Mr. Lat, my appellate work has been only sporadic. But I was told when I became a trial lawyer, and believe based on 44 years of practice since then, that a lawyer's win/loss record at trial isn't very useful.
More useful, but much harder to assess, is the number of cases you win that you ought to have lost, versus the ones you lose that you ought to have won.
I've of course won cases I ought to have won, and lost cases that were effectively unwinnable. Indeed, I've been hired several times on unwinnable cases, in which my sole goal was the least-bad version of losing. I call these my "dead-stick landing" cases, meaning my client and I each got to walk away after the inevitable crash.
It's the cases you lose but ought to have won that teach you the most, though. The war stories from those cases are a good curriculum for learning to be a trial lawyer, and I love hearing them and (painfully, ruefully, but honestly) telling them.
And of course, even the best trial lawyers settle most of their cases, in which their skill and zeal may demonstrably result in a superior settlement to that which could have been accomplished by lessor effort, or by a lesser lawyer. Like the 80% of people who consider themselves a better than average driver, though, many lawyers maintain their egos mostly through the wiggle-room created by the difficulty of assessing settlement results.
I learned early in my less storied legal career never to fear the trial lawyers who blustered that they’d never lost a case. That brag just told me they were afraid. And lawyers who are afraid to lose are also afraid to swing for the fences. Sure, settling or pleading out is often the best thing for the client when the facts and the law and the politics are tough. But not always. Unpopular clients and unpopular arguments need representation, and the lawyers who take the just cases without worrying about their stats are the true lions. I never argued in the Supreme Court, but I do not believe, no matter how brilliant the advocate, that case selection is not a significant part of any set of stats with a win rate over 60-odd percent. Nothing wrong with that, but let’s not pretend it’s anything else.
I'm undefeated in Supreme Court arguments (1/1). Ya gotta know when to quit.
Mr. Lat, my appellate work has been only sporadic. But I was told when I became a trial lawyer, and believe based on 44 years of practice since then, that a lawyer's win/loss record at trial isn't very useful.
More useful, but much harder to assess, is the number of cases you win that you ought to have lost, versus the ones you lose that you ought to have won.
I've of course won cases I ought to have won, and lost cases that were effectively unwinnable. Indeed, I've been hired several times on unwinnable cases, in which my sole goal was the least-bad version of losing. I call these my "dead-stick landing" cases, meaning my client and I each got to walk away after the inevitable crash.
It's the cases you lose but ought to have won that teach you the most, though. The war stories from those cases are a good curriculum for learning to be a trial lawyer, and I love hearing them and (painfully, ruefully, but honestly) telling them.
And of course, even the best trial lawyers settle most of their cases, in which their skill and zeal may demonstrably result in a superior settlement to that which could have been accomplished by lessor effort, or by a lesser lawyer. Like the 80% of people who consider themselves a better than average driver, though, many lawyers maintain their egos mostly through the wiggle-room created by the difficulty of assessing settlement results.
I learned early in my less storied legal career never to fear the trial lawyers who blustered that they’d never lost a case. That brag just told me they were afraid. And lawyers who are afraid to lose are also afraid to swing for the fences. Sure, settling or pleading out is often the best thing for the client when the facts and the law and the politics are tough. But not always. Unpopular clients and unpopular arguments need representation, and the lawyers who take the just cases without worrying about their stats are the true lions. I never argued in the Supreme Court, but I do not believe, no matter how brilliant the advocate, that case selection is not a significant part of any set of stats with a win rate over 60-odd percent. Nothing wrong with that, but let’s not pretend it’s anything else.
One of the best Original Jurisdiction's ever. Fascinating topic.
Thanks! I had fun with this one—especially the footnotes.