It’s common to hear lawyers brag about their success rates today. Many lawyers today soliciting for new clients often cite their astounding win rates in litigation to sway the minds of dithering and hesitant clients still pondering the many options available to them to hire them.
Some of these lawyers would quite literally tell a potential client that they’ve never lost of any the cases they’ve handled prior to that time – they are braggadocios assertions which seem to underrate the dicey game of court litigation where the premonition of defeat looms over litigants as they descend down the arena of conflict. I’ve always felt such testimonies were better suited to the world of fictional courtroom legal drama. So I’ve tended to take these unsullied testimonies of lawyers who have never lost a case as something of a fluke – is not like litigation is a game of football where a team can go on to win the league with an unbeaten record.
So you can then imagine my disbelief when I stumbled by the story of a lawyer who has literally never lost a case and it is Gerard Leonard “Gerry” Spence who holds that record. A semi-retired American trial lawyer, often lionized as the only lawyer who has never lost a case throughout an awe-inspiring practicing career. His exploits have earned him a place in the American trial lawyer’s hall of fame.
According to the Wikipedia, as of 2014, Spence has not lost a criminal case either as a prosecutor or a defense attorney. He has equally not lost a civil case since 1969. As a practicing lawyer he has been known for his eagle-eyed approach to fact finding, unearthing facts in a case no other lawyer would ordinarily discover.
Pence didn’t lack the brains either, the guy sometimes demonstrated sheer genius in the way he won some of his cases. Sometimes, he didn’t go to all the bother of calling witnesses for the defense. In fact he sometimes relied only on contradictions and holes in the prosecutions story to win his cases without doing more. Spence was the kind of lawyer who never cringed on taking on the big boys, to the point where he could take on the might of the McDonald’s corporation and won a huge $52million verdict for his client.
And while Spence might have taken the spot for the only lawyer who holds the undefeated record, there have been other lawyers with equally impressive success rates although not in that same breadth. Thurgood Marshall, the late associate justice of the United States, as a practicing lawyer was known for his high success rate in arguing before the US Supreme court and came into prominence in his victory in Brown v. Board of Education – a landmark decision that became the turning point in the disaggregation of US public schools. Of the 32 cases Marshall argued before the Supreme courts as a lawyer, he won 29 of them, an impressive feat for a lawyer.
Such heroics are the stuff of legend and should be an immense source of inspiration today for lawyers who want to follow in their footsteps. While the achievements of these legal greats leave us in no doubt as to the possibility of lawyer holding a litigation clean sheet as Spence does, they must however be taken to be the exception to a general rule in a profession in which the results or outcomes of law suits are far from guaranteed event to the most talented of lawyers irrespective of which party the momentum is with.
Litigation today is something of a wheels within wheels, full of complexities and uncertainties making it difficult for either side to a pending law suit to predict the courts verdict. It is such that even when a party has a good case and a good lawyer (who probably dreams of never losing) there will be times when the adjudicating gavel will go against that party. So unless a lawyer with a stainless litigation record, manages to do a walk-away (like in who wants to be a millionaire) from court litigation early on in their practicing careers, there’s every likelihood that they might get their immaculate records soiled one day through no fault of theirs.
Several factors contribute to this seeming difficulty to be the Harvey Specter perfect lawyer who never loses a case. Here are a just a few.
(1) Our conception of justice is imperfect
“Any determination of disputable fact may, the law recognizes be imperfect, the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution closes the book.
The law knows and we all know that sometimes fresh material may be found which perhaps might lead to a different result, but in the interest of peace, certainty and security it prevents further enquiry – Per Lord Wilberforce, in The Ampthill Peerage (1977) AC, 547.
So what was per Lord Wilberforce getting at? Someone might ask. His dictum in that case underscores the imperfect nature of our conception of justice where its administration by humans can sometimes lead to situations where the innocent could suffer.
The fundamental basis by which the court’s decision might be made is in itself imperfect and subject to contradictions. There is very little consideration given to a priori knowledge regarding the circumstances being presented and as a result, arguments must be made empirically under the assumption that assumptions themselves are in fact likely to give way to specious reasoning. Decisions must be made meticulously and according to specific yet immeasurable criteria that can only be further manipulated by any cunning lawyer with the ability to make emotional pleas based on a requisite amount of inconsequential evidence to affect a decision beneficial to his client. And so, in this respect, the law is capable of proving nothing except that its absurd attention to detail is really a kind of façade meant to cover up the fact that a truly logical and just way to deal with such matters has not yet been devised and the absence of adequate definition to its principles has given way to a kind of apathy among the men employed by the courts who want nothing more than to make a living for themselves and their families and not work themselves into too much of a frenzy about how little can be changed through their initiative – Ashim Shanker, Don’t Forget to Breathe (Migrations, Volume 1)
While judges are presumed to know the law, the fact that they are human, which is our nature to err, they can sometimes give erroneous decisions. This is because judges decide cases on the basis of probable facts and evidence which could be manipulated at times by any cunning lawyer to win a case. They have to watch the demeanor of witnesses testifying before them in court, and the fact that judges can’t go into the inner recesses of a witnesses mind to tell whether they are telling the truth or not means that a poker-faced witness could just as well mislead the judge into believing their own false version of the story (appearances can deceive you know).
In situations like the above, it is likely a mislead judge would rule against the innocent party and its terrific lawyer, who might have done their best and expected to win.
(2) The law is full of ambiguity
The law is shrouded in ambiguities and its concepts are not clearly defined. It’s for this same reason recourse is made to the courts for interpretation and that is precisely why there are judge made laws. The interpretation put upon any statute or regulation by the courts acquires finality and then becomes binding on all. In carrying out this vital function imposed upon the courts by the law, of uncovering the actual intention behind any law made by the legislature, judges can sometimes reach a wrong interpretation of the law and occasion a miscarriage of justice – decisions that are per incuriam. There might even be times when they might allow other irrelevant factors like their own personal experiences to influence their decision in a matter before them (that is what legal realism would have us believe). For example a female judge who has in the past been a victim of rape, might likely be influenced by that experience to convict someone accused of rape before her even where her verdict is unsupported by the facts.
This ambiguity in the law requiring constant interpretation by the courts often leads to absurd interpretation of the law which can often boomerang on an otherwise good lawyer having the convincing case. Mind you, the doctrine of stare decisis held by the courts would mean also that the erroneous ruling of a court of law would stand and even become a precedent for future decisions unless overruled on appeal.
Finally while lawyers are charged to do all that is within their power to defend their clients, they must be wary of the overweening desire to win every case by “any means necessary”. In the real world of law practice there is a penalty for lawyers who allow their drive for winning turn them into a Saul Goodman of Breaking Bad, playing the effective lawyer by proposing the most criminal of solutions to his clients to get them out of trouble – you might be looking at your disbarment.
So while it is desirable to aspire to be the lawyer who can boost of never having lost a case, as Spence holds that record, lawyers must never lose sight of the fact that the profession of law isn’t all about winning but providing a robust adversarial representation of clients that puts the interest of the clients above those of the lawyer. There might even be cases where clients will favor a settlement over the acrimony of a drawn out court litigation, and a good lawyer must give effect to those wishes over forging ahead to litigate the matter in court for “a win”.
A youngish lawyer with penetrating insight, Patrick Herbert is the Editor-in-Chief and founder of Lawstudenthub, a site dedicated to helping new wigs find their footing in a trickily slippery legal profession and stay current with emerging developments in the legal industry. He holds an LL.B from the University of Benin and a BL from the Nigerian Law School, Abuja.
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