Navigating the Unpredictable: How Lawyers Handle Cases They Are Certain to Lose

In the world of law, attorneys are often faced with challenging situations where they find themselves representing clients in cases that appear to be unwinnable. Despite the inherent difficulties, legal professionals are bound by their ethical obligations to provide competent representation to their clients, even in the face of adversity. This article explores the strategies employed by lawyers when handling cases they are certain to lose, emphasizing their commitment to upholding the principles of justice and due process.

Thorough Case Evaluation

Before proceeding with a seemingly unwinnable case, lawyers engage in a comprehensive evaluation of the facts, evidence, and legal precedents. This evaluation helps them gain a thorough understanding of the strengths and weaknesses of the case. By carefully analyzing the details, attorneys can identify potential avenues that might lead to a favorable outcome, even if the overall odds seem slim.

Managing Client Expectations

Clear and honest communication between lawyers and their clients is essential when dealing with challenging cases. Lawyers must carefully manage their clients’ expectations by explaining the strengths and weaknesses of their case, the potential risks involved, and the realistic outcomes they can anticipate. This ensures that clients have a realistic understanding of their situation and allows them to make informed decisions about their legal options.

Seeking Alternative Dispute Resolution

In cases where the likelihood of success at trial is minimal, lawyers may explore alternative dispute resolution methods, such as negotiation, mediation, or arbitration. These processes provide an opportunity to reach a mutually agreeable resolution, avoiding the risks and uncertainties of a trial. Lawyers skilled in negotiation techniques can leverage their expertise to secure the best possible outcome for their clients, even in seemingly impossible circumstances.

Creative Legal Arguments

Experienced attorneys are adept at employing creative legal arguments to challenge existing laws or precedents. They can identify novel interpretations or present unique perspectives that may persuade judges to reconsider established views. While such approaches are challenging, they provide a glimmer of hope for attorneys and their clients, as they have the potential to reshape legal outcomes and create new precedents.

Focusing on Damage Control

In cases where the outcome is unlikely to be favorable, lawyers may shift their focus to damage control. They strive to minimize the potential negative consequences for their clients by skillfully negotiating settlements or seeking reduced penalties. While they may not achieve an outright victory, their efforts can mitigate the impact of an unfavorable outcome and protect their clients’ interests as much as possible.

Upholding Ethical Obligations

Throughout the legal process, lawyers have a professional duty to act ethically and in the best interests of their clients, regardless of the anticipated outcome. They must advocate zealously within the boundaries of the law and ensure their clients’ rights are protected. Even in cases where the result may seem predetermined, lawyers must provide competent representation, maintaining the integrity of the legal profession.


Handling cases that are seemingly unwinnable is a formidable challenge for lawyers. Despite the obstacles they face, legal professionals approach such cases with determination, creativity, and unwavering commitment to their clients’ best interests. By employing thorough case evaluations, managing client expectations, exploring alternative dispute resolution methods, using creative legal arguments, and focusing on damage control, lawyers strive to secure the best possible outcomes, even in situations where the odds may be stacked against them. Through their unwavering dedication to justice and ethical obligations, lawyers demonstrate the resilience and integrity that are foundational to the legal profession.

Video Transcript

How Do Lawyers Handle a Case If They Are Certain to Lose?

I have had this before. I have had clients come to me, and I look at their case, and I tell them, “You have been violating the law. You are certain to lose.” Now, my job is to make sure they don’t get railroaded, that they don’t get overwhelmed and get a worse consequence than they should. But I am also thinking through strategically. Is there a way to shorten this process and come to a compromise and a resolution?

How Do Lawyers Safeguard Clients and Address Tactics When Facts and Law Are Against Them?

There was kind of a funny old adage among lawyers. “If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither the facts nor the law on your side, pound the table.” I actually have a case like this right now where we are in the right. The other side is totally in the wrong. And the lawyer, on the other side, has not been willing to participate in a discussion about the facts nor a discussion about the law. Instead, all he is looking to is any little nitpicky thing that can be argued about.

In fact, I will give you an example. We scheduled a meeting for first thing in the morning, and the lawyer spent a good portion of that meeting talking about how we were engaging in bad faith by trying to schedule the meeting early in the day, knowing that he somehow would have difficulty attending that meeting early in the day. We spent 10 to 20 minutes sitting and talking about why the meeting was scheduled at that time of day. And by the way, he could have simply said, “Hey, let’s do it at a later date.” And we told him that, but he was going to sit and pound the table because the facts and the law were not on his side.

All right. So, that is not my style. I don’t find that helpful. I think any good attorney can see through that tactic and recognizes, starts getting confident, like, all right, we have got this case. Usually, what I think makes more sense is to talk about settlement, acknowledging that before we get into all the facts and the law, it is going to take a lot of time for all the parties to review all the evidence. There is a process everybody needs to go through. In the meantime, the parties are spending a lot of time on attorney’s fees. The parties are distracted from other productive parts of their lives. And in the interest of avoiding all of that wasteful effort and litigation and expense, maybe we should talk about, “What does it take to look like a win-win here?”

How Do Lawyers Approach Settlement and Compromise in Cases with an Unfavorable Outcome?

Sometimes it is said, “To avoid the cost of litigation, what would it take to just settle this case?” I have had a number of cases where the parties really didn’t want to spend enormous amounts of money. The parties didn’t want to waste the time and expense required to go through a lawsuit and get to trial. And so, as they are looking at this big potential case, they said, “You know what, let’s see if we can work out some resolution that lets us both move on with our lives.” Let’s face it. A lot of times, parties can make much more money and financially come out better ahead if they focus their time and money on growing their business and bringing in customers and sales; instead of spending money on lawyers, they spend the money on advertising and growing their company.

Prioritizing Client Interests over Financial Gain

So a lot of times, financially or from a math perspective, business owners are far better off not fighting in litigation. But what many times will tell me is they would rather spend the money fighting than on their business because they are so angry. They have so many emotions. This is an injustice. And so one role I have as an attorney is helping business owners think about what matters most to them and what is meaningful, and what makes the best long-term sense for themselves. Sometimes I have talked with business owners about the emotion of this and fighting for justice and that sometimes it is better to just let these people go and move on with your life and do what is better for you, your business, and your family, and my clients have started to wonder, “Do I have concerns about the case? Is there a reason I am trying to talk them out of it? Why would a lawyer who could make a lot of money fighting in a case be trying to encourage a settlement?” I will tell you why. Yeah, there are a lot of lawyers who would love to milk this thing. And in fact, I think that it is a real problem in the legal industry that we have lawyers who have a financial incentive and a large one to continue to fester and fight and fan the flames of emotions so that they can keep billing on the case. But ultimately, that is not why I went to law school. That is not why I live. I think that it is a very sad life to have clients entrust you with their future and look out for their best interests and then instead put your interests first, trying to benefit financially as a lawyer while driving your client through the ugliness and the toxicity of a lawsuit. It is a miserable way to live. I couldn’t go to sleep at night if I did that. I don’t know how attorneys live that do that, but I will have nothing to do with that. For me, if I can serve my clients and help them do what is best for them, I believe that is a very rewarding way to practice law. I also think in the end, whether you want to call it karma, or what goes around comes around, or whatever your philosophical view is, I think we are better off when we try to do what is right rather than what is in our self-interest.

Understanding the Real Costs and Distractions

So as it relates to my clients, I often spend time talking with them about what is the real cost of fighting. What is the distraction from your business, the emotional cost, the impact of the negative thinking on their daily lives? A lot of clients tell me that litigation is so stressful that for them, it is affecting the relationship with their spouse. It is taking away time from their kids. It is taking away time from their hobbies. It is taking away time from their customers and their team and their employees. All of those are very real costs for a business owner engaged in litigation. And when we add those up, it often makes sense to be very serious about what amount of money we could compromise to make this lawsuit go away. So whether we have a great case or a losing case, we have to look at the real cost of litigation and the distraction of a dispute. And then, sometimes, if both parties are reasonable, a resolution can be met. By the way, a lot of times, both parties are not reasonable.

Handling Unreasonable Parties and Competitive Influences

You might have a bully on the other side, and I encounter that maybe 20% to 30% of the time where the case just isn’t going to settle because the other side is either, irrational or there is some other economic influence on the deal. What might that be? Well, let’s say you have two competitors. And they know that if one ties up the other in litigation around technology, they can’t use that technology. And as long as that case goes on, one competitor has more time to get ahead because the other one is stifled by not being able to use that technology.

That is a very frustrating aspect of litigation. Businesses use litigation strategically to hold back competitors, and if you are an attorney representing a competitor who is being held back, it is often going to be your job to call that out with a judge and reveal this unfair competitive tactic that is being used. Litigation is not supposed to be used to simply hold somebody back. The justice system does not like being manipulated for competitive purposes. The justice system is supposed to be working for justice. So that gives a lot of tips and techniques and insights into the mindset of attorneys who need to handle a losing case and how they think through that, and how all sides manage that.


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