The other day I received a telephone call from one reader of this blog. The caller questioned whether I was one of the attorneys in the case I commented on. When I said that I was not in any way connected to the case, the caller asked, would there have been a “better” result if I was somehow involved in the case. I could not answer that question.
When I comment on a case, I do so, for one of several reasons:
1. The case sets a precedent or expands some area of law, (last week’s post about the Appellate Division
It would be unethical for me to suggest that if I was involved in a case that the result would be in any way different. Indeed, New York’s rules regulating attorney advertising prohibit attorneys from making such representations. In fact, the rules require lawyer’s web sites to include the disclaimer, “Prior results do not guarantee a similar outcome.”
There could be a lot of reasons why a court reached a particular decision in a case. The facts or the existing law will most likely be determinative of the outcome. Of course, an attorney’s advocacy skills, his/her ability to frame and communicate the relevant facts and law, will influence the case’s outcome. But, it is impossible to predict, with certainty, what will resonate with a judge.
If any attorney represents that he can achieve, with certainty, a particular result in a contested matter, run away. In litigation, the only certainty is that there is no certainty. No one can guarantee an outcome. It is for this very reason that lawyers are required to state that “Prior results do not guarantee a similar outcome.”