In the aftermath of my post on the ethics of lawyers deliberately concealing their law school graduation and bar admission dates, many of those engaged in concealment responded by arguing “what about lawyers who include their ‘wins’ on their websites, but not their losses?”

Aside from the obvious, that the analogy is irreparably flawed as wins/losses bears no similarity to the intentional omission of something as straightforward and factual as a date, the attempt to defend concealment by pointing to another problem hardly makes the former acceptable.  The fact that Joe is ugly doesn’t mean Sam is good looking, but illogical argument is hardly surprising from people inclined to conceal for the sake of marketing.

That said, the wins/losses point is independently worthy of discussion, and the impetus for my taking it on comes from some comments left at a post by  Ken at Popehat the other day.  Responding to issues surrounding spammy lawyer marketing websites, some  non-lawyers remarked that they would really appreciate it if lawyers would include their batting average to facilitate the legal retention decision.

The only thing I can really think of is to publish information on how people can find better lawyers, and encourage people in that line. Do lawyers keep records of wins and losses?

And

My ideal site would list, not just name, contact info, and “in good standing” (or not) but how long a lawyer has been practicing (in all states, not just the one whose bar association site this is), number and kinds of cases he’s tried, and win/loss record.

It’s understandable that non-lawyers would like to know about a lawyer’s batting average.  Just as we argue about why propensity evidence is simultaneously irrelevant, yet so terribly prejudicial, it’s completely understandable that people want something, anything, to hang their choice on.

And indeed, it’s a very effective marketing tool for lawyers to promote their glorious victories, even if they are required to include the caveat, in very small type elsewhere on the page, that past results are not a guarantee of future results. 

I recall a New York lawyer who included in his personal bio that he had won thousands of cases even before he was admitted to practice law. You can’t make this stuff up. What he neglected to mention was that his “wins” were pleas at arraignment when he was in the district attorney’s office, doing rookie stand-up work before he was admitted.  Were those the “wins” you had in mind?

One problem with promoting “wins” is definitional.  A full acquittal after trial is a “win,” no questions asked. But what of a conviction on one count in a 37 count indictment?  Win, right? What if it was the top count? Not so much of a win, then. 

The more important problem, and the one were “wins” become grossly misleading, is that not all cases are alike, and not all lawyers handle the same level of cases. There are lawyers who do a ton of low-level misdemeanor street cases, even a dozen marijuana pops a night, and they mostly plead out to an infraction. No effort required. But are these wins?  I guess, but hardly informative wins unless you happen to have the same case.

Then there are lawyers who handle major crimes like murders, or federal conspiracy cases with huge numbers of defendants and years of wiretaps. Their wins look entirely different. So do their losses. So does the fact that their clients make extremely difficult choices about whether they want to roll the dice at trial, and the lawyers must abide their clients’ choices. Win or loss? It’s not easy to say.

While potential clients want to know a lawyer’s batting average, its meaning is almost impossible for the client to discern.  No two cases are alike. No two clients are the same. The same outcome has entirely different meaning based on the details. The devil is always in the details. So the promotion of a “win” may just as well be deceptive spin as anything else. Yet it lures the potential clients in.

But for those inclined to promote their “wins,” then the same ethical concern arises that applies to concealment of dates as applies to concealment of “losses.” Making the choice of including the good stuff, then full and accurate disclosure compels you to include the bad as well. 

The problem is no lawyer wants to include on his website that he tried a case and lost. It just doesn’t bring in business, and that’s the whole point of marketing.  Some will argue that everyone knows that a lawyer doesn’t win every case, and so inclusion of losses isn’t necessary as a juxtaposition to wins.  What they are trying to do is let potential clients know they’ve got experience and have had successes, something many clients believe is impossible in our legal system. 

The argument has merit.  Aside from Gerry Spence, I’ve never heard of a lawyer who claims to have won every case, and I’m unaware of any client assuming that to be the case.  Yet, the recitation of glorious victories is so inherently misleading and flawed an indicator of a lawyer’s competence, and so powerful a marketing tool as to be likely to overcome the deliberative discretion of potential clients, that the wrong of half-truth promotion outweighs the assumption that no client could possibly be fooled.

While promoting “wins” is itself fraught with ethical problems, doing so without the factual counterbalance of losses renders the marketing scheme ethically disturbing. If you don’t want to admit that you lose, then don’t promote that you win. It’s not that hard to figure out.

And by the way, some of the best legal work I’ve ever done, and of which I am most proud, came in cases I lost.  That’s how it happens sometimes, that despite Herculean efforts and brilliant legal representation, we lose. There’s no way potential clients will ever be capable of factoring that into the batting average.