I’ve been asked on more than one occasion where plaintiffs can look up the win/loss records of lawyers. Usually this is in conjunction with them initially hiring a lawyer or thinking of switching lawyers, the thought being that this would be an excellent screening tool in making their selection. The problem is that no such records exist. While this might sound surprising in the age of the Internet and online court records, there are several good reasons why such records are not maintained, and why they would not be particularly useful even if they were.
Why Lawyer Win/Loss Records Aren’t Available
There are several reasons why lawyer win/loss records aren’t available. First and foremost is the difficulty in defining a win or a loss. Because the vast majority of cases settle, limiting win/loss records to trials will result in only a tiny fraction of a lawyer’s record being reviewed — and those cases tend to be the most difficult, because if they weren’t, they likely would have been settled.
If we include settlements, how does one define what constitutes a win? Without examining the particular facts of each case, how would you know whether a settlement was fair or better than fair? And how could you examine the particular facts of a case without violating patient privacy laws for medical records? Even if medical records were freely available for public viewing, most lay people would still not be able to tell whether a settlement is fair, meaning that they’d have to rely on some third party to judge wins and losses, injecting an element of subjectivity into the process that almost defeats the purpose of having it at all.
An even bigger obstacle to disclosing win/loss records relating to settlements is the fact that the majority of settlements are subject to confidentiality agreements which prevent the disclosure of the amount of the settlement. This throws a huge monkey wrench into any entrepreneur’s plans to compile lawyer win/loss records for the public.
Wouldn’t Knowing a Lawyer’s Wins and Losses at Trial Still Be Helpful?
Even if we limited win/loss information to trials, wouldn’t that still be useful? Not necessarily. While losses would be pretty easy to identify, as they will either be a dismissal of the plaintiff’s case or a judgment in favor of the defendant, what constitutes a win? If a plaintiff gets a $100,000.00 judgment, is that is a win? What if the plaintiff had asked for $1,000.000.00 from the jury? What if the plaintiff had asked for $1,0000,000.00, but never really expected that the jury would award that much, and was thrilled with $100,000.00? These key pieces of information which are necessary to telling whether the plaintiff truly won wouldn’t be available to someone just reviewing judgments, making the compilation of these statistics too time-intensive for anyone to practically undertake. Without the details, this information would be practically worthless. With the details, it might be more information than most people could distill into an easy answer, which is the whole point of a win/loss database.
What if a Loss Wasn’t the Lawyer’s Fault?
While some losses are easy to identify, they may not reflect the lawyer’s abilities at all. If a lawyer had strongly recommended to a client that she settle, but she refused and then went on to lose at trial, should the lawyer take the blame? If a lawyer takes an extremely difficult case, or one in which he is trying to expand the law for the benefit of plaintiffs across the state (or country), should his reputation be harmed if his effort fails? Would the availability of win/loss records discourage plaintiff’s lawyers from taking on such cases to begin with?
Lawyer Wins and Losses in Other Types of Cases Are Just as Complicated
While it’s clear that in the personal injury context, raw data on wins and losses wouldn’t tell the whole story even if such information was available, what about such records in other types of cases? In the criminal law context, you run into the same types of issues you find in personal injury cases. While some wins (acquittals or dismissals of charges) are easy to spot, losses are harder to identify. Is a conviction on something other than the top charge a loss? What about a person convicted of first degree murder, but spared the death penalty? Plea deals are also impossible to classify as a win or loss without a deep understanding of the facts of each case, and one still has the problem of assigning blame between the lawyer and client when something goes badly.
Other types of cases, such as divorce cases, are even more difficult to classify as either wins or losses because no one is actually declared a winner or loser. Determining whether a division of property, a custody ruling, or child or spousal support awards is a win or loss would require such a detailed examination of the case (which would again run into problems with privacy laws) that it would defeat the purpose of trying to compile win/loss records.
Lawyers’ Track Records Can’t Be Broken Down Into Wins and Losses
Logistical problems in obtaining the records necessary to compiling a lawyer win/loss database, such as medical privacy laws, attorney-client privilege, and confidentiality of settlements, make it unlikely that there will ever be a service providing this data. Even if a service were to attempt it, clients would need to rely on the service’s own interpretation of what constitutes a win or loss, making it far from objective. Practical problems in determining whether a lawyer should be viewed negatively for his losses would call into question the value of such information, even if the logistical problems could be overcome.
While, in theory, being able to review a lawyer’s win/loss record sounds like a great idea, in practice cases are too complicated and fact-specific to be simply classified as wins or losses.