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To Win or Not to Win… That is the Question (that I don’t have an answer to)

To Win or Not to Win… That is the Question (that I don’t have an answer to)

2014 New Year’s Resolutions: (1) blog more; (2) yell fewer profanities at people on the drive to/from work; and (3) through steady diet and exercise, obtain a Matthew McConaughey-esque physique by June so that I may finally implement my lifelong dream of Shirtless Fridays© (coming soon to an office environment near you). While I can’t promise to achieve any of these lofty goals, in the immortal words of Bart Simpson, I promise you this: I’ll try to try.

I wanted to start the year off with a question that every litigator is asked by [almost] every client: How many additional mortgages on my house do I need to take out to hire you? Is your deal with the Devil more exclusive/powerful than the lawyer on the other side? Am I going to win this motion, this case, this appeal, etc.? It is no doubt a legitimate question and one that should be on your mind both before a case is filed and throughout the entire process. For as much as we like to view ourselves as champions of justice, you (the client) are not necessarily paying us to see justice prevail (wait, was being less cynical part of my New Year’s Resolutions? No? Excellent.) – you’re paying us to win, and you want some assurances ahead of time that your money is not being wasted on a losing argument/case.

With all due respect (does anything respectful ever follow that phrase?), Mr. DeSouza, you still haven’t answered my question – am I going to win this motion or not? Geez, stop being so pushy – it’s not like you’re paying me to, err, nevermind. Let’s look at a practical example. You’ve been sued and are now embroiled in a contentious lawsuit (yay! I mean, this is awful). I’m your lawyer and have called you to say that I’ll be filing a motion to dismiss on your behalf based on some legal mumbo jumbo (the correct technical term, by the way). You now ask me a third time – am I going to win this motion or not? My response to you?

Of course you’re going to win this motion. I’ve been practicing for 10/20/30+ years and there is no question that we win this one. Open and shut. I guarantee it.

Sounds good, right? I mean, you want a lawyer that is confident in your cause that will reassure you and put your mind at ease as to the outcome, don’t you? Please do me this favor: if you ever hear anything akin to the above… run. Run away from that lawyer as fast as you can. The only guarantees in life are taxes and death and that DeSouza will not look like Matthew McConaughey by June (sigh) – the outcome of your motion/lawsuit is not a guarantee that a lawyer can/should be making to you. I’ve personally seen/heard such promises made, and (shockingly) I’ve seen these promises broken when a court rules on the issue. I have to imagine that’s an uncomfortable conversation between lawyer and client at that point.George Zimmer

But why can’t we make promises as to the outcome? We’re paid to know the law and effectively argue it, so shouldn’t we have a sense of whether you’re going to win or lose on a particular issue? Absolutely – I can (and should) be able to tell you my opinion on what the law says and how I believe it should be applied to your case. That’s somewhat more reassuring than just throwing my hands up in the air and giving the internationally-recognized “I dunno” shoulder shrug, but it’s also a far cry from providing you a guarantee of victory or defeat. Is that really the best we can offer?

Here comes more of that cynicism that I thankfully have not resolved away. No matter how nice I look in black, I don’t get to wear the black robes. That privilege is reserved for the judge, and he/she gets to decide the outcome of your motion. But wait – if you’re telling me the law supports us, then shouldn’t the judge rule that way as well? In the land of the Easter Bunny and Santa Claus – certainly. In our court system – somewhat less so.

I believe it was acclaimed 18th Century poet Bruno Mars who once said something about “to err is human.” It might have been someone else, but the point is the same. Judges are human just like you and me. They make mistakes. More often than not, your motion is 1 of 50 that judge is going to hear today, and he/she most likely does not have the time to independently review each motion ahead of time. It is not an easy task and not one we should criticize (especially those of us who will continue to appear and argue before these judges), but the fact remains that many judges are forced to decide your motion by making a snap decision based on the effectiveness of counsel’s argument and the judge’s prior experience with the issue.

Given that even the simplest of discovery motions can have far-reaching and costly implications, hearing that a judge might be deciding a motion based on gut feeling rather than established law is a difficult pill to swallow. Difficult but necessary. When you’re evaluating litigation risk and apportioning a budget, the ‘judge wildcard’ is a factor you should always consider.

So what’s the lesson here? BE AFRAID. BE VERY AFRAID. Maybe not quite so extreme, but you should always be cognizant of risk and should shy away from anyone that tries to downplay that risk to you… heck, even Crocodile Dundee (a man with confidence enough to prance around Manhattan in a snake/croc skin vest) doesn’t make guarantees – though, to be honest, if he’s your attorney and tells you your chance of success on a motion is “better than average,” I’d probably trust him on that.


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