How well do you think you know your cases? I don’t mean the deadlines for discovery or the legal rulings by the judge. I mean, how well do you know the value of your case to a jury? You spend day in, day out with the case so you would think you have a pretty good handle on it. But sometimes that makes it harder. It’s hard to see the forest through the trees. Sometimes, just sometimes, you may be wrong – even really wrong – about your case.
Let me give you a couple of examples. I will have to be vague to protect confidential information. I had an attorney come to me with a case regarding injury to a renter on another’s homeowner’s property. The attorney wanted to run a focus group. Great. He sent me documents to review. The rental property had a hot tub for use by renters. There were clips to secure the hot tub cover but the clips were broken. A “high wind strap cable” was provided to secure the cover. Also provided were instructions to lock the cover down to prevent trespass, although no explanation as to any danger of winds. The renters had previously used the property and used the cable. This time, however, the renters claim the cable was missing. A gust of wind hits, the cover snaps up and hits the renter in the head. As I reviewed the case, I could immediately see a very good likelihood that this would be a problematic case in ways that could not be fixed. I knew the homeowner had done enough to satisfy jurors. I spoke with the attorney. “Sir, to be clear, are you claiming that the negligence in this case is failure to fix the broken clips and failure to warn of the danger of the wind?” “Yes,” he replied. “Are you saying this isn’t a good case?!” He couldn’t believe it. I decided to let the jurors tell him as jurors are known to shock even me at times (see the next example). But lo and behold, I was right. There was nothing I could say to win the jurors over. Nothing. The attorney was shocked. Now maybe you’re not shocked. Maybe it seems obvious to you too. So is this attorney new? Uninsightful? Not good at trying cases and seeing the holes? No. In fact, he’s a seasoned, exceptional attorney. And his greatest power is also his greatest weakness. It may be your greatest weakness too. I’ll explain more in a moment. Now for another example:
I was working on a medical malpractice case. A woman came into a hospital for a heart surgery. The surgery went fine except there is a 2 hour window without hospital notes for what exactly happened. The woman had a lot of blood loss and died a week later in the hospital. She had some bad pre-existing conditions such as obesity and high blood pressure. We tried the case to a mock jury. The jurors focused on her pre-existing conditions, obviously, but what surprised everyone was the fact that one juror in each focus group panel (we ran two separate panels) decided that the woman had a death wish and was ready to die because she brought her living will into the hospital. “She wouldn’t have brought that if she hadn’t already given up on life,” they said. And even more shocking was that the argument gained traction with other jurors. They decided that she was in such bad health to begin with that she had already given up so it was her fault she didn’t make it because she didn’t have enough will to live. Would you have known that was an issue in this case? Thankfully the attorneys were able to provide an easy remedy at trial by explaining that the hospital asks patients to bring in copies of living wills whenever they undergo surgery and showing the plaintiff’s zest for life. Problem solved. But these attorneys who knew the ins and outs of this complicated medical case really DIDN’T know their case – not the way jurors saw it.
I can almost guarantee that you don’t know your case either. And that doesn’t make you a bad attorney, it simply makes you human. One of the hallmarks of a great attorney is the ability to see the good in even troublesome clients and to be so optimistic and passionate about the case and the client that jurors believe your sincerity. But along with that ability to become so deeply devoted to your cases comes, by definition, an inability to see the forest through the trees. What may have seemed obvious to you in the first example may not be so obvious if it’s your case. How do you know what “obvious” things you’re missing in your current cases? You don’t know what you don’t know. What differentiates a great attorney from a stellar one is the ability to become encompassed in the case and get lost in it, along with the ability to ask for outside help to find and fix the holes. There’s simply no way for you to play both roles. That’s why consultants and mock juries exist. Because you can’t be both the advocate and see clearly.