As you might expect, prospective clients often ask me to handicap their likelihood of success at trial. It’s a fair question. Do you think I will win?
To answer this question, of course, I need to know both the facts and the law applicable to the case. But neither the facts nor the applicable law is the most significant factor in my analysis. The winner at trial, more often than not, is the litigant who is the most “worthy” in the eyes of the decision-maker. I believe this to be true regardless of whether the decision maker is a judge, a jury, or an arbitration panel. If the person or persons deciding the case do not believe you are worthy of winning, prepare to lose (or to win less than you should).
So what makes a litigant worthy of winning? Obviously, having a strong case on the facts and the law is important. But it is also important to present yourself and your case in a way that is credible, reliable, honest, and forthright. Nobody likes a liar. Nobody likes an exaggerator. Nobody likes a bully. If you have a strong case, but you are perceived as an exaggerator or bully, you will not get the best result.
To illustrate, almost every case has some facts that are bad, but a litigant makes it much worse by unreasonably refusing to acknowledge those facts. In fact, you can compound the problem by allowing your adversary to highlight not only the bad fact, but also the harm you have now done to your credibility by testifying in an unreasonable fashion. In other words, you may have made yourself less worthy of the jury’s verdict than you would have been had you simply acknowledged the obvious and had faith in the good facts that support your case. To avoid this potential pitfall, it can often be a good strategy to introduce the bad fact and acknowledge it before your adversary gets an opportunity to do so. When done well, this approach can take much of the sting out of the bad fact, and it also gives you the first crack at eliciting credible testimony about the fact before opposing counsel gets a chance at cross-examination.
Other examples of being worthy include your behavior in court. Are you dressed appropriately? Are you respectful of the the Court and its staff, the jury, opposing counsel, and the witnesses? Do you react appropriately when evidence is offered against you? Crocodile tears and forced emotional reactions are more likely to offend the decision-maker than they are to persuade.
So before you try your case, ask your attorney to consider what makes you worthy of winning and what you can do to convey those characteristics effectively at trial.