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The thrill of victory and the agony of defeat: When even superb trial lawyers miss the trophy

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Trial work is not for unbending time managers. Judges and rules set deadlines that often cannot be extended or changed. Hurry up and wait often is the slogan of the day, hurrying to arrive to court on time, but often finding that many other cases will be handled first, and sometimes finding that one’s case is going to be rescheduled.

Contingent fee plaintiff’s trial work is not for those not wanting to gamble their money nor time. As much as such people as former Democratic presidential contender John Edwards purportedly made a fortune representing injury victims as a lawyer, plenty of plaintiff’s lawyers working on contingency lose huge sums along the way when losing a trial or on summary judgment after investing thousands and sometimes tens of thousands of dollars in expert witnesses, depositions, and other expenses and costs.

Clients paying their lawyers hourly for trial work, and all clients for that matter, expect kick-ass work — and hope for kick-ass results — from their lawyers, and their lawyers feel that pressure.

Trial work is like climbing steep mountains with no safety ropes in the event of a fall. Reaching the top and winning are exhilarating. Losing is going to happen along the path, but the losing best be despite the lawyer’s best fight, rather than because of the lawyer’s mistakes and inattention. Mistakes will be made by trial lawyers, at the very least, because they have no crystal balls into the minds of jurors and judges, but trial lawyers still need to rely heavily on incessant preparation, experience, passion for their clients and the case, close teamwork with their clients and with cooperative witnesses, joy in their work, joy in life, a thrill to compete, intuition, and wits.

Four weeks ago, I blogged about legendary trial lawyer Gerry Spence’s lead role at trial for a wrongfully convicted man sentenced to serve life in prison and who was not released until spending many years in a cage. As with Gerry’s representation of Geoffrey Feiger at his criminal trial — which resulted in a stunning acquittal that did not seem guaranteed at all — representing his client Terry Harrington, Gerry once again risked ending his decades-long record of losing no trials. Gerry is apparently very wealthy for decades, and did not need the money that might be won in the case. He has proven himself again and again in the courtroom , and did not need to do so again. He is past eighty, and still has the drive to fight in court. Perhaps he went to trial this time out of a combination of a drive to serve justice against this wrongful conviction and prison time, and out of a drive to keep fighting in court. Those who love going to trial likely experience withdrawal symptoms by being away from court for too long.

Last week, the jury was about to return a verdict against Gerry’s client, and the co-plaintiff, until three jurors announced that the defense verdict was not theirs. The judge declared a mistrial. The weeks long trial will resume again.

When a trial lawyer as great as Gerry Spence — with all his available resources and ability to try this case, and with no other competing trial dates on his calendar — comes this close to losing a trial, that reminds experienced trial lawyers what they already know: The best we can do is do our best to persuade jurors and judges. We cannot force their decision. We cannot find and execute any magical incantations. The best we can do is to do our best to enable jurors and judges to see our cases from our point of view, and to help embolden and empower them to minimize any concern they might have about any backlash on their decision from public opinion, the press, their friends, and loved ones, because they have only their oaths to obey and honor.

The result in Gerry’s case does not dim my optimism in defending my clients. It does serve as a sobering example I can tell my clients of the risks that often accompany going to trial.

With my law practice overwhelmingly focused on criminal defense, the choice of going to trial again and again is easy. If my client — through informed decisionmaking — does not accept the prosecutor’s last settlement offer after my best efforts to achieve the best settlement possible, we go to trial, unless the prosecutor is not ready to go to trial, which gets followed by a continuance — usually over my objection — or a case dismissal, whether or not the prosecutor tries to recharge the case.

Gerry Spence’s s trial for Mr. Harrington is a fight to reverse the still ongoing excess of wrongful convictions. On retrial, I wish the plaintiffs the best, which goes without saying.