LOSING: NOT THE NEXT BEST THING TO WINNING
December 28, 2010 § 1 Comment
This from Philip Thomas’s excellent blog Mississippi Litigation Review & Commentary. If these thoughts do not resonate with with your experience as a litigator, you might consider some tamer undertaking …
Posted on March 3, 2010 by Philip Thomas
You heard me. Losing a trial sucks. On multiple levels. Sorry if you don’t like my vocabulary.
Even worse, a win does not even out a loss. Tennis great Andre Agassi described it as well as anyone that I’ve heard even though he was talking about tennis and not trials:
Now that I’ve won a slam, I know something that very few people on earth are permitted to know. A win doesn’t feel as good as a loss feels bad, and the good feeling doesn’t last as long as the bad. Not even close.
Shortly after I started my first job as a lawyer I heard veteran trial lawyer Natie Caraway say basically the same thing. It took personal experience winning and losing trials to understand it.
For me a loss on appeal does not feel bad as a loss at a trial. And the loss of a bench trial does not feel as bad as the loss of a jury trial. The loss of a jury trial feels the worst because you hang it all on the line for twelve people who you don’t know and you are shattered when you find out that you could not convince them. And if you believe in your clients case–and most lawyers do–you think that the jury got it wrong. That makes it worse.
I have no answer for the best way to deal with a loss. But I agree with Chicago lawyer John Tucker on this point:
Courtroom lawyers and people who play sports are engaged in an endeavor where there is a winner and loser of every contest, and no matter how good they are, sometimes they lose.In fact, in both endeavors it is often true that the better they are the harder their contests and the more often they will lose. You don’t have to like it-in fact, you had better not-but you won’t last long if you don’t learn to get over it, or at least put it far enough behind you to go on to the next case.
Some lawyers lose a big trial and never recover. They are habitually afraid to re-enter the courtroom for fear of losing again. The best lawyers get over it and seek the adrenalin rush of going back in and putting it all on the line again.