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What Losing at Trial Says about You as a Lawyer

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“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.”

By Steve Young.

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 three thoughts I have on winning and losing that are important to keep in mind if you are going to be a trial lawyer.

It's not about you

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.

The facts

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.

Measuring wins and losses

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 the 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.

teve Young is a trial lawyer in Costa Mesa, CA, and a blogger at Young on Trials. He has conducted almost 200 civil jury trials during 34 years as a lawyer. His firm specializes in “last minute trials.” He handles handle trials in all areas including complex business and real estate, labor and employment, personal injury, and fraud.

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