Friday, June 20, 2014

Three Comments About "Losing" a Trial

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Today I lost at trial. While it bothers me, losing does not decimate me like it used to. I know I will win and that I will lose as long as I am trying cases; it is the way of the trial. There are several thoughts I have on winning and losing that are important to keep in mind if you are going to be a trial lawyer.

First: a trial is not a personal validation or invalidation of you as a person, or even you as an attorney. I feel that many attorneys don’t go to trial because they cannot bear the risk that a jury will find them "inadequate." There is an inherent fear that many attorneys have that prevents them from stepping into trial. This fear is a natural offshoot of the evolutionary selection that people go through to become attorneys.  To become an attorney you must live a life of exceeding others. You did not make college without excelling in high school. You did not make law school without excelling in college and on the LSAT. Many of your first year classmates found law school was not for them, and either flunked out or quit. You could not have graduated without excelling. You passed the bar. How many of your classmates did not? Throughout life people who become attorneys constantly heard how good they were, or received recognition for their abilities, or were validated for being "better." But at trial, at least half of the attorneys will learn that they are not good enough when the judge or jury rules in favor of their adversary. I believe many attorneys never go to trial because they cannot bear the prospect of being told, "You lost at trial. You are not good enough." A hint: IT’S NOT ABOUT YOU! If you spend your time worrying that the jury will rule against you, you will never try a case. Fear will grasp your heart and you will never enter the killing pit we call a courtroom. Set those feelings aside: you are good enough. Now get your butt into trial.

Second: the attorney does not make the facts. He or she was not there. Your client brought this steaming brown pile of facts to you and dropped it on your desk. No matter how you mold them and shape them and paint them in bright colors, the facts are the facts. Sometimes a client you represent is just wrong and will lose, no matter how good you are.

Third: your win/loss record is not a measure of whether you are a good trial attorney. Attorneys brag all the time that they have never lost a trial. Jacob Stein, the great Washington, D.C. trial lawyer said, "Show me a lawyer who has never lost a case and I will show you someone who either tried only one case, or is a liar." In truth, better lawyers’ clients lose trials to worse lawyers’ clients all the time (see Second point above). So how do we measure who wins and loses at trial? I contend my client can lose at trial (because of the facts) and I can be the winner at trial. If I try an unwinnable case (and I frequently have) and I get all of my evidence in, and my opponent cannot get all of his evidence in, if I make a better argument, etc., I win the trial, even though my client loses. My "win" in that case has several great benefits: I have had judges refer their friend’s cases to me after I lost in the judge’s department. Former jurors on a case I lost have come to me as clients. Opponents who prevailed against me have later come to me when their next case surfaced because they recognized who the better attorney was. Don’t think the loss is a loss. It is a learning experience and can produce great benefits, including future cash flow.

Announcing a change:
Please enjoy this post, then checkout my new location  Thank you, Steve


  1. Steve, great article. One comment: You take many cases for clients/lawyers within the weeks/days before a trial starts. Much of what you can introduce at trial has already been determined by the activity (or inactivity!) of your predecessor. For this reason, many of us will not take cases so late in the game. I'd be curious to know how often you find that your outcomes are affected by what has been done in discovery, law and motion, etc., before you receive the file.

    1. I don't find that to be true. What I have learned in almost 20 years of last minute trials is that most discovery is irrelevant to trial. I have read an interrogatory answer to a jury only once in the last 10 years. I am to the point that the only time a deposition is useful is to help me learn the client's story and to help me learn the defendant's version of reality.
      I'm to the point where accumulating documents is the best use of discovery. Give me the documents and the client's story and I am ready.
      The exception to this is where the case has no possibility of a win. Those cases are where deemed admissions prevent me from putting on the case, or discovery sanctions tie my hands. Otherwise, it's game on.

  2. "The exception to this is where the case has no possibility of a win. Those cases are where deemed admissions prevent me from putting on the case.." Precisely the reason I use RFA's extensively in my practice.

  3. Three Simple Truths about Lawyers and Teachers
    by Kim Davis
    Inspiration and teachable moments can come from the most unexpected places. For me, it was from this blogger. It is most unexpected, because I am a middle school teacher in North Carolina.
    You see, just a few weeks earlier, I received the end of grade testing results of my students. I was disappointed, thrilled, and sad. Those are normal responses by the way. We cannot turn on the TV, read a post or view a tweet that doesn't have something to say about education in our country. But, I am sticking to this profession.
    Back to Mr. Young’s blog. Young makes compelling arguments on how to deal with losing trials and he never realized how much these 3 points parallel the lives of teachers and end of grade testing results. Thus, my teachable moment.
    1. It’s not about you. Young states, “a trial is not a personal validation or invalidation of you as a person, or even you as an attorney.” And I would agree, that end of grade testing results are indeed NOT a personal validation or invalidation of us as teachers. Fear is mentioned, an emotion that teachers know better than teenagers know sneakers. We fear different things; we fear that we will fail our students. He reminds the lawyers that you made it through trials of your own. Teachers have made it through many trials too. Student teaching, first day of school, our first or worst parent conference, first set of end of grade testing results. But, we made it and it is not about me, or you. It is always about the kids. End of grade test results often cause teachers to focus on themselves, and ask questions like, “What did I do wrong?” What should I have done differently?” and my guess is on the losing legal team, they ask those same questions. Young is precise in his statement, it’s not about you, teachers. Things are out of our control, which leads to his next point.
    2. The Facts. Young states, “the attorney does not make the facts.” He, of course, is referring to the facts of a case, what you have and do not have in regards to evidence and witnesses. And teachers do not make the facts. Teachers cannot control mitigating factors, like what a child has or does not have for breakfast, the bus ride, the emotional disconnect, or trauma endured outside of the classroom. They are just facts. No matter how much we love them, work with them, encourage them, the facts are… the facts. Teachers, you know what I mean.
    3. Measuring your Wins and Losses. In his 3rd and most difficult point to swallow, “your win/loss record is not a measure of whether you are a good trial attorney.” As teachers, we are ultimately measured by end of grade testing results. And, most teachers do in some part of their teacher persona, measure wins by those test scores. It’s okay to do that. One test. One day. Measures whether I am an effective or ineffective teacher. No. You see, teachers cannot measure wins and losses by test scores exclusively. We have to measure wins in the lesson the kids won’t stop talking about, or the Socratic seminar that continues at the lunch table long after the teacher has left, or the note you receive, “you made me believe I could do math.” The wins also come from parents who say incredibly kind words to us at unexpected times, or a student who you taught years ago, tells you how much he loved your class. Those are our wins. No test score, principal, or parent can measure our ability to change the lives of our young people. Losses, if you are a teacher or a trial lawyer, you have had them. But for me, those losses drive me to make changes. No one is perfect. I have certainly had a smoldering mess from a lesson that goes terribly wrong. I have gotten frustrated over students who want to give up or make poor choices with friends. But I will go on to the next lesson, and I will continue to teach because it is not about me.