How to Win the Unwinnable Case
How to Win the “Unwinnable” Case with Honesty & Integrity
(c) 2016 CHAIM STEINBERGER, P.C.
There are several techniques we use to win “unwinnable” cases with honesty and integrity. Of course, they all take hard work, skill, sophistication, a deep knowledge of the law and an intimate understanding of human behavior. You will likely find threads of these techniques in many of our descriptions and writings, and we assemble and briefly describe some of the primary techniques here for your information. Remember though, just because it may sound simple doesn’t make them easy to apply:
1. Elbow grease – good ole’ fashioned hard work. So often we see the other side presenting frivolous and outlandish claims. (We’ve even had an opposing counsel unabashedly and directly contradict the statements of his first court submission in his second.) While the natural tendency is to become overwhelmed and frustrated and to just start sputtering apoplectically, the better reaction is to take a deep calming breath, and start cataloging the evidence that refutes the other side’s claims. This often requires time and perseverance, a willingness to leave no stone unturned and to even, on occasion, go “dumpster diving” to gather and accumulate the evidence that will demonstrate to the Court the other side’s dissembling. (Unfortunately, this is a wasteful expense caused by the other side’s disregard for the truth and their “scorched earth” litigation tactics, and just another reason that a collaborative, honorable dispute resolution process is healthier for both of the parties. A client of ours once had to spend $60,000 to dispel the myths created by an adversary. Though the dollar value at play was only $400, the money had to be spent to change the way the Court viewed the parties. After presenting our evidence, the former villain became the hero and the former hero the villain.)
2. Develop a compelling “theory of the case” – this is likely the hardest technique to master, summarize or explain. Entire books and chapters have been written on it, and great lawyers have devoted years of their lives to master it. Each side of every controversy always has a “story” or a “narrative.” The side whose narrative the Court “buys” into, will win. It takes skill and a deep understanding of human behavior (social and psychological,) to develop a narrative that is consistent with the facts and that leaves the Court with the compelling feeling that there’s an injustice here that needs to be remedied. Have you ever heard someone say, “I can feel it in the gut, but I can’t explain it”? A great trial lawyer will find the words to make those feelings come alive, and convey the injustice the client feels. (I’ve had clients tell me, “Wow, Chaim. After just a few minutes you’re able to explain what I’m feeling better than I could, even though I’ve suffered with the situation for years.”) It’s that ability to take a feeling of injustice and put it into words, a logical, emotional and legal construct, that allows it to be transmitted to others and move them to rectify your injustice.
3. Rehabilitate your client – many people have weaknesses and shortcomings that are harmful to their legal claims. Obviously, I won’t promise to win custody for a parent with anger management and drug abuse problems. However, often a client can change and improve and thereby improve their ability to succeed in Court. The parent may attend anger management or drug or alcohol rehabilitation programs, and start spending only limited time with the children and gradually, after everyone can be assured that the children remain safe, increase their time with the children.
4. Legal jiu jitsu – jiu jitsu differs from many other martial arts in that the practitioner uses the attacker’s own force against the attacker. Instead of resisting or counterattacking, the defender usurps and redirects the attacker’s momentum and power, and uses it to defeat the attacker. Judge Ralph Adam Fine, in chapter 9 of his excellent book The How to Win Trial Manual (“Use the Bad Facts to Your Advantage”), describes how the government used this technique in the John Gotti criminal trial, when it proffered the testimony of Sammy “the Bull” Gravano. Sammy the Bull was one of Gotti’s murderous henchmen, and the government knew that the defense would attempt to destroy his credibility by pointing out all of his own dastardly deeds. To counter the defense, the government readily admitted that Sammy the Bull was a cold-stone killer but argued that he was still a patriot. Though he was in cahoots with Gotti, when he heard Gotti betray and criticize the United States during Operation Desert Storm, he turned State’s evidence against him. By framing it this way, the more mud the Gotti team would sling on Sammy the Bull, the worse Gotti himself would seem, to have Sammy the Bull turn on him.
5. Adjust your sights – sometimes the way to win is to not ask for the whole pie but just a piece. Determining realistic achievable goals–goals that can be obtained after hard work, developing a wise legal theory, and presenting favorable facts in a powerful way–goals that may be a stretch but are not impossible, is the way to snatch victory from the jaws of defeat.
6. Negotiate – of course, a good way to win the unwinnable case is to negotiate it away. By negotiating you retain control over the resolution. And if you have “bad facts” that will sink your case in Court, your best course of action may be to make the other side an offer they can’t refuse.
Of course, there are no guarantees! Litigation is inherently unpredictable. There are so many moving parts, so many personalities, so many facts that clients “forget” to tell their lawyers about, and so many judges with different views, that no lawyer can give any client an iron-clad assurance about any result in a particular case. And that’s just another reason why negotiating a resolution is a safer bet, because it allows parties to determine their own fates.
Page Last Rev.: 2/26/16