WINNING & LOSING IN THE COURTROOM
IT’S NOT DOING THE SAME X + Y + Z YOU DID IN THE LAST TRIAL
FIGURING OUT WHY YOU WON OR LOST
IS WHAT WILL MAKE YOU A “GO TO” LAWYER
For trial lawyers who really try cases it’s not just how many cases you’ve tried, won, or lost. It’s not how high your IQ is or how smart or intelligent you are. It’s how much understanding you have of why you “won” or “lost” and of how you tried the case and why the jury found the way it did.
I started my trial career a long time ago in a galaxy far far away. It was a time when young lawyers could and did go to trial virtually every week and sometimes twice a week. The firm I was with at that time had as clients the municipal bus company (on a retainer so the more cases they tried the better from the client’s standpoint), three taxi cab companies and a slew of carriers with lots of subrogation work.
The firm had two “rules” relative to trials: first, win, lose or draw you shook hands with the opposing counsel after the verdict (and if you won you did not strut, crow or rub it in). Second, you called all the jurors afterwards or talked to them in the courtroom and found out what they thought about the case, you, and your presentation: again win, lose or draw. That could be exhilarating, humbling or instructive. It made some heads swell out of proportion to what they did versus what the facts did or what the investigators had done. It was instructive, but it also had the potential to be misleading.
What was never made really clear to me was that you may have won or lost not because of single thing you did or didn’t do, but rather because of the facts you were dealt or because of what the investigator did in working up the case, or some other wild card, the makeup of the jury for instance. So if you won and you did x, y, & z, and your level of understanding was that win = x + y + z, you could be sadly mistaken not only for the next trial, but more importantly, you would not have “grown” as a trial lawyer.
Also, maybe x + y + z did win the last case, but you had to figure out if x, y, and z were unique to that case, or if they connected to something in particular to that case, which may or may not carry over to other cases or to trial work in general.
As an OCD type A, I took copious debriefing notes of what jurors told me and constructed elaborate protocols to apply those in the next case. Slowly I learned two very important things. First, juror’s comments are helpful but many times jurors decide for reasons that they don’t even recognize. Second, their ability to verbalize what was and wasn’t important was suspect. Last, that I had to be very careful in carrying over tactics and techniques from one trial to the next. I finally understood it when I watched Tom Hanks as Forrest Gump and wondered what it was that carried over to his portrayal of an astronaut in Apollo 13. I realized that it was something deeper and more nuanced than individual trial tactics and techniques. It was something more than the rings left in a trial lawyer’s brain like the rings left by bath water in a tub.
When you debrief after trials and grow you need to consider the eight dimensions of trial: (1) the facts and (2) the law that was dealt, (3) the personas: yours, opposing counsel’s, & witnesses’, (4) the wild cards, (5) jury make up, (6) psychological drivers (the evil twins: anger & sympathy), (7) group decision-making, (8) and presentation. The lawyers who grow into true trial lawyers are the ones who stop and think about those eight dimensions of trial, who try to integrate how it all works, and who then verbalize what they have “divined” and present it to their peers so it gets a rigorous examination.
Unfortunately, frequently when doing that, you are met with “we don’t do it that way where I practice, we’ve never done it that way before, the judge won’t let me do that” thinking. Part of that might be legitimate in the sense that the persona of that listener just couldn’t adapt to the tactic or technique you’ve discovered to be effective. Most of the time, however, those verbalizations come from attorneys who don’t want to grow, can’t grow or just don’t feel comfortable doing something new. Some uncomfortable verdicts are waiting for them in the future because they can’t or won’t grow and learn new techniques and ways of understanding.
Clients looking for a lawyer have to think about what kind of trial lawyer they are looking for. One who has tried a lot of cases? One who has won a lot of cases? Or, one who understands why they’ve won or lost cases and has developed the ability to bring it together for trial because of that understanding.
Lawyers can both try a lot of cases and win a lot of cases if all they “try” are winners, and settle all of the “losers”. How about the toughest most complex cases? The lawyer the client needs for those cases is the lawyer who has studied winning, losing, and jury understanding and who has been willing to publish, write and speak about that understanding, to subject it to the scrutiny of peers. Those are the trial lawyers who can understand how to win the next trial and not just repeat what was done in the past, and which might not be applicable to the next case and the next jury. Trial work is not x + y + z, but rather it is differential equations and calculus when it comes to really understanding how to try jury cases.
J. Ric Gass is a member in the firm Gass Weber Mullins LLC, in Milwaukee. Ric is a Fellow of the American College of Trial Lawyers, Litigation Counsel of America and the International Society of Barristers and a Diplomat in the American Board of Trial Advocates. He is a Past President of the Federation of Defense & Corporate Counsel, Lawyers For Civil Justice and Litigation Counsel of America. Ric has tried over 300 cases to verdict and represents both defendants and plaintiffs. Ric’s verdict representing a public corporation and a private manufacturing client of $104.5 million is the largest verdict in the State of Wisconsin.