Comment by gamblor956 | Hacker News Reader

Comment by gamblor956 | Hacker News Reader

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Good lawyers won't take cases that don't appear winnable from the start.

Very false. Generally, the difference between a good lawyer and a bad lawyer is that the good lawyer will counsel the client about the chances of not winning the case, especially after discovery has concluded, while a bad lawyer won't.

If the the winnability of a case was apparent at the start, there wouldn't be a case as the parties would settle before a formal lawsuit was filed. This happens very frequently, especially for labor cases where the employee has documented instances of harassment.

A lot of cases that appear to be "winnable" at the beginning turn out not to be winnable based on evidence that becomes available during discovery, and a lot of cases that didn't appear to be winnable turn out to be slam dunks after discovery. Most of the landmark cases today were cases that didn't appear "winnable" at the start (see, e.g., the DuPont and Erin Brokovich cases).

Moreover, for most cases of this type (and generally for almost all civil cases involving individual torts), lawyers work on a contingency basis for plaintiffs, so they only get paid if they win. The only lawyers that won't handle civil torts for individual clients on a contingency basis are the bad ones who don't expect to win, or the truly amazing ones that charge fixed or hourly fees because they're so good that they can resolve the case without doing the amount of work that would justify a 30% or 40% fee.

The point was that good lawyers won't take blatantly unwinnable cases.

At some point or another, a lawyer must start putting their name on the line for the cases they take. If a client arrives without a shred of usable evidence or a blatantly unbelievable story (happens frequently) then a good lawyer is not going to throw their reputation on the line to see if it pans out.

The legal world isn't as big as you might think, and lawyers can expect to run into a lot of the same other lawyers, judges, and so on for decades of their career. Taking obviously unwinnable cases is a quick way to get yourself branded as a toxic lawyer.

This Medium article is a good example of a case that would be challenging from the start. Much of what the author claims comes from unrecorded meetings, in-person interactions, and other situations that lack any usable evidence. However, the author also goes on record admitting that they were struggling to finish their work and other such performance issues (Yes, I know it's from the company's abuse, but think in terms of evidence here). If anything, publishing this Medium article has done the author far more harm than good.

The legal world isn't as big as you might think, and lawyers can expect to run into a lot of the same other lawyers, judges, and so on for decades of their career.

You're talking to a lawyer who used to do litigation. The legal world is a lot bigger than you think it is. My friends that still do litigation have never come up against the same lawyers twice in their careers. But we practice in a big city. If you're in Hoboken or Fargo, your experiences will obviously differ.

Taking obviously unwinnable cases is a quick way to get yourself branded as a toxic lawyer.

You're assessing cases as "unwillable" before actually knowing if they are winnable. There are very few cases that are "obviously unwillable" at the onset and with extremely rare exceptions, that "obvious" part is due to procedural defects in the case, like an expiring statute of limitation that precludes a lawsuit. And in those cases, if your client wants to keep fighting after being advised that the case is procedurally unwinnable, you pursue all appropriate legal avenues still available to your client (or even ones that are now precluded but could be granted at judicial discretion), because that is precisely what lawyers are paid to do, and other lawyers understand that and do not hold that against them.

Moreover, no case is "obviously unwinnable" on the factual merits before discovery. Hell, it's even possible to take a case that is "obviously unwinnable" after discovery and still win (and indeed, I got my first trial one month after the bar exam because my boss thought the case was "unwinnable" but would be good for experience. That client is walking around free right now because I won an "unwinnable" case.)

As for "toxic reputation", your behavior in court and in dealings is what gets you branded as toxic, not the cases you take, and that is true whether or not your cases are winnable.

Depends on the case. If a case is taken on a contingency basis (personal injury, medical malpractice, and other practice areas are usually contingency), the lawyer will only take winnable cases because the client is paying a billable hour rate and if you lose you're left with nothing but expenses and an angry client.

For cases where the client is paying the billable hour rate, lawyers will take just about any case as long as it isn't totally unethical and could get you in hot water with the bar.

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