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GailI have been considering your question back to me in your answers to my questions. You stated:
I think it would be good for Zack to lose a big case, especially if the case was one readers really wanted him to win and felt he deserved to win. Any suggestions?
Thank you for the challenge.
Lawyers do not like to think about losing cases. Asking a lawyer to remember cases lost is to bring back painful memories. Reading the question instantly made me reflect on my personal experiences.
Every trial lawyer seeks to have some distance from a client to remain professional and objective but as I stated to students at the College of Law in a lecture I gave concerning my AIDS infected called “Representing the Dead and Dying” lawyers are not and should not be robots.
When you spend the tremendous amount of time with a client required by a major case you develop a special closeness. It is very hard when a client, who you consider credible, testifies and the court finds against them because the judge finds an opposing party the reliable witness.
The situation is compounded if the court does not reject evidence supporting your client but simply accepts evidence supporting the other side.
More directly responding to your question I have a few suggestions for cases Zack could lose.
First, there is a medical negligence action where Zack’s client, a university student, complains of back problems and is x-rayed. The radiologist misses a tumour which grows undetected until it is untreatable. There is strong expert evidence of physician error but at trial there is some expert evidence, accepted by the trial judge, stating it is not clear, that even if detected properly, there could have been successful treatment and the claim is dismissed. During the trial it is learned that the student is dying.
Second, a different scenario would involve Zack being asked to be a special prosecutor in a criminal case because of a conflict of interest for Public Prosecutions as the victim is a prosecutor. The case is a charge of assault arising from a confrontation in a bar provoked by the accused who is larger and younger than the victim. The evidence is overwhelming that the accused struck the victim repeatedly. The accused is the only witness to claim the victim made a threatening gesture towards him before he hit the accused. Opposing Zack is a young lawyer conducting her first jury trial. To the shock of all the accused is acquitted. The next day Zack, though not allowed to question the jury about their deliberations, runs into a juror while shopping who tells him the jury knew it was the young lawyer’s first jury trial and decided to acquit to give her a good start to her career. (Lest you think it incredible I read that John Diefenbaker won his first jury trial about 1920 for this reason.)
Thirdly, a mother has custody of a child with the father having lots of access since they live in the same city. The father hires Zack to seek custody when the mother proposes to move to South America with the child to pursue a new relationship. The child does not want to leave father, school, friends and other family members. Limited family finances mean he would see his father once a year but no one else in the family. The stepfather has a history of short term relationships. The trial judge leaves custody with the mother concluding she should be able to live with the child where she chooses to make her residence. On appeal the Court of Appeal and the Supreme Court of Canada uphold the decision. (A variation of these facts and decision was an actual case out of Saskatchewan.)
Devastating for Zack but a reality for lawyers would be to have him lose all three cases in a row.
If any more good losing case ideas come to mind I will send them to you.
Thanks for your answers. They were great responses.
Best wishes.
Bill Selnes
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