Fifty percent of lawyers in the world are worse than average. (Trust me; I did the math.)
I’ve seen lawyers who simply don’t know what a leading question is. Perry Mason always did well on cross; the culprit broke down and admitted that he did it. I’ve seen lawyers who seemingly think the opposing expert will break down and cry under a withering series of open-ended questions.
It’s pretty unlikely to happen, but bad lawyers generally don’t know that they’re bad.
I watched a mock trial about a decade ago in which the local counsel we’d hired for our side played the other side at trial. This lawyer — whom we’d hired — had a fine reputation. Other lawyers in the community recommended him (or her). This lawyer was terrible. The lawyer had no idea what a theme of the case was and made no effort to present one. The lawyer didn’t know how to argue. And the lawyer had been practicing for a respectable period; this old dog presumably thought that he (or she) was good and wasn’t going to change his (or her) ways.
I was hired once to do an appeal in a product liability “failure to warn” case. I read the trial transcript. The trial lawyer for my side — who thought he was pretty good — had not put the warning label into evidence. You read that right: Did not offer the warning label in a failure to warn case.
(Someone told me about a recent study that asked, “Would you rather be rich or smart?” Apparently, smart people generally say that they’d rather be smart. Stupid people say that they’d rather be rich. A friend of mine — a law school professor — commented, “Of course. If you’re poor, it’s easy to imagine being rich. If you’re stupid, it’s hard to imagine being smart.”)
The lawyers I’m writing about thought they were good. They weren’t, and it’s unlikely they’d ever understand that.
There are also good lawyers with little sense of self. I once watched a very smart lawyer do a cross-examination during a jury trial. To an observer, such as me, the cross-examination was a meaningless blood bath. The lawyer was angry, the witness was angry, the lawyer and witness refused to communicate and yelled at each other. To my eye, it played to an ugly draw.
The lawyer said to me afterward, “I made good progress with him, didn’t you think?”
I hadn’t really noticed. Maybe, when I got around to studying the transcript after trial, I would decide that the Q’s and A’s somehow helped. All I noticed was two frustrated guys yelling at each other.
That’s the first reason we always think we’re winning during a trial: There’s a natural tendency to overestimate yourself.
The second reason you think you’re winning at trial is a function of groupthink.
Suppose you have a terrible day at trial. Things couldn’t have gone worse.
Really, really bad.
At the beginning of dinner, everyone’s dejected.
But you can’t stay dejected forever. Someone orders a bottle of wine. Someone else points out the one thing that went well during the day. The mood brightens. Talk continues. By the end of dinner, things hadn’t gone so badly after all. In fact, you probably did okay today.
People generally don’t focus on the glum side of things. They convince themselves that the trial is going pretty well. Things went okay on the bad days. And things went great on the days when you’re actually ahead by a little bit. After a week of this self-deception, you’re convinced that you’re going to win.
And then shocked when you don’t.
Be very, very careful of your perception of how things are going at your trial.
I know you think you’re going to win. But you’re overestimating yourself, and you’re being deceived by your colleagues. Things are probably not going as swimmingly as you believe.
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.