Losing

by Glenn E. Bradford¹

"Because trial lawyers identify closely with their clients, they enjoy their practice only when they win, and nobody wins all the time."²

-- Martin Mayer, The Lawyers

It is frequently said that the only lawyers who do not lose cases are lawyers who do not try cases. More precisely, it has been said that "[t]he only trial lawyers who do not lose cases are those who do not try cases, who settle too many cases, or who take only cases that are such sure winners they do not need a trial lawyer to try them."³ Noted Washington, D.C., criminal lawyer Edward Bennett Williams made this comment about the common perception that some trial lawyers never lose cases:

Once in a while the illusion is created, probably by an overenthusiastic press, that some great trial lawyer never loses a major case. This is pure fiction, and not harmless fiction at that. It casts the whole administration of justice in an unfavorable light. . . . There is a limit to what a genius can do with the material with which he must work.⁴

Judge Marvin E. Frankel has said that "[t]he business of the advocate, simply stated, is to win if possible without violating the law."⁵ True enough. However, the acid test for a professional advocate is defeat. After 30 years of trying cases on my own, I can speak with some authority on this point. In my experience, the easy part of the job is to work hard on a case for several years, do a good job at trial, and reap the benefits of a favorable verdict.⁶ The hard part of the job is to work hard on a case for several years, do a good job at trial, lose the verdict, and then get a phone call from the client firing the firm as counsel. This is the point where you determine whether a litigation career is really what you want to do with the rest of your life.

Ultra-successful New York plaintiff's lawyer Thomas Moore says, "If I lose a case, it's a disaster, the losses live with me, it's like a grieving process."⁷ Although most trial lawyers probably do not go through anything comparable to a grieving process, it is certainly easy to become discouraged and lose confidence after a significant loss. Based on his experience of a lifetime in the courtroom, New York trial lawyer Henry Miller makes the realistic observation that "[w]e must accept that in our careers we are going to lose a certain number of cases. We just do not know which ones they will be."⁸

Losing, at least occasionally, is simply a reality for an active trial lawyer practicing in the real world.⁹ There are two separate and distinct facets to our consideration of the subject of losing: (1) dealing with the fear of losing and (2) coping with the reality of losing.

Fear of Losing

Nationally-known trial practice expert James W. Jeans has observed that "[t]he number of lawyers who appear regularly in court . . . numbers less than ten percent of the bar. Why?¹⁰," Professor Jeans asks. "As in most such cases, it is a fear of failure, a feeling of inadequacy that restrains them."¹¹ Oakland, California, plaintiff's lawyer J. Gary Gwilliam has written that "[t]he fear of losing is really the fear of failure."¹²

Noted Kansas City criminal defense lawyer James R. Wyrsch feels that a healthy fear of losing is one of the things that motivates a lawyer to put forth a maximum effort on behalf of the client. Although a fear of losing may well serve as a strong motivator for many active trial lawyers, a fear of losing can become crippling for others. Judge Stephen T. Logan, an early law partner of Abraham Lincoln, was said to be an extremely able and aggressive litigator. "'Logan fought a five-cent case just as energetically and as well as he fought one for ten thousand dollars, rather better because such a big pile of money broke him down through fear of losing the case.'"¹³

A distinction can certainly be drawn between fear of losing and dislike of losing. No lawyer who ever lost a case was happy about losing. However, a keen dislike of losing or a strong desire to avoid losing does not necessarily equate to a fear of losing. It has been suggested that a fear of losing often prevents a lawyer from conducting a full- blooded representation for a deserving client. The lawyer recommends a less than optimum settlement. Another continuance request is filed. A case is delegated to a junior attorney to try for experience. Highly-respected Kansas City lawyer James W. Benjamin reports that he learned to try cases by helping to keep the legendary Clay C. Rogers' trial record as pristine as possible. Benjamin reports that he got a lot of experience on Rogers' cases, but few wins. Although no doubt healthy to some degree, a fear of losing can become so pronounced "that we lose the courage to undertake the difficult case."¹⁴

In a 1939 piece on New York lawyer Lloyd Paul Stryker for the New Yorker Magazine, Alexander Woollcott described Stryker as having a relish for combat and contrasted his attitude with that of many of his contemporaries at the bar:

The practice of settling out of court has so gained ground of late that many a noted lawyer can hardly remember when last he underwent the disconcerting experience of trying a case before a jury. Furthermore, it may be guessed that among the many excellent reasons which dictate a settlement in any case is the unconfessed one that, for personal reasons, the counsel involved would a little rather not submit to ordeal by combat. Once down in that dusty and unpredictable arena, the most disturbing things might happen to them.¹⁵

My own trial lawyer hero has always been Earl Rogers, the legendary Los Angeles criminal lawyer of the early 1900s. As testament to Earl Rogers' abilities, when Clarence Darrow was indicted for jury tampering in the McNamara brothers case in Los Angeles in 1912, he hired Earl Rogers to defend him.¹⁶ Darrow himself once described Rogers as the greatest jury lawyer of his time.¹⁷ However, in Rogers' biography Take the Witness, the authors assert that Rogers made a decision early in his career never to accept a truly hopeless case.¹⁸ "It was at this stage of his career that Earl made an important decision. It was never to take a case that was absolutely hopeless, no matter how much in money it would bring to him. Many of his early associates still argue that he had determined upon this course because he felt that success was a criminal lawyer's chief asset and that a losing case would impede his rise to the top." I have to confess that Earl Rogers lost a great deal of my admiration when I learned that he accepted only cases that he thought he could win.¹⁹

Certainly an argument could be made that the demonstrably guilty are as entitled to legal counseling and representation as are the factually innocent and the not-so-demonstrably guilty. Indeed, the ABA Standards for Criminal Justice state that "[t]he highest tradition of the American bar is found in the obligation, in the lawyer's oath, never to reject 'from any consideration personal to myself, the cause of the defenseless or oppressed.'"²⁰

Commentator Kenneth Bresler has argued that "[i]t is also unprofessional for [criminal] defense lawyers to keep score of their wins and losses, because it decreases their availability and increases their reluctance to take triable cases to trial."²¹ Bresler asserts that "[w]hen defendants whose cases will be hard to defend approach defense lawyers who protect their 'win-loss' records, the lawyers will tend to either decline the retainer or urge the client to plead guilty."²²

In contrast to Earl Rogers' approach based on professional self-protection, Oklahoma's famed criminal lawyer Moman Pruiett, a contemporary of Earl Rogers, once accepted a retainer in a seemingly hopeless case, allowing as to how he was "the guy that can swallow the sour right along with the sweet."²³

Riding the Roller Coaster

New York trial lawyer Henry G. Miller had this observation about trying cases:

Young lawyers think trying cases is all glory. But trial lawyers pay a price unknown to our armchair colleagues who never stray beyond the safety of their desks. Trial lawyers lose cases. Did you ever hear of a lawyer's losing a contract? If you lose at trial, every explanation seems lame. The client who adored yesterday's summation glares at you in disgust after today's defeat. The jury has rejected you. It's a personal defeat. It burns in memory. Defeat is the price trial lawyers pay for success.²⁴

Professor Jeans reports that he was frequently asked by a student of trial advocacy for his opinion as to whether he or she might make a good trial lawyer. Professor Jeans' standard response: "Can you live the life of a manic depressive?"25

Lawyers Don't Have Baseball Cards

Much like Earl Rogers, many litigators seem to be concerned about their batting average in court cases.²⁶ The good news for most of us litigators is that lawyers don't have baseball cards. If we did have baseball cards, or maybe "barrister cards," everyone would be able to see our courtroom track record at a glance on the back of our card. All a potential client would have to do would be flip over to the back of the card and check out your win/loss ratio. An opponent could ask for a copy of your card in discovery to determine if she should settle with you. Juries might start asking to compare cards during deliberations. Think of the possibilities!

Maybe, eventually, a market would develop in these collectibles. Would a Daniel Webster barrister card sell for more than a Ty Cobb baseball card? Would you take two Max Steuer's for a mint condition John W. Davis? Would you drive all the way across town on a Saturday morning to acquire that vintage Gladys Root card?²⁷ And did the Patty Hearst pardon retroactively convert an "L" to a "W" on F. Lee Bailey's card, or is there a Maris-like asterisk next to the Hearst case on F.'s card?

Celebrated Houston criminal defense attorney Richard "Racehorse" Haynes "refuses to reveal his [overall] win-loss record. 'I don't ever talk about that,'" Haynes has said, explaining his fear "that if he publicized his win-loss record, the newspapers would print it before every trial and make it sound like a sporting event. It's not a sporting event."²⁸ So I guess we better not print up any "Racehorse" Haynes cards. And I would have bought one of those.

Gerry Spence would probably have the most collectible card of all. On the front side of his card, Gerry would be photographed in his buckskin jacket and smile confidently out from under his trademark 10-gallon hat. The majestic Rockies would provide a dramatic background. Gerry has never lost a case. I heard him say so on Larry King Live. In fact, Gerry has apparently never even lost an argument.²⁹ You would probably need 100 Glenn Bradford cards to trade for one Gerry Spence card. I wonder if it would help my standing if I donned a buckskin jacket and cowboy hat for my picture for my card? And maybe even a pair of six-guns! But I digress.

The Sun Will Still Come Up in the Morning!

In his book On Trial: Lessons from a Lifetime in the Courtroom,³⁰ Henry Miller provides a number of practical suggestions for the young trial lawyer. Here is one of the best:

Do Not Worry Just About Winning. Howard Fearfill has not taken a verdict in years. Everybody knows it. Too bad. He tries a good case, well prepared, strong opening, persuasive summation, knows the law. But he cannot take defeat. Problem: vanity. He thinks more about himself than his client. Pride drags him down. Defeat ages him. He thinks the whole world chuckles at his every loss. In truth, most of the time, nobody is even looking. . . . Secret: the world does not end with our every defeat.³¹

Perhaps fortunately for many of us, lawyers don't have baseball cards. The plain fact of the matter is that nobody has any practical way of knowing what your "batting average" is in the first place. Few notice and fewer still remember.

We Really Don't Make the Facts

It is an axiom of the profession that the lawyers don't make the facts. At the heart of the fear of losing, perhaps, is the assumption that the trial lawyer has more or less complete control over the outcome of a trial and, therefore, that the result in any given case is a direct reflection upon the competence of counsel. The idea seems to exist in the minds of many laymen (and many lawyers who should know better) that there are some few elite trial lawyers who can take on and win any case – or better yet, either side of any case.

Illinois trial lawyer Floyd E. Thompson commented that "[t]he path of the trial lawyer is not strewn with roses. However careful his preparation may be, he cannot always fortify himself against surprises. There are at least two sides to every lawsuit and a lawyer on each side. Only one of these lawyers can win and it will not always be the more skillful."³²

Edward Bennett Williams felt that the lawyer's performance in a typical case accounted for, at most, 20 percent in the outcome.

If you turn over any given football team to the best coach in America, he may win two more games than the most incompetent coach would win with the same material. Likewise, if you take a hundred criminal cases and assume that fifty of them should be won on the merits and that fifty should be lost, and then turn them over to the most able and experienced advocate in America, he will probably win sixty and lose forty. Turn the same cases over to the most incompetent trial man and he will win forty and lose sixty. The concept of a great trial lawyer who always wins has no foundation in reality. It is a television or Hollywood fiction.³³

As Edward Bennett Williams noted, there is simply a practical limit to what even the most accomplished advocate can achieve in any given case.

Angel Cordero, Jr., Mr. Ed and Seattle Slew

My comparison has always been to a jockey. A jockey's job is to enable the horse to perform at its best. The jockey can attempt to position the horse next to the rail or on the outside. The jockey can give the whip at the appropriate time. The jockey can encourage the horse to put on a burst of speed over the final furlong. For certain, an excellent jockey can sometimes make the difference between winning and losing a close race. However, even Eddie Arcaro, Bill Shoemaker, or Laffit Pincay, Jr. could not have made a Breeders'Cup winner out of a Budweiser Clydesdale.

It has been written that "[t]he British bar seems fairly well agreed"³⁴ that "[o]f every hundred cases, ninety win themselves, three are won by advocacy, and seven are lost by advocacy."³⁵ Indeed, sometimes the best thing we can do is just not make a bad situation any worse. In my view, the key question to ask yourself is whether you made the most out of what you had to work with in any given case. What may not look much like a win to others may, in fact, be a relatively favorable outcome for the client, given the unique circumstances of that particular case.

Accepting the proposition that a trial advocate can only do so much to affect the outcome of any given lawsuit is a necessary step in putting winning and losing in proper perspective. The trial lawyer eventually has to learn to be honest with herself about what she was able to accomplish with the facts and law with which she was given to work. We are just not always dealt winning hands—or hired to ride the fastest horse.

Does the Best Prepared Lawyer Always Win?

Certainly, no experienced lawyer would disagree with the need for rigorous pre-trial preparation. However, the power of an advocate to impact the results of a trial may be exaggerated.

In their landmark 1966 book, The American Jury, a report on the most extensive research project on juries ever attempted, authors Kalven and Zeisel observed that in only a small percentage of close cases does the quality of the lawyer's performance appear to change the result.³⁶ Kalven and Zeisel found that the abilities of opposing counsel are perceived to be substantially equivalent in the vast majority of jury trials (76%).³⁷ Kalven and Zeisel concluded that the abilities of counsel had only a one percent impact on the system.³⁸ A more recent study concluded that "[t]he attorney is but one of many factors influencing juror and jury decisions."³⁹ The authors of the study concluded that "[t]his attempt to take a more comprehensive look at juror reactions to attorneys reveals that the attorneys, like other trial participants, contribute to, but do not single-handedly determine, the outcome of a trial."⁴⁰

Kalven and Zeisel quoted famed British barrister Sir Patrick Hastings, who gave trial lawyers only slightly more credit. "I have known so many advocates, good advocates and very good advocates, bad advocates and very bad advocates, and in the result that I am satisfied that at least ninety per cent of all cases win or lose themselves, and that the ultimate result would have been the same whatever counsel the parties had chosen to represent them."⁴¹

After observing jury trials from the bench for more than 20 years, Senior U.S. District Judge Scott O. Wright is in agreement with Kalven and Zeisel that the lawyer's performance can make a difference when a strong performance by one lawyer is met by a weak performance by the opponent in a very close case.⁴²

Even Abraham Lincoln Didn't Win Every Case He Tried

Before he became President of the United States, Abraham Lincoln was widely recognized as one of the foremost trial lawyers in the State of Illinois, if not the entire country.⁴³ In his book Lawyer Lincoln, author Albert A. Woldman devotes an entire chapter to assessing Abraham Lincoln's trial record compiled during his 23 years of active practice. Woldman actually went to courthouses in Illinois and reviewed the available court records of Lincoln's trials in state and federal courts.

Although widely acclaimed during his legal career, Woldman notes that Lincoln's record did not seem to be particularly outstanding, even with his reputation as a leading trial lawyer.⁴⁴ "It is impossible to determine his record of victories and defeats in the circuit courts, where he must have tried two thousand or more cases during his long career. But we have the statement of Whitney that Lincoln 'was not more than ordinarily successful for a first-class lawyer; he certainly did not succeed in every case . . . he was sometimes defeated, like other lawyers, even in cases that he believed in and did his best to succeed in.'"⁴⁵

Of 87 cases for which the records are available and that Lincoln tried before the court without a jury, decrees were rendered in favor of his clients in 40 and against them in 47. Of 82 actions argued before a jury, verdicts favorable to his clients were returned in 43.⁴⁶

If the immortal author of the Gettysburg Address had to struggle to win as many cases as he lost, then it seems to me that we mere mortals cannot reasonably expect to avoid our fair share of losses.

It's Easy For You to Say, Mr. Prosecutor!

Prosecutors, of course, usually win and usually should win.⁴⁷ William G. Hundley, veteran Washington, D.C. defense lawyer, described the difference in prosecuting and defending in an interview with The Washington Lawyer: "The hardest thing to learn when I became a defense attorney was how to lose. At Justice we could select the cases we wanted to bring. I can't remember losing a case as a prosecutor. Well, you lose them as a defense attorney!"⁴⁸ Mr. Hundley continued: "I remember [Edward Bennett] Williams telling me things like, 'Look, Bill, as long as you don't see your name in the upper left-hand corner of the indictment, don't get too upset about it,' and 'Don't get personally involved. Your job is to give them the best defense you possibly can.'"

Mr. Hundley had this recollection of his long career at the criminal defense bar:

Most of the people that I've represented have had some problems. I've won some. I've won more than my share. It's a great feeling. But you don't win that much, and you don't always win on the merits. You win on technicalities, statute of limitations, and things like that."

. . .

I've had a fair amount of success. Now, I've had a lot of losses, too. At one time they used to refer to a 'Hundley Wing' at Allenwood [prison].⁴⁹

Even extensive preparation won't guarantee success in defending criminal cases. Furthermore, preparation is surely not the only factor operating to determine the general effectiveness of a trial lawyer. Among other things, the attractiveness of the lawyer's personality or likeability is seen as a significant factor.⁵⁰

The late Kansas City trial lawyer Thomas Conway, who actively practiced in the Missouri courts for more than 50 years, staunchly maintained that in a personal injury case the rule is simply that if the jury likes the plaintiff, they give her money. And if they don't like the plaintiff, they don't give her money. A trial lawyer's ability to influence the "Conway factor" is certainly somewhat circumscribed. There are numerous other factors that can influence a jury verdict. Many of us have simply found that success comes more often when we have good facts on our side. As La Rochefoucauld observed: "'There is nothing more horrible than the murder of a beautiful theory by a brutal gang of facts.'"⁵¹

Lincoln biographer Albert A. Woldman put it this way: "Defeats and victories in legal contests, depending as they do upon other antecedent facts and circumstances, are those ultimate results that may or may not prove anything in so far as the respective abilities of the contesting lawyers are concerned."⁵² The individual lawyer's level of preparation can certainly be a factor in the outcome of any given case, but to isolate the lawyer's level of preparation as the sole determiner of the outcome of all trials flies in the face of reality and does a real disservice to the justice system itself.

Winning Despite Our Own Best Efforts

Veteran Kansas City lawyer Jerry Kenter wisely advises younger trial lawyers not to get too high after a victory or too low after a defeat. As the lawyer's performance is likely seldom the primary cause for defeat, the lawyer's performance is likely seldom the sole cause for victory.⁵³ Clearly, we sometimes prevail in spite of ourselves. This point was brought home to me early in my career when I encountered a juror on the street a few days after the conclusion of a criminal trial in which my client was acquitted on a burglary charge. Expecting praise, I was taken aback when the juror informed me that I had done an abysmal job (not his exact words) in representing the defendant but that he had saved me in the jury room by straightening out the other jurors on the crucial question of expert testimony. The juror rather disdainfully pointed out that neither lawyer in voir dire had discovered that he taught a class on crime scene investigation at a local university. Apparently, the tool mark expert for the prosecution didn't know what he was talking about. Silly me, I had thought that the government's inability to attribute the tire iron in question to my client was defense enough. Nevertheless, ever since this deflating experience, I have tried not to take a favorable verdict as solely a testament to my own performance.

Is the Lawyer's Batting Average the Most Important Issue?

It seems to me that a trial lawyer should focus not on whether the trial of a case is likely to result in a gold star for the lawyer but, rather, whether it is in the client's best interest to try the case. Of course, in a majority of cases the parties are able to reach a settlement. If your client is offered a favorable settlement, then by all means you should make the settlement. I am certainly not advocating that we rush to the courthouse and try every case just for the sake of trying cases. In some cases, however, a reasonable settlement opportunity is just not presented. Under the federal sentencing guidelines, for example, an indicted defendant frequently has precious little incentive to plead guilty.⁵⁴ A convicted defendant may well end up in essentially the same place for sentencing whether he pleads guilty or is found guilty after a trial. Another example might be where the defense makes no dollar offer in a civil case. What if, as happened to me a number of years ago, the plaintiff never makes a demand anywhere near the maximum amount he can legally recover? Do you ask the client to pay double to avoid sustaining a loss in a trial? If the client has nothing to lose, then why not try the case? Can we legitimately say that the client has nothing to lose but I, the lawyer, do have something to lose? I might lose.

The ABA Standards for Criminal Justice provide as follows: "The natural desire for personal achievement, or for personal success . . . never justifies a lawyer compromising his or her professional judgment about a client's best interests. . . . The correct role of defense counsel is to strive not for 'courtroom victories'. . . but for results that best serve the client's long-range interests."⁵⁵ Similarly, the Model Code of Professional Responsibility provides that "[t]he professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client. . . . [H]is personal interests should [not] be permitted to dilute his loyalty to his client."⁵⁶

Judge Scott Wright, a veteran of many years as an active trial lawyer, says that in his experience the client often tends to evaluate the effort of the lawyer as much as the result.⁵⁷ Judge Wright reports that his clients frequently expressed pleasure with his efforts in vigorously fighting for them, no matter the outcome of the trial. To extend the baseball analogy, clients seem to appreciate it when lawyers are willing to go to bat for them.

Veteran attorney Lynn K. Ballew of Harrisonville, Missouri, points out that the well-known Missouri Bar client survey of some years ago found that, while lawyers tend to believe that results are extremely significant to clients, clients listed "results" as a cause of dissatisfaction only a small percentage (2%) of the time.⁵⁸ Clients placed far more importance on such attorney attitudes as friendliness, equality, helpfulness, courtesy, and consideration.⁵⁹ Ballew suggests that the survey shows that clients are often more realistic about results than are some of us lawyers.

As found in The American Jury study, in most trials the opposing lawyers are more or less evenly matched and essentially offset each other.⁶⁰ Perhaps the advocate's true role in the larger scheme of things is to provide effective representation for the client so as to match the quality of the opponent's representation and make certain that the merits of the case determine the outcome.

Coping With Defeat

In assessing the relative merits of some of the outstanding trial lawyers of the 20th Century, Professor Gerald F. Uelmen has written that "[t]he ability to pick yourself up and forge ahead after a setback is an essential quality for a trial lawyer. . . ."⁶¹ Edward Bennett Williams was well known for his determination to win, not only in court cases, but also in the athletic successes of his Washington Redskins and even extending, it is said, to firm softball games. It was Williams who employed the legendary Vince Lombardi as head coach of the Redskins to deliver a winning football team to Washington, D.C. area fans. Lombardi, celebrated coach of the Green Bay Packers during their glory years of the 1960s, is remembered as much as anything for his credo that "[W]inning isn't everything — it's the only thing."

Author Evan Thomas, in his book on Williams' life, The Man to See,⁶² provides this vignette between Williams and Lombardi.

On the night he hired Vince Lombardi to be coach and general manager of the Washington Redskins, Williams had said to the legendary coach, "You and I must always win, Vince. But nobody always wins. I don't care how great you are, you've got to lose. You've got to learn to deal with that."⁶³

In his thoughtful book, In Search of Atticus Finch, A Motivational Book for Lawyers,⁶⁴ Florida trial lawyer Mike Papantonio describes what he terms the differences between the "haves" and the "have-nots" of law practice. Here is his comment on winning and losing:

The haves believe in healthy competition — they are proud to win, but they do not allow their need to win to distort the way they live. The have-nots' infatuation with competition and winning creates a "me against them" attitude that touches even their most personal relationships and forces them to evaluate their happiness according to their win/loss ratio.⁶⁵

Learning to cope with defeat includes developing the capacity to be gracious in defeat. The renowned Louis Nizer had this to say about how a lawyer should conduct himself: "Politeness is the mark of a gentleman even in legal combat. I have rarely seen a successful trial lawyer who did not practice courteous amenities toward friend and foe alike."⁶⁶ If you want to see a model for how a lawyer should conduct himself in the face of a devastating loss at trial, read the Denver Post's account of Stephen Jones' graceful reaction to the guilty verdicts against his client, Timothy McVeigh.⁶⁷

Perhaps every individual lawyer has to find his or her own way of dealing with losing on an emotional level. As with every human endeavor, there comes a point when a person just has to accept the fact that he has done his best in a given situation and move on to other things. Boston's Rufus Choate,⁶⁸ who practiced law in the first half of the 19th Century, is considered by many to have been the greatest courtroom advocate ever produced in America.⁶⁹ Not even his friend and colleague Daniel Webster was considered his equal.⁷⁰ Among Choate's hundreds of cases were a not inconsiderable number of adverse results. Choate once described his philosophy "when a case has gone against me. . . . Now I am not unfeeling, but after all has been done for a client that I can do, —and I never spared myself in advocating his legal rights, —the only thing left for me is to dismiss the case from my mind, and to say . . . 'bring on the next [case]!'"⁷¹

Choate's biographer Claude M. Fuess records that Choate "indulged in no regrets or rejoicings." "'When I have once argued a case,' he told [a colleague], 'and it is settled, I am done with it. I cast it forcibly out of my mind and never allow it to trouble my peace. I should go mad if I allowed it to abide in my thoughts.'"⁷²

It Ain't Over Till It's Over

If a verdict is truly unjustified, then the losing lawyer should take advantage of the right to file post-trial motions and, ultimately, to take an appeal. The very purpose of post-trial review is to ensure that the jury's verdict is within the parameters of the law and the evidence. The primary way I have always tried to deal with defeat is to lick my wounds in private over the weekend and then come in on Monday morning ready to work on my post-trial motions. If a verdict is truly wrong, the trial court or the court of appeals will not infrequently take appropriate curative action. As Yogi Berra so famously said: "It ain't over 'till it's over."⁷³

Moman Pruiett practiced law in the Oklahoma Indian territory and later in Oklahoma City, Oklahoma. "From 1900 to 1935, he defended 343 persons accused of murder. Three-hundred four of them were acquitted — not one was executed."⁷⁴ Pruiett's one client to receive the death penalty was spared by presidential clemency from President William McKinley. Although a young lawyer not yet fully established, Pruiett, who had been appointed by the court, paid his own expenses to travel to Washington, D.C., where he lobbied friendly legislators for two weeks seeking an entree to President McKinley on behalf of his condemned client, an indigent black man. When Pruiett finally succeeded in getting an audience in the Oval Office, President McKinley was so impressed with the young lawyer's arguments that he commuted the federal jury's death sentence to life imprisonment.⁷⁵ The commutation order came down four days before Pruiett's client was scheduled to hang.

Being a Constructive Loser

Famed stock car driver Dick Trickle was once asked about his attitude toward winning and losing. Bear in mind that Dick Trickle is considered the most successful short track stock car racer in history, with more than 1,200 wins to his credit on tracks all over the United States.⁷⁶ Trickle acknowledged that even the best preparation cannot guarantee success but that it can put a driver in a position to win, given the breaks in any given race. Trickle acknowledged that losing is a part of racing. However, he advised that his philosophy was to be a "constructive loser." Being a "constructive loser," Trickle explained, means trying to analyze why you lost and then attempting to correct for the cause of the loss in future races.

Author John C. Maxwell's book Failing Forward: Turning Mistakes into Stepping Stones for Success,⁷⁷ deals with the fear of failure and how to overcome actual failure. Maxwell quotes author William Marston: "If there is any single factor that makes for success in living, it is the ability to draw dividends from defeat."⁷⁸ Author Emily Couric summed up the primary attributes of the 10 leading trial lawyers who are the subject of her book, The Trial Lawyers: "Similarly, all [of the 10 featured lawyers] know how to learn from their own mistakes. Whether through postverdict jury interviews or thoughtful self-evaluation, they continually review past strategies and techniques and modify them as they move on."⁷⁹ In his introduction to Lloyd Paul Stryker's classic work The Art of Advocacy, Judge Harold R. Medina comments that "I can still think of incidents, omissions and mistakes I made over thirty years ago in cases which I lost. The one thing I miss most in this book is emphasis upon defeat as a means of progress."⁸⁰

Bill Sanders Learns From Moe Levine

Veteran Kansas City defense lawyer William H. Sanders, Sr., tells of trying a jury case in his early years at the bar against legendary New York plaintiff's lawyer Moe Levine.⁸¹ If lawyers did have baseball cards in those days, Moe Levine's card would have been the legal equivalent of a Babe Ruth. A loss in his case against Levine left Sanders questioning his very future in the profession. Frustrated by what he describes as a consistent pattern of losses in his early years at the bar, Sanders swallowed his pride and sought the guidance of the older lawyer. Levine flatly told Sanders that he would never win jury cases with the approach he was taking. Levine candidly suggested that Sanders' approach before the jury was too much that of the street fighter and that he was being perceived by jurors as ruthlessly pursuing a favorable verdict without regard for the justice of the case.

Accepting Moe Levine's judgment, Bill Sanders altered his approach and went on to become one of Missouri's most successful defense lawyers ever. Sanders credits Moe Levine's advice with changing the whole course of his career.

Talking to Jurors–Saving the Next Case

In addition to taking advantage of available post-trial corrective remedies, a constructive loser might be the lawyer who takes advantage of an opportunity to talk frankly with jurors as to why the case was lost.⁸² In The Art of Advocacy, Lloyd Paul Stryker commented that "[p]erhaps the most useful lessons ever offered me have come from jurors after the case was over."⁸³ Experience teaches that frank communication with jurors often reveals unstated, underlying reasons for otherwise unexplainable losses at trial.⁸⁴ This information can sometimes be put to use in future, similar cases.

I once happened to observe a prosecutor friend trying a shoplifting case in the Jackson County Circuit Court. A few weeks later, he indicated that he had lost the case because of a tendency well-known to prosecutors for jurors to regard a shoplifting offense as completed if and only if the alleged shoplifter actually leaves the store premises with the purloined goods in hand. This, of course, is not the law.⁸⁵

It was my suggestion that the prosecutor broach this apparently commonly held misconception in voir dire in his next shoplifting trial. Several months later the prosecutor called and told me that he had indeed raised this false issue in voir dire and had thus been able to disabuse the jurors of this misconception when, as forecast, the judge's verdict-directing instruction contained no such element. My friend the prosecutor was able to win the next case because he made the effort to understand the jury's decision process in the earlier one. He was a constructive loser.

What is the True Measure of a Lawyer?

The best way to handle a defeat is probably to treat it as a learning experience and try to profit by the experience, as Bill Sanders did in his case with Moe Levine. Be a constructive loser if you have to lose. Another approach might be to try adopting new values in addition to the value of winning. How about measuring yourself in terms of your independence, courage, loyalty and determination instead of solely on the basis of your persuasive abilities and trial skills?

The esteemed Judge Harold R. Medina rated loyalty and courage as two of the most important qualities of a good lawyer. "But of all the qualities which bring satisfaction and success, as I have defined it, loyalty to one's client through thick and thin stands, in my judgment, at the very head of the list."⁸⁶ "It takes courage to stand up and fight when the chances are a hundred to one that you will get hurt. And by the same token the man who stands up and takes his beating but keeps at his post, forging ahead at every opportunity and giving ground only when he must, this man sooner or later has everyone in the courtroom rooting for him and wishing him well."⁸⁷

Why do we so admire Clarence Darrow?⁸⁸ Did he win a higher percentage of his cases than everybody else? The record shows that he did not. He lost the Scopes trial.⁸⁹ Leopold and Loeb got life.⁹⁰ He pleaded the McNamara brothers guilty and incurred widespread denunciation throughout organized labor for doing so.⁹¹ The answer is that we admire Clarence Darrow at least as much for his dedication to what he believed in as we do his courtroom skills and overall record as a trial lawyer. When we think of Darrow, we think of courage and determination, devotion and passion for a cause in which he believed.⁹² Clarence Darrow was not called "Attorney for the Damned" for nothing.⁹³ Boston lawyer Joseph Welch, hero of the Army-McCarthy hearings, remarked that Clarence Darrow's single greatest character trait was that he was "so brave and fearless."⁹⁴ "He was so brave and so fearless, that he did not realize that he was either."⁹⁵

Lawyer Robert Rantoul, Jr., of Boston once agreed to represent the defendant in a notorious and seemingly hopeless murder case where the appointed special prosecutors were none other than Daniel Webster and Rufus Choate. It is said that in accepting the case, "Rantoul [acted] with characteristic courage."⁹⁶ History records that John Adams, although a dyed-in-the-wool American patriot, agreed to represent the British officer Captain Preston on murder charges arising out of the Boston Massacre and ultimately secured his acquittal, much against popular sentiment.⁹⁷ We aren't talking trial technique here; we're talking backbone. And dedication.

In the biographies of history's most notable advocates — from Demosthenes to Cicero to Thomas Erskine to Thurgood Marshall — the word "courage" appears again and again. Writing of British barrister Sir Edward Marshall Hall, Lloyd Paul Stryker noted that Hall "became a great and famous advocate. He had that indispensable quality for the role — stark courage."⁹⁸ Edward Majoribanks, Hall's biographer, records that "Marshall Hall was absolutely fearless and respected no man's interests, not even his own, when his client's life, fortune, or reputation was at stake."⁹⁹

You Got to Know When to Hold 'Em, and Know When to Fold 'Em . . .

A jury trial has been well described as a game of "half chance, half skill."¹⁰⁰ It seems to me that becoming an active participant in that game is largely about accepting risk. If you (and your clients) are willing to accept more risk, you will try more of your cases, you will win more cases, and you will lose more cases. If you accept more risk and try more cases, your winning percentage will undoubtedly go down over time, in accordance with Edward Bennett Williams' 60-40 principle.¹⁰¹ In other words, if you only leave the warmth and safety of your office to try a case every three or four years when you think you have a certain winner, then you will probably be able to maintain a higher win/loss ratio than if you tried all the cases that probably need trying.

However, there is clearly a practical cost to such a conservative approach. The trial bar eventually identifies the lawyer who habitually avoids the courtroom and extracts settlements accordingly.¹⁰² The converse proposition also applies. Alexander Woollcott writes that Lloyd Paul Stryker actually preferred to try a case rather than settle. "While, in the interest of his client, he often does settle out of court, the fact that in his heart of hearts he would rather not gives him a tremendous advantage when it comes to bargaining."¹⁰³

Make Them Beat You!

All other considerations not-withstanding, sometimes I think you just need to make your opponent beat you if he wants your client's money, his good name, his freedom, or his life. There really are cases in which the principles involved are more important to the parties than the economics. If your opponent can beat you fair and square in such a case, then so be it. Sometimes clients can live with an unfavorable but definitive verdict more comfortably than they could have lived with the nagging uncertainties of an unsatisfying settlement.

As a neophyte in the profession, I had the good fortune to work for the late Samuel Lang of New Orleans, a brilliant lawyer and a sensible man. When I reluctantly had to leave his law firm to enter the JAG Corps during the Viet Nam war, Mr. Lang sent me a letter of advice and encouragement. I still have his letter. Here is what he told me about trying cases: "Do everything legitimate in your power to win your cases — every last one of them. Fight like hell for your clients! Hate losing! Despise defeat! Don't ever get to where you accept losing. But, on the other hand, don't become intimidated by the prospect of losing to the point where you become reluctant to press forward on a meritorious claim or defense."

It has long been a saying in the profession that 10 percent of the lawyers try 90 percent of the cases. If you are afraid to lose, if you are afraid to take the calculated risk of a trial, then you cannot possibly ever win. The simple truth is that you have to be willing to lose in order to ultimately win. Henry Miller put it more bluntly: "Timid trial lawyers never win a damn thing."¹⁰⁴ The colorful Percy Foreman¹⁰⁵ once observed that "[c]ourage in the courtroom is more important than brains. If I were hiring a lawyer and had to choose between one that was all brains and one that was all guts, I would take the guts."¹⁰⁶

No Pressure, No Diamonds

What happens when the overwhelming defeat finally comes? Do we go ahead and meekly assume our place alongside those cold and timid souls who know neither victory nor defeat?¹⁰⁷ Do we sulk in our office for months, blaming the judge or the jury? Do we agonize over the question of whether Plan B might have proven superior to the ultimately unsuccessful Plan A? Do we settle every case for the next 10 years, no matter what? Does the fear of losing now paralyze us into perpetual inaction?¹⁰⁸ Or maybe, more likely, perpetual discovery? California lawyer J. Gary Gwilliam has written that "[t]he first lesson we learn from our losses is perseverance. We need to prepare to fight the next battle."¹⁰⁹

Highly-regarded Kansas City defense lawyer Spencer J. Brown says that, because the outcome of a case is usually determined by the facts, he tries not to take too much of the credit for a victory so that he won't have to take too much of the blame for a loss. Perhaps one secret of Spencer Brown's success in the courtroom is his perspective on winning and losing. Henry Miller has said that "[p]utting defeat in perspective may be the secret of great trial lawyers. Having conquered the dread of defeat, they are even more formidable."¹¹⁰

In reality, some experience with defeat may, in fact, make for a better lawyer in the long run. Like other people, lawyers may "need hard times . . . to develop psychic muscles."¹¹¹ It has been said that "[y]ou can tell the character of a man by what it takes to stop him."¹¹²

Conclusion

We all want to win. No lawyer worth her salt is ever satisfied with an unfavorable outcome.¹¹³ Winning is the goal and rightly so. However, losing a case is not something which ought to be feared. It is painful and frequently difficult to accept. If you are representing a plaintiff, it can also be expensive. However, it is not a disgrace. It is not necessarily even a negative reflection on the efforts of counsel. It is not really a failure, in any fair sense of the term. It is just something that goes along with being in the trial lawyer business a certain percentage of the time.¹¹⁴ If a lawyer is going to maintain a long career as a courtroom advocate, he or she is going to have to learn to cope with both the specter and the reality of defeat. Persistence, perseverance and fortitude are primary job requirements for a professional trial lawyer.

The real truth is that the trial lawyer's performance is but one aspect of a trial. And, as a society, we would certainly hope that the merits of the controversy would have more of an impact on the ultimate result than the merits of the contending advocates. In fact, this is what the studies have shown.¹¹⁵ Despite what you may hear on Court TV and Larry King Live, there are simply limits to what even the most experienced, skilled, and well-prepared lawyer can accomplish in any given case. Sometimes your clients are just wrong. Sometimes your clients are just guilty. Discussing this point, Henry Miller has remarked: "And sometimes we should lose. Defeat may be a just result, although it may take us some years to realize it."¹¹⁶

In the long run, qualities of personal character may well count for more in a lawyer than mere forensic skill. Indeed, the only major legal figure in our history reputed never to have lost a case was none other than Aaron Burr of New York, persona non grata Vice President under Thomas Jefferson and vilified slayer of Alexander Hamilton.¹¹⁷ Although no doubt an accomplished lawyer who apparently achieved unparalleled success in court, who among us today admires Aaron Burr? If winning was the only significant measure of a lawyer, then Aaron Burr would logically stand at the head of the profession.¹¹⁸

The saying in the profession used to be that a trial lawyer wasn't really a member of the guild until he had lost a client to the hangman.¹¹⁹ Thankfully, the guild currently maintains lesser requirements for membership. Prominent Chicago lawyer "George Haight . . . was once asked 'What makes a good lawyer?' His short reply deserves to be remembered: 'Lots of scar tissue.'"¹²⁰ Take pride in your victories. Take pride in your scar tissue.

Endnotes

¹ Glenn Bradford practices as a trial lawyer in the firm of Glenn E. Bradford & Associates, P.C., in Kansas City. He lost his first trial in May, 1973. See footnote 119.

² Martin Mayer, The Lawyers 44 (Dell Publishing Company 1968) (1966). Mayer illustrates this point with a quote from a former associate of famed New York lawyer Max Steuer. "There's grown to be a legend that none of Steuer's clients was convicted. That's nonsense, and no honor to Max. A good half of them were convicted—but nearly all of them were guilty . . . ."

³ Henry G. Miller, On Trial: Lessons From A Lifetime in the Courtroom, 122 (ALM Publishing 2001). Mr. Miller asked that we include the statement that his article in book form was reprinted with permission from the New York Law Journal, Copyright, the New York Law Journal NLP IP Company. I would like to thank Dr. Robert F. Willson of the University of Missouri-Kansas City English Department for his editorial assistance. Additionally, I would like to thank the following lawyers for reviewing my manuscript and making editorial and substantive suggestions: Jerry Kenter, Arthur H. Stoup, Professor James W. Jeans, Judge Scott O. Wright, John M. Kilroy, Sr., R. Lawrence Ward, Marietta Parker, William H. Sanders, Jr., Raymond C. Conrad, Jr., R. Frederick Walters, and James W. Benjamin of Kansas City, Daniel K. Atwill of Columbia and, of course, Henry G. Miller of New York.

⁴ Evan Thomas, The Man to See 157 (Simon & Schuster, 1992) (1991).

⁵ David S. Shrager & Elizabeth Frost, The Quotable Lawyer 7- 4.11 (New England Publishing Associates, Inc. 1986).

⁶ Professor James W. Jeans, one of America's most respected experts on trial advocacy, kindly reviewed a draft of this article and expressed disagreement with only one major point: that it is easy to deal with victory. Professor Jeans had this observation: "Nothing grooms the ego quite as much as a successful jury result. Therein lies the danger. A few successes and the trial lawyer is seduced into thinking that he or she is an accomplished professional. It takes a continuing dose of genuine humility to prevent the germ of victory [from] corrupt[ing] one's sense of self-importance. Some wag observed: 'Success is the public destruction of a person in the process of learning.' Amen. I have seen too many lawyers have a few successes and self destruct in an explosion of ego." (Letter from Professor Jeans, in possession of the author.)

⁷ See a thumbnail bio of Thomas Moore available at www.fansoffieger.com/moore.htm.

⁸ Henry G. Miller, On Trial: Lessons From a Lifetime in the Courtroom 122 (ALM Publlishing 2001).

⁹ See, e.g., Rich Haley, Mark S. Mandell & Barry J. Nace, Silver Linings, Trial May, 2002 at 60.

¹⁰ James W. Jeans, Trial Advocacy 5 (West Publishing Company 1975).

¹¹ Id.

¹² J. Gary Gwilliam, The Art of Losing, Trial, May, 1998.

¹³ Allen D. Spiegel, A. Lincoln, Esquire: A Shrewd, Sophisticated Lawyer in His Time 25 (Mercer University Press 2002) (Spiegel attributes this description of Logan to Lincoln's last law partner, William H. Herndon).

¹⁴ J. Gary Gwilliam, The Art of Losing, Trial, May, 1998.

¹⁵ Lloyd Paul Stryker, The Art Of Advocacy 291 (Simon & Schuster 1954).

¹⁶ Geoffrey Cowan, The People v. Clarence Darrow, The Bribery Trial of America's Greatest Lawyer 283 (Times Books, Randomhouse 1993).

¹⁷ Alfred Cohn & Joe Chisholm, Take the Witness 2 (The New Home Library 1943) (1934).

¹⁸ Id. at 43.

¹⁹ I first learned about Earl Rogers from the book Final Verdict, written by Rogers' daughter, Adela Rogers St. Johns.

²⁰ American Bar Association, Standards for Criminal Justice, Standard 4-1.5 p. 20.

²¹ Kenneth Bresler, Essay: "I Never Lost A Trial": When Prosecutors Keep Score of Criminal Convictions, 9 Geo. J. Legal Ethics 537 (1995).

²² Id.

²³ See, Moman Pruiett, Moman Pruiett Criminal Lawyer 157-58 (Harlow Publishing 1945) (1944).

²⁴ Henry G. Miller, On Trial: Lessons From a Lifetime in the Courtroom 117-118 (ALM Publishing 2001.

²⁵ Letter from Professor Jeans, in possession of the author.

²⁶ See, e.g., Kenneth Bresler, "I Never Lost a Trial": When Prosecutors Keep Score of Criminal Convictions, 9 Geo. J. Legal Ethics 537 (1996).

²⁷ A short bio of Gladys Towles Root, "The Lawyer's Hall of Fame" available at www.fansoffieger.com/root.

²⁸ Emily Couric, The Trial Lawyers: The Nation's Top Litigators Tell How They Win 325 (St. Martin's Press 1988).

²⁹ See, Gerry Spence, How to Argue and Win Every Time: At Home, At Work, In Court, Everywhere, Every Day (St. Martin's Griffin 1996).

³⁰ Henry G. Miller, On Trial: Lessons from a Lifetime in the Courtroom (ALM Publishing 2001).

³¹ Id. at 162-63.

³² Francis L. Wellman, Success in Court 279 (The Macmillan Company 1941).

³³ Evan Thomas, The Man to See 157 (Simon & Schuster 1992) Mr. Thomas is quoting from an early draft of Williams' book One Man's Freedom.

³⁴ See, Martin Mayer, The Lawyers 44 (Dell Publishing Company, Inc., 1968).

³⁵ David Shrager & Elizabeth Frost The Quotable Lawyer 35-16.23 (New England Publishing Associates 1986). Martin Mayer attributes the quote to the British bar generally. (1966).

³⁶ Harry Kalven, Jr. & Hans Zeisel, The American Jury 351 (Little, Brown & Company 1966).

³⁷ Id. at 372. Kalven and Zeisel were specifically studying jury trials in criminal cases.

³⁸ Id. at 371-72. Kalven and Zeisel based their study on comparing the trial judge's opinions on the case to the jury's actual verdict. "There is but one final statistic on the over-all effect of superior defense counsel. Since the factor appears in one out of 11 trials, and since it causes disagreement once every nine times it is present, a disagreement is caused by superior defense counsel in (1/11 X 1/9 =) 1/99, or in a little more than one per cent of all trials." The disagreement referred to is disagreement between the judge and the jury as to the appropriate verdict.

³⁹ Shari Seidman Diamond, et. al., Juror Reactions to Attorneys at Trial, 87 J. Crim. L. & Criminology 17 (1996). In addition to Kalven and Zeisel's work, other studies have confirmed that the actual power of the lawyer to affect a jury verdict may be substantially less than lawyers believe. See, also, Valerie P. Hans & Krista Sweigart, Jurors' Views of Civil Lawyers: Implications for Courtroom Communications, 68 Ind. L.J. 1297 (1993); Roselle L. Wissler, et al., Decisionmaking About General Damages: A Comparison of Jurors, Judges, and Lawyers, 98 Mich. L. Rev. 751 (1999).

⁴⁰ Id.

⁴¹ Harry Kalven, Jr. & Hans Zeisel, The American Jury 372 (Little, Brown & Company 1966).

⁴² Telephone interview with Scott O. Wright, Senior U.S. District Judge in the Western District of Missouri ( January 30, 2002).

⁴³ See the analysis of Lincoln's career available at www.fansoffieger.com/lincoln.htm. This web site features thumbnail sketches of many prominent trial lawyers, past and present.

⁴⁴ Albert A. Woldman, Lawyer Lincoln 246 (Carroll & Graff Publishers, 1936).

⁴⁵ Id. Henry C. Whitney, a contemporary circuit riding lawyer in Illinois.

⁴⁶ Id.

⁴⁷ See, Thomas A. Hagemann, Confessions of a Scorekeeper: A Reply to Mr. Bresler, 10 Geo. L. Legal Ethics (1996). See, also, Kenneth Bresler, "I Never Lost a Trial": When Prosecutors Keep Score of Criminal Convictions, 9 Geo. J. Legal Ethics 537 (1996).

⁴⁸ Legends in the Law: William G. Hundley, The Washington Lawyer, November 2001, at 30.

⁴⁹ Id. at 34-38.

⁵⁰ Harry Kalven, Jr. & Hans Zeisel, The American Jury 364 (Little, Brown & Company 1966).

⁵¹ David S. Shrager & Elizabeth Frost, The Quotable Lawyer 109-55.4 (New England Publishing Associates 1986).

⁵² Albert A. Woldman, Lawyer Lincoln 247 (Carroll & Graff Publishers 1936).

⁵³ See generally, Harry Kalven, Jr. & Hans Zeisel, The American Jury 372 (Little, Brown & Company 1966).

⁵⁴ Under the November 1, 2001, version of the Federal Sentencing Guidelines Manual (West 2001), propounded by the United States Sentencing Commission, a defendant pleading guilty and thereby "accepting responsibility" would be entitled to a two-point reduction in his guidelines score. For someone looking at a level 31 offense, a two-point reduction would provide for sentence of 87-108 months for a defendant with a limited criminal history. At the original level 31, the guideline range would be 108-135 months for the same defendant. See back inside cover for table.

⁵⁵ AMERICAN BAR ASSOCIATION, STANDARDS FOR CRIMINAL JUSTICE, Standard 4-1.6 (1993).

⁵⁶ MODEL CODE OF PROF. RESPONSIBILITY, Canon 5 EC 5-1 (1980).

⁵⁷ Telephone interview with Scott O. Wright, Senior U.S. District Judge in the Western District of Missouri (January 30, 2002).

⁵⁸ Missouri Bar Prentice-Hall Survey: A Motivational Study of Public Attitudes and Law Office Management 67 (The Missouri Bar 1963).

⁵⁹ Id.

⁶⁰ Harry Kalven Jr. & Hans Zeisel, The American Jury (Little, Brown & Company 1966).

⁶¹ Gerald F. Uelman, Who is the Lawyer of the Century?, 33 loy. la. l. rev. 613, 642 (January 2000).

⁶² Evan Thomas, The Man to See 22 (Simon & Schuster 1992) (1991).

⁶³ Id.

⁶⁴ Mike Papantonio, In Search of Atticus Finch: A Motivational Book for Lawyers 209 (Seville Publishing 1995).

⁶⁵ Id.

⁶⁶ Louis Nizer, My Life in Court 91 (Doubleday & Company 1961). Of course, Mr. Nizer practiced law in a time when women trial lawyers were very much the exception.

⁶⁷ See, Guilty on Every Count, Denver Post, June 3, 1997, reported at www.rickross.com/reference/mcveigh/mcveigh14/html.

Meanwhile, McVeigh's attorney, Stephen Jones, appearing soft-spoken and somewhat downcast, said he planned to "get right back to work. There will be a second phase to this trial, and we're going to be ready for it." Jones, who is also bound by the gag order not to discuss the case, reiterated that he would be ready for the next phase and congratulated the prosecution team. "I simply wanted to say we will be ready for the second stage in the morning and I congratulate (the prosecution) and the FBI agents who were responsible for the investigation and prosecution of this case and their work on behalf of the United States and their presentation in court."

Henry G. Miller has provided a number of concrete examples of stereotyped winners and losers in his book, On Trial: Lessons from a Lifetime in the Courtroom (ALM Publishers 2001).

⁶⁸ See, generally, Samuel Gilman Brown, The Life of Rufus Choate ( Little, Brown & Company 1881).

⁶⁹ Lloyd Paul Stryker, The Art Of Advocacy 176 (Simon & Schuster, Inc. 1954). See, Claude M. Fuess, Rufus Choate: The Wizard of the Law, (Gaunt 1997) (1928).

⁷⁰ Webster's biographer, Henry Cabot Lodge, concluded Webster was a great jury lawyer and an unparalleled public orator but that "[b]efore a jury Webster fell behind (British barrister Thomas) Erskine and Choate . . . ." Henry Cabot Lodge, Daniel Webster 202 (Houghton Mifflin Company 1911).

⁷¹ Claude M. Fuess, Rufus Choate: The Wizard of the Law, 189-90 (Gaunt 1997) (1928).

⁷² Id. at 189.

⁷³ See www.yogiberraclassic.org/quotes.htm.

⁷⁴ Gerald F. Uelmen, Who is the Lawyer of the Century?, 33 Loy. La. L. Rev. 613, 615-16 (January 2000). See, also, Moman Pruiett, Moman Pruiett Criminal Lawyer (Harlow Publishing Corp. 1945) (1944).

⁷⁵ Moman Pruiett, Moman PruiettCriminal Lawyer 115-127 (autobiography) (1944).

⁷⁶ See, generally, "Dick Trickle, America's Winningest Driver" available at www.tricklefan.topcities.com.

⁷⁷ John C. Maxwell, Failing Forward: Turning Mistakes into Stepping Stones for Success (Thomas Nelson Publishers 2000).

⁷⁸ Id at 144.

⁷⁹ Emily Couric, The Trial Lawyers: The Nation's Top Litigators Tell How They Win 364 (St. Martin's Press 1988). The lawyers profiled are Fred Bartlit, Julius Chambers, Linda Fairstein, David Harney, Richard "Racehorse" Haynes, Arthur Liman, Howard Weitzman, James F. Neal, and Edward Bennett Williams.

⁸⁰ Lloyd Paul Stryker, The Art Of Advocacy xi (Simon & Schuster, Inc. 1954).

⁸¹ You can read one of Moe Levine's closing arguments reprinted and available at www.howardnations.com/persuasivejuryarguments/ii-iii.html. See, also, Levine, Moe. The best of Moe: Summations (Condyne Glanville Information Services: Oceana, 1983).

⁸² Emily Couric, The Trial Lawyers: The Nation's Top Litigators Tell How They Win 22-23 (St. Martin's Press 1988).

⁸³ Lloyd Paul Stryker, The Art of Advocacy 56 (Simon & Schuster 1954).

⁸⁴ An example was a case in the late 1970s where jurors reported that they had returned a verdict for a plaintiff in a premises liability case because they understood that the law makes the property owner responsible to someone injured on his land, the lack of any evidence of negligence notwithstanding. Obviously, this apparently popular misconception about the law won out over the clear requirements of the verdict-directing instruction.

⁸⁵ See, e.g., Section 537.125.3, RSMo 2000.

⁸⁶ Judge Medina Speaks: A Group of Addresses by Harold R. Medina, Judge, United States Court of Appeals 292 (Maxine Boord Virtue, ed., Matthew Bender & Company 1954).

⁸⁷ Id.

⁸⁸ For more information about Darrow, see Professor Douglas O. Linder's Darrow site at www.law.umkc.edu/faculty/projects/ftrials/DARESY.HTM.

⁸⁹ See www.law.umkc.edu/faculty/projects/ftrials/scopes/scopes.htm. See, generally, Geoffrey Cowan, A Man for Some Seasons: Clarence Darrow, The American Lawyer, December 6, 1999 available at www.law.umkc.edu/faculty/projects/ftrials/DarrowCowan.html.

⁹⁰ See www.law.umkc.edu/faculty/projects/ftrials/leoploeb/leopold.htm; see, Select Decision and Sentence From the Menu.

⁹¹ See, The Bombing of the Los Angeles Times, available at www.usc.edu/isd/archives/la/scandals/times.html.

⁹² See, Mike Papantonio, Clarence Darrow, The Journeyman (Seville Publishing 1997).

⁹³ See, Attorney for the Damned (Arthur Weinberg, ed., Simon & Schuster 1957).

⁹⁴ Id.

⁹⁵ Id.

⁹⁶ See, Claude M. Fuess, Rufus Choate: The Wizard of the Law 63 (Gaunt, Inc. 1997) (1928).

⁹⁷ David McCullough, John Adams 65-68 (Simon & Schuster 2001); See also, The Boston Massacre Trials www.sjchs-history.org/massacre.html.

⁹⁸ Lloyd Paul Stryker, The Art Of Advocacy 170 (Simon & Schuster 1954).

⁹⁹ Edward Majoribanks, Famous Trials of Marshall Hall (Penguin Books 1989).

¹⁰⁰ Claude M. Fuess, Rufus Choate: The Wizard of the Law 171 (Gaunt 1997) (1928).

¹⁰¹ Assuming that one's ability to analyze the odds of winning or losing at trial are reasonably well developed in the first place.

¹⁰² Henry G. Miller, On Trial: Lessons from a Lifetime in the Courtroom 118 (ALM Publishing 2001).

¹⁰³ Lloyd Paul Stryker, The Art Of Advocacy 292 (Simon & Schuster 1954).

¹⁰⁴ Henry G. Miller, Learning to Love the Trial Lawyer's 14 Challenges, 74 N.Y. St. B. J. (2001).

¹⁰⁵ Information on Percy Foreman is available at www.fansoffieger.com/foreman.htm.

¹⁰⁶ David S. Shager & Elizabeth Frost, The Quotable Lawyer 41-19.29 (New England Publishing Associates 1986).

¹⁰⁷ It is not the critic who counts, not the man who points out how the strong man stumbled or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena; whose face is marred by dust and sweat and blood; who strives valiantly; who errs and comes up short again and again; who knows the great enthusiasms, the great devotions, and spends himself in a worthy cause; who, at the best, knows in the end the triumph of high achievement; and who, at the worst, if he fails, at least fails while daring greatly, so that his place will never be with those cold and timid souls who know neither victory nor defeat.

Theodore Roosevelt, quoted in J. Gary Gwilliam, The Art of Losing, Trial, May, 1998.

¹⁰⁸ "For some people, fear of failure brings about absolute paralysis." John C. Maxwell, Failing Foward: Turning Mistakes into Stepping Stones for Success 39 (Thomas Nelson Publishers 2000).

¹⁰⁹ J. Gary Gwilliam, The Art of Losing, Trial, May, 1998.

¹¹⁰ Henry G. Miller, On Trial: Lessons from a Lifetime in the Courtroom 122 (ALM Publishing 2001).

¹¹¹ Attributed to Frank Herbert, author of Dune. Quote available at www.cybernation.com/victory/quotations/authors/quotes_dune_frankherbert,.html.

¹¹² Erwin Lutzer, Conquering the Fear of Failure 147 (Servant Publications 2002).

¹¹³ I still have the trial record of the first case I ever lost. The case was United States Air Force v. Howard M. Bell, SSGT, USAF, a Special Court-Martial. The military jury came back with their verdict at 1:00 a.m. on Sunday morning, May 6, 1973, and convicted my client of communicating a threat to kill a female airman. We appealed. We lost. I am still irritated about it. If you want to discuss all the reasons why the jury and the court of appeals were wrong in convicting my client in this case, feel free to give me a call, collect, at (816) 283-0400. I can live with it — but I don't have to like it!

¹¹⁴ Henry G. Miller, Living With Defeat, The Missouri Trial Attorney 13 ( February 1991).

¹¹⁵ In addition to Kalven and Zeisel's work, other studies have confirmed that the actual power of the lawyer to affect a jury verdict may be substantially less than lawyers believe. See, also, Valerie P. Hans and Krista Sweigart, Jurors' Views of Civil Lawyers: Implications for Courtroom Communication, 68 Ind. L.J. 1297 (1993); Roselle L. Wissler, et al. Decisionmaking About General Damages: A Comparison of Jurors, Judges, and Lawyers, 98 Mich. L. Rev. 751 (1999).

¹¹⁶ Henry G. Miller, On Trial: Lessons From a Lifetime in the Courtroom 120, (ALM Publishing 2001).

¹¹⁷ Nathan Schachner, Aaron Burr 88 (Frederick A. Stokes Company 1937).

¹¹⁸ This point was made by Frederick Trevor Hill in his book on Lincoln's legal career. Frederick Trevor Hill, Lincoln the Lawyer 32-33 (Fred B. Rothman & Co. 1986)

¹¹⁹ The fabled Melvin Belli, "The King of Torts," got to witness the public execution of at least three of his early criminal clients, two by hanging and one in the gas chamber. This may help explain why Mr. Belli went on to specialize in personal injury cases. Melvin M. Belli, My Life on Trial (William Morrow & Company 1976).

¹²⁰ David S. Shrager & Elizabeth Frost, The Quotable Lawyer 190-75.96 (New England Publishing Associates 1986).

JOURNAL OF THE MISSOURI BAR
Volume 58 - No. 4 - July-August 2002