From commenter marcorandazza on a review of a firm in Massachusetts that apparently profiles attorney win-loss records:
This is utterly moronic.
When I hear of a lawyer who “never lost a case,” I hear “this lawyer sucks.”
Any idiot can pick winners. The real skill comes when you take a hard case. Take a dozen hard cases in a row, and lose them all. I’ve certainly taken my share of cases where I had to tell the client “you have a really low chance of winning, but your case is important” or just “you’re in deep shit, but I’ll do my best.”
I’m proud of many of my “losses.” I brag about them. In fact, one of the best things that ever happened to my career was losing a case 0-7 in the Florida Supreme Court. Ever since that case, I’ve handled lots of cases that hang on its logic. And, when my adversary inevitably makes the argument I made in that case, I say “your honor, I love my adversary’s argument. In fact, I wish that it were the law. However, I made the exact same argument to the Florida Supreme Court and the court ruled against me 0-7”
These two dipshits should just go backpack around Europe. Their idea is trash.
I frequently encounter two chief criticisms to attorney win-rate analysis:
- Trial inputs and output are highly heterogeneous and classifying outcomes as wins or losses is extremely complicated.
- Many attorneys select their case portfolios for easy cases to give themselves an artificially high win-rate.
I think (1) is a better criticism and I’ve addressed it briefly before (I’ll write about it later as well). Basically, I think the argument that heterogeneous trial inputs and outputs is a serious impediment to win-rate analysis is overrated. It’s technically complicated but theoretically straightforward to consider different types of trial outcomes (e.g. accounting for plea bargains) and analyze sentence quality controlling for relevant variables.
Criticism (2) seems to me much weaker but oddly more commonly voiced. The most important theoretical objection:
Win-rates are not commonly analyzed so I’m not sure why attorneys would be aggressively pursuing high win-rates at the expense of income from potential clients.
The most important empirical objection:
Public defenders are the least likely of all criminal defense attorneys to select their cases and they tend to have win-rates above the median. If attorneys were biasing their win-rates by heavily selecting their client portfolios, we would definitely not expect to see something like this: