LOSING 
Tuesday, November 29, 2016, 10:52 PM
Posted by Administrator
When I was an Assistant Public Defender, many years ago, the head of felonies, Mark Wilensky, (a man who still exists...and, I should probably look up how to spell his name) said to me more or less this: "I am not impressed if you win all your trials. That just means that you are only trying winners." When injury lawyers win all their cases, does that mean they beat the pretrial offers in all their cases or that they never got a verdict that gave their client nothing? Most civil cases settle before trial and most criminal cases plead out. The real question is not whether you "win" or "lose" but whether you beat the pretrial offer. You may "lose" an aggravated battery case when the jury comes back with a lesser offense (like guilty to simple battery).....but, didn't you really "win" when the prosecutor offered 5 years in prison and now the worst your client can get is a year in the county jail?

Divorce cases are odd in the sense that there are, typically, a lot of issues: child support and alimony and who gets the house and who pays for the cars and what-about-time-sharing-with-the-kids. Because of this, it is sometimes hard to say whether you beat the other sides pretrial offer to settle. It is easier to figure when the offer to settle an injury case is $10,000 and you got to trial and get $5,000.

But, I digress. This entry is about losing. We all lose....except lawyer who lie and say they don't. And, when you lose, time matters....here is why:

-You have 10 days to file a Motion For Rehearing.
-You have 30 days to file an appeal with a higher court.
-These time limits are non-extendable, non-flexible, set in stone.
-If you didn't have a court reporter "take" your trial, you will have a heck of a time with an appeal because appellate courts want to see a written transcript of testimony and the court's rulings on evidentiary things.

The point is....don't walk into another lawyer's office 3 months after a Judgment issues and ask what to do. Likely, the answer will be "not much". Do the walking-in the day after you get the judgment. On the other hand, since lawyers like to cover their ass and never give a straight answer to anything, I feel compelled to say this: If you neglected to do your walking-in the day after and have waited 3 months, give it a shot. Sometimes, the answer is something other than "not much".

I am unable to write about losing without quoting Irving Younger, who was touted, at the time I graduated law school, as "America's best continuing legal education lecturer." He had worked as a lawyer, a judge and a law professor. This is what he said about trying cses and losing. "So, you win and you go across the street and have a drink. And, if you lose........well.........then you have two."
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