Picking a Winner
We want to win the cases we take on. And we want to take on the cases we can win. These are not the same things.
Litigators spend tremendous time talking and thinking about how to win cases. Substantial energy is devoted to issues like preparation, discovery, jury selection, trial notebooks, direct and cross-examination, opening statements, closing arguments, briefs, appeals, and so on.
Focusing on these techniques is a good and important use of time, but this contemplation approaches our cases as if they were our relatives: an inscrutable assortment of winners and losers that we must embrace because Fate has left us no choice. And in all this thinking we often ignore the supremely important prerequisite questions. Is this a case we should take on at all? If we must take it on, is this a case that can be tried successfully or settled advantageously? In sum: is this case a "winner" and how do we pick "winners"?
Before we can decide whether a case is a "winner," we have to determine what it means to "win" the case. Many believe there is only one criterion for winning: victory in court.
In some cases, however, the client may believe that a "win" consists of a quick settlement. In short, the client may want to get it on, get it done, and get it over with. In other cases, the client may believe that a "win" simply consists of not compromising. In still other cases, the client may even believe that a "loss" qualifies as a "win." A familiar example are the defendants who view an adverse judgment as a business expense that they would have to pay absent litigation and that litigation helps reduce in amount. Thus, in order to know what it would mean to "win," we first have to achieve a clear understanding of what the client wants to accomplish.
So—with all of that said—how do we go about picking "winners"? Think about it for a moment from the plaintiff’s perspective. Tom Demitrio, a leading plaintiff’s counsel with Chicago’s Corboy & Demetrio, points out that, in this "age of tort reform—excuse me, tort deform . . . economics has become very important." In light of these reforms, plaintiffs often must spend more (for example, on up-front expert reports and affidavits) but may recover less (for example, by virtue of caps on noneconomic damages). Now think about it from a corporate-defense perspective. For many businesses, the calculation is a simple and syllogistic one: Litigation is a cost center; all cost centers must become leaner and meaner; therefore, litigation costs must be reduced.
Certainly, issues of principle and precedent can trump issues of economics, and a decision that serves economic goals in the short term may disservice them in the long run. But many clients are more concerned about principal and interest than they are interested in principled concerns.
For better or worse, it is increasingly important that we understand how to assess the economics of a case. This means developing historical data, tracking actual litigation costs, preparing projected budgets (even if your clients aren’t asking for them—yet), and using a task-based billing system so you can determine whether your budgets made sense. All of this can seem like a nuisance, but we should keep it in perspective.
Cases that are "winners" tell a good story. Ed Goldman, legal counsel to the University of Michigan Hospital and a leading authority on health-care law issues, says "I need to be able to tell a compelling story. . . . There has to be a hook for the jury."
Still, at the stage of initial case assessment, our information is typically limited: We have heard only our client’s rendition of the facts. We have not had an opportunity to engage in formal discovery. We have not seen the other side’s witnesses or records. And, because litigation can head off into all manner of merry frolic and detour, we don’t even know what we don’t yet know. How do we assess the facts—the "story"—under these circumstances? Uneasy with our ignorance, we tend to retreat to the comfort of generalizations, stereotypes, and clichés. This can be a monumental error.
We need to think more globally about our cases. Test the seductive generalizations, stereotypes and clichés that tell us the case is a "winner" or a "loser." Resist the temptation to overvalue any discrete fact. Consider what the other side may say and who will say it for them. Recognize that litigation takes its players from life, that life is rarely simple, that litigation is therefore complicated, and that the odds of winning increase exponentially if out of all of that complexity we can draw the reasonable, interesting, compelling story that our client has to tell. And acknowledge that, if we cannot find the story, we probably cannot win the case.
In many cases, an abundance of information is available up front. There are often witnesses to interview, public records to obtain, and the like. With the advent of computer resources—for example, networks, online services, the Internet, and World Wide Web—we can obtain access to an amazing amount of this information at our desks. It takes some time, energy, and resources to find out if you have a "winner"; on the other hand, it takes more time, energy, and resources if you find yourself stuck with a "loser."
If we have no other piece of information by which to evaluate a case, we usually have great sources of information in the clients themselves. How does the client look and speak? Does the client seem interested and invested in the case? Did the client bring a family member with him or her to the meeting—a person who may interfere with the representation down the road? Does the client’s story hold together? Do you think this person is telling the truth? Even more importantly, will others believe him?
Muhammad Ali once said: "Not only do I knock ’em out. I pick the round." Cases that look like winners based upon their facts can easily be knocked out by the punch of a solid principle of law during just about any round. A legal principle with which you were not familiar can turn your winner into a loser at the motion stage, at trial, or on appeal. Legal principles can also have a profound effect on the shape of a trial. "Good facts" and "bad facts" can become meaningless facts if they are inadmissible. Even an absence of facts can have an impact if the law dictates that a presumption or an adverse inference or judicial notice can fill the void. And, regardless of whether the facts are "good" or "bad" or do or don’t show liability, whether a case is a "winner" may really depend on law that places a cap on damages or that provides that damages must be trebled.
By making sure we understand what our client would view as a "win," by conducting an early and thorough informal investigation of the facts, by looking for the credible and appealing story that lurks somewhere in the chaos of events, by educating ourselves on the controlling legal principles and considering what they can do for us—and will do to us—we can become better at picking "winners."