United States: Bah To Legal Lambs

Last Updated: September 26 2017
Article by Stephen J. McConnell

Like many of you, on Friday mornings we turn to the "Legal Lions and Lambs" section of Law360. It is not only voyeurism. We are constantly working on things in media res (the middle of things), building slowly and gradually to a climax that hardly ever arrives. Ninety percent of cases settle, and that is seldom the stuff of Lions or Lambs. Nope: the Lions vs Lambs dichotomy is about winning and losing. Not in any subtle sense, either. The Law360 column focuses on trial verdicts or dispositive motions. Those outcomes furnish teaching moments, points of inspiration, object lessons, or cautionary tales. We have never personally shown up on either side of the list as far as we know, mirabile dictu (wonder to say – surely mastery of Latin is a mark of a Legal Lion, no?), given that we played a minor role in that vast stain on Anglo-American jurisprudence not-so-fondly remembered as the Engle tobacco litigation in Miami).
We know this much: we'd rather be a Lion than a Lamb. The Lion is king of the jungle. MGM pictures start majestically with a roaring lion. King Richard was lion-hearted. The hero in the best Disney animated movie was a lion. So was Barry Sanders. By contrast, Lambs get led to the slaughter. We count them as we try to fall asleep. Their silence is the central image to the creepiest movie we have ever seen. Worst of all, we garnish lamb chops with mint jelly.
Over the last couple of weeks, we saw some entries in the "Lambs" section that caught our attention because they involved lawyers we know and respect. These lawyers defended drug or device companies that got tagged by juries with eye-popping verdicts. These defense lawyers are, to put it plainly, great lawyers. We co-tried, and won, a case with one of them, and counted two others as colleagues in the US Attorney's office a long time ago. Their skills are extraordinary. They possess exquisite judgment, work hard, and give their clients the best possible representation.
And they lost the cases that landed them in Law360. (One of them, by the way, had won a similar case a couple of months before – the first defense lawyer to do so. Before he was a Lamb, this lawyer was a Lion). Suddenly, we decided that we disliked the "Lambs" label. Law360 surely does not mean to insult anyone in the Friday column, but there is something undeniably negative about the "Lambs" term, and undeniably unfair. We bet those lawyers on the losing end went down, not meekly, but swinging.
The fact is that great lawyers occasionally lose cases. Why? To begin with, great lawyers are given the hardest and most important cases. We know a very smart in-house lawyer (in fact his company was involved with one of the cases that caught our attention in the Lions and Lambs column) who likes to ask lawyers begging for business from him to name their worst loss. Too many lawyers pretend they have never lost, or immediately show their insecurity by ladling on the excuses. But think of the two or three best trial lawyers you have ever encountered. Maybe there is a plaintiff lawyer in Houston with a photographic memory and unsurpassable eloquence. Maybe there is a corporate defense lawyer in Chicago who possesses laser-like focus and terrifying tenacity. They have both been brutalized by juries. That is true for just about every other trial lawyer who has earned a glistening national reputation. Some cases are simply too hard. Some judges are simply too biased. Or, most often, some juries are simply too batty.
When we consider our worst loss, we usually reflect on a near miss. (Right – we are cheating.) We tried a case against one of the most unpleasant lawyers we have ever met. You couldn't trust his word. He said things in open court that the Judge had explicitly ruled out of bounds. But before violating the ruling, this lawyer would keep challenging it. Again and again. Every day was a new day. (The rotten thing was that half the time the judge would give him something, as if that mollification would buy peace instead of inviting additional rounds of revisitations and defiance). He wasn't a Lion or a Lamb. He was a Weasel. The case was hard-fought, but we were sure we gave a bit better than we got, and our closing argument echoed Pericles (so we thought) while our villainous opponent cribbed his best lines from one of his competitor Texas plaintiff lawyers. His appeals to prejudice were utterly unoriginal. And plagiarism was the least of this scoundrel's sins. Be that as it may, it was now time to wait for the jury. Our client, who was doubtless the smartest person in the room, took the plaintiff lawyer aside. They huddled and talked intently. One or two perplexing questions came from the jury. Those questions were so unsettling as to provoke settlement. The in-house lawyer struck a deal with our adversary. It seemed to us like a lot of money. But there it was.

We informed the Judge. The Judge then informed the jury. We then talked to the jury. What they told us made none of us happy. It seems that the jury was leaning toward awarding a verdict about ten times higher than the settlement. One member of the jury had been a bit, um, stealthy. In voir dire she had disclaimed any relevant prior history at all. It turned out that she had a daughter who suffered from a condition pretty similar to what the plaintiff claimed. This juror pushed hard to become foreperson, and then pushed even harder for a punishing verdict. We (the defense) were stunned. But perhaps we weren't quite as stunned as the plaintiff lawyer, who had bargained away his next vacation home.
We were almost Lambs.

There are lots of reasons why cases are won or lost, or settled. We hate it when judges are outcome-oriented, and we should beware of that fault, too. The best lawyers don't always get the best results. We can think of a case where one of the finest, smartest, smoothest two or three trial lawyers we ever saw lost to one of the two or three dopiest, clumsiest ones we ever saw. The jury was moved by undeniable facts and unavoidable sympathy.
Let's have a little sympathy for those Legal Lambs. They might very well be much better than the Lions, and they probably did a better job than most of us would have done. Heck, they probably don't want our sympathy. They are much too tough for that. They are not Lambs at all.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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