I've been reading a fine discussion Mark Bennett (found through John Kindley) on Gerry Spence's claim, which I'll accept as true, that he has never lost a trial before a jury. Both Kindley and Bennett, who are approaching this claim as criminal defense lawyers, have perspectives I'll not repeat here.
But I will point out that Gerry Spence is not a criminal defense lawyer. Most Americans think he is. He was on CNN pontificating about what a bad job Johnny Cochran was doing in the OJ case. He defended Randy Weaver!
Now there's no doubt that Spence is a great trial lawyer, by any measure. I'm sure Spence could carve me up like a turkey in an average case. And there's no doubt that Spence has defended some important, and famous, criminal cases.
But that isn't how Spence earned his fortune. There are plenty of criminals in Wyoming. The state is teeming with them, but very few could afford to buy one pair of shoes from Imelda Marcos's closet, much less the fee that Spence probably charged her.
Spence is a personal injury lawyer. He earned his fortune suing doctors, truck drivers backed by huge insurance policies, governments, and corporations. And there it is possible to pass an entire career, never losing a case.
It just depends on what the meaning of "win" is. And in a personal injury practice, you can win every case. Just don't pick losers. Pick rear end auto collisions, claims where negligence is clear, especially from the much lower bar that the "preponderance of the evidence" standard presents in civil cases, as opposed to the "beyond reasonable doubt" standard of criminal cases. I can "win" a rear-end auto collision case, for the plaintiff, if you hand me the file on Friday and tell me the case is going to trial on Monday. I can persuade the jury that the defendant shouldn't have hit the plaintiff from behind, and I can persuade them to award a dollar or more in damages.
That's a "win" from some perspective. Of course my client may be royally pissed off that she only got a dollar (33 cents of which goes to me, thank you very much!), but the jury said "yes," and they did award damages. We won!
But Spence doesn't take whiplash cases. He still "loses" cases, as most laypeople would understand the term. Those cases just don't get to a jury in the first place.
In a typical criminal case, even if it's a dog, the prosecutor, if he's a stubborn enough mule, will get his jury trial. The defendant may absolutely shred the prosecution witnesses ("You have 20/800 uncorrected vision, Ms. Smith?" "And you weren't wearing your glasses at midnight on July 29?"), but he has little chance to find out what the prosecution's case is about before trial begins. Witnesses can't be compelled to testify, or even talk to the defense lawyer, before trial. Hostile witnesses may be paid by the government (that's what a plea bargain often is) to give incredible testimony, but that can't be brought up until the jury is in the box.
In a civil case, on the other hand, a defense attorney with deep pockets behind him can explore everything. He can compel witnesses to give depositions. He can demand far more information about the plaintiff, and the plaintiff's witnesses, through discovery than a criminal court would ever give a defense lawyer. And he can introduce affidavits, through a motion for summary judgment, proving that the plaintiff's version of the case can't be true, or that even if it is, the law won't allow the plaintiff to recover. He can tell the plaintiff to put up or shut up. If the plaintiff doesn't put up evidence then and there, the case is dismissed months before jury summons ever go out.
As I write this, I have a number of cases where the plaintiff's lawyer would love to have the assistance of a Gerry Spence, but Spence couldn't make a damned bit of difference and would never get the case to a jury. The plaintiff sued Big Grocery of North America, instead of Big Grocery of Small Town, which actually owns the store. The plaintiff is suing Heartless Insurance Company for a claim which, in plain English, isn't covered under its policy.
As great as he is, I'll bet that sort of "loss" has been handed to Gerry Spence more times than he, or his marketing team, would like to admit. But he didn't lose the case in front of a jury. He lost it in front of a judge.
Plaintiff's attorneys sue the wrong corporation and the statute of limitations expires before they can amend the complaint. They allege that doctors performed the wrong medical procedure when the medical textbook, from which all new doctors are trained, says they did. All of those cases can be dismissed through discovery and motions, long before trial.
A criminal lawyer generally can't do any of this. No matter how weak the case, he has to investigate on his own, has limited power to compel people to testify, and can't bring a motion for summary judgment. Then he has to persuade a jury to do what a judge would ordinarily do in civil court: throw it out.
Imagine what the criminal justice system would look like if defense attorneys had the same tools that their civil brethren have. All sorts of dubious or even fraudulent criminal cases would be dismissed, sparing the innocent the pain, expense, and embarrassment of a trial.
Of course, criminal attorneys are merely arguing over who goes to jail, and who remains free. Civil defense attorneys are fighting about what's important. Which is to say, they're fighting about money.
(See also: Norm Pattis, who got this ball rolling.)