Did you watch the Olympics? I love the medal ceremony, but my focus is not on those athletes who win the gold. I watch the runners-up, those decked in silver and bronze.
Athletes lose; so do lawyers. How should we handle losing? What does it teach us? I have tried a lot of cases, and I have lost some. Here is what I learned.
Lesson No. 1: "All experiences are good ones as long as you draw the right lessons from them. Otherwise, they are just something that happened to you." My mother taught me this. Self-examination is painful but necessary for growth.
After every case, win or lose, I do a personal after-action report (a term borrowed from the military). What did I do right? What could I have done differently? It's important to be honest. Sometimes, the truth is that, even if I had done things differently, the result would have been the same.
Clients also like such after-action reports in terms of improving their organizations -- not to cast blame but to figure out what they did right and how to do more of it, and what did not go so well and how to avoid it in the future. The Japanese word kaizen roughly translates as "incremental improvement." Lawyers should apply it to their practices.
Lesson No. 2: Acknowledge the role of chance and circumstance. There are times that, even if lawyers had acted differently, they still would have lost. That's because a lot of what happens is out of their control.
After engaging in the sometimes painful exercise of doing an after-action report, lawyers should give themselves a break and embrace the reality that, despite their best efforts, they are at the mercy of events.
I was defending a suit in which the plaintiff was claiming negligent misrepresentation in hiring. In closing arguments, the lawyer for the plaintiff rustled his papers. I kept speaking; he kept rustling. A woman on the jury gave him a severe look, not once but several times -- a really severe look. I know he was not doing it on purpose. It was, I believe, a nervous habit.
But the displeased juror ended up as the forewoman and apparently did not see the rustling the same way: As the jury returned with its verdict, I glanced at her, and she slyly nodded her head toward me, like a first-base coach signaling a steal. Did the rustling matter? Perhaps it did.
Lesson No. 3: Accept the hard truth about losing. Atul Gawande is a famous surgeon. In "The Malpractice Mess," a November 2005 article in The New Yorker, he lays bare a painful truth: Doctors learn through trial and error, sometimes with unfortunate consequences. The same is true of the legal profession. It's not that MDs or JDs are committing malpractice. Rather, surgeons or lawyers with 30 years of hard-earned experience know more than those with 10 years of experience. And how do they gain that experience?