As printed in Plaintiff Magazine, September 2011

We knew the case was tough. Taking on the employer in a tiny county is difficult. Our case made that look easy. The witnesses seemed to be going in well though. Granted, our client was hit with a couple (read significant) inconsistencies. But the defense lawyer’s approach—scorched earth—seemed to alienate a few members of the jury. Given the evidence, the all-star defense witness line-up and the onslaught of terribles they rained down on our client, we hoped for the best but expected a defense verdict. We finished closing and learned the defense was concerned as well. They moved for new trial the next morning while the jury was out. The basis? We changed our theory of the case during closing.

“Trial tactics,” replied the judge. “Denied.”

The suggestion to discuss settlement came next. And we found ourselves on the horns of a dilemma.

Caseus interruptus[1]

Any trial lawyer, if asked, will tell you about the absolute confidence that lawyer has in the case. And that lawyer will also tell you about undying self-confidence. I’ll liken it to a gunslinger walking out the saloon doors onto the dusty main street. After the decision is made to go out there the last thing one wants to see is the guy running out saying, “We can solve this without guns.” While it might have some appeal, neither the gunslinger nor the trial lawyer cop to the heart palpitations or the sweaty palms. It might, to say the least, interfere with the imminent action at hand. One cannot state publically that the confidence can, on occasion, waver. But it does. At any moment before the hammer comes down or the verdict is read.

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