Matters Column

Courtroom results — as certain as presidential elections

November 18, 2016
| By Bill Rohn |
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Long ago, after we had lost a $1.9 million verdict, the lawyer who hired me at the firm where I still work sat next to me in a bar and said, “Well, Bill, if you try a lot of lawsuits, you're going to lose from time to time.” 

That makes trying lawsuits different than running for president. Most people who run for president only get the chance to lose once.

I remember my first trial: I had charts and graphs. I had plans. I had a victory strategy, and I had documents that left no doubt my client would win. So sure was I of victory, I remember telling another lawyer my opponent was clearly stupid. I represented a company that sold $300,000 motor homes, and we had the defendant’s signature as clear as day on a purchase order promising to buy what he later refused to pay for. How could we lose?

Then we got to the courthouse. While selecting the jury, opposing counsel asked if any of the potential jurors were familiar with my 90-lawyer law firm. While the jurors thought about that, opposing counsel — who practiced on his own — wiped his reading glasses, grinned at the jury and said, “That's nearly 100 lawyers, all under one roof. Now, there’s an honest man’s nightmare!” 

The jurors laughed, while I tried to figure out what objection I might make.

Later, opposing counsel opined I represented a big and faceless corporation, just before pointing out his client had served our country during the Korean War. Things went downhill from there. Three days later, opposing counsel and his client had won the hearts, minds — and votes — of our jury. My side went home empty handed. So much for plans. So much for data. So much for clear and certain paths to victory. 

Losing a trial isn’t the same thing as losing a presidential election, but there are some uncomfortable similarities. At the end of the day, you discover your facts aren’t as impressive as you thought and your opinions aren’t shared. Then there is the sting of listening to third-party observers tell you exactly why your case turned out as it did just as soon as it’s over.

I might have voted for Hillary, recently. Maybe I chose Donald. What interests me in the aftermath of Election Day is the uncertainty of it all — the twists, turns and sudden reversals of fortune that can occur any time two sides face each other while absolutely certain their facts, their documents and data and their opinions will certainly be swallowed whole by third parties.

If a trial lawyer can’t win every trial, then he or she had better make sure to win most of them. “You better win almost all of them,” might be a better way to put it. But, again, one just never knows, right? Many politicians and pundits spent the spring, summer and fall in states of absolute certainty American voters would punish a candidate who boasted of building a trillion dollar wall between the U.S. and Mexico. They were wrong. Similarly, I once had no doubt reasonable jurors would base their decision on my crystal clear facts and logic. After trial, I spoke with a juror who told me her vote for my adversary was based on a recurring dream, throughout a 10-day trial, that one of the witnesses was visiting her home — like a ghost — at night.

I once thought jurors would find in favor of my personal injury plaintiff, after employees at a repair shop made him walk through their construction area and then ran him over with a tractor when he did so. After trial, a juror said she found against our plaintiff because, as she put it, “I just got the feeling that you and your partner were trying to make a big name for yourselves, representing all these injured people the way you do.”

Then there was the time an adversary challenged my cross-examination of his client, stating, “I object, I don't know what Mr. Rohn is trying to do here, but …” 

In response, the judge — a former law partner with whom I was never friendly — said, “Well, I know what he’s trying to do, and he's not going to get away with it.” Evidently, no specific reason for opposing counsel’s objection was needed, because the court knew that I was a bad guy, and that was all that mattered.

In the fear that what I offer may cause any reader to cross me off their list of potential courtroom gladiators, I note having also been favored by some good results. Still, there is a lot to be learned through the occasional courtroom loss, which is why the memory of defeat so often outlasts the thrill of victory.

Back to Election Day: Regardless of who I voted for, I am certain the presidential debates did not always go as well as President-elect Trump had planned. Meanwhile, in the Democratic camp, Mrs. Clinton probably knew for sure her opponent’s voter support would never rise above 40 percent, her performance in the debates truly had swayed the voters, and citizens who were part of the “Obama coalition” certainly would vote her to victory.

Sometimes, you just get it wrong. Your documents, your witnesses, your charts and graphs and your pretrial analysis somehow send the wrong message.

Good news for those who must turn to the courts is that losing a trial might not be as humiliating as losing a presidential election that looks like an easy victory.

But losing — particularly when you’re absolutely sure you’re going to win — surely stings when it happens, and clients suffer more than their lawyers. All of which is one more reason to work toward the settlement of one’s disputes and to go to court only as a last resort.

Of course, so long as you are ABSOLUTELY SURE you're going to win.

Bill Rohn is a partner and trial lawyer with the law firm of Varnum LLP. His trial practice focuses on commercial, construction and employment litigation.  He can be reached at

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