Here’s How Lawyers Win Cases For Their Clients
Lawyers are notoriously known for changing the facts to “win” their case. Yet, the most successful attorneys never change the facts to win. They simply do not need to do so. How, then, does a lawyer win a case?
First, lawyers understand and believe the facts their clients relay to them. Second, after hearing the facts and identifying the legal issues a client is facing, a lawyer must find a previously decided opinion (called case law or precedent) with an outcome that favors their client’s position. Or, a lawyer may need to distinguish case law from their client’s case, if it has an outcome that does not favor their client’s position. But, how does a lawyer use a previously decided opinion to persuade a judge that their client should get the same or different outcome? Read on.
If a lawyer wants to apply the case law (“I think my client should get the same result as the previously decided opinion”), the lawyer has to think of ways the opinion facts are similar to the facts of the client’s case and create a theme that exists in both sets of facts. The lawyer then uses the theme that they created (as opposed to using the facts of either case) to argue that because the theme exists in both the previously decided opinion and the client’s case, the case law outcome should be applied to the client’s case. Arguing the theme makes it unnecessary for the lawyer to change the facts of their case to mirror those of the previously decided opinion to “win” for their clients.
Similarly, if a lawyer wants to distinguish the case law (“I think my client should get a different result from the previously decided opinion”), the lawyer has to come up with a theme that only exists in the previously decided opinion and then show how that theme is not present in the client’s case. Again, not changing the facts or doing a fact to fact comparison to show the differences between the case law and client’s case — instead artfully crafting a theme about the facts of the case law in such a light that would make itinconceivable to apply the case law outcome to the client’s case.
The real magic happens when the attorney articulates the theme that persuades the judge or jury to believe the cases are similar enough to warrant the same outcome. Winner!
“If it does not fit, you must acquit” was Johnnie Cochran’s famous theme that he used to convince jurors that the case laid out by prosecutors was inconsistent and full of holes. You can see how convincing Cochran’s theme was despite the odds O.J. Simpson faced.
Winning a case has much to do with the attorney’s skill in creating a theme that will stick in the minds of the judge and jury and win the case – the most extraordinary skill to lawyering and client advocacy.
