Lawyers and the concepts of victory and loss

Originally published by Bryan Damien Nichols, Guest Blogger.

Lawyers are built to succeed. Lawyers love to win. Lawyers understand that we work in an adversarial world, which means that some litigants win and other litigants lose.

But are the concepts of victory and loss in the legal arena so straightforward? Is there not room for interpretation, for debate, for dissent? Can we always state, with certainty that one party has won and one party has lost? I argue that the concepts of victory and loss are far more vague than one might imagine.

There are circumstances that speak directly to victory or loss. Suppose a plaintiff’s lawyer wins a multimillion-dollar verdict after a hard-fought trial. Everyone would say the plaintiff’s lawyer “won,” especially because he or she achieved the desired verdict. Conversely, a defense lawyer who achieves a defense verdict (i.e., no liability, no damages), after a tough trial will clearly be viewed as the “winner” of that particular case.

These two situations display what many see as the archetypal legal scenario: one party wins everything; one party loses everything.

But in most lawsuits, such an all-or-nothing analysis fails to comport with reality. Let us suppose, for example, that you are an attorney defending against a multimillion dollar personal injury claim. Let us further suppose that your client bears some measure of liability, though the liability is not crystal clear or could be mitigated in some way (e.g., there may be sound defenses, mitigating facts, other responsible parties).

In this particular case, you settle the matter at mediation (after three years of litigation) for $2 million, even though the plaintiffs had been claiming $10 million since the lawsuit’s inception.

Here’s the question, Which party won? On one hand, the plaintiffs can be said to have “won” because they achieved a settlement of $2 million. But perhaps your side “won” because, through sustained litigation and subsequent negotiation, you saved your client from a verdict much larger (or a settlement much larger).

Indeed, perhaps the settlement was a fraction of the damages that could be proven at trial. Given the particular laws and facts in the case, perhaps the plaintiffs were ultimately dissatisfied with the settlement (conversely, perhaps you were dissatisfied). The point of this example is that a grey area may appear in a scenario that many wish to call black and white.

The problems inherent in analyzing victory and loss are often amplified in the case of appeals. For example, your client may have been hit with a $20 million verdict, which clearly seems like a loss. But if that verdict is reversed and rendered on appeal, then a grave loss becomes a great victory. (Conversely, the other side sees a great victory turned to a grave loss.)

But we can complicate this example with ease. For example, let us suppose that some claims and damages are upheld on appeal, whereas others are reversed. Such a “mixed bag” scenario—the one that seems to occur with greater frequency in the real world—raises the same question asked above, Which party won?

Although I cannot speak for all lawyers, I would imagine each side would have some grounds for declaring victory in a mixed bag scenario. And I do not think it would be easy to refute their beliefs.

In the criminal law context, the situation is much the same. Let us suppose that a woman or man is accused of a capital offense. When the case goes to trial, let us suppose she or he is found guilty of lesser-included offenses, even though she or he is acquitted of the capital offense.

The same question comes into play, Which party won? Perhaps a litany of appeals will, eventually, determine who “won.” Though no one can tell until the proverbial dust has settled. And even then, there may be some room for both sides to claim victory, just as in the civil law examples mentioned above.

Issues of victory and loss can be (and almost always seem to be) debated among colleagues and adversaries. This last issue raises one more consideration, namely, that lawyers may wish to refrain from excessively keeping score, especially in complex matters, lest they make themselves fit for the asylum.

In summary, I do not doubt the existence of victory or loss in the legal arena. I merely highlight that the concepts of victory and loss are often more vague, more elusive, more debatable than we, as lawyers, readily acknowledge. I think all lawyers should take this lesson to heart.

Bryan Damien Nichols is a senior associate of Ransome & Ray in Brownsville. He is also the president-elect of the Cameron County Bar Association. Nichols practices in the areas of construction and commercial litigation. He can be reached by email at bryandnichols@yahoo.com.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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