There’s plenty of advice around from lawyers more successful than I am about how to win cases, but very little advice about how to not let losing a trial make you a loser. Recently I found myself licking my wounds back in my office having lost a trial I thought was winnable. My friend, Donald Howe, called to ask how my trial went and I told him the sad news. He told me a story, as the Howes are wont to do, that after he’d gotten his feet wet a time or two in the courtroom, he asked his father, renowned trial lawyer, Gedney M, Howe, Sr., “Pops, when will I be able to call myself a trial lawyer?” Big G thought on it for a minute before replying, “Son, when you’ve taken a case you feel pretty good about to trial, and your opening statement flows off your tongue, and all your witnesses hold up for you, and you tear the defense witnesses up on cross examination. When the judge and the defense lawyer are telling you what a great job you’re doing before the jury comes back and rules against you …” he paused, “When that’s happened about 7 or 8 times, then you can start calling yourself a trial lawyer.”
My father wasn’t a lawyer, far as I know nobody in my family had ever been a lawyer before me. Still, I can’t remember ever wanting to be anything but a lawyer, a trial lawyer. I read books about lawyers, watched t.v. shows and movies about lawyers, and, when I got older, I went down to the courthouse in my hometown and watched real lawyers trying cases. I know I had grandiose visions of someday being like Atticus Finch, handling headline murder cases, or Melvin Belli, the King of Torts, winning million dollar verdicts. Wouldn’t it be nice if that was what being a trial lawyer really was? It’s not. Being a trial lawyer is not fiction, Hollywood, or easy street. In the real world it’s often like training to be a martial arts fighter able to break boards with a your bare hands. You first need to develop a thick skin.
Somehow I scraped through law school and became an associate in Senator Isadore E. Lourie’s law firm in Columbia, South Carolina. In those days a summons, complaint not served, was filed whenever a new client signed up with the firm. The filing started the docket clock ticking, but later, when the facts didn’t pan out and no easy settlement was on the horizon, the file would be passed down to the youngest associate for trial. Talk about a baptism by fire!
I think I was 0 and 15 for my first trials. It was downright depressing and caused me to question whether I’d chosen the right profession. When I spoke of my concern with my good friend, Professor Phillip T. Lacy, he let me in on a secret I’ll share with you. “Being a trial lawyer is like playing baseball. There’s 165 games in a season and, if you’re batting .350, you’re a star.”
Fortunately, my slump ended. Oh, I’ve struck out many times since then, but I’ve also gotten a lot of hits, a few home runs, and I’ve even stolen a base or two along the way. If not always for big money or notariety, often enough for the satisfaction of justice served. Here I am 40 years later in my career, still standing in the batter’s box, choking up on the bat, and staring down the pitcher believing I can knock the next pitch out the park. I am glad I stuck with it. Proud after all these years to finally be able to think of myself as a trial lawyer.
The best advice I can offer to anyone masochistic enough to aspire to be a trial lawyer is never let not winning make you a loser. Do not allow fear of losing keep you from bringing a deserving case to trial or cause you to accept an unfair settlement.
Letting go of the inflated notion your trial skills will make the difference in every case helps when you lose a trial. Francis L. Wellman, in Success in Court, 279 (The Macmillan Company 1941), reminds us, “[t]here are always two sides to every lawsuit and a lawyer on each side. Only one of these lawyers will win and it will not always be the more skillful.” In the majority of cases the simple truth is your skills as a trail lawyer are probably far less important than you think. Harry Kalven, Jr. & Hans Zeisel, in The American Jury, 351 (Little, Brown & Co. 1966), conducted the most extensive research project ever attempted on juries and concluded that only in a small percentage of close cases did the quality of the lawyer’s performance change the result. Statistically he concluded counsel’s abilities had only a 1% impact on the end result. And, here’s the real kicker, they found in reality 90% of cases win or lose themselves. For those of you who subscribe to Vince Lombardi’s famous saying, “winning isn’t everything, it’s the only thing,” you should remember what Edward Bennett Williams, a famous lawyer in his own right, said after he hired Lombardi to coach the Washington Redskins. “If you turn over any given football team to the best coach in America, he may win two more games than the most incompetent coach would with the same material. Likewise, if you take a hundred criminal cases and assume that fifty of them should be won on the merits and fifty should be lost, and then turn them over to the most able and experienced advocate in America, he will probably win sixty and lose forty. Turn the same cases over to the most incompetent trial man and he will win forty and lose sixty. The concept of a great trial lawyer who always wins has no foundation in reality.”
If that doesn’t convince you you’re not a loser if you don’t win every case, consider Albert A. Workman, in Lawyer Lincoln, 246 (Carroll & Graff Publishers, 1936), researched the court records and found, of the 82 jury cases legendary trial lawyer Abraham Lincoln tried for which records exist, he only won 43. In the real world of being a trial lawyer always remember no matter how good a case you think you have, no matter how good a lawyer you think you are, if you take a case to a jury you never know what they will do. That’s the reality of the profession you have chosen.
They call it practicing law for a reason. Questioning yourself, hard as it may be sometimes, can be a necessary and good thing. Should I have seen this loss coming? What could I have done differently to have prevented it? Should I have recommended a settlement more forcibly? Should I have taken the case in the first place? These are all questions you should ask yourself after every case. The cases you win and those you don’t. Instead of doubting your trial skills, you should view every adverse verdict as an opportunity to honestly review your strategies and techniques and modify them, so you can do better the next case.
It also helps if you value the attributes of good trial lawyers that matter most. It turns out winning all your cases is way down the list. Clarance Darrow, who not only lost the famous monkey trial but many other high profile cases of his day, is remembered not for his courtroom victories but for his devotion, passion, and courage in the courtroom for the causes he believed in. A Missouri Bar Prentice-Hall Survey: A Motivational Study of Public Attitudes and Law Office Management, 67(The Missouri Bar 1963), found that, while lawyers tend to believe winning is extremely important to clients, clients listed “results” as a cause of dissatisfaction only 2% of the time. The survey found clients value honesty, compassion, perserverance, hard work, and courage far more than your win/loss ratio.
It also helps to learn humility. It will serve you well. Believing you have to win all your cases, at all costs, leads to an inflated ego, arrogance, lack of civility, and ethical breaches all of which are the kiss of death in a courtroom. It also helps to learn forgiveness. You can start by forgiving yourself. You have enough stress with the judge, opposing counsel, and your clients chewing on you all the time, you don’t need to add to the stress by beating up on yourself. Not winning doesn’t mean you’re a bad lawyer, it just means you’re a trial lawyer. And it also helps to learn compassion for the far more real losses your clients suffer. Compassion starts with putting your own ego aside and listening. Talk to your clients, jurors, and other lawyers after the trial and listen to what they have to say. It will surprise you and open your eyes, just don’t forget to bring that thick skin we talked about earlier.
But most of all it helps to have fun practicing law. Know as bad as losing a case feels, there is no better feeling than winning a tough, hard-fought case. You could have chosen to be an accountant and found only a modicum of pleasure balancing the books at the end of each month. But you chose to be a trial lawyer, it’s an up and down roller coaster ride worth the trip. At first I tried cases with older, more experienced lawyers who taught me. Later I tried cases with partners and friends and we taught each other. Today I try cases with young associates or young lawyers who are themselves eager to learn. Each lawyer I have ever tried a case with has had stories to tell that I enjoyed listening to throughout my years of practice. I have always found the camaraderie of judges and fellow trial lawyers, plaintiff and defense lawyers alike, to be the best part of practicing law.
All trial lawyers in their heart of hearts are story tellers. Take care crafting your story. Like all good stories it should be honest and from the heart. Make it a story you are proud to share on those nights when you celebrate at the local watering hole before the jury verdict comes in. Make it a story of courage. Of not letting fear of not winning make you a loser. Too few lawyers talk about the cases they didn’t win like not winning is something to be ashamed of. It’s part and parcel of being a trial lawyer. I say roll up your sleeves and show your battle scars proudly.
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