On Keeping the Faith
These are thoughts and feelings of fellow trial lawyers who sent emails following the day after a crappy jury verdict post.
With the “wins” we think that everything we did was brilliant and it was not. Of course, with the losses we think that everything we did was bad and it was not. J.H. Miami, FL
No question, we always are riding into the wind, which steadily blows at the back of the defense. I have seen cases where the jury is ready, willing and able to do all the work for my opponent, who literally did not have to do a thing in order to win. B.B. Seattle, WA
Funny you should say what you did about losing. In my opinion, you are right on. In many of my major CLEs in recent years, I have made a point of telling my audiences about a major case I have lost. Just two days ago I told 300 Texas lawyers about losing my robot case. Points I made:
- Real trial lawyers hate to lose.
- Real trial lawyers still lose.
- Going to trial and losing makes your subsequent cases worth more in settlement than if you had simply settled your case.
- It is a disservice to us all not to talk about losing. It creates a climate of shame around losing that should not be there. That climate makes people afraid to go to trial.
I did not say so for politically correct reasons, but it seems similar to me to the message Americans (especially girls and women) get about their looks. We see photos of airbrushed models and then compare ourselves to them. We become ashamed of how we look because we compare ourselves to an unrealistic ideal.
After telling the Texas lawyers about my loss—in detail—I then asked how many thought less of me as a person for losing the case. (No hands) How many thought less of me as a lawyer. (No hands) Then, “How many of you think less of yourselves when you lose?”
Then I had them do a thought experiment: “Close your eyes. All of you, I mean it, close your eyes. Think about a trial that you lost—the most painful loss you can think of. Feel your client sitting next to you. Watch as the jury files in. Scan them to see which one is the foreperson—the one carrying the verdict form. Look at their faces to try to figure out if you won or lost. Watch the foreperson hand the verdict form to the clerk. Watch the judge’s face as he reads the verdict form, trying to figure out what the verdict is. Hear him announce the verdict. What are you feeling? I usually feel sick to my stomach and sweaty all over. Stay with that feeling…
“Now, you have a magic button. You can press that button and change the past. Press that button and you will be transported to the other side of the courtroom. You will be the defense lawyer who just won a very difficult trial. You will feel great. How many want to press that button?”
Somehow, I don’t think you would press that button Karen. Rick Friedman, Bremerton, WA
John R. always said “If you’re not big enough to lose, you're not big enough to win.” Besides all the other lessons, if we were ashamed of our losses, we would never take the tough cases that can make the law more just. F.I. Seattle, WA
I feel your pain. J.K. Bellevue, WA
I am proud of you because you tried the case. You learn and get better with each trial and, most importantly, the defense knows that you will try the card. That fact raises the value of all of your settlements (probably doubles) for all of your other clients. Justice Tom Chambers, Seattle, WA
We have all been there. Few will admit it. Fewer still will share their losses. T.H. Canada
After the first couple of cases I tried representing a plaintiff I told every other client(s) that went to trial: At the end of this trial you will tell everyone I was an incompetent idiot if you are not awarded the money you believe you deserve. If by some reason you are awarded damages you will tell everyone that you didn't need me." D.P. West Palm Beach, FL
If you lose a trial, do not feel bad, if you have done your best. It is nothing compared to many other losses- lost time with family when you are preparing a case, lost time with your husband or wife or kids when they are growing up or the loss of a wife, husband or child. R.H. Lexington, S.C.
Losing makes us all better trial lawyers. Because that is when we really search ourselves deeply to learn from what went wrong And how we can do better in the future. And what mistakes not too repeat. Losing is a refinement process for success. It is in fact a gift. J.N. Atlanta, GA
The Man In The Arena
"It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat."Theodore Roosevelt, 1910
It is the client that has to live with the result forever – after an unjust result we will remember, we will hurt, we will beat ourselves up because of any number of decisions that we made that we think could have influenced the case to the positive (ignoring the many more decisions made that did just that) –and in my case, go home and have one too many alcoholic beverages, swear and cuss, cuddle with the wife as I discuss my failings, or the stupidity of the jury or whatever and, too often, suffer another sleepless night worried not about finances, or health, or family (ok sometimes family) but mainly about the client and what I should have done. L.S. Larry Slagle
I had to laugh when I read your comments about losing cases and what to do in the aftermath ---- That is exactly what I still do over a case I tried and lost in Cleveland in 1985... I am almost over it. R.I. Novato, CA
I remember one night when I was in trial…I had not seen my Mom and Dad for a while because of all the work. Mom had pretty advanced Alzheimers and Dad had gone blind a few years before. We had 24/7 care for them in their home. I missed them so I went to their home around 8 pm. They were in bed by then and I crawled into their king size bed and lay down between them.
My Mom rolled over slightly and I said softly ...“ Hi Mom… it’s me Jan.”
Mom said “Oh Jan.” After a moment she said…”Did you graduate from high school?”
I said “…Yeah Mom, I did… and then I went to college… and then to law school… and I became a lawyer.”
She said “Really…a lawwwyyyyer?”
I said “Yes…and I am so sorry I haven’t been to see you lately but I’ve been in trial and I couldn’t get here”…
She said “Oh no dear…you’re in trial… you have to work hard.”
Just then my Dad kind of rolled toward me and said “JAN?”
I replied “Hi Dad – It’s me”
He waited a couple of seconds before he said – “Aren’t you a little old to be in bed with your parents?”
: ) (ok maybe)
I stayed for a little while and finally said I had to go. As I went to leave after our “I love yous”…
Mom said in her quiet sleepy voice…”Kill ‘em dear…”
Dad said in his gruff lawyer voice…”Eat em up!”
I don’t remember the case. I don’t remember if I won or lost. I remember this moment.
Jack Kornfield says that in the end only three things will matter:
How well we have lived.
How well we have loved
And how well we have learned to let go.
Janice Kim, Honolulu, HI
I think a lot about whether I try or settle too many cases. I worry that I am sometimes settling cases because of fear, and not because of the true value of a case or that the client cannot wait any longer for a decision. A.P., Edmonds, WA
At worst it’s way better than a trial skills CLE. D.S. Spokane, WA
Very few lawyers feel comfortable about losing. And thus the urban myth that good trial lawyers always win continues. I would love to see a conference devoted only to lessons we learned by losing. D.S. Marina Del Ray, CA
But when I know that even the best trial attorneys can get an unsatisfactory result, it gives me the courage to be a trial lawyer who tries cases, even the hard ones. And in the end—like Tom Chambers wrote to you—that means a better result in more of our cases, even the ones that settle. G.M., Seattle, WA
Everyone must walk through their ring of fire. S.W. Lafayette, LA
[A]fter deliberating for two days the jury returned a defense verdict yesterday. I had the feeling that Rick described and it was even worse after listening to the jurors justify their verdict. Their comments did not make sense to me. Interestingly one of the jurors could remember my attire but yet his recollection of the evidence in the case was flat wrong.
I came back to the office and that sick feeling did not go away, I had to leave for the afternoon. And today I tried to convince myself it was a new day and I would put it behind me. Here I am this morning trying my best to get things done and yet I still have those feelings (anger, second guessing, confusion, sick stomach, actual pain all through my neck and shoulders that I did not have yesterday before the verdict). … no matter how good it may feel to win from the defense table, I can’t see myself doing that again. J.S. Seattle, WA
I am still haunted about my first personal injury defense verdict, which was over 25 years ago, and the emotions and insecurities you and Rick talked about rang true for me. S.T. Bellevue, WA
It takes guts, and a little insanity, to climb into the ring each time knowing that you are going to have to take some punches in order to have the chance to achieve justice. Sometimes justice is the bigger picture. S.H. Bellevue, WA
If you are truly out there battling for justice, you have high and lows and take some on the chin more than you'd like, but you pick yourself up, and you straighten your back and get back in the battle. S.F. Los Angeles, CA
The clients from the cases I’ve lost, all hang out in a room in my mind called the ‘Kick-me’ room. I go there when I screw something up and let them berate me until I get my fill of self-flagellation. Then I close the door and try to forget… S.S. Issaquah, WA
When I first started as a trial attorney, I had the false assumption that everyone won every case because if I went from what I heard and read that would be accurate as we have a tendency to only report our wins rather than losses. When I had my first loss, I was crushed. I thought trial lawyers don't lose "what did I do wrong?" I spent nearly a week holed up in my office trying to pinpoint what I could have done differently. I questioned my being a lawyer and thought about changing careers. Thankfully, I had a good mentor who set me straight. Now the losses still sting but I think I have a greater appreciation for the wins. K.K. Olympia, WA
I guess it’s human nature to try to hide the warts, so why should I expect anything different from us. P.M. Macon, GA
I know no salve to make the sting of an injustice go away other than time and the next trial. L.K. Bellevue, WA
I turned down $500K a month ago after closing argument in a Nursing Home case and received a defense verdict. The Judge and Defense counsel were confident that we were headed for a big compensatory and then punitive verdict – hence the offer. I should have used their fear to negotiate a good settlement.
I got carried away with how well everyone thought my case was going. Lesson learned.
Everyone loses – no matter how talented – no matter how effective. Every Plaintiff's trial lawyer in the world since the beginning of jurisprudence loses.
It is a numbers game. You try enough good cases and you will eventually get a number of great verdicts – and you will also lose.
No one can win every case. B.D. Beachwood, OH
As an ex-motorcycle racer, I have to add one to the mix that crosses well and has always stuck in my mind:
If you've never crashed, you've never really raced. An occasional crash is the only true test to know you were pushing the limit and taking the chances needed to get the big win. If you can win without ever crashing, its time to find tougher competition. M.A. Spokane, WA