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Litigation Journal

Summer 2023 | Legitimacy

Picking Winners

Kenneth P Nolan


  • The best cases are the ones you reject.
  • Be realistic and skeptical—clients are not saints.
  • Charm won’t convince jurors; facts will.
Picking Winners
Gorodenkoff Productions OU via Getty Images

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I was smart, charming, persuasive—at least I thought so. I was a year or two out of law school, and I knew, just knew, that this law stuff was a breeze. Fame and riches would be mine, big-time. I actually watched some trials, and all I saw were some old guys fumbling about, searching for exhibits, every question shockingly incoherent: “Did you witness the accident on July 15—strike that, June 15 at the intersection of, er, where is it, oh yes, 46th—no, no, 48th Street . . . ?”

My first trial proved my point. I was awarded a humongous $75,000 for poor Mrs. Sysko, who fell getting off an elevator. Yeah, the jury found her one-third at fault, but the verdict was 10 times the offer, and one adversary—the perceptive one—complimented me on my brilliant and compelling summation. See, I told you it was easy.

A few months later, I was again picking a jury, this time in plaintiff-friendly Brooklyn. Tommy, a young, carefree guy, was hit by a car in the intersection while crossing the street. His injuries weren’t catastrophic, but with my charisma and blarney, Tommy will be soaking up the sun in the Caribbean, his plan for the winnings. Yeah, he was coming out of Woodsie’s bar, but he only had three small glasses of beer. Jurors will applaud that he was walking, not driving. And did I tell you they were small glasses?

I prepped Tommy a half-dozen times and was happy to see that he was early when I walked into the coffee shop where we were to meet before we started trial and he testified. “Where’s your jacket and tie?” I asked, eyeing his wrinkled sweater. “I was supposed to dress up? You never told me.” “You didn’t shave?” He shrugged, “So?” I tried to calm down and gave him some reminders about his day on the stand. He kept looking away, trying to get someone’s attention. “Please,” I begged. “This is serious.” “See that one over there,” he said. “She’s a looker.” I turned and peeked: “You idiot, she’s on the jury!” I started to sweat.

Even I realized Tommy wasn’t the greatest witness, but defense counsel was terrible. Every question, every single one, he mentioned Woodsie’s bar and the three small beers. What a dope! Then the defendant driver, also young but in jacket and tie, was somewhat convincing: “I didn’t hit him; he walked into my car.” I tried really hard on cross.

Next was the driver’s sweet-looking, but Brooklyn-tough girlfriend, a passenger in the front seat. “He didn’t even walk into my door, but the rear door. Jerk,” she said with a shake of her head. “I said, ‘I’ll call an ambulance.’ But he refused, said ‘Nah, it’s nothin.’ He didn’t even want to wait for the cops.” She threw up her hands. “Then he turns around and sues us! Can you believe it? The nerve.” The jury was smiling, nodding, having a grand old time. “And, you know,” her voice biting, “he was slurring his words.”

In less than a half hour, the jury tossed us onto cold, hard Court Street. “We tried,” Tommy said with a shrug and walked toward the subway. I never saw him again.

This was not supposed to happen. I was never supposed to lose. “I wanted to rule for you, Mr. Nolan,” one juror said, “but if he had 3 beers, he had 30.” The judge, gentle and kind, said I did fine. “But how could I have won?” “Maybe if he said he was coming from church,” he laughed.

I was sad, heartbroken, actually. Not for the loss, for I knew deep down the case was garbage. But for a moment, just a nanosecond, I thought I was special, gifted, that I had found a calling where I could excel like I had never done in sports, in the classroom. I almost convinced myself that I was akin to those who roamed the outfield at Yankee Stadium or won the game with the last-second jumper. Alas, I was ordinary in law as in life. I realized that if I wanted success, I’d have to work harder than everyone else, just as I was taught.

Not only did losing hurt, but it cost money, which was a sacrilege in my world. Whenever we shivered on winter mornings, my mother never went near the thermostat. Instead, she’d snarl: “You’re cold? Put on another sweater.” I had to select only winning lawsuits since I couldn’t afford to go broke. Here’s what I learned:

Facts determine who wins. Jurors believe in American justice. No matter how charming and beautiful you are, if your client sped through a red light or breached a simple contract, you’re going to lose. Facts trump skill every time. Sure, you may be able to fool the jury, but that occurs with the frequency of the Jets winning the Super Bowl.

Investigate. Before you draft the complaint, find out what happened. Everything. Do it yourself. Yes, you. Go to the scene, interview witnesses, obtain the records. Read every line. And do me a favor, don’t take your client’s word as gospel even if you’re from one of those virtuous, picturesque small towns. Remember, George Bailey needed an angel to overcome Mr. Potter’s deceit.

Cross-examine your client—gently, of course. Uncover the weaknesses, the skeletons. You might as well know now; eventually everyone will. No fun selecting a jury dreading that in a day or so, the entire courtroom will despise your client. A lovely wife died in a plane crash, and the husband, a cad, thought he could convince the jury of his everlasting love and devotion. The moment he took the stand, jurors recognized a fraud. I begged him to settle. Arrogantly, he refused. The jury punished him and, worse, me.

A hardworking, honorable client is a joy and a gift. Years later, a federal judge still asked about a family that I represented in an obstetrical malpractice case. During jury selection, I sat with the resilient and gracious mother and her disabled daughter, while her other daughter, seven or eight, was present in a bright dress with yellow ribbons in her hair. The family’s obvious goodness and integrity made an impression that the judge never forgot. Wisely, the defendant settled.

An ideal client, however, is rare. Before you commit yourself to years of litigation, talk with potential clients about family, sports, anything to appreciate personality, to develop rapport, to determine veracity. And don’t ignore social media; your adversary won’t. Having been raised amid hordes of people—100 kids under 16 lived on my block—I can evaluate character quickly. But I still wanted to understand motive, emotion, relationships, so I always sat at the kitchen table over a cup of coffee. The more you know, the better you can handle the headaches that will inevitably arise.

Sometimes you have no choice, you must represent the axis of evil: insurers, oil and drug companies, financial institutions, and, the worst—lawyers. Do the grunt work. Go to headquarters and interview all involved, uncover the dirt, build trust. With terrible facts and a hated client, sometimes all you can do is minimize damages. Mastery of details is essential so you can rebut the allegations of misfeasance, of illegality. Use your superior expertise to create doubt so your adversary’s certainty of victory becomes clouded and a reasonable settlement can be attained.

Venue. Whenever a matter involved multiple states—New York plaintiff, Delaware defendant, accident in Indiana—we spent days researching to find the most plaintiff-friendly jurisdiction. Don’t look only at verdicts. Determine which law—liability and damages—will be applied. An advantageous court that applies another state’s lousy law is a disaster. Choice-of-law issues can be complex as can removal issues. Be thorough. Examine all options—state, federal, which county, which district. Your job is to select not the fairest jurisdiction but the one that favors your client. This is the real world.

Even after you complete your research, talk to local lawyers—more than one—to confirm your conclusions. Ask about similar cases, verdicts. Learn how the courthouse works, understand juror attitudes. Ascertain the inclinations of the judges—who leans plaintiff/defendant, who moves cases, who’ll let you try your case. A fair, diligent judge is an invaluable asset. Sure, you want a judge who favors your client, but the real goal is, as I was told years ago by an old-timer, “I just don’t want to be hurt, Kenny.”

If you’re litigating outside your comfort zone, hire a local so you won’t get home-towned, so you don’t alienate the judge, so he doesn’t scream at the second conference: “I don’t care how you do it in New York, Mr. Nolan.” After that, I always let local counsel address the court.

Sometimes you just have to say no. The best cases are the ones you reject. Nothing worse than two years into litigation and every time you open the file, you hear a bark. Dog cases cost money, time, and reputation. While you’re trying a losing case, your profitable ones sit idle. And guess who’s blamed for the loss? Now the client will denigrate your ability and character to the world—easy with social media.

Too often you must litigate losers. Defense attorneys don’t have choices. Be aggressive and professional. Those with slam-dunk cases often trash-talk, broadcast how they’ll kick your butt. Ignore the blather. From the moment you’re retained, prepare for trial—know more law and facts—so when settlement discussions occur, you’ll be respected and, perhaps, feared.

That case involving Woodsie’s bar taught me much: Be realistic and skeptical—clients are not saints. Investigate before filing. Charm won’t convince jurors; facts will. Lousy cases only get worse. And cost money. Don’t rush. Make certain you have a good chance of success before you file your complaint. Losing isn’t fun. I know.