morning knowing those cases are out there. I love court. I love jury trials. The pursuit of justice is the polestar that drives many of us beyond the mundane pleasure making a big attorney’s fee. High income is great, but justice is sweeter. We want to see wrongs “righted.” However, I cannot shake the pearls of wisdom he drops throughout the movie. He wants us to know the extreme price of going for broke. He wants the audience to remember that the pursuit of justice at all cost can be just that … all cost. Here is what struck me like a dagger in the heart:
The odds of a plaintiff’s lawyer winning in civil court are 2 to 1 against. Think about that for a second. Your odds of surviving a game of Russian roulette are better than winning a trial…12 times better. So why does anyone do it? They don’t. They settle. Out of the 780,000 cases filed each year, only 12,000 or 1 and a half percent ever reach a verdict. The whole idea of lawsuits is to settle – to compel the other side to settle. You do that by spending more money than you should, which forces them to spend more money than they should. And whoever comes to their sense first…loses. Trials are a corruption of the process, and only fools with something to prove end up ensnared in them. When I say “prove” I don’t mean about the case. I mean about themselves.
We are real river boat gamblers aren’t we? I have obtained 3 multi-million dollar malpractice verdicts in my 15 year career. I have also lost 8 malpractice cases during the same time frame. Three of those losses I could not explain to you in a million years because I thought they were winners. I believe that no experience is bad if you learn from it. I have learned recently that jurors are more conservative and hence stingy than ever about awarding plaintiff’s verdicts. Who can blame them? They are inundated daily with repeated calls for medical liability reform, which in their minds accounts for the unnecessary cost of defensive medicine. Put it all together, and you have to be careful about the cases you select. I decline over 90% of the claims for lack of damages, liability, or simply lack of a compelling client.
There is also the matter of pride. I got into trial practice because it was the closest competition to football that I could find. I was never good at football, but I loved it. A good trial is the only substitute for buckling a chinstrap and smashing helmets. I found that with success comes pride, and with pride comes failure. You have to stay humble in the courtroom while maintaining a quiet confidence. That is the tightrope. That is the test. Again, going back to a Civil Action, Grisham says:
The single greatest liability a lawyer can have is pride. Pride…pride has lost more cases than lousy evidence, idiot witnesses, and hanging judges all put together. There is absolutely no place in the courtroom for pride.
Tell me he’s wrong? You can’t because you know its true. Losing will snap you back into place. The point I’m trying to make is that you should never go for broke for pride’s sake. If you know your cause is just and you have the quiet confidence that every great trial lawyer exudes, then litigate your case. Just make sure that you keep the odds in mind and ask yourself, “Can my client afford to lose this case.” The answer should guide your strategy toward disposition.