Statistically speaking, plaintiff attorneys are more likely to lose.
It’s just a fact. (At least until H2H changes things, and I believe it will.)
So… if you’re obsessed with winning, you’re in for a shit ton of disappointment because the odds are literally against you.
Sure, you want to win (who doesn’t?), but there’s a difference between wanting to win and having to win.
I go into more detail about this in today’s episode, and I promise you it’s one you do NOT want to miss.
Mentioned in this episode:
EPISODE 211 TRANSCRIPTION
Hello, hello. Welcome back. Today we're talking about, which is kind of funny, that's probably why you're all here. You're probably going to lose and that's a good thing. That's the name of today's episode.
So recently someone posted in the H2H crew about nerves. I mean, this isn't recent. This happens all the time. People consistently are like, oh my God, I'm going to trial. I'm so scared. And so that's normal. Totally normal. Don't want you to feel that you're wrong in feeling that. And in my response to this trial lawyer, I said, it sounds like you're really attached to the outcome. And if I say that to you listening today, I think most of you'd say, yeah, I'm attached to the outcome. Of course I am. I want to win. And here is what I want to tell you. There is a difference between attachment and wanting to win.
Attachment is I have to win. If I don't win, it means A, B and C. I'm a bad trial attorney. My client gets nothing. They're going to suffer, all the things. That's attachment and that comes from a fear place.
Wanting, I hope I win, I want to win, it'd be great if I win, notice the difference in my voice as I'm saying those things, that comes from a place of excitement. Now the difference between fear and excitement is the breath. I stole that from Gay Hendricks, The Big Leap. But it's true. That's literally the only difference. When you're in a fear place and you're not breathing, you're activating your fight or flight response and now we are off into attachment land. But when you are excited and you're breathing, you are now in a place where you're like, whoa, anything could happen. Yeah, I could lose, but I could also win and it's a much happier, healthier place.
So this is where we want to get you to, but that's not what today's podcast episode is about. Today's episode is about how you're probably going to lose and how that's actually a good thing. So I looked up to the statistics, because I mentioned this to this trial lawyer when we were talking about it. I said, you're probably going to lose lose. And then I thought, am I right about that? I know that with even before I looked it up, that MedMal wins for plaintiffs are very low. I thought it was around 30%. I think I looked it up. It was about 27%. We win about 27% of our MedMal cases, and I knew that product liability was also very low, it's about the same. So around 30% let's say for those two things.
So I went and I looked at statistics for just across the board. How often do plaintiffs actually prevail at trial? So in federal court they prevail 30% of the time across the board. That's pretty damn awful. But we know that federal court is a shit show in many cases, and I'm going to suggest come out right now and say the reason why we lose so much is because we don't have voir dire and I believe we win cases in voir dire and I think we need to change that shit. But then I looked at the state and they said across the board we win about 56%. So it wasn't totally off, because if you do 56% plus 30% and you average those, we're winning about 43% of trials across the board. So I was correct in that we are most likely going to lose. At best we're around 50, 50. Right. We could lose, we could win. So even using that.
Now when you hear that, I think that that sounds depressing, but what I would like you to think about instead is that it's actually your freedom in disguise because it's a good thing. We tend to think that everybody's winning except for us because that's all we hear about. Right. And if everybody's winning because that's all the CLEs are about, that's what all the books are about, that's what all the trial debriefs are about, people who've won and we lose, then that sucks. So right off the bat, knowing that statistically most plaintiffs are not prevailing at trial should make you feel better because now you're not alone. Right. We know that the job is hard, but I think that the biggest reason why this is good news for you is that it can allow you to let the fuck go. If you have a high chance, not even a high chance, but a 50, 50 chance of losing, you can let go.
If plaintiffs were winning 99% of the time and you consistently lost, then you would have something to be upset about. The fact of the matter is across the board, people are losing more than they're winning. I hope we change that number. I really do, and I believe that H2H is going to change that number. But what it does for you is help you recognize that you are just as likely to lose as you are to win. And that when you recognize that you can now let go and focus on the job at hand. See, when you are so focused on winning, you are not able to do the job at hand. I mean, for one, when you are so attached, I have to win, I have to win, I have to win, what you're doing is you're making it about you. No jury on the planet is going to give you a plaintiff trial attorney a verdict.
In fact, they will more likely not want to give it to you when you are broadcasting and communicating, I have to get this win. Because what you're saying is this is about me. It's not about justice. It's not about my client. It's not even about you, jury. It's about me and my need to win. And isn't it? Let's be honest, we want to win because we're afraid of what it says when we don't. We have personalized this. We have personalized a process that should never have fucking been personalized in the first place. It is not about you. It has never been about you and whoever made this an ego trip, they're wrong and they have done you a disservice by making this a competition, by making this something that you should be proud of if you prevail. You should be excited and ecstatic and celebrate and enjoy your wins, but you should be proud of your work regardless of whether you win or lose.
When you put in the effort and you go in with the right frame of mind, which is my job is to fight not to win, because now after this podcast episode, at least you know that you're more likely not going to win. It frees you. It absolutely frees you because if you are less likely to, not less likely, but you probably will lose, then you can just go in there and do your job. Listen, your job has been and always will be to help people navigate the justice system. Now, sometimes that means not going to trial. Many times it means not going to trial. And people who say, well, I can't just go in there and I don't care if I win or lose. I mean, how do I pay my bills?
You don't pay your bills with trials. Come off it. We all know that that's not how you make your money. You make your money in settlements. Come on. That's not your bread and butter for most of you, some of you, it is that you're putting all your eggs in that basket because you've done the training and you're ready to do that and you know it's going to pay off. Right. Because your win record is better. Not because you're special or lucky, but because you've done the work, you've done the mindset training. You know who I'm talking about. If you're listening to this, you know who you are, right? Many of you who work with me are now in that space where you can take the majority of your cases to trial. You don't even mess with the other stuff. For most attorneys on any given day, your paycheck is being paid by settlements.
So when we're talking about what your job is, it's for people who need to navigate the system, who have a worthy trial or worthy case to take to trial, and your job is to help them navigate that. It is not your job to win at that. You're going to do everything you possibly can, but your job isn't to win. We're having this legal dispute next door to us right now where there's a landslide on our property caused by our neighbors not maintaining the culvert on their side of the property that runs underside of our shared road. Actually, they own the road, but they're saying the clogs on our property, we're saying it's on their property. Our lawyers are working at it. Listen, I'm not looking at my lawyer if I don't win this thing going, what the fuck is his problem?
That's not how it works. I'm getting his help to put the appropriate pressure, to look at the appropriate documents, but in no way am I looking at him as responsible for making this turn out in my favor. And I think if you were to look at your own, if you've ever been in a legal dispute or if you ever hired an expert of any kind for whatever it may be, like it's not whatever it may be. If I hire a roofer, I expect them to do the roof. But in a legal situation, that's what we hire people for, is to help us navigate it, argue our case, but I don't expect on any level that he's going to fix this the way I want it fixed just because that's the way I want it fixed. That's not how it works. So this gives you a lot of freedom, but the question then becomes, well, if I don't make money off trials, if I'm going to lose more often than I win, why the hell would I go to trial?
Well, I see a few reasons. One is it is to hold people accountable. Yeah, but I'm not holding accountable if I don't win. Bullshit. Think about the recent cases of police misconduct where they have killed or seriously injured, most often killed black citizens who were just going on with their lives and were totally unjustified in killing of that person. And they went to trial and they lost. What was the world's reaction? We were aghast, most of us, the majority of us. The world had to see their wrongdoing and their shame period. They were held accountable, not to the ultimate degree. The jury didn't hold them accountable in those cases, but you fucking did. That matters. That fucking matters. What you are doing when you bring a case to trial is you are saying like Rick Friedman says, you don't get to throw money at this problem and make it go away quietly.
I'm going to stand up to you and even if I don't win, at least this is fucking out in the open. Okay. That's not Rick Friedman's words. I don't think he swear. I don't think I've ever heard him swear, but that's the gist. That's why he goes to trial. That's why he has that DVD of like get off your ass and go to trial or something. Again, not ass something, something, but his whole thing is, listen, we are in a war of corporate values versus human values. The reason to go to trial isn't so that you win. The reason to go to trial is to make them afraid of having to go to trial. Is making the name for yourself as I take shit to trial, win or lose, which is saying to the world, we're going to hold people accountable, win or lose. That is your fucking job.
And it says a lot about the state of the world that we are losing more than we are winning. It says zero about you, fucking zero about you. It says about what we have taught the world, not us, but in general what matters, capitalism, corporate values. That is what's being reflected in those verdicts, not you. So you need to go in there and consistently do your job, which is to fight and navigate the legal system and let the wins when they come, celebrate the shit of them and let the losses when they come, they were always going to come and stop with this attachment.
Now, I know that it's easy for me to say. Oh, easy for you to say. It's really hard when you, I'm not fucking saying it's easy to lose. I'm saying this is a job that you chose. These are the numbers. Math does not lie. So get the fuck with the program. Get your mind right. That's why mindset is one of the three cornerstones in the H2H program because we know it's hard. We know what you're up against, and instead of feeding you a bunch of bullshit like a bunch of other people in this industry are telling you that there's a way to outrun this number, there's a way, there's a formula, there's an answer.
What we're saying is here's the fucking reality. So take care of yourself and do your best because when I tell you that there's an answer, when I tell you that there is a way out of this, that if you just would do the right thing and find the right thing and be the right person, every time you lose, that takes a chunk out of you. And I do not want to be that person, and I'm not trying to be negative here and be like, just go in there and be a loser. We are creating elite trial lawyers here at H2H, but we are doing that by being real and telling you the fucking truth, which is most of the time as things stand right now, you are set up to lose. You know that. You start behind in every way. The other side outworks you. They have more money, all of it. It is a fucking miracle that we win cases at all. Does that mean that it's not worth it? Hell no. It absolutely is worth it.
That's why I call you the healers. That's why I say you stand on the side of the right. If this shit was easy, then everybody would do it. It's not easy. But when you keep focusing on that win, you are missing the fucking point. That is not up to you. We are going to do everything possible to change laws, to get more voir dire, to train you up just like we train up a warrior. So you can go in there and win the battles, but it's really about your effort more than the result because you don't have control over that shit.
Think about this. When you are out playing a fun game, basketball game with your kids in your driveway versus somebody hands you a basketball and says, you better make the next 10 shots, or we're going to take your house. Which game do you play better? Now you've been told the lie. Well, it is the last one. If there's all this pressure, I'm going to really, really get it right. I'm here to tell you that's absolutely wrong. I see people all the time, you who have so much pressure on them, and what that does is it cripples you. It does not allow you to perform at your best when you have that much pressure. I see you playing small, not taking chances, and those are all the things that are going to win at trial.
You have to be relaxed, confident, grounded. That does not come from crippling under pressure. And people say, well, I got to like win so I can relax. No, you got to relax so you can win. My clients who work with me for the VIPs that you know who you are for year plus, know that. They know they started winning when they started relaxing and letting go of the outcome and taking off the pressure. Why? Because now they can actually do their jobs. They're not in this cage.
So this idea that it has to be hard, that you have to be scared in order to perform, that you have to have pressure to work, throw all that out. Is not true. We do our best when we are grounded and calm and confident, and we get to that place when we recognize what we can control and what we cannot control. And I'm bringing you the numbers today so that you can claim your freedom and recognize that for most trial attorneys in most states and most courts, we will most likely not prevail. So take that and go. Any win is a bonus, but my job is to fight for justice. That you can always, always, always do. I love you. Talk next week.
Have you ever wished that you knew what the jury was thinking? Well grab a pen and paper because I'm about to give you instant access to a free training I created for plaintiff trial attorneys called 3 Powerful Strategies to Help You Read a Juror's Mind. It's going to help you to understand what the jury is thinking so you'll feel confident to trust them and yourself in the courtroom. Ready for the address? Go to sariswears.com/jury. Enjoy.
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