Monday, July 14, 2008

Best Practice: Winning Trial Strategies–Having a Realistic Goal

Guest Blogger: Glenn Bradford of Glenn E. Bradford and Associates PC in Kansas City, Missouri

An English lady once asked the Lord Chief Justice of England to explain what the necessary elements to win a case were. He replied, “First you need a good case, then you need good evidence, then you need good witnesses, then you need a good judge and then you need a good jury, and then you need good luck.” ( Frances L. Wellman, Success in Court 96 The Macmillan Company 1941)

The first point that ought to be made in any article discussing trial practice is that, in truth, a trial lawyer has only limited control over the outcome of any given trial. Indeed, it has been written that "[t]he British bar seems fairly well agreed” that "[o]f every hundred cases, ninety win themselves, three are won by advocacy, and seven are lost by advocacy."

The best example of the limitations inherent on a trial lawyer might be the career of Abraham Lincoln. Although widely acclaimed during his legal career, Lincoln's courtroom record did not seem to be particularly outstanding, even with his reputation as the “best all-round jury lawyer of his day in Illinois.” (Albert A. Woldman, Lawyer Lincoln 241 Carroll & Graff Publishers, Inc., 1936)

Of 87 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 40 and against them in 47. Of 82 actions argued before a jury, verdicts favorable to his clients were returned in 43. (Albert A. Woldman, Lawyer Lincoln 241 Carroll & Graff Publishers, Inc., 1936)

Lincoln’s legal career is proof of the proposition that brains, talent, experience, preparation, and a compelling personality do not guarantee perennial success in the courtroom. In the author’s experience, effective trial lawyers start with the concept of respecting the facts of the case and respecting the intelligence of the jury. The quickest way to lose a case is to try to oversell it. New York lawyer Francis L. Wellman had these observations:

There is a fine art in never overstating a case; for if the evidence turns out to be stronger than the (opening) statement, the advocate is sure to secure credit for his candor and modesty. He should avoid, therefore, all exaggerations. Facts should expand on the trial rather than diminish in force. (Francis L. Wellman, Success in Court 137 The Macmillan Company 1941)

Clients tend to want to hit a home run in every case. Babe Ruth hit 714 home runs but he also struck out 1,330 times, which was the major league record for many years. Putting litigation in a baseball context, perhaps the wise lawyer will seek to convince the client that it is important to hit what is pitched. Every pitch cannot be hit for a home run. Sometimes it’s better to try for a base hit rather than waste an opportunity trying to do something that cannot be done.

Former Chief Mediator of the Second Circuit Court of Appeals, Frank J. Scardilli, put it well, saying “[t]he lawyer must be an agent of reality to the client” (Robert D. Rachlin, Esq., Seven Habits of Effective Lawyers, Vermont Bar Journal, Summer 2007, at 25) and “this implies respect for economic realities, as well as an awareness of the legally achievable.” (Robert D. Rachlin, Esq., Seven Habits of Effective Lawyers, Vermont Bar Journal, Summer 2007, at 25)

Every plaintiff’s case is not a multi-million dollar verdict waiting to happen. Every defense case is not potentially a defense verdict or an acquittal. Don’t squander what you do have to work with trying to get a result that realistically cannot be secured. Make something out of what you have to work with.

Noted New York lawyer Emory R. Bucker once said: “The greatest compliment a trial lawyer who has won can receive is to have the jury think and say afterwards that the defeated side had a better lawyer but the successful side had a better case.” (Francis L. Wellman, Success in Court 349 The MacMillan Company 1941)


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gary chism said...

where can I get Younger's video "Ten Commandments of Cross-Examination?"