FAQ: Am I going to win?

December 7, 2020

By Brian Babcock

In lawsuits, this must be the single most frequently asked question.

The only honest answer is “I don’t know.”

As much as clients hate to hear it, nothing is certain when you go to court. Your lawyer can give you an educated opinion on what might happen, but there are too many variables for guarantees.

If your lawyer is offering a promise of victory, it might be time to ask yourself whether they have crossed the line from advocate to cheerleader. In my opinion, a lawyer who becomes a cheerleader is a dangerous lawyer for the client to have, no matter how much human nature means that clients want to believe that their lawyer believes they will win. After all, the client thinks justice is on their side, so shouldn’t the lawyer see that?

A good lawyer might even agree that justice is on the client’s side (not always), but what clients need to realize is that the court system produces results, it does not always produce justice.

So many things can go wrong on the way to a verdict. Just a few examples include:

  • the missing witness – by the time we get to court, can we locate everybody we need? Might they die before trial or hearing?
  • the witness with poor recollection
  • the nervous witness who screws up on the witness stand. Even experienced witnesses screw up. I once had a paid expert concede that the other side’s expert was better qualified to give an opinion in a particular case. Something he never mentioned before taking the stand
  • the unexpected evidence from the opposing witness. I once had a doctor who had signed a certificate of permanent disability a week before the Plaintiff’s injury testify that with new medical treatments, she might have been able to return to work, something not in any of his reports, because he had never been asked
  • the missing document – whether paper or email, if we can’t find it, we can’t use it
  • the unexpected document – surprises are seldom good in lawsuits
  • a change in the law. New decisions come out of the Court of Appeal daily, and from the Supreme Court weekly. We cannot always anticipate how the law might develop. Or the government might pass new retroactive legislation. This is rare, but is less rare recently
  • the judge having a bad day. I have had judges admit, both privately and in continuing education speeches, that they are human. Putting on the fancy robes does not make every day their best day
  • in a jury trial, it almost goes without saying that juries are unpredictable
  • decision makers will often exhibit the very human tendency to ‘split the baby’ as we say, referring to the Biblical story of Solomon

Where does that leave you, the client?

An ethical lawyer, who is not a cheerleader, will tell you that the only way to be sure of a “win” is to settle. A good settlement is a “win win” for both parties, despite the saying among lawyers and mediators is that a fair settlement is one that leaves everybody a little bit unhappy.

Most clients at this point say something like “I don’t want fair, I want to win”. To which the best response is “are you willing to lose?” or perhaps “can you afford to lose?”

A negotiated settlement, whether with the help of your lawyer or through a mediator, allows you to control the result, and if negotiated well, allows you the choice between going to a hearing, with all the risks noted above (and more) or accepting the best offer on the table.

If through skilful negotiation or mediation you identify that best offer, and you take it, then truly you have won.

Or, you can always go to trial or hold that hearing. Your lawyer will probably enjoy that. But will you?