“Will I win?” is a natural question, and most people ask it early in their first conversation with a lawyer: anyone facing a dispute wants to know where it will end. Yet an honest answer is rarely a firm yes or a firm no.
This is not an evasion of responsibility. It reflects the nature of litigation itself and an express professional rule. This article explains why, and what can be expected from a lawyer in place of a promise.
An express professional rule: a clear opinion, no promise
Rule Sixth/5 of the Rules of Professional Conduct for Iraqi Lawyers, issued by the Iraqi Bar Association, requires a lawyer to give the client a candid opinion on the merits of the case without promising a particular result, and to exert the legal effort consistent with the honour of the profession.
The rule combines two complementary duties:
- Candour: it is not enough for the lawyer to refrain from promising; the lawyer must state plainly where the strengths and weaknesses lie.
- No promises: the outcome is in the hands of neither the lawyer nor the client; it is shaped by factors beyond the control of both.
The facts are complete only before the court
At the outset, what the lawyer knows is usually one party’s account and that party’s documents. Before the court, the other side’s account and evidence emerge, documents that were previously unknown may be produced, and witnesses may say something different from what was expected. A case may also run for long enough for the circumstances themselves to change: a witness may become unavailable, a document may be lost, or new facts may arise that no one had anticipated.
Then there is the burden of proof. Article 7(1) of the Evidence Law No. 107 of 1979 lays down the principle that the burden of proof rests on the claimant and the oath on the one who denies. It is not enough for a claim to be true in the eyes of the person making it; it must be proved by means the law accepts, and that can sometimes be difficult for reasons unrelated to the merits of the right itself.
The other party has protected rights too
A case is not a road travelled by one party alone. Article 19 (Third) of the Constitution of the Republic of Iraq 2005 makes litigation a protected right guaranteed to all, and Article 19 (Fourth) declares the right of defence sacred and guaranteed at every stage of investigation and trial.
This means that the opposing party will present its own defence, objections and evidence, usually through its own lawyer. The court hears both sides and weighs what each presents, and neither can know in advance everything the other will put forward.
The court’s assessment and the avenues of challenge
The court evaluates the evidence, interprets the law and applies it to the facts established before it, and its assessment may differ from that of both parties. Nor is the first judgment necessarily the end of the road. Article 168 of the Civil Procedure Law No. 83 of 1969 sets out the legal means of challenging judgments:
- objection to a judgment in default;
- appeal;
- retrial;
- cassation.
A challenge may end with the judgment being upheld, varied or set aside, depending on the circumstances and the conditions laid down by law.
What can be expected from a lawyer
Instead of a promise about the outcome, a client can expect a lawyer to provide:
- a candid assessment of the strengths and weaknesses of the matter, including the likely risks;
- an explanation of the available options, including amicable routes such as settlement where possible;
- an outline of the expected procedural stages and of the documents needed for proof;
- timely updates on significant developments;
- the professional diligence required to prepare and pursue the case.
The difference between an assessment and a promise is fundamental. An assessment explains what the evidence currently available supports and what weakens it, and it changes as that evidence changes; a promise claims to know what cannot be known until the court has ruled.
Anyone who hears a promise of a certain result in a dispute may find it useful to recall that the rules of professional conduct themselves do not permit such a promise.
Conclusion
Declining to guarantee an outcome is not a weakness in legal advice; it is part of its integrity. A case is shaped by the evidence, by the other party’s defence, by the court’s assessment and by the avenues of challenge. A candid opinion grounded in the facts helps a person make an informed decision, bearing in mind that each matter must be assessed on its own facts and documents.
