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Why I Lost Cases
By: Bob Grove

"Experience is the name we give to our mistakes."

Why write about losing? Little is learned from winning. We believe our success is a result of our ability and talent and move on. There is no need, much less compulsion, to examine our performance and correct mistakes. Losing hurts. Losing can't continue. It's too painful. You are forced to examine the defeat and identify the mistakes. Mistakes get corrected and the pain is avoided.

Losing may be the only effective way to learn how to win. Trial advocacy can't be taught in law school and few lawyers train under good trial lawyers. Mediation and depositions are no substitute for the courtroom. The only way for most of us to learn is to screw up, recognize the mistakes and not repeat them.

These are some of my mistakes. Perhaps you can avoid them. Probably you will have to enter the courtroom and learn from your own mistakes.

I WASN'T PREPARED

Nothing is more important than preparation. Preparation is more important than talent, intelligence, experience or personality. Lawyers seldom win cases but they frequently lose them, most often because they weren't prepared. Success in the courtroom has a high price. Weekends lost, families neglected. Preparation is no fun but it's better than losing. And you will lose if you are not prepared.

Fear is always in the courtroom. Fear of losing, fear of not being good enough to win, fear of the unexpected, fear of the judge and jury. Preparation is the only way to cope with fear.

Your reaction is probably, "Tell me something I don't know." Everybody knows preparation is important. The problem is that everybody may know it but nobody does it. I've seen a lot of lawyers in a lot of courtrooms. I can name six or seven lawyers who were truly prepared for trial, Bob Gibbins, Dick McCarroll, Ray Chester, and several others. I know hundreds of lawyers who weren't prepared. They spent the weekend before trial with their family. Instead of going through four or five drafts of the outline of the cross-examination of an expert, they winged it. Legal assistants interviewed witnesses and outlined depositions. Often they did fine. Gibbins and McCarroll did better.

I ACTED  LIKE A LAWYER

Jurors believe that winning is more important to lawyers than the truth. A lawyer will do or say anything to win. The obvious result is that jurors don't trust lawyers. The more you act like a lawyer, the less the jury trusts you.

For example, lawyers object. Lawyers object because the evidence hurts. Jurors know why you are objecting. Object if you must. Sometimes you have no choice. But understand that the objections may hurt you more than the evidence. Trust is important. Don't expect a jury to trust you if you're constantly trying to hide evidence.

The system aggravates the mistrust. The practical meaning of zealously representing your client is presenting everything good for your side and everything bad for the other side. The truth may emerge but not because one lawyer presented the whole truth.

Candor is not associated with lawyers. Lawyers seldom admit weakness. A lawyer was attacked in final argument for not calling a witness. He replied: "I didn't call the witness because he didn't have anything good to say for our side. But let me tell you what the other witnesses said." A little candor and humility can offset a lot of mistrust.

There are too many lawyer stereotypes to list them here. Avoid almost all of them.

I DIDN'T ASK FOR THE MONEY/I TRIED TO SELL SOMETHING THAT WASN'T REAL

Gerry Spence was asked how he got such large verdicts. His answer, "I asked for them." It's hard to ask a jury for a specific amount of money. You know the jury is never going to give you all you ask for, so you ask for more than the case is worth. But asking for too much may offend some jurors. It's difficult to know what to ask for. Lawyers avoid this problem by not asking for a specific amount. They trust the jury to do the right thing. That seldom works. Give the jury a number. But the number has to be real.

Sometimes you believe your own BS. In fact, by the time the trial begins you had better believe it. The problem is separating the real from the contrived. The economist testifies the plaintiff has a large wage loss. The vocational expert testifies the plaintiff cannot return to his job and he can only do sedentary work. The doctor testifies the plaintiff may need another operation and expensive future medical treatment. But the plaintiff hasn't tried to find a job, any job. And he has not seen a doctor in more than a year. The potential damages are high but the verdict is likely to be a small fraction of the projections of the experts.

It's difficult to know what to ask for.  But figure it out and ask for something real.

I HAD TOO MANY EXPERTS

There are always paid experts available to help you. The problem is that they are cross­examined. They are cross-examined about their large fees, advertising, contacts with insurance companies or plaintiffs' groups and consistent testimony for plaintiffs or defendants. Paid experts are often forced to admit facts and theories that hurt or even destroy your case.

For example, the bad faith expert who testifies that the insurance company's offer was reasonable but concedes on cross­examination that the insurance company should have considered the insured's financial situation and tendered the policy limits. Or the vocational expert who testifies that the plaintiff can only do sedentary work but admits on cross-examination that there are lots of jobs the plaintiff can do and he hasn't helped the plaintiff find a job.

The jury is skeptical of everything a paid expert says on direct. The jury believes every admission and concession the expert makes on cross. Consider how bad the expert can hurt you. Never assume the expert won't be effectively cross-examined.

I DID IT FOR THE MONEY

Many lawyers are motivated by money. You may be talented, prepared and competent but if you do it for the money you will not be passionate or intense. Everyone will eventually know you are doing it for the money.  You have to care and the jury has to believe you care.

Do it for the client if you can. Sometimes it is difficult to do it for the client. A defense lawyer doesn't care about State Farm or Allstate. Plaintiff lawyers represent imperfect people with imperfect cases. Sometimes it's hard to care about plaintiffs.  If you can't do it for the client, do it for your own sense of pride and excellence. You are a competitor, care about winning. Something has to create passion and intensity.  When all else fails, winning isn't so great but losing is horrible.

I DIDN'T WANT TO BE THERE

Trial lawyers take marginal cases. Plaintiff lawyers expect insurance companies to settle flawed cases. Defense lawyers never tum down a case from an insurance company. The plaintiffs’ injuries or difficulties don't matter. The result is occasionally you try cases you don't believe in.

It doesn't happen often. Almost always you feel righteous by the time of trial. The insurance company's offer isn't reasonable or fair. The plaintiff wants too much money. But sometimes you go to trial knowing you are on the wrong side or you just don't believe things are as bad as your client claims. There will be no fire, no passion or intensity. You hope that competence and hard work will be enough to win.

Don't count on it.

I DIDN'T TELL THE JURY PANEL WHAT SCARED ME

Everyone knows voir dire has changed. Thirty years ago we tried to find jurors who would help us. We told the jury panel the good things and avoided the bad. Today we try to identify the bad jurors. The only way to find bad jurors is to disclose the problems, the things that scare you.

But it is hard to listen to bad jurors. They dump on your case and you worry other jurors will be influenced. Plaintiff lawyers don't like listening to bankers and tort reformers slam the tort system. Defense lawyers don't like hearing about heartless insurance companies or mega-rich corporations. No one likes being told they should lose. The result is that problems are not disclosed or they are diminished.

Tell the jury panel what scares you. Get rid of the jurors who can't live with your fears.

I TRIED TO HIDE WHAT EVERYBODY KNEW/I WAS GREEDY

The plaintiff had high medical bills. He was a union employee of a large company. The motion in limine on collateral source was granted. The economist testified that any job the plaintiff could get after the accident wouldn't have the "benefits" of his former job.  The jury sent a note during deliberations: "How much of the medical bills did the plaintiff pay out of his own pocket?" The jury awarded "0" in medical bills. The jury knew the plaintiff had health insurance. They thought he was trying to get paid for medical expenses that had been paid by the health insurance company.

Probably the better way to handle this is to tell the jury that the health insurance company has paid the medical bills but the plaintiff has to reimburse the insurance company. And obviously it was a mistake to try to inflate the lost wage claim with the testimony of the economist about "benefits." A motion in limine doesn't erase life experiences of jurors.

The larger lesson is don't hide things just because you can and greed is not good, at least not in the courtroom.

I DIDN'T READ THE RECORDS

The plaintiff was seriously injured. Liability was clear. Six months after the accident the plaintiff had a laminectomy and fusion. The neurosurgeon testified the operation was related to the accident. The plaintiff claimed he had severe back pain after the accident and the pain got worse after the operation. He couldn't work. He testified he and his wife hadn't had sex since the accident. The pain was too severe. The plaintiff turned down a large settlement offer. The trial went well until the defense lawyer read a nursing note from the hospital records dated the second day after the operation.  "When I entered the room the patient was masturbating."

The defense lawyer will read the records, all the records. He is paid by the hour to read them. The records are often all he has. Often no witness testifies the plaintiff was at fault or that the plaintiff isn't hurt. But the records can doom the plaintiff.

Records of previous injury, pain or disability. Records of poor job performance, arrest, unethical conduct, etc. The records can't be cross-examined.  Jurors believe the records.  The records are often voluminous.  It is tedious and time consuming to plow through the records. But fail to read the records, all the records, at your peril.

THE JUDGE DIDN'T LIKE ME

Most trial lawyers don't want an advantage from a judge. All they want is a fair trial. Problems begin when the lawyer believes he is not getting a fair trial. It's difficult to hide the frustration.

If you don't like a judge, don't show it. That may be obvious but it's not always easy. During a jury trial comments were made about the judge during a recess. The judge wasn't in the courtroom but the bailiff was.  The charge conference didn't go well.

THE JURY DIDN'T LIKE MY CLIENT

Juries often don't like or dislike litigants. But frequently juries do understand their problems and difficulties. Empathy and understanding make winning possible. But sometimes the client is not likeable. Most cases cannot survive arrogance, misconduct, deceit, dishonesty, prejudice, or just plain unpleasantness. Bad people may have good cases but those cases are always difficult.

THE JURY DIDN'T LIKE ME

Personable and likeable lawyers have a great advantage. Jurors want to help lawyers they like. The rest of us can only hope that preparation and competence will even things up. Jurors may ignore crummy lawyers but they punish lawyers they don't like. Lawyers are disliked most often because they are dishonest. They cheat or don't play fair. Although it's corny, ask yourself if Atticus Finch would do it.

I GAVE THE OTHER LAWYER A REASON TO DISLIKE ME

All lawyers want to win. But there are limits to how far most of them will go to beat you. Many lawyers have always done well. Winning has always been easy. Why should it be different in the courtroom? They compete because winning is nice, not because losing is unacceptable. The result is that they are prepared but not truly prepared. Sometimes you can beat them just because you worked harder and wanted it more.

All that changes when they dislike you. It becomes personal. Losing to you becomes unacceptable. It's no longer a job. They want to bury you. It's the reason football coaches don't talk trash about the other team.

Don't give the other lawyer a reason to dislike you. Return his calls, keep your word, play fair and don't cheat.  Don't make it hard for him to pay you money.

I WAS A BULLY

The more a witness hurts you the more you want to hurt him. The result is often a raised voice, the contemptuous comment or the snide, sarcastic remark. You can be righteously indignant only when the witness lies or cheats. Facts and logic may make no difference if you bully the witness. A polite and courteous cross-examination is always more effective than the bully's assault.

I FOLLOWED ALL OF THE RULES

"I wouldn't have gotten anywhere if I followed the rules." Marilyn Monroe.

Trials have a lot of rules. Formal, explicit rules; informal, unwritten rules. Usually it is a good idea to follow the rules. But sometimes the rules should be broken. For example the rule that you shouldn't ask a question unless you know the answer. Inevitably, there will be questions that weren't asked in deposition or issues that arise during the trial.  Trial lawyers want to control the courtroom, anticipate everything that happens in the courtroom. They never can. The unknown answer could hurt you but not asking the question could hurt you more.

Evaluate carefully the risks and rewards but don't avoid the question just because you're breaking a rule. Taking risks is probably necessary.  Don't avoid risk just because it is against the rules.

I THOUGHT THE CASE WOULD SETTLE

After doing this for a while you develop a sense for which cases are going to settle, or more accurately which cases will have to be tried. Often work and expense is postponed if you think the case is going to settle. The obvious problem is that sometimes you are wrong.

The case that should settle is tried. Often it is tried because the other side knows you are not ready for trial. Cases settle because bad facts create risks. But the risk of one side losing depends on whether the other side can win. If they know you are not prepared, they may not think you can win. There are few things worse than spending the week before trial scrambling to complete the things you should have done weeks earlier.

I THOUGHT THE CASE WASN'T BIG ENOUGH

When you first start trying cases every case is important. It's not what you win, it's whether you win. Every case is a chance to prove you can do the work. The cases may be small but winning matters. But eventually you look around and see other lawyers trying important, big money cases. You continue trying rear-end fender benders. The trial is no longer a struggle to prove you belong. It becomes a job. Winning is not as important as getting paid.

I don't know how to deal with this. I spent 35 years trying small car wreck cases. Sometimes it was difficult to find an edge. The other side sometimes supplied the motivation by cheating, lying or overreaching. I could be righteously indignant. But sometimes I just showed up. I lost and it hurt. The pain provided the edge for a long time.

I THOUGHT BEING RIGHT WAS ENOUGH

Linus Pauling published a model of the DNA molecule about a year before Crick and Watson. Scientists and chemists scrutinized Pauling's model and concluded it was wrong. Crick and Watson won the Nobel Prize.

Science and law are not the same. Judges and juries respond to more than facts and logic. Emotion, bias, prejudice, stupidity, sympathy and corruption sometimes are more important than facts and logic.

It's unusual to feel righteous about most cases. Most often the facts are divided and you could lose. But occasionally you get the good case. You're on the right side. You worked hard. The trial went well. But you lose. You should have won.

Sometimes judges and juries get it wrong. A few judges are not impartial. They put their thumb on the scales. Occasionally a jury is stupid or overwhelmed with sympathy or prejudice. Sometimes there is no explanation, they just got it wrong. It doesn't happen often. But it's difficult to be too confident, much less arrogant, if you try a lot of cases.

IT WAS ALL ABOUT ME

Trial lawyers are performers, like any actor on any stage. The best control the courtroom and are never boring. But it takes talent and experience to pull it off. Competition aggravates the need to perform. You want to win the trial but you also want to be the best lawyer. The trial can become a stage for you rather than a chance for justice for your client.

Unless you are one of the talented and experienced few, it's often better to be content with competent and prepared and not strive for brilliant and best. What a jury discovers on its own may be more persuasive than what it was told.

I THOUGHT THE BAD EVIDENCE WASN'T COMING IN

Motions in limine are necessary and useful. Bad facts should be in the motion in limine if possible. The problem is that bad facts often get in even if the motion in limine is granted. The other lawyer violates the motion in limine. Witnesses aren't told about the motion in limine or just don't follow it. You or your witness opens the door.  Occasionally the judge changes his ruling.

There probably is no solution. Bad facts need to be in the motion in limine. But count on some of the bad evidence getting in. That's one reason why trials are uncertain and cases settle.

I DIDN'T LIKE WHAT I WAS DOING

Some lawyers like trial work or say they do. Battles (trials) are always challenging and often exciting, even exhilarating. It is difficult to find anything in life to match the joy of wining, particularly when everybody thought you would lose. The moments in the courtroom when difficult battles are won or mendacity or fraud are exposed probably equal anything experienced by a corporate CEO, a successful politician or even a professional athlete. But it's difficult work. Some people are better suited to it than others.

Fighting battles is for the young. Youth has one constant, proving yourself. Each successful trial is a statement you belong and deserve to be there. But as you grow older the constant fighting begins to wear you down. You realize that life is about more than winning trials. Financial and professional success dull the edge and intensity. The costs of trial work become higher and harder to justify. You begin to question why you are spending your professional life in a room with someone who wants to hurt and defeat you. Losing remains horrible but winning loses some of its joy.

The inevitable result is that eventually the skill that comes with experience is not enough to compensate for the edge that you began with and lost, i.e. the edge that comes with having to win, not just wanting to win.

Money, recognition, and ambition continue to motivate some lawyers. But for others the fighting becomes unacceptable. The courtroom is avoided and eventually abandoned. Cases are lost because they are never tried.

I JUST WASN'T GOOD ENOUGH

Losing always hurts but we live with it. The facts were bad, the client was a chump, the judge wasn't fair, the jury was rural and conservative. We acknowledge our mistakes but the loss can be understood.

But the cruel truth is that some losses can only be explained one way. I just wasn't good enough. I didn't have the ability and talent. Hard work, preparation, and competence goes only so far. Some cases require more, Bob Gibbins' personality and charm, Dick McCarroll's natural ability.

The same thing happens in sports. One day you realize you'll never have a world class fastball or backhand. Fortunately, losing because you're not talented doesn't happen often. Hard work and competence are almost always enough to win. But when it happens, it hurts. The pain is tempered if you worked hard and did your best. There is always somebody bigger, faster and stronger.

I GAVE UP

Trials are bloodless wars. People get hurt. A difficult battle makes winning sweeter. But the battle is always unpleasant, sometimes painful. The conflict, uncertainty and the fear of losing are not fun. Great moments happen in the courtroom. But they always happen in the middle or end of a fight.

You want it to end. The 20-hour days, the pressure, the unknown and unanticipated, and above all, the possibility of losing. Most times you don't have a choice. There is no chance the case will settle. But occasionally the offer will increase. You have a way out. I have settled cases just because I wanted it to end or never begin.

I DIDN'T HAVE A CHANCE

Some cases are losers. It doesn't matter who the lawyer is. The client is bad and the facts are worse.

I worked 3 1/2 years for one of the best trial lawyers in Texas. He didn't like turning down cases, particularly from referral lawyers. Occasionally he would have to try a case even he couldn't win. But almost always he would send one of his associates to the courtroom when the smaller cases couldn't be settled.

In 3 1/2 years I tried 12 jury trials. I lost all of them. Some but not all of them couldn't be won. The 13th case was settled on the third day of trial for $10,000. Few things meant more to me than that $10,000 settlement.

Some lawyers accept losing. It's a business. You can't win them all. Others don't deal with losing well. They will do anything to avoid losing, including not trying the case. The irony is that the horror of losing can drive you to sacrifice anything to win. It can also be the reason you avoid the fight.

I was lucky to spend my professional life in courtrooms. Other people helped me, but I was responsible for success or failure. The sport arena is probably the purest test of ability, talent and grit. The courtroom may be a close second.

Bob Grove practiced personal injury and civil trial law with Grove & Ehlinger, Austin, Texas. Before retirement he was board certified in personal injury trial law and civil trial law and a member of the American Board of Trial Advocates.  He participated in TYLA Ten Minute Mentor, "Things I've Learned." You can contact him at P.O. Box 101, Boerne, Texas 78006 830 755-4502 or at bbgrove@hotmail.com.

Views and opinions expressed in eNews are those of their authors and not necessarily those of the Texas Young Lawyers Association or the State Bar of Texas.