Sports metaphors are popular in trial law. In part because trial lawyers see themselves as gladiators, and that means there is a winner in most every contest. In part, because of misogyny in a profession that has been dominated by male trial lawyers for decades. Men often like sports, and using a sports metaphor for our work is easier than describing the drudgery and frustration.
“I just go out there and give 110%.”
“We are the better team, but we just got outplayed today.”
“I give (insert favorite deity here) credit for the win.”
“Who looks better on paper doesn’t tell the whole story. That is why we play the game.”
The first three of these sayings annoy me, regardless of the speaker. Mathematically speaking, you can’t give 110%. If you were truly the better team, wouldn’t you have found a way to win? Finally, I don’t think a deity is picking winners and losers, and if it is, I would only root for teams beholden to Thor, because he is the one with the big gavel.
The last one on my list rang true for me recently, and reminded me of the sports maxim I continue to relearn, spoken by the great Paul Bryant, “It isn’t the will to win that matters, everyone has that. It’s the will to prepare to win that matters.” No matter how desperate things look, even when my side appears hopeless, I must prepare. Gotta do the work.
I first learned this over a decade ago. I was getting ready for trial and my client was claiming big damages from what appeared to be a small impact. The defense named a witness on their pretrial report that I didn’t know. A police officer with no ax to grind, which meant the jury would find him credible. I didn’t even know who he was!
So, with heavy heart, I called him to ask what he had seen. The defense didn’t know who he was either or they wouldn’t have named him. His testimony supported our story of how severe the wreck really was, and showed the defendant to have been not only at fault but untruthful in his sworn testimony. Trial went my client’s way, bigly.
A couple of weeks ago, the defendant set one of my client’s treating doctors for a deposition. This is unusual as I always pay to preserve my client’s doctor’s trial testimony. Given the high price this doctor was charging for his time, I was certain that the defense had spoken to him already and he supported their case. His office staff had been difficult to deal with as well, and I was certain that he would testify that my client’s illness had nothing to do with the accident or the defendant. He had extensive credentials and a conservative reputation to boot. Things looked bad.
I don’t really dig down deep into a client’s medical records until it is time for the treating doctor’s deposition. Medical records come to my office in fits and spurts so this is the first opportunity I really have to look at all the records together. (I could review medical records at 3 in the morning instead of sleeping I guess, but I don’t. Perhaps I am just lazy- I don’t rule that out.)
In preparing for the deposition, my heart sunk. There were several notes that, charitably, were hard to reconcile with my client’s case. He had made arguably similar complaints before this injury. He wasn’t young and at least one doctor wrote his complaints off to age. And so on.
I called my client and told him I didn’t expect things to go well. It would take a miracle for him to get a settlement offer if I was right, and the trial outlook was bleak. He understood, and said he trusted me to do what I could. His faith only added to my despair.
I looked for an angle. Maybe the medical literature would let me downplay this physician’s testimony. If he went against us, the literature supported him. I knew I couldn’t challenge his credentials- he came from one of those hospitals that makes jurors think of unicorns and rainbows. I resigned to lose.
I met with the doctor before the deposition to share records he didn’t have and get a feel for what he would say. His assistant showed me into his office, complete with the impressive degrees on the wall and photos of him with famous athletes he had helped. He had a bottle of bourbon on the top of his book shelf, and I considered grabbing a nip while I waited for him to come in. To self-medicate the pain I was about to endure, it seemed fair.
When he came into the room, he literally filled the doorway. I gave up hope of beating him up when things went south. As I showed him the other medical records he said, “I don’t need to see anymore.” My sunken heart went sub-basement.
“I believe this accident caused your client’s problems. He needs surgery and even then he has a lifetime of pain ahead.”
As we walked out of the deposition, the defense lawyer had the same look on his face that I had had going in. I give credit to Thor of course.
The race doesn’t always go to the swift or the battle to the strong, but that is the safest way to bet. Of course, every now and then, it isn’t. Luckily for me. It keeps me in the game.
©2017 under analysis llc. under analysis is a nationally syndicated column. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St Louis, Missouri. He doesn’t worship Thor, but is fond of his Ironman cufflinks. Comments or criticisms about this column may be sent directly to Under Analysis via email.