So Who Will Win?

So, who will win? This is always a question I hear whenever I’m getting ready to try a case. I know that most people expect to hear the answer, that we’ll win of course. But in reality, the party that will win is the party that prepares the hardest. It’s not just enough to know the law or be able to look it up. It’s not enough to have graduated first in your law school class, it’s not enough to have more trials than the other fellow. It is always who is better prepared that wins the case.

The attorney who takes a percentage interest in your case is an attorney who financially has an interest in the outcome of the case. I mean, an attorney who has a percentage interest in your case, is concerned about winning the case, otherwise he or she will not get paid. But just having a financial interest in the case, does not assure the attorney of winning the case. It helps insure the attorney will complete the case to the point of him or her getting paid, bit little else. Remember, most cases do receive some sort of offer from the insurance company before trial. Usually, the more paper you generate, the more trees you kill, the higher the offer, but not always.

In today’s environment, insurance companies are quite successful placing fear into the potential juror’s minds that all lawsuits are frivolous, (stupid) and most jurors usually believe this way before they are asked to serve on a jury.  That all these frivolous lawsuits will raise my insurance costs is the most common response by potential jurors. Every juror seems to have some experience with lawsuits in some manner. For instance, many jurors say, “I got sued for something stupid and it settled” or “I know my friend got sued and it was a frivolous lawsuit”. On and on they go, gladly telling anyone who will listen that all lawsuits are frivolous.

Yet, here you are, facing a jury without a decent offer. The lack of a decent offer forces you to have a jury trial. Do you suppose that your jury might agree with the defense attorney and see this as a frivolous lawsuit? Of course not, you say, the other fellow rear ended me and that’s the only story that can be told. I know those of you that do bother reading this will not want to read what I write next. Just as Chuckwagon  Sally always says, “there are always two sides to every story”, you’d better prepare for the other side of the story to be told by opposing counsel. If opposing counsel agrees with your story, why would there be a trial? Well there wouldn’t be a need for a trial, now would there?

But you say, the facts really aren’t at issue, the only question here is the amount of money they owe. I ask, why didn’t it settle in mediation then? Well, you say, the insurance adjuster would only offer to pay X dollars and my injuries are real and worth Y dollars. I really hurt and besides, the jury will surely see it my way. I ask, but what if they don’t? Preposterous you say, that will never happen. So on and on this conversation goes, until we are back in front of a jury facing them as our referees.

So now I ask, who do you want to present your case to these strangers? Who do you want to tell your story to these people who will decide the fate of your lawsuit? I don’t know about you, but I want someone who is completely and totally prepared, someone who will win this case, not just someone who wants money for little or no work.

You say, my attorney is competent and comes highly recommended. Maybe so, but even highly recommended attorneys lose cases. Well, he or she really cares what happens to me? Well, have they stayed the day or night with you and your family to get to know what really happens to you? Well, my goodness, his or her paralegal has worked on this case for months getting ready for it? So should the paralegal try the case for you, I ask? My attorney has all these powerpoint presentations and we’ve been to the scene of the accident, so he or she knows everything about what happened to me. Well did your attorney spend time discovering your story? What do you mean by that, you ask. What I mean by that is did your attorney find out what really happened or did he or she just take your word for what happened?

Well we’ve interviewed all the witnesses and they all say it was the other guy’s fault. Has your attorney interviewed the defense witnesses? Has your attorney thought of all the possible defenses and stories that the other side might tell? Have you been a critical part of this case preparation, or have you’ve just been told how it’s going to be? Have you had all your questions answered or have you been met with that ice cold stare much like that of Chuckwagon Sally when you annoy her? Have you been to the courtroom where the trial will take place with your attorney and actually sat in the witness chair? Have you sat in the jury box? Have you sat in the Judge’s chair? Have you been told how the case will proceed? Have you worked on the deposition questions with the lawyer? Have you had a hand in picking the experts? Have you gone to all the depositions? Have you just sat back and let the lawyer do all the work for you?

Well you say, the lawyer is too busy to talk to me and it is a waste of his and my time to do all these things you ask. Besides, I’ve been to court before, I know how it works. I say, if your lawyer is too busy for you the most important person in the case, why would you want him or her to represent you at all? If it’s a waste of your time, then don’t feel bad or blame the lawyer when the verdict comes back unfavorably to you.

That’ll never happen, you say,,, but it does quite frequently. The verdict is less than the offer you started with or worse yet, the defense gets a verdict in their favor.  Again, it goes back to preparation, preparation and more preparation.

I’d much rather have an attorney who prepares than one who doesn’t. Remember, it’s your case, not the attorneys. It’s you who will be affected forever, not the attorney. So if you or your attorney can’t prepare, why bother? You don’t get lucky in trial,, you prepare and win. I’m off to the barn. Hope everyone has a wonderful day.

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