Articles

When You Can't Afford to Lose

Everyone loves a bargain. We all feel great when we get the lowest price possible for something, whether it’s a sweater or a new car. We like to shop around for the things we want. We look at ads, clip coupons, watch for sales, and surf the net in order to find the cheapest price for the things we buy.

But there are some times when the lowest price is not the best deal. If we need brain surgery, for example, we don’t look for the cheapest brain surgeon. When our lives are at stake, price is secondary. We want the best brain surgeon we can get.

And so it is, sometimes, with lawyers. There are some situations in which most people would actually want to pay way beyond the normal fee for the same service. I became aware of this fact when I was a member of a jury at the trial of someone accused of negligent driving and Driving Under the Influence. I was only one year out of law school at the time, so the trial made a big impression on me.

The defendant had rear-ended another car at a stoplight. No one was injured, but the policeman smelled beer on the defendant’s breath. There was no Breathalyzer, but the defendant wobbled when he was ordered to walk a straight line, and slurred his speech when ordered to speak.

In most cases similar to this one, the defendant probably would have accepted a plea bargain to avoid the cost of trial. So why, you may ask, did the defendant in this particular case hire a very good (but expensive) trial attorney and spend thousands of dollars to prepare a full-blown jury trial?

Well, dear readers, you would probably have done the same if you were a cab driver like the defendant in the case mentioned above. A conviction would have led to the loss of his car insurance, his job, and even possibly his career (he had been a cab driver for 20 years). In the case of the crashing cabby, his attorney cost a lot in the short run, but saved him tens of thousands of dollars in lost income in the years to come.

The attorney did his homework. At trial, he produced an expert who testified that the accident was caused by a lack of brake fluid in the cab. The cab had just been picked up from the car repair by the cabby, and the mechanics had simply forgotten to replace the brake fluid.

The prosecutor cross-examined the expert to try to show that the cabby still was responsible for the mechanical safety of his car. But the defense attorney’s witnesses, documents and arguments were so powerful that the jury was already leaning in favor of the cabby.

Then the coup de gras. When the defense attorney dramatically called his client to testify; the cabby limped heavily to the stand. He solemnly took the oath. When asked to give his name, the cabby obviously could not speak distinctly. He testified that he failed the straight line test because one leg was four inches shorter than the other; he failed the speech test because of his cleft pallet; and he smelled of beer because he had just come from a meal at home where his wife had served him a beer, and some of it had spilled onto his shirt. His story was then backed up by testimony from his wife and his mechanic.

The prosecution was demolished. We jurors took five minutes to reach a unanimous verdict of acquittal. An acquittal is a legal and non-appealable finding by all members of the jury that the defendant is totally innocent of any wrongdoing. We actually felt so strongly that the cabby had been wrongly accused that we also told the judge that the police should apologize to him.

After the verdict was announced, the cab driver was so happy that he cried. The defense attorney was so excited that he shook the hands of all the jurors. The prosecutor was so upset that he tried to lecture the jurors, and had to be ordered out of the courtroom by the Judge.

The moral of the story is this: with trial lawyers as with brain surgeons, cheap is not always the best deal.