Daily Archives: November 1, 2017

Five Ways a “Slam-Dunk” or “Smoking- Gun” Case Could Lose (And Probably Would Lose, Without the Right Legal Assistance)

Most individuals have misconceptions about the legal system. These misconceptions are usually quite understandable. Often, they are based on human instincts. (Such instincts work well in many areas of life, but have bad results when applied to legal matters). Other times, legal misconceptions are based on internet information– or based on information considered common knowledge, or thought to come from a valid source– when the information is in fact highly-deficient or completely wrong.

One common misconception involves peoples’ belief in the existence of so-called “slam-dunk” legal cases, i.e. cases that are certain to win. For reasons I describe below, there is no such thing as a slam-dunk case.  Every case has at least some risk of losing or having a bad outcome.  Many individuals who wrongly believe slam-dunk cases exist further believe their case is a slam-dunk case. Then they often take actions (e.g. make uniformed settlement or severance offers, file uniformed legal complaints, etc.) based on these false beliefs. These actions often lead to bad outcomes.

While there is no such thing as a slam-dunk or surefire-winner case, there is such a thing as a very strong case. Often, the very strong cases are supported by strong law and by strong evidence. The best kind of evidence is so-called “smoking-gun” evidence, such as a document or recording in which the opponent’s wrongdoing is stated or admitted in their own words.

Let’s assume for a moment that an individual (maybe you!) has a very strong case supported by smoking-gun evidence. Does that mean the case will reach a good result? That depends. If you don’t have a lawyer, or don’t know what you’re doing (as is the case with most folks doing something they’re not experienced with), you will likely not have a good outcome, regardless whether you have a smoking-gun case.

Here are five ways a smoking-gun case can lose.

1. You may not make it to the finish line, and your opponent out- endures you.

Legal cases involve a process.

That process takes time. Usually, a lot of time. Most cases that are litigated take at least 1-2 years to resolve. I’ve had a few legal cases that lasted over 5 years, and one that lasted over 10 years, before a resolution was reached. Yes, some legal matters (e.g. certain settlement negotiations and agreements) can be resolved in a short time. “Short” typically meaning, in the legal world, several weeks or months. But those short legal cases are the minority.

Human instinct often skips over the notion of a process. If someone thinks they have a winning case, they may forget (or not know or not think at all about) the associated legal process– and the time, work, emotion and/or money expended during that process– that must be completed before the “win” can happen.

If your opponent is a corporation or wealthy person(s) who are familiar with the process, they will use that to their advantage. Knowing that you must complete a long process before you reach a point where you even could win, they may string things out, to see if you can even make it to that point. To see if they can out-endure you. They may be successful. If you don’t make it to a trial or finish-line, so to speak, it won’t matter how strong your case or smoking-gun proof are. Your case will have fizzled out, with nothing won, before you reached the point where a win (via legal decision) could be possible.

2. Your opponent may outspend you, and you could run out of money (if you don’t have a contingency fee arrangement or attorney who takes on financial risk).

A smoking-gun case could fail to reach the finish line, and thereby fail to win, if the person or plaintiff pursuing the case is paying money out of pocket and runs out of money before the point of the process where a legal decision is made.

This risk can be avoided by finding an attorney who will assume most or all the financial risk. Many lawyers, including myself, represent clients on contingency-fee arrangements or other arrangements where the attorneys (in exchange for a chance to be paid a percentage of money won or paid via a settlement later) assume our clients’ financial risks and they pay zero dollars, or low dollars, out of their pockets.

However, if an individual signs up a lawyer to assist on an hourly-fee basis– and the individual misjudges the hours the legal process will take, or finds over time he has accrued more fees than he can afford– that individual can run out of money and the case can fall flat as a consequence.  As another matter, if an individual files a legal complaint on her own, without an attorney, she could be committing herself to a situation where third-party costs would later be needed in the litigation (e.g. costs for depositions, expert witnesses, etc. ultimately needed to take the case to completion and have a chance to win). The individual may have no idea of the types and potential amounts of such third-party costs, or whether she could afford them. Smoking-gun case or not, if potential fee and cost scenarios and risks are not addressed upfront– e.g. via securing a lawyer who works on contingency or financial-risk-sharing arrangement– any case could lose or reach a bad result due to that issue alone.

3. You could be wrong (yes, really!): you could be relying on information, advice or a source that is highly-deficient or completely wrong.

Many well-intended people who are not lawyers with expertise in a given arena (e.g. employment or shareholder litigation) will nonetheless try to solve their own problem in that arena, or will rely on the advice of other sources or persons who do not have expertise in that arena either. This is a huge mistake. It should be obvious, but it is not. Too many people, including smart people, take do-it-yourself approaches to legal matters, or rely on so-called expertise and advice from unqualified persons, and have bad results as a consequence. For example, if you think you have smoking-gun evidence based on an assessment from yourself or from anyone other than a lawyer experienced with your type of matter, you probably do not have a smoking-gun at all. Or you may have a smoking-gun and not even recognize it, because you are focusing on the wrong issues and evidence, halfway down a rabbit hole that you don’t realize is a rabbit hole.

If you want legal advice about a given situation– for example, a dispute involving employment or shareholder laws– do not rely on yourself or on anyone else who does not have expertise and experience with said type of situation, laws and associated litigation. This includes lawyers who do not actively practice in the area or type of matter you need help with, but who are willing to give you advice anyway.  This includes your non-lawyer friend or relative who is a high-level professional (e.g. a paralegal, a Human Resources executive, etc.) who thinks their perspective qualifies them to give you advice of value rather than (as is likelier the case) advice that is deficient, wrong and outright harmful.  These folks are often well-intended. However, after giving you the minutes or hours of advice they have to give, it is you who will be responsible for the process (which again may take years to complete), and for the consequences you encounter, without having the kind of help you will need.

Please note I practice what I preach. I’m a litigation lawyer who does a great deal of litigation and negotiations in certain areas of law (e.g. employment and shareholder disputes), but if someone contacts me seeking advice about an area of law outside of my practice and expertise, I refer that person to a lawyer who does actively practice and have experience in said area. Just to describe one example, in law school I took some intellectual property (IP) courses for which I received high grades. As a lawyer, I do a lot of litigation, i.e. courtroom work. But if someone approaches me with an IP or IP-litigation matter, I refer them elsewhere without hesitation. If I (despite having a law degree, IP-law education, over a decade of litigation experience, etc.) refer such matters elsewhere because I perceive myself to be insufficiently-qualified, why should you rely on advice from people with far lesser qualifications relative to your matter, especially if the stakes are significant for you?

If you’re relying on deficient or false information, your case — even if objectively a smoking-gun case which would have a great chance to win with a competent lawyer’s assistance– will likely have a poor outcome.

4. Even if your smoking-gun case is effectively pursued (e.g. with the help of an experienced attorney on affordable basis), your opponent could potentially exploit legal loopholes, so at least some risk exists of losing or a poor outcome.

Every case has at least some risk. Even if it is a smoking-gun case with the assistance of a very competent and effective lawyer who represents you on a contingency or affordable arrangement. There is always at least some potential legal loophole or loopholes the opponent could try to exploit, and at least some chance (even if just a small one) the opponent could be successful.

As a threshold example, if a deadline or statute of limitations period had passed for a potential legal claim before the claim was filed in a legal forum, that claim could not be won, regardless how strong or well-supported by evidence it otherwise would have been.  For those claims being pursued that do not have any deadline-related problem, there are inevitably other potential loopholes the opponent will at least try to exploit in hopes of getting the case dismissed. For example, in the employment and shareholder law contexts, it is common for the opponent to claim “employment at will” or “business judgment rule” loopholes should cause the case to fail, and try to get a judge to dismiss a given case based on those asserted rationales. While in my experience these particular loopholes (despite being commonly asserted and attempted) are not usually successful for my opponents, they do present at least a minor risk of causing a given case to lose or to have a worse outcome.

The main point here is that even a smoking-gun case for which you are represented by a competent attorney would face at least some risk in the legal system. While the odds of success are higher for an attorney-assisted and well-handled smoking-gun case, there still are odds.  No outcome is certain. Risk exists, at least to some degree.  Any case could lose or not reach a favorable outcome, it is just a matter of how likely or unlikely that is to happen.

5. Some smoking-gun cases could lose despite winning, e.g. the value of claims won could be less than money, work or value invested.

For certain cases, the financial dynamics are such that the value of what is ultimately won could be less than the value of legal work and/or expense invested in the case by the individual and/or their attorney.  For example, say a given claim or case has $50,000 in maximum potential money or damages that could be won, or that is “on the table” for that given case, so to speak. Say further, for this example, that the particular type of case would have to be litigated (if pursued to its legal end point) in a given court that is known to take several years to adjudicate cases, and further that this type of case involves very complex legal issues and a high work volume for an attorney. Such a case could accrue, over time, more than $50,000 worth of attorney’s work (whether that work is charged to you as a client via hourly legal fees, or whether that financial risk is accrued by your attorney via contingency- work hours). If such a case has smoking-gun proof and ultimately wins, it could still be a financial loser if the legal award (capped at $50,000) or settlement turns out to be less than the value of legal work or fees for which the client paid or for which a contingency attorney incurred financial risk along the way.

Of course, this type of lose-despite-winning cost dynamic does not apply to many cases. But for those particular cases where this scenario is at issue, the existence of smoking-gun proof does not help. That proof could help the case win, but again the value of the win would be less than the value of work or fees invested. Do you know the long-term cost dynamics that are likely for your case? If you don’t know, that should give you pause, regardless whether you believe yourself to have a smoking-gun case.

Conclusion

The above five factors could cause even a smoking-gun case to lose or have a poor outcome. Before you take action(s) based on any belief you may have a smoking-gun case, please consider consulting with an attorney who is competent and experienced with your type of matter. That attorney may not be me, which is fine, of course. But I hope this article helps in describing why a smoking-gun legal case– assuming a person in fact has one– is not alone sufficient to ensure a good result.

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