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Lost and Found

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Oakland, Calif., trial lawyer J. Gary Gwilliam doesn’t feel comfortable talking about his losses. He would rather forget them. But he can’t. They have taught him too many valuable lessons.

Gwilliam estimates he has tried more than 175 jury trials to verdict in his 40 years of practice. The vast majority of them have been wins.

But Gwilliam believes that trial lawyers rarely, if ever, learn anything from winning. He thinks that some of life’s most important lessons come from defeat. And he admits to having lost about 30 jury trials in his career.

His hardest loss came in 1977. By then, Gwilliam had been a trial lawyer for 15 years and a plaintiffs lawyer for more than 10. His trial record was solid, he says, and he was as full of himself as anyone.

The case was a lawsuit against General Motors Corp. involving a gas tank explosion in a 1974 Chevrolet pickup truck. A young man who was speeding at the time crossed the center line in his car and collided head-on with the pickup truck in which Gwilliam’s clients were riding.

In the resulting conflagration, the driver of the truck was killed. His wife was horribly burned and aborted an eight-month pregnancy. Their 5-year-old son also was severely burned. Another young boy in the truck also died, and his parents, who had been following the truck in another vehicle, witnessed the accident and watched helplessly as their son burned to death before their eyes.

After a three-week trial and seven days of deliberations, the jury came back with a defense verdict. Gwilliam still recalls his reaction to the verdict as if it had been rendered only yesterday.

He felt full of shame and anger. He replayed his mistakes over and over again in his mind. He didn’t want to go back to the office to face his partners. He didn’t even want to call in and tell them the result.

“I wanted to go crawl into a hole somewhere and not come out for a very long time,” he says.

Although his partners and friends sympathized, Gwilliam says he was filled with self-blame. He tried to shrug it off, but the pain persisted. He turned to alcohol and attempted to compensate for the loss in the only way he knew how. He worked harder. He dove back into his other cases, feeling that only a big win could heal the wound of his loss.

It wasn’t until 1985–eight years later–that Gwilliam finally won a multimillion-dollar verdict. By then, he had stopped drinking and changed his life. He also had changed his attitude toward trying cases.

“I had come to realize that I couldn’t be truly successful without completely and honestly facing the fear of losing before a case began,” Gwilliam says. By successful, he says, he means being able to face himself no matter what happens in a case. “It means recognizing that even if you lose, you did the best you could and shouldn’t beat yourself up for not doing better.”

Of course, Gwilliam isn’t alone–even if it sometimes felt that way. Nobody likes to lose, especially trial lawyers, whose overriding desire to win comes not just from their legal training. It runs through virtually everything in our society–business, politics and especially sports.

Many trial lawyers are reluctant even to acknowledge their losses. Countless books, magazines, trade journals and legal seminars offer advice on how to win. But trial lawyers themselves hardly ever talk–let alone write–about losing. An Internet search turns up few articles on the subject. No lawyers we know of list their losses on their resumés. And you’d be hard-pressed to find a single lawyer’s Web site that includes the following disclaimer: “I sometimes lose.”

Of course, winning and losing are relative terms. If a plaintiff turns down a $1 million settlement offer only to be awarded a $500,000 jury verdict at trial, should the plaintiff’s lawyer count that as a loss? By the same token, if a defendant is convicted of first-degree murder but is spared the death penalty, should the defendant’s lawyer consider that a win?

Moreover, some lawyers, by virtue of the nature of their practices, will lose more often than others. Criminal defense lawyers, for instance, tend to lose more cases than they win. Medical malpractice defense lawyers, on the other hand, tend to win more often than they lose.

But the fact is, there are only two kinds of trial lawyers: Those who have lost a case and those who will. Losing, at least occasionally, is simply a reality for a trial lawyer practicing in the real world.

You Can’t Win ’Em All

Kansas City, Mo., trial lawyer Glenn Bradford, who wrote a state bar journal article about losing in 2002, says he was motivated to do so by the appearance of several high-profile lawyers on television who claimed never to have lost a case. Such claims give the public the false im­pression that if they spend enough money to hire the best lawyer, they can’t lose. They also give young lawyers the wrong impression that if they lose a case, they’re failures, he says.

“I just felt like somebody ought to tell the truth: That if you try a routine number of cases, you’re going to lose every now and then,” he says.

Bradford says that defeat is the acid test for a professional advocate. And after 33 years of trying cases, he says he can speak with some authority on that point.

Working hard on a case for several years, doing a good job at trial and reaping the benefits of a favorable verdict is easy, he says. But working hard on a case for several years, doing a good job at trial, losing the verdict and getting fired by the client is difficult.

“This is the point where you determine whether a litigation career is really what you want to do with the rest of your life,” he says.

Bradford cites several studies that suggest the quality of a lawyer’s performance has little effect on the outcome of most jury trials. “The literature makes it clear that trial lawyers do not influence jury verdicts nearly so much as they think they do,” he says.

Accepting the proposition that a trial advocate can only do so much to affect the outcome of any given case is a necessary step in putting winning and losing in proper perspective, Bradford says. In that respect, he says, a trial lawyer is like a jockey. A good jockey can sometimes make the difference between winning and losing a close race. But even the best jockey cannot make a Breeders’ Cup winner out of a Budweiser Clydesdale.

“Trial lawyers have to be honest with themselves about what they are able to accomplish with the facts and the law they have been given to work with,” Bradford says. “We are not always dealt winning hands or hired to ride the fastest horse.”

With that in mind, the following four trial lawyers have also agreed to describe some of the losses they’ve endured and the lessons they took away from them.

Fort Lauderdale, Fla., criminal defense lawyer Jon May, who represented former Panamanian strongman Manuel Noriega on federal racketeering, conspiracy and drug distribution charges, says he could understand losing the case at trial.

Noriega was convicted in 1992 on eight counts of a 10-count indictment and was given a 40-year prison sentence, which was later reduced to 30 years.

What May couldn’t understand was Noriega’s 1997 loss on appeal before the 11th U.S. Circuit Court of Appeals. By that time the defense had developed what he says was significant evidence of government misconduct, including its failure to disclose that it had used an associate of the Cali drug cartel to secure the testimony of a previously unavailable prosecution witness.

The Atlanta-based appeals court held that the evidence against Noriega was more than sufficient, and that any errors the government may have made were harmless.

“I believed that I had somehow failed, that I lacked the talent needed to make the court understand how the system had been corrupted,” May says. “I just could not accept the idea that the justice system could be so flaw­ed.”

It took a while, but May finally came to the realization that it wasn’t his fault, that nobody else could have done anything any differently, that there just wasn’t any way that particular case could have been won.

That allowed him to accept the court’s decision and move on to the next client. “I realized then that I wasn’t going to change the world, but that I could still help people one at a time,” he says. Washington, D.C., plaintiffs lawyer Barry Nace says he learned two important lessons from a products liability case he lost in the early 1990s. The first is that you can never really know how a particular juror is going to vote. The second is that in a complex case, you can never say enough about the burden of proof.

The case involved a lawsuit by a couple whose child had been born with birth defects. The couple alleged that the drug Bendectin, which the mother-to-be had taken during pregnancy to control nausea, had been the cause of the child’s condition.

As the trial entered its fourth and final week, Nace figured the case was close. The way he saw it, three members of the seven-person jury were on the plaintiffs’ side and three were for the defense. The seventh juror, while difficult to read, appeared to have little interest in the case, he thought.

After deliberating for several hours, the jurors sent the judge a note asking him what they should do if one of them was “being difficult.” The judge instructed the ju­ry to continue deliberating. About an hour later, the jury came back with a verdict for the defense.

As he left the courthouse, Nace accidentally ran into six of the seven jurors. They told him that the three jurors he thought were on his side had been against the plaintiffs going into deliberations, and that the three jurors he assumed had favored the defense had actually been on his side. They also told him that the absent juror, the one he figured would have little influence on the outcome, had been the difficult one, the one holding out for a verdict in favor of the plaintiffs.

The jurors also told Nace that they liked him and his cli­ents, and that they hadn’t been swayed by the defense’s attempts to portray the couple in a negative light. More­over, they said they thought the plaintiffs had presented a better case and they believed Bendectin causes birth defects.

Then why, he asked incredulously, didn’t they find for the plaintiffs? Well, the jurors replied, they weren’t sure that Bendectin caused the child’s birth defects in this particular case.

From that chance encounter, Nace rediscovered the fact that no matter how much experience a lawyer has–and he’s been practicing now for more than 30 years–one can never really know what a juror is going to do. He also learned that a lawyer should never assume that a jury fully understands the concept of burden of proof.

Prepare For The Unexpected

Early on in his career, Chicago plaintiffs lawyer Christopher Hurley says, he suffered a loss that taught him an important lesson about in-court demonstrations: Don’t try them unless you’re absolutely sure they’re going to work.

Hurley was representing a former security guard in a retaliatory discharge claim against the armored car company he once worked for.

The company claimed it had fired the security guard for stealing money out of the money bags he was guarding as he rode in the back of the armored car. Hurley’s client claimed he was fired for having filed a workers’ compensation claim against his former employer. That’s when Hurley came up with the idea of having another security guard demonstrate how difficult it would have been for his client to break the seal on one of those bags, remove some of the money and reseal the bag without being discovered.

But the demonstration backfired when the witness took hold of the bag, which Hurley found out later had been improperly sealed, and easily opened it with his bare hands. “It was a complete disaster,” Hurley says. “The whole point of the exercise was to prove to the jury that my client couldn’t have done what he was accused of doing. Instead, we proved just the opposite.”

Hurley has shied away from in-court demonstrations ever since. “I’m not saying you should never do it,” he says. “I’m just saying if you’re going to do it, you’d better practice it a million times beforehand.”

Hurley learned another pair of important lessons from a personal injury case he lost at trial in the early 1990s.

In that case, Hurley represented a man who had suffered a back injury in an automobile accident. The central issue at trial was whether his cli­ent, an airport baggage handler, or the other driver, a Sunday school teacher on her way to buy a Christmas tree, had run a red light and struck the other vehicle.

Besides his client, Hurley had two independent eyewitnesses who testified that the Sunday school teacher had been at fault. But his client proved to be a terrible witness, shifting his eyes in Hurley’s direction every time opposing counsel asked him a question on cross-examination. “It made him look like he was lying every time he opened his mouth,” Hurley says.

It didn’t help matters any that defense counsel all but called his client a liar in his closing argument. Needless to say, the jury found for the Sunday school teacher. But Hurley learned two valuable lessons from the case. Now, whenever he has a client who makes a poor witness, he tries to settle. And he tells every client before taking the stand not to look at him during cross-examination.

Winning Is In The Eye Of The Beholder

Louisville, Ky., lawyer David Barber recalls two defeats, neither of which was a loss in the traditional sense of the word, but both of which resulted in verdicts that were less than what the plaintiffs had sought.

The lesson Barber learned from the two cases is that while such verdicts may be personally disappointing, they can still provide a meaningful result for the client or the community.

In the first case, Barber represented a pedestrian who had been hit by a truck while crossing the street. Barber conceded that his client had not been crossing the street at a crosswalk, but argued that the truck driver still owed a duty of care to the plaintiff. The defense blamed the plaintiff, portraying him as an alcoholic who was nearly blind, even though he still played golf regularly, Barber says.

At the close of the trial, Barber violated conventional wisdom, which holds that a lawyer should never give a closing argument longer than 30 minutes, by delivering a 90-minute summation of the evidence.

His strategy worked. The jury came back with an award that, while lower than what the plaintiff had asked for, was higher than the defendant’s best offer. It also apportioned 10 percent of the blame to the defendant.

Jurors told Barber after the verdict that his long closing argument had won some of them over, leading him to conclude that some rules are made to be broken–on occasion.

And while he regards the verdict as a loss, he says the plaintiff’s family was thrilled with the result. “It gave them peace of mind and validated the fact that my client was not some alcoholic walking out blindly into the street,” he says.

In the second case, Barber represented a man who claimed to have developed a respiratory condition due to a hazardous emission from a local chemical plant. The judge refused to allow the jury to consider punitive damages. And the jury came back with compensatory damages of only $41,000, Barber says.

But the next day’s newspaper focused on the fact that the company had been found negligent, not on the amount of damages the jury awarded. That case also led to an even bigger case against the company a few years later in which punitive damages were awarded.

“It showed me that what may not seem like a winning case in my eyes may be seen in a different way by the com­munity,” he says, “and that a little case can pave the way for a larger case that can really make a difference.”

Mark Hansen is a senior writer for the ABA Journal.

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