Johnson / Jensen LLP

Johnson / Jensen LLP

Posted on February 25, 2014

On Losing a Trial

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Posted on February 25, 2014 by

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I recently lost a trial. Like every other lawyer going through this experience, my iPad somehow found its way late at night to a variety of blogs on the topic, and books I have owned for years jumped off the shelves and fell open to sections like this one by Rick Friedman (a member of the highest echelon of Trial Lawyers):

I hate losing as much as the next person. Nothing is quite like putting your heart, soul, and mind into a trial and then having a jury reject it all. I go to great lengths to avoid losing. There is a difference, however, between going to great lengths to avoid losing and going to great lengths to avoid the risk of losing. 

In our risk-averse society, most people—including lawyers—want a no-risk, predictable case, career, marriage, child, life, society, you name it. In this culture, the risk of going to trial and possibly losing is for many people terrifying and simply unacceptable.

It was not always so. In the not so distant past, even general practitioners could count on having one or two trials a year. “Litigators” could count on more than that. With that many trials going on, a lawyer could count on losing a trial from time to time.

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This was not regarded as a bad thing—either personally or professionally. Life—and the law—could be expected to deliver some hard knocks. But much could be learned and even accomplished through losing. Remember To Kill a Mocking bird? Remember the Alamo? Some of Clarence Darrow’s most eloquent and lasting closing arguments were in cases he lost.

We often learn more from our losses than our victories. They force us to examine our assumptions, decisions, and conduct more closely. That is a good thing. Put yourself under a microscope. Reexamine all of your assumptions about the case. Reevaluate your decisions. Then remember, just as you are never the sole cause of victory, you are almost never the sole cause of defeat.

Your client had someone who believed in her and fought hard for her. Some people never get that from anyone in their life. Some of my most grateful clients have been those whose trials were lost, despite our intense efforts.

You are stronger and smarter for having done the trial you lost. Your future clients will benefit.

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Losing is always hard. There is no way around it. However, I have personally observed these three important truths that Friedman also points out:

  1. If you try cases, you are going to lose some.
  2. My ongoing relationships with clients after a loss are as strong as—and in many ways even stronger than—my relationships with clients after victories.
  3. I truly learn more from losses than victories.

One of the most significant lessons I have learned (and will discuss in my next post) is how differently juries will process cases compared to the lawyers trying them. And the opinions of juries are what matters. So what does a good lawyer do about that? They conduct jury research.

Check back for Bob and Travis’ post on conducting jury research!