Trial For Sport

Thanks to Norm Pattis and Scott Greenfield for posting here and here about the prospective criminal defense client's "Sporting Theory of Trial." In layman's terms it's a defense lawyer's won/loss record. A record prospective clients frequently ask about and believe we are poised to tell them just given the opportunity.

Norm starts with the question "A great trial lawyer never loses, right?" He follows with the following insight:

Trial differs from sport in one fundamental respect: In a sporting event, the rules of engagement are structured in such a way as to focus attention on the skill and preparation of the contestants. A football field is but 100 yards long. However, the skill of the players, their game plan, their preparation determines the outcome.

Trial differs from sport. Oh, there is an arena, and the event is bound by rules. Talent and skill can make the difference. But unlike a sporting event, the litigants are not the focal point. Trial is a search for truth about what occurred between the parties. No effort is made to assure that trial is merely a test of the lawyers' skills. The facts and the law tilt the field in one direction or another. Sometimes a good lawyer, even a great lawyer, can only hold on in the face of an avalanche of evidence and law that does not support his client.

Scott adds this:

If you want to know whether the lawyer is any good, there are two questions to ask yourself. Does he know what he's doing and will he fight for me to the end. Other than that, the score card means nothing. You're hiring a lawyer for his or her "dedication and hard work," as Norm says, and I would add his or her skills. That's what we have to offer. If a lawyer can remember his score, chances are that he hasn't been around long enough to remember or he's just full of baloney.

And finally, Norm concludes:

The sporting theory of the trial misleads lawyers and clients. I am cocky enough to think that were trial an athletic event I would be invincible. But I am aware of fact patterns that tilt the floor such that I am happy enough to remain standing until the verdict comes in.

None of us wants to mislead clients. The honest and fair approach is to explain that no two cases are anywhere near comparable and that our "won/loss" record is a meaningless attempt at self-promotion and self-glorification. Thanks gentlemen for the discussion on an always apropos subject.