Occasionally I will be retained by a client that recently lost a case. The conversation always begins in the same manner – Gee I wish I had retained you in the first place. Most often the client contends that the reason for the loss is that their lawyer did a lousy job on a case they should have won. Almost every time that statement is incorrect. Maybe the worst scenario was the boss who insisted that the reason for the loss was that their lawyer wouldn’t put him back up there on the witness stand so he could see to it that everything was as it should have been.
I visited with the client at their offices and expressed no opinion about the reasons for the loss. We did discuss the potentialities for additional difficulties with other opponents, and I explained how I go about addressing dispute resolution. When I left the office I had a retainer check in my pocket and a box full of the prior case, that was now pending in the court of appeals.
It was my sad duty to have to say to the boss that the mistake the previous lawyer made was to have put him on the stand in the first place or to have allowed him to be called as a hostile witness by the other side without flogging him into a state of grace such that he might not offend everyone on the jury, the judge, and everyone else in the courtroom. I brought the undeposited retainer check with me, certain that I would immediately be fired for telling him that. Strangely, I wasn’t fired. Having dodged that bullet, I then told him that we needed to dismiss the appeal they had filed because there was no ground for reversal and affirmation was the most likely conclusion – accompanied by a lengthy opinion about how bloody wrong his company had been. It was my opinion that it was bad enough to have lost, but unforgivable to go appeal and have it affirmed by a higher court issuing an opinion of ever greater value to others situated similarly to the plaintiff in this case. He was certain that an appeal meant reversal and another bite at the apple. How wrong he was.
His lawyer, for any number of reasons, had failed to evaluate the case properly and insist upon amicable settlement. Maybe it was lack of skill. Maybe it was lack of guts, fear that he might get fired and not get the big fee for trying the case. But, as you can see, if you are forthright, clients can be made to appreciate that rectitude often demands private resolution, avoiding the public spectacle of being publicly told you were unreasonable or worse, and in a manner useful to others who might harbor ill will toward you.
That client stayed with me for several years as we tried numerous lawsuits we might not have had to try were it not for that first unfortunate outcome. The results in the later cases were favorable, and the boss never testified in any of them. There are ways to prevent that.