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Lessons Learned From Taking a Loss
The Legal Intelligencer
Fresh out of law school and having endured the grueling bar exam, I was about to experience my first jury trial. Walking into City Hall as a trial attorney can be extremely intimidating for an inexperienced, young attorney. Add unexpected challenges that I encountered in this trial, including the Pennsylvania limited tort threshold, disputed liability and causation, a client who "looked fine to me," minimal damage to both vehicles involved in the accident, and a defense attorney with more than 20 years of trial experience, I suddenly concluded that the only chance I stood of a favorable outcome was to put my heart and soul into my preparation, say a prayer and hope for the best. As an eternal optimist with a competitive drive, I truly believed I could win this trial.
Four years have passed since I walked into the courtroom that first time as a first-chair trial attorney. For the most part, I have been rather successful during my first four years of practice. One of my biggest surprises was that during my first year in practice, I achieved an unassisted settlement of $850,000 on a case that other attorneys had originally undervalued.
As trial attorneys, it is typical to expect potential clients to inquire about our success rate (that, and "what is my case worth?"). We all take pride in reminiscing and telling anecdotes about our greatest successes. At the same time, we must be honest with ourselves and know that no attorney has a perfect track record.
The articles that frequently get published in The Legal Intelligencer and other legal columns reporting big verdicts and large settlements can give glory to the plaintiffs attorney. They usually end like this: "Counsel for the defendant was unavailable for comment." During the course of the last four years, I have often thought about lessons learned from being on the losing end of a large jury verdict. Unfortunately, I have made mistakes and lost my share of cases that were painful when they happened; however, what I have learned from these mistakes has proven invaluable to my career.
The purpose of this article is not to boast about my accomplishments, but, more so, to give the reader a perspective on what I learned, often the hard way, as a young trial attorney. A mentor and friend once told me that you don't learn from the wins; rather, you learn from getting your ass kicked in a courtroom. He was right.
The result of my first jury trial was a verdict for the defendant. One of the low points of that trial was jury selection. I realized early on in this trial that I lacked knowledge of the jury selection process. I decided to do some reading on the nights leading up to trial to become better educated with the process and to become familiar with some recommended jury selection strategies.
As voir dire began, I felt a sense of excitement as I was about to stand up and speak to a jury panel for the first time. After the strikes for cause and hardship were made, it came time for peremptory strikes. The peremptory strike sheet was handed to me first, and being unfamiliar with the process, I recall writing all four of my strikes at one time. The clerk retrieved the form and proceeded to whisper to me, so as not to expose my inexperience to the jury, "Hun, you are supposed to go one-by-one. You just showed defense counsel your poker hand." It was too late. There was no chance to redact my other three choices from the form. The defense attorney received the form from the clerk, looked over at me and smiled with a look of premature victory, as if to say, "This must be your first jury trial."
Another one of my earlier jury trials involved facts where, after settling with a co-defendant, I was left with a case that involved a sole plaintiff and sole defendant. The aspect that made this case unique was that the plaintiff and defendant were happily married and happened to be involved in a single-car motor vehicle accident -- the husband was the driver and the wife was a front-seat passenger. The wife sustained a significant lower-back injury when her husband hit a manhole in the middle of a poorly lit road on a rainy night in Philadelphia.
There was an offer on the case going into trial, and, in retrospect, I should have recommended to my client that she accept it and settle the case entirely. She was satisfied with the settlement against the other defendant who was responsible for leaving the manhole in dismal condition without any warning such as a cone or a sign. The case did not settle, and I was faced with the dire challenge of making an extremely difficult situational opening statement.
It began like this: "Ladies and gentlemen, as you learned in voir dire, the plaintiff and defendant are husband and wife. I want you to know that no matter what you decide as the outcome of this trial, they will leave this courtroom as husband and wife, as happily married as they were before they entered the courtroom this morning."
It was the best beginning of an opening statement that I could compose given the circumstances. Clearly, this trial was so difficult to prepare for because of the ethical implications. While I represented the wife, her husband had his own counsel through his insurance carrier. I had to be extremely careful not to cross any ethical line while meeting and preparing with my client. Every time I met with her, I felt like I was walking a tightrope, maintaining a conscious effort never to take any chances and always to proceed with extreme caution.
During the discovery depositions, the plaintiff's husband had stated that he felt responsible for the accident and that he could have been more careful that night. I was expecting similar testimony at trial. I should have expected the unexpected. At trial, his position changed. He changed his position and stated that after having some time to think about the accident, he believed he was as careful as he could have been on that night, that the manhole was impossible to see, and that there was nothing he could have done to avoid the accident.
A trial skill that can only be acquired through experience is the ability to think on one's feet. I was left with the decision of whether or not to impeach the defendant and question his credibility as I was representing his wife, to whom he was happily married. I had just explained in my opening statement to the jury that they would hear evidence showing that the defendant was responsible and could have been more careful on the night of the accident. I knew that as soon as the husband's position changed, I had lost the case.
The most important lesson I learned from this trial is that when a settlement offer is presented, I must remember that by rejecting an offer, my client is taking a gamble. While counsel might want to encourage the client to take that gamble, the decision is not for counsel to make. Turning down a considerably large offer could have major implications for our clients, especially considering the risks and unpredictability of going to trial.
Another notable trial experience occurred when I was caught by surprise the Monday morning of jury selection on a slip-and-fall case. There were three defense attorneys in the case, representing a contractor and two subcontractors. We alleged the defendants' employees were negligent in tracking snow and ice into my client's place of employment while performing electrical work, and she slipped and fell and sustained a serious wrist injury.
Just before jury selection, the defense attorneys (who were all much more seasoned than me) asked to speak with me in the hallway outside of the courtroom. In my naive, optimistic mind, I was convinced that they were about to increase their settlement offer. I was wrong. They informed me that during litigation, my client had petitioned for bankruptcy and failed to disclose her personal injury case on her bankruptcy petition, which is required by law. Defense counsel also handed me a Pennsylvania case that stated that a plaintiff who fails to disclose a personal injury action on a bankruptcy petition lacks standing.
As a young lawyer, I was faced with a sense of adversity and felt clueless as to how I should handle this difficult situation. As the defense attorneys moved to dismiss the case in chambers, I pled with the judge to continue the trial until I could figure out what in the world had just happened. It was a frustrating circumstance, and the greatest lesson I learned from this trial is to always run a bankruptcy search on your client before trial, even if he or she assures you that he or she has never filed for bankruptcy.
Considering the current dry legal job market, most students graduating with a J.D. degree must resign themselves to the fact that they may have to accept a job that is not terribly appealing. One must refrain from being too particular in his or her job search. If I were asked to offer some advice to an aspiring young trial attorney, based on my own experience, it would be to choose a job that provides an opportunity to gain real practical experience and offers a strong, accessible, patient mentor.
I am fortunate to have found a position at my current law firm where I have both of the above criteria. I have several mentors who are exemplary role models and always have an open-door policy when I need to talk about a case. That makes a tremendous difference as I continue to advance my skills as an attorney. No matter how long I continue to practice and how many cases I try, there will always be room for improvement and learning.
In every case that goes to verdict, there is at least one winner and one loser. Statistically, I will lose 50 percent of the cases I take to verdict. The cases that I have lost throughout the last four years have greatly contributed to my ongoing growth as an attorney and they have taught me just as much, if not more, than the cases with a favorable outcome.
Craig Robinson graduated from Villanova Law in 2008 and began his career representing plaintiffs in personal injury actions. Currently, he is an associate with Lundy Law and is on the board of directors of Stop CAID Now, a nonprofit that raises awareness for children with childhood auto-inflammatory diseases.