The rule of the law in litigation
One of the most frequently asked questions directed at me by clients contemplating litigation is “what are my chances of winning?” An appropriate inquiry, to be sure, and one, I’m certain, other litigators also frequently field. It is also one of the most difficult questions to which the attorney can accurately respond. Of course, experience helps. After enough years in and around the courthouse, an attorney should not only be familiar with the law but, in addition, should have developed a “feel” for how certain facts and evidence might “play” before the judge and jury.
You might have noticed, immediately above, that I said “judge and jury.” As a starting point, some cases are tried to “the court” (that is, to the judge), and others may be tried to a jury. As a simple, but accurate statement, sometimes cases are tried to the court rather than to a jury on the parties’ own initiative (that is to say, the parties may, by mutual agreement, waive their respective rights to a jury trial). In other instances (depending on the type of case and the claims asserted), the parties may not be entitled (as a matter of law) to a jury trial. In any instance, however, whether the trial is a jury trial or a trial to the court, the judge always plays a key role.
Among other essential functions the judge undertakes at trial is to act as the official gatekeeper of what evidence is admitted and what evidence is limited or altogether barred. The judge acts similarly as censor and arbiter of the respective attorneys’ objections and disputes, either sustaining or overruling them and, thereby, determining both the flow of the litigation and the breadth of testimony. Clearly, then, even if unintended, the particular judge involved always “influences” the litigation, however brazenly or subtlety.
It is meant with no disrespect, but it is a simple fact of life that, just as in any other profession, some judges are more competent than others. Likewise, some are more experienced than others, brighter than others, more involved, sincere and alert than others. And so on. It is worth noting too, that just like any other human beings, judges have their good days and their bad. These observations are not intended as a “knock” on any one judge or on the system as a whole. Rather, it is simply a reality, the consequence of which may be that the “justice” a litigant receives in one courtroom may not be the same justice he or she might have received in another. The justice that one party receives may not be the same another party may be delivered.
Now take the circumstance where a trial is to a jury, rather than to the court. The complexities of our human foibles and short-comings geometrically magnify the complexity of the litigation equation. Not only does the judge remain a subtle participant in the proceedings, but now, too, must the individual talents, prejudices, intellects and failures of each and every member of the jury be added to the brew. Too, group dynamics must be considered. In its deliberations, the jurors do not act in a vacuum and the groups dynamics of how the jurors interact with, and influence, one another is a significant consideration and, often, an unpredictable wild card. It is not an unusual circumstance at all where one or more jurors dominates the jury by simple force of personality or the strength of his or her conviction.
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Add to this witches brew the personalities of the litigants themselves, the witnesses called to testify on behalf of one side or the other, and the competence, experience and personas of the attorneys on each side of the dispute. Obviously all these intangible “human” aspects affect how the facts may be taken, the light in which the evidence is received, and, ultimately, the outcome of the jury’s deliberations.
Separate from these and other human factors, consider that the law itself may be ambiguous, unresolved, or at least subject to reasonable interpretation. The facts might may be muddled, unsupportable, inadmissible or contradictory. Witnesses may be unavailable, reverse or contradict themselves, change their stories on the witness stand, mis-state what they intend, become intimidated or forgetful, or simply fall apart under the stress of trial examination. Any litigator no longer wet behind the ears has seen all of these, and more, take place.
Then there’s this to think about; there really is no “truth.” There is the truth as each party honestly recalls it (though each parties’ earnest recollection may be strikingly different). There is the truth filtered over time. There is the truth bent and molded to convenience. Truth is also subject to that portion of the truth a party may have witnessed, which may or may not may be the “whole truth.” The “truth” may also be a fabricated “truth.”
There is also the “truth” as one party or the other understands it, which understanding may be limited by the party’s intellectual capacity or some other equally relevant limitations. (Take, for instance, where a party may have limited eyesight and witnessed an occurrence. His or her “truth,” though honestly advanced, may not, in fact may be the “real” truth). Consider, too, that some people are simply more articulate than others, or more concise, are better at telling a story, are more dynamic, or simply, by their natures (deservedly or not), more believable. Also, where certain evidence may barred by various procedures, the “truth” may become a victim of process and may never see the light of litigation.
As you can see, when a client asks, “What are my chances of winning?” most experience litigators draw a deep, meaningful breath and reply, “Well, there are never guarantees in litigation.” Rather than being facile or elusive, most times the attorney’s answer is a shorthand way of saying, “There are always a host of unpredictable variables, despite whatever strengths your case may have.” Lastly, consider that when a client first comes to consult with an attorney, the attorney generally has only passing acquaintance with the facts, the deeper understanding of which, and bright edges of the litigation, can only develop over time and through the process of preparing the particular case for trial.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. He canbe heard on Wednesday nights at 7 on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins may be reached at 926-4461 or at email@example.com.