Yesterday I mentioned jurors, judges and lawyers – each providing a risk attendant to trial. Let’s face it, most of the time the decision to try a case is largely an exercise in risk management. Great motions that result in the dismissal of criminal charges are about as rare as pink bison roaming around Jackson Hole. We talk about great motions and we argue great motions but judges seldom grant the relief we would like for our clients. In civil cases this is also true. How many civil cases get tried? Not many. Mostly we file papers and shake our spears and argue our causes to anyone who will listen, but then we mostly settle.
But what about trials? The great battles? Our great legal theaters?
Trial is risky. Yesterday I pointed out three risks, and here is another one that I do not often enough consider. Witnesses are risky, too. It seems to me that in every trial some witness testifies to something that I never had expected to hear.
"Did you see the Defendant on March 3, 2010, at Piggly Wiggly?"
"What? I thought you told the investigator that you saw the Defendant at the Piggly Wiggly."
"No sir… all I said was I saw him. Can’t really say when I saw him, but it was not at Piggly Wiggly."
It happens. That killer witness who is expected to answer the "where was Waldo when the bank was robbed" question, changes his testimony. Now your defense evaporates and the alibi you had told the jury about in opening is gone.
A few weeks ago in a homicide case Courtney and I tried, I simply suggested to the state’s witness that our client believed he had been cleared through an intersection by pedestrians in a cross-walk.
"I believe the Defendant thought he had been waived through," he said. Their witness confirmed that our client’s version of events was worthy of belief. He confirmed that our client had believed what he said he believed.
"No further questions, judge." I sat down quickly.
Witnesses are inherently unpredictable. If you coach them too much they come off as coached. If you trust them to tell their story they come off as unprepared.
Which takes me back to the premise advanced yesterday – trials are unpredictable. So before you go charging off to trial in your case, you must consider the risks. And here is one more thing to consider: nothing trumps experience.
By this I mean that an experienced trial lawyer is your best hedge against the unpredictable. Those personal injury mills – you know – "we settle every case for 100 times what the insurance carrier wants to pay" – those guys seldom if ever try cases. So if your case seems likely to go to trial, get yourself an experienced trial lawyer. Think about this – if you were on a plane that had lost power and was about to ditch in a river – would you rather have "newby" pilot with little or no real world experience or Sully Sullenberger at the yoke?
An actual trial of a civil or criminal case is just that sort of thing. The sky will get black and the rains will pour down and it will seem like you are going to die. You might. You need someone to fly you out of that weather and protect your future.
But enough about dark clouds and unpredictable results. It’s August. The sun is shining and in another week I will be riding a bike 500 miles or so through the mountains of Idaho. If you have a question about whether you should be going to trial, give us a call.